The Reign of Law: Marbury v. Madison and the Construction of America 9780300147766

Citation preview

The Reign of Law

This page intentionally left blank

The Reign of Law Marbury v. Madison and the Construction of America

Paul W. Kahn

Yale University Press New Haven and London

Copyright © 1997 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers.

Library of Congress Control Number: 2002101074 ISBN 13: 978-0-300-08392-7 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

To my parents, Samuel and Elizabeth Kahn

This page intentionally left blank

Contents

Preface

ix

Introduction: In America the Law Is King

1

Part I: Studying the Rule of Law 1 Marbury and the Historical Origins of the American Legal Imagination

9

2 An Archaeological Approach to Law

18

Part II: The Temporality of Law 3 Political Time: Law and Revolution

49

4 Locating the Self in Political Time

75

viii

Contents

Part III: The Rhetoric of the Judicial Opinion

5 The Rule of Law and the Suppression of the Subject

103

6 The Strategies of Law

134

Part IV: Law and Representation 7 The Representative Character of Law s Appearance

177

8 Representing the Opinion of the People

206

Conclusion: Power and Knowledge in the Rule of Law

230

Appendix: Marbury v. Madison

241

Notes

259

Index

299

Preface

Law schools today have a split personality. Most academics operate just as they always have: commenting on legal developments and suggesting modest reforms of doctrine. Side by side with these traditional scholars, however, are a growing number of thinkers who have no patience for, and little interest in, legal doctrine. They believe that the study of law is best pursued by the application of the techniques and methods of disciplines outside the law—especially economics. To get to the truth of law, they argue, we must move beyond law. The work of the first group is reminiscent of the study of religion in the nineteenth century. At that time, religious study was a form of religious practice. Scholars accepted religious beliefs and values as the foundation of their own work. Scholarly work might explain or clarify religious ideas; it might try to show that the beliefs were correct—for example, by showing that Christian beliefs could be supported by reason alone. Scholars also elaborated the distinction between heretical and orthodox beliefs. But they had no critical distance from the beliefs they studied. No one asked what it meant to be a member of a community that held such beliefs.

ix

x

Preface

Much legal scholarship fits this pattern. Law professors are squarely within the order of law that is their object of study. They present themselves as expert lawyers in their fields of expertise. They expect to continue to practice, believing that their scholarly work uniquely qualifies them to do so. Similarly, in the nineteenth century, the theologian was likely to be a minister. Law schools produce the elites who will occupy and maintain the political institutions of our society. The law professors job is to train the next generation of lawyers, just as the nineteenth-century religious scholar trained future ministers. Law professors themselves easily move into the paradigmatic position of legal authority: the judgeship. Although only a small number actually become judges, many more write and speak as if they were talking to their colleagues on the bench. Membership on the bench extends deep into the imagination of the law professor, regardless of whether he or she is "still" in the classroom. In spite of this symbiosis of scholarship and practice, the most innovative forms of legal scholarship today reject the terms of legal doctrine and the forms of legal argument. The new scholars seek to pierce the false appearances that the law creates, regarding traditional, doctrinal scholarship as either naive or an expression of suspect ideological commitments. For these scholars, training to study law requires not so much experience and practice within the profession as study in other scholarly disciplines. These scholars are not at home in the law. Indeed, they are often not even lawyers. Their scholarship may be inaccessible to the members of the profession, requiring, for example, advanced training in economics. If their doctrinal colleagues are the legal counterpart of nineteenth-century theologians, then the new scholars are reminiscent of those who used the emergence of the social sciences a hundred years ago to proclaim the death of God. The issue for the anti-theologians was to account for the causes of the false beliefs of religion. They explained such beliefs by appealing to the new sciences of psychoanalysis, anthropology, or economics. Similarly, contemporary legal scholarship may explore the causes of particular laws and of the belief in the rule of law generally. The study of law and economics, for example, looks to the economic interests behind regulations. Understanding these interests will allow us to rewrite the law in order to rationalize our experience. Similarly, critical legal studies seeks to uncover the ideological and political interests that are advanced by the belief in laws neutrality or in the objectivity of judges. Once we understand what is behind these beliefs, we can pursue reforms that maximize our true interests. Between the uncritical acceptance of legal doctrine on the one hand, and its rejection on the other, legal scholarship avoids what should be at the center of the study of law: a critical examination of the rule of law as an expression of

Preface

our political culture. Scholars too quickly ask what the laws should be, without first asking what it means to believe in the rule of law. Before it is a set of particular rules, the rule of law is a set of beliefs about the shape and character of the community in which we live. Legal scholars fail to ask how belief in laws rule gives structure and meaning to citizenship within this polity. This inquiry requires more than the uncritical approach of traditional scholarship, but also more than the quick passage beyond law that characterizes much contemporary scholarship. It must stay within legal beliefs, not because they are true but because they shape a world of meaning. Life under the rule of law is a way of imagining history, the state, and the self—their changes and continuities. The rule of law may be our deepest political myth. It is the foundation of our beliefs about our community as a single people with a unique history, as well as our view of our individual obligations to the state. My aim in this work is to describe the elements of this myth and investigate how the rhetoric of law sustains it.

No one likes to hear that their deepest beliefs are myth. That I have been encouraged to develop these ideas about law as a member of a professional school speaks to the extraordinary character of the Yale Law School. I owe much to this institution, which has always supported my work with enthusiasm. I would like to thank, in particular, my colleagues Owen Fiss and Bruce Ackerman for their endless disagreements with my work. Also deserving special thanks are Anthony Kronman, Jed Rubenfeld, David Luban, Larry Lesig, Catherine lino, and Robert Ferguson. Dan Rapport, Yuanchung Lee, Samuel Zucker, and Robert Jackman provided valuable research assistance. I am grateful to Susan Laity for her excellent copyediting. As usual, Barbara Mianzo kept the whole process moving and well organized.

xi

This page intentionally left blank

Introduction: In America the Law Is King

Alexis de Tocqueville, one of the earliest and most insightful observers of American political culture, described the judicial bench and bar as the American aristocracy. Although many of the early European immigrants came to the colonies for religious reasons, by the time of the Revolution, lawyers had displaced ministers as the political and social leaders of the new nation. Like no people before them, Americans turned to secular law to ground their political community and to establish their own identity.l Law is a broad term, but the Founders' generation had a very particular idea of law in mind. The central cultural artifacts of the new nation were constitutions, which the Founders saw as the products of their own deliberative efforts. They understood constitutional authority to derive from a process of ratification. Neither the tradition of the common law nor that of natural law filled the American legal imagination. Americans thought that they had created their political identity in a positive act of law making. Regardless of whether this was an accurate representation of laws origin or of the nature of its operation in the society, it was and remains the idea of the rule of law that informs American political self-consciousness.

1

2

Introduction

For more than two hundred years, the American political imagination has remained closely tied to law. Lawyers remain our elite; training in law is the only training we offer for political leadership. We in America take for granted that most of our leaders are lawyers, that government works through the legal process, and that courts are the ultimate arbitrators of disputes. We continue to believe that ours is a government of law and that through law the people rule. Faith in the rule of law is not the conclusion of a course of reasoning but rather the starting point from which we approach the particular problems that arise within the political order. Despite the fundamental character of this belief—or perhaps because of it—the rule of law has remained an elusive object of theory. Law is often discussed as if it were an object or set of objects in the world, which we can describe independent of the citizens' attitudes toward law. Jurisprudential inquiries into law begin with the question of what makes a particular rule or decision a matter of law. How can we be sure that we are following a legal rule and not some other land of proposition—for example, one of morality or, even worse, one that makes a false claim to legality? Do judges, in particular, rule as individual men and women acting under the name of law, or does the law itself decide hard cases? But we shall never understand the meaning of the rule of law in American political life if we look only at particular laws and particular decisions. The rule of law is a set of beliefs about who we are in our common political life. These beliefs exist prior to and independent of any particular rule or decision. Although individual expressions of law help maintain these beliefs, a complete account of the constitutional provisions, statutes, regulations, and judicial decisions operative at any moment would hardly touch the content of our belief in the rule of law. We can understand the rule of law only through an interrogation of our own beliefs about political identity. An inquiry into the rule of law does not differ in land from an investigation of the structure of religious belief or, for that matter, of scientific belief. In each instance, we seek to understand an entire system of thought, a way of structuring experience and understanding the world. Such an inquiry approaches law s rule as an expression of our political culture. It is not an abstract inquiry into the character of law as an ideal order that can be established in any state through the proper drafting of a legal code. It is an examination of the way the imagination shapes political meaning in the American polity. How does belief in the rule of law structure the apprehension of political time and space, give meaning to events, and create political authority in various institutions and individuals? As a fundamental belief, the rule of law has more in common with myth

Introduction

than with logic. This myth of law is composed of an aggregation of ideas, values, and symbols linked by historical circumstance. The sources of our belief in the rule of law extend from Moses to Hobbes, from Christ to modern revolutions, and from the medieval sovereign to the sovereign people. To understand how the rule of law works as a practice of political meaning, we must abandon an abstract model of reason. We must examine traditions concerning the relations between law and sovereignty, the sovereign and the sacred, history and the atemporal, transubstantiation and representation, and text and interpretation. Over time we have given new content to many of these terms—we have, for example, substituted the sovereignty of the people for that of the king, and revolution for revelation—but the imaginative structure of laws rule emerges from and still rests upon these longer traditions. The rule of law occupies the political imagination long before the project of offering a reasoned justification of law begins. When such systemic concerns appear in jurisprudence, they are usually based upon an assumption that law is, or must become, a system of reason. The rule of law is assumed to be the putting into practice of an ideal of governance under rules that meet conditions of publicity, generality, coherence, and nonretroactivity.2 But the rule of law is not a system of governance designed by a rational agent deploying a single, coherent model. Laws rule is a particular shape given to a community s temporality, to its collective identity as a single subject of history, and to the relationship between the individual citizen and the transtemporal subject that is the people. To explore the rule of law is to explore the consciousness of the political community as a single historical subject, which is set forth and maintained in paradigmatic expressions of law. The turn to history cannot, therefore, be a turn to forces that operate in time but outside individual belief. Historical explanations that understand law as an epiphenomenon produced by an underlying, nonconscious force—for example, economic power or class interests—have the same relation to the actual rule of law that abstract models of the conditions of lawfulness do. Neither captures the rule of law as it operates in that middle range where experience makes a meaningful claim upon the individual. This middle range is that of the imagination. The imagination constructs the past and the future of the polity; at the same time, it constructs the political identity of the citizen. In the political imagination of citizens of the United States, the rule of law echoes with the memory of revolution and civil war, of a continuity between ourselves and the Founders, of a struggle for equality as much as a history of inequality, and of an institutional history of judicial supremacy. No theory of jurisprudence captures the linkage in the American

3

4

Introduction

mind of popular sovereignty and the rule of law. For us, the rule of law represents the sovereign people. Yet our leading contemporary philosopher of law, Ronald Dworkin, writes of laws empire with no mention of the people at all. An exploration of the rule of law must, therefore, be historical without becoming merely an examination of diverse historical events. It must be genera, without being abstract. It must expose the world of meaning that is made manifest in the legal event. It must ask what are the conditions of thought and imagination that make the event possible as an instance of laws rule. It must work from the particular event to the general structure of law, as well as back from that structure to the event. I take up this task with respect to what is generally acknowledged to be one of the greatest legal events of our history: the 1803 Supreme Court decision in Marbury v. Madison. In Marbury (the complete text of which is in the appendix to this book), the Supreme Court stated as a fact what was at best an aspiration: ours is a government of law, not men. The Court made this announcement in the midst of a political battle over the meaning of the American Revolution. Thomas Jefferson defeated the Federalists at the polls in 1800 and proclaimed his victory the Second American Revolution. To the claim of laws rule, Jefferson responded with a vision of permanent revolution. For him, law threatened to cut off the revolutionary inheritance. The courts, he believed, would return us to that political order against which the Revolution had been fought. Today, Marbury is a canonical text of constitutional law. The study of constitutional law not only begins with this case, it ends there as well. For Marbury includes in the rule of law the power of judicial review—that is, the power of the courts to declare actions by the other branches of government unconstitutional. Why courts should have this ultimate power of review in a democratic order remains the largest and most difficult issue of constitutional law. Thus, no course in constitutional law ever gets beyond Marbury. Todays courts stand so deeply ensconced within Marbury's aspiration that they can hardly imagine a world outside law. They take for granted that the judicial voice is the voice of the people and the rule of law is the rule of the people. When they speak this way, only a few scholars are likely to object. Marbury's world has become a common world for most of us, most of the time. To return to Marbury is to see that things did not have to be this way. Mrbury shows us law s rule as a contingent political possibility. Laws rule is laws victory over competing understandings of politics. These competing understandings have not disappeared; they are never completely vanquished. The rule of law is a way of managing a conflict of political perceptions. In this

Introduction

sense, the rule of law is a work of fiction. It is not an object or set of objects in the world but a drama in which we are the actors, and the moral of the play is the life we lead. The rule of law may be a fiction, but it is not merely fictional. It is a form of power—one that works from within the subject rather than as an external limit upon an already present subject. To explore the rule of law is to examine a creation of our collective imagination. The product of all this imagining is not just our polity but ourselves as citizens. To understand the rule of law requires, then, more than a specification of the elements of legal belief. It requires an examination of the rule of law in its continuing struggle with alternative appearances of the political. We need to explore not only the shape of our belief in the rule of law but the strategies used to maintain these beliefs against competing appearances of political meaning. This will put the inquiry deeply within the world of the judicial opinion, for the courts identify themselves, wholly and completely, with the rule of law. The focus on courts—and, even more narrowly, on the public lawfunction of the courts—remains a limitation of this book. The legal imagination operates across all our political institutions. Within each of these institutions, the contest of meaning appears somewhat different, and the place of law within that contest is different. Nevertheless, because the courts have achieved a unique role in expressing the rule of law, they are the place to begin the account. The exploration of the rule of law from within the culture is the plotting of the contested territory of the political imagination. This is a contest among appearances, not facts; the battle proceeds through rhetorical strategies, not deductive arguments. Although this book is long, it is little more than a sketch of this contest among political appearances. I plot the major structures of the legal imagination—the time and space of law. I describe the voice of law as it expresses itself from the judicial branch, both what it has to say and how it says it. Finally, I describe the substantive claim of law: its claim to be rule by the people. I must leave many of the details of the structure of laws rule to future inquiries. No doubt a good deal that is true of the American belief in the rule of law is also true of other cultures. The American tradition is not independent of developments that preceded it. For example, we cannot understand the concept of sovereignty as it operates within the rule of law without examining both its religious roots and its association with a long political tradition of monarchy. Nor is the rule of law independent of developments that have occurred elsewhere in the past two hundred years. The idea of revolution as it appears to

S

6

Introduction

the legal imagination may have to do less with the facts of the American Revolution than with an idea of total revolution that draws its inspiration from the French Revolution. I do not claim that what I describe as the rule of law is true of everything called law everywhere and at all times. I have not pursued a comparative study here, but I hope that much of what I have to say will suggest fruitful lines of comparison for future study.

PARTI Studying the Rule of Law

This page intentionally left blank

I Marbury and the Historical Origins of the American Legal Imagination

"The government of the United States has been emphatically termed a government of laws, and not of men."1 So the Supreme Court declared in 1803, in one of the earliest and still the greatest of constitutional law cases: Marbury v. Madison. What was emphatically termed in 1803 is now an article of faith. Constitutional government means the rule of law. Theorists may worry about how to reconcile majority rule with the rule of law, but the popular imagination accepts both as fact. Rule by the people and the rule of law are equally fundamental, if not identical, propositions in the American conception of political order.2 Marbury was produced at the time of the first great political crisis of the new national order. Contrary to the hopes of the Founders, political parties had emerged by the time of the election of 1800. Jefferson's Republicans had defeated Adams and the Federalists. The change in administration in 1801 was not just a change of officeholders; it was the first time a new party took over both political branches of the government. The parties had not yet worked out the genteel regularity characteristic of modern politics and changs in admini-

9

10

The Rule of law

stration. There was no constraint on ideological polarization. The hard-fought election campaign went directly to the meaning of the new American political order. What was the accomplishment of the Founders? The crisis in political identity that occurred in and around the election of 1800 related not just to the emergence of parties but more broadly to the relation between the American constitutional order and revolutionary struggle. The meaning of the American revolutionary accomplishment was forced to the front of American political consciousness by revolution in Europe. What was to be the American response to the French Revolution and the revolutions spreading through Europe? Should the new nation recognize its own revolutionary heritage or stand with the stability of legal order? Law and revolution confronted each other in an effort to understand both the internal narrative of American political identity and the new nation s relation to the old world. Political parties, revolution, and law provided the panoply of forces against which the meaning of American political identity had to be fixed. Marbury represents one effort to fix that identity under the rule of law. In his vision of American political identity, Jefferson came as close to a vision of permanent revolution as any American political leader has ever been.3 He praised periodic rebellion as "medicine necessary for the sound health of government" and wrote that all laws, including the Constitution, should automatically terminate after nineteen years.4 For him, ordinary electoral politics constituted revolution carried on by other means. Marbury was the Courts response to Jefferson's claim to have accomplished the Second American Revolution. Jefferson may have won the election but, said the Court, ours is a government of law, not men. For Jefferson, the unity of political identity is produced by the "political majority," which speaks as the "voice of the nation." Accordingly, he announces in his First Inaugural Address that "we are all Republicans, we are all Federalists." In Marbury, the Court contests this claim by itself speaking as the "voice of the nation." Marbury seeks to displace a politics of revolution by the rule of law. The Courts claim that ours is to be a government of law does not reflect a fact; it states an ambition, a point from which it will enter a contest of political meaning. Marbury, then, represents the judicial contestation of the meaning of American political life in response to Jefferson s successful electoral campaign to wage a new revolution. Revolution and law continue to occupy the American political imagination as competing, yet related, forces. We can see in Marbury this imaginative conflict played out in a real drama of politicians, institutions, and historical achievements. To study Marbury is, therefore, to study the historical origins of the American political imagination.

Origins of the American Legal Imagination

Marbury is a self-conscious effort to constitute an American political order characterized by the rule of law. This is a much larger project than the doctrinal defense of judicial review that is often seen as Marbury's primary contribution to American law. Judicial review is the power of a court to declare a statute void because the court believes it violates the Constitution. Important as this function may be, it is hardly a complete account of the rule of law; it is only one institutional role. It does not even exhaust the role of the courts under the rule of law. The rule of law, not judicial review, is the central idea of the constitutional order. Marbury itself does not confuse the general problem of the rule of law with the exercise of judicial review. Indeed, the issue of judicial review arises only at the end of the opinion and is treated quite briefly. Marbury has a good deal more to say—both implicitly and explicitly—about the nature of the legal order. I would be exaggerating only slightly if I said that Marbury initiated the rule of law in our national political life. To be sure, the rule of law was an idea already present to the Framers; it did not suddenly appear in a judicial opinion published in 1803.5 Indeed, the rule of law already operated as a commonplace. No one is against the rule of law in this broad sense. But the rule of law as a particular construction of American political meaning—one within which we continue to operate—traces its origins to a conception of the courts and of the conflict between law and political action that first appears with clarity in Marbury. When we read the Marbury opinion today, we are likely to forget the intensity of the battle that surrounded the case. We read Marbury too much from the anachronistic perspective of a well-established rule of law, in which the federal bench—and particularly the Supreme Court—has an accepted, central role. But that role is in part a consequence of the success of Marbury. In 1800, the federal courts were more likely to appear as simply another forum for the pursuit of political action. Before I turn to an exploration of the deep structure of belief in the rule of law, it is useful to recall some of the political context surrounding Marbury. None of this accounts for the opinion. It does, however, make concrete the general proposition for which I shall argue: that the rule of law is a contested construction of political appearances. The immediate facts of Marbury are not complicated. William Marbury was nominated by President Adams to be a justice of the peace in Washington, D.C. He was confirmed by the Senate in the final days of the Adams administration. The position had a five-year term, but Marbury never assumed office. In the general confusion of the change in administrations, his commis-

11

12

The Rule of Law

sion, signed by President Adams, was not delivered. Marbury unsuccessfully sought to retrieve his commission from the new secretary of state. About a year after Jefferson took office, Marbury filed an original action in the Supreme Court, seeking relief in the form of an order to Secretary of State Madison compelling delivery of the commission. These facts are only the surface play of a more complex set of political circumstances. Some of the richness of the controversy is conveyed by looking at a chronology of the last days of the Adams administration. We begin in 1801, after the popular defeat of the Federalists by the Republicans in the election of 1800. January 20 February 4 February 13

February 17

February 27

March 4

Adams nominates John Marshall, his secretary of state, to be Chief Justice of the Supreme Court. Marshall takes the judicial oath of office but continues to act as secretary of state until the end of Adams' term. The Federalist Congress passes the Judiciary Act of 1801, creating sixteen new intermediate court judgeships. Adams fill all of these positions over the next few weeks. The act also reduces the number of Supreme Court Justices from six to five, denying the next president the opportunity to replace the ailing Justice Gushing. After thirty-five ballots, the House chooses Jefferson as the next president. The election had been thrown into the House because Jefferson and Burr—both Republicans—were tied in the electoral college. The holdover Congress passes the Organic Act for the District of Columbia, which allows the president to appoint an indeterminate number of justices of the peace. Adams nominates forty-two justices of the peace, including Marbur. All are confirmed. Jefferson takes office.

Even this short account conveys Adams' turn to and preoccupation with the courts at the end of his administration. Clearly, the federal courts hadnot established a nonpolitical appearance by the time of Marbury. The rule of law as it appeared in and through the federal courts was so far only a continuation, in a new forum, of an ongoing political battle. The distinction of judicial behavior from other forms of political behavior had not been made. President Adams did not help to create the distinction between the rule of law and the rule of men when he filled the federal bench with last-minute appointments of loyal Federalists—including not just Marbury but, more im-

Origins of the American Legal Imagination

portant, Chief Justice John Marshall. Whatever the merits of the reforms accomplished by the Judiciary Act of 1801, its political importance was the opportunity it provided Adams to fill sixteen additional federal judgeships.6 For Adams, the new national courts were to be a preserve of Federalist strength. From the courts, the party could both wait out and seek to undermine the incoming Republican administration. Jefferson was well aware of this judicial strategy: "The Federalists, defeated at the polls, have retired into the Judiciary, and from that barricade they hope to batter down all the bulwarks of Republicanism."7 When Jefferson took office in 1801, not a single federal judge was a member of the Republican party. Not only had the previous administration appointed only Federalists, but the juries impaneled in federal cases were often limited to party members as well.8 Shortly after his inauguration, Jefferson identified the federal judiciary as the stronghold of his political opposition: "The principal of them have retreated into the judiciary as a stronghold, the tenure of which makes it difficult to dislodge them."9 Difficult, in Jefferson's view, but not impossible. His response to the Judiciary Act of 1801 was to argue that the tenure of a federal judge lasted only as long as the law under which the appointment had been made.10 Termination of the judicial position would terminate the appointment. This put repeal of the act high on the agenda of the new Congress. Nowhere in the Marbury opinion does the election of 1800 come clearly into view. Yet that election largely framed the problem of judicial authority to which the Marshall Court had to respond. Nor is there any mention of the controversial role the federal judiciary had played in applying the Alien and Sedition Acts or of the way this role was put at issue in the Republican electoral campaign. Those subject to prosecution under the Sedition Act had largely been Republican newspaper editors—a vocal source of dissent.11 The Republicans effectively argued that federal law and the federal courts were being used to close off the voice of popular opinion. The courts, they claimed, were being run as a party operation, pursuing party objectives. Thus, well before Marbury, federal law and the federal courts were viewed by Jefferson and the Republicans generally as the expression of a kind of partisan lawlessness.12 Marbury himself could easily appear to be pursuing a political provocation: he appealed to a partisan law before a partisan Bench.13 That there would be a Republican counterattack on the Federalist occupation of the courts was hardly a secret. In Marbury, however, we find no mention of it. There is no reference to the repeal of the Judiciary Act or to the even more dramatic threat to impeach members of the Bench—including perhaps the Chief Justice himself—although both processes were happening simultaneously with the proceedings in the case. Indeed, the Senate began consider-

13

14

The Rule of Law

ing repeal of the act in January 1802, just weeks after Marbury filed his petition for a writ of mandamus. In April 1802, shortly after the repeal was accomplished, Republican congressional leaders introduced a bill abolishing the June and December 1802 terms of the Supreme Court. The Court did not convene again until February 1803, when Marbury was finally heard.14 The Republicans also attacked the Federalist holders of judicial positions not covered by the repeal. District Judge John Pickering was impeached and convicted over the course of the next year.15 Although the more famous, unsuccessful effort to impeach Justice Chase did not begin until after Marbury, the general threat to all Federalist appointees was well summarized by Jefferson s ally, Senator William Giles of Virginia: [A]ll the Judges of the Supreme Court... must be impeached and removed... and if the Judges of the Supreme Court should dare, as they have done, to declare an Act of Congress unconstitutional, or to send a mandamus to the Secretary of State, as they have done, it was the undoubted right of the House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions.... A removal by impeachment was nothing more than a declaration by Congress to this effect: you hold dangerous opinions We want your offices for the purpose of giving them to men who will fill them better.16

Judges, on this view, could hold dangerous opinions. Senator Giles does not accept the claim that the opinion of the Court is the opinion of the people, as Marbury would have us believe. Indeed, this claim about the nature of the judicial voice could be seen as the most dangerous opinion of all. For Jefferson and the Republicans, the opinion of the people remained with the people themselves. That opinion was argued about in regular electoral competitions and settled—at least temporarily—by the vote of a majority. By focusing his counterattack on the repeal of the 1801 Judiciary Act and the impeachment of particular judges, Jefferson was exposing the origin of the federal courts in partisan political acts. The structure and occupants of the federal judiciary, as well as the law those judges deployed—such as the Alien and Sedition Acts—did not emerge from some abstract understanding or vision of the rule of law but from particular partisan activities carried out by politicians seeking to secure their own power or, at best, acting on a contested concept of the public welfare. The courts, as Jefferson saw them, were a product of national politics—not something different or insulated from these partisan clashes. To understand the federal courts, one needed only to look at the actions of the Adams administration. Law, as it emerged from the courts, could not claim to represent a higher order or a higher virtue distinct from other forms of popular politics;

Origins of the American Legal Imagination

indeed, there was no line to be drawn between the rule of law and politics. For Jefferson, there were only better and worse politics. His electoral victory proved to him that his were the better politics. For Jefferson, claims of law were firmly situated within a politics of party and personality. When John Marshall—Jefferson s cousin, as well as his political adversary—assumed a position on the Court, only the locus and rhetorical form of the political dispute changed. Jefferson thought of that dispute as a conflict between popular, democratic governance and the claims of privilege, money, and law. While Marbury was pending, for example, Jefferson described the situation in Massachusetts as one in which "priestcraft and lawcraft are still able to throw dust into the eyes of the people."17 Against the claims of both law and religion, Jefferson preached reason and reliance on the opinions of the people themselves. Marbury is a scene of battle between two different conceptions of political order. At issue is the truth of the American political order: Is it law or revolution? Jefferson s description of the election of 1800 as the Second American Revolution sets the task for the Court.18 The successful revolution at the polls must be suppressed in the appearance of the rule of law that the Court holds forth. The revolutionary appearance of electoral politics must be displaced by the appearance of a single, continuous rule of law. Jefferson must be shown to be wrong in subordinating the judiciary to an ongoing revolutionary project. The dimensions of the problem confronting the Court are substantial. The Court appears to be just another political actor, its members nothing but holdovers from a past political era. These are Federalist judges nominated by a Federalist president, confirmed by a Federalist Senate, sitting after an electoral repudiation of their party and its administration. Chief Justice Marshall is himself a symbol of this extension of party politics into the judiciary. Not only was he a late appointment of President Adams' but he held both executive and judicial offices through the final days of the administration. Marshal saw no need to give up his position as secretary of state when he took the oath of office as Chief Justice.19 Apparently, he, too, saw little difference—at least at that point—between judicial and political office. Worse still, Marbury s particular claim to his commission inserts Marshall's double role into the case itself. It had been Marshall's responsibility as secretary of state to see that Marbury s commission was delivered. The partisan political activities at the end of the Adams administration, through which the Federalists attempted to fill the federal judiciary, are thus at the center of the case. And at the center of those activities is Chief Justice Marshall. The Courts task is not to speak as the representative of the departed Adams regime but to articulate a distinct voice for the rule of law. The Court

IS

16

The Rule of Law

must make for itself an appearance different from that of the political actors. This is not a question of principle versus interests: the political debate was itself a conflict over first principles. Rather, it is a question of law showing itself as a different form of political order. It must be more than simply different: it must be compelling. The expression of the rule of law by the Court must appear as a deep political truth—as our political truth. The test of the Court s power is not, finally, in the courtroom, in Congress, or even at the polling booth but in the political imagination of the citizen.20 Secretary of State Madison fails to appear in Court to respond to Marbury s petition. He wishes to show that the Court is without power to act or to control the action of others. He correctly perceives the Court as weak in this narrow sense: the Court does not have the power to order a remedy. It does not even try to do so. Battles, it seems, can be mounted without any direct engagement. Madison s failure to speak can be turned against him, for it allows the Court to construct, without challenge, an appearance of law. Silence may be a form of power in politics yet a source of weakness in law. We read Marbury today lon after we have forgotten the political power the Jefferson administration displayed in choosing not even to make an appearance. Jefferson has "disappeared" from the case and with him, his vision of politics as revolution. We are left listening to the voice of the Court, speaking in the name of the rule of law. Beneath the surface of Marbury is a conflict of power: the power to shape the meaning of our common life within the state. Do we see the polity through the lens of revolution or as the expression of the rule of law? That there is no common space for this contest—no point at which Jefferson and Marshall directly confront each other—suggests that there is no common measure. This is not a conflict that is capable of final resolution. In the end, the conflict itself characterizes our experience of political meaning. Ironically, modern legal interpretations of Marbury locate its brilliance in the assertion of a political strategy that accomplishes its end of empowering the Court while avoiding any command to the executive.21 These interpretations view judicial review as a political power and Marbury as a successful seizure of this power by the Court. They see Marshall as a political actor competing with other political actors. This effort to find a common measure of law and action collapses law into another form of politics. On this view, governance by the courts must be defended on political grounds, just like any other assertion of political authority.22 The significance of Marbury, however, lies in the other direction, that is, in the distinction of law/row political action. Marbury is not a step toward the political empowerment of the Court but the displacement of political action by the rule of law. The measure of its success

Origins of the American Legal Imagination

lies not in some future exercise of the power of judicial review but in the appearance it creates of the American political order as the rule of law. Jefferson could see no reason to privilege the Court s claim to law over that of any other branch to interpret law: "In general that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the coordinate authorities." Contradictions might arise, but they would ultimately be resolved by the "authority of public opinion."23 Law must in the long run be aligned with opinion, for enlightened opinion is the only hope for enlightened law. On this view, the Court s claim to primacy under law was not a truth of the rule of law but only a political posture. The institution that could best claim to represent public opinion could make the best claim to articulate law. Jefferson believed his own popular support legitimated his claim upon the law. Marbury does not offer a countertheory of the meaning of the rule of law. It "proves" its understanding of the rule of law by displaying it, not arguing about it. It is itself the operation of the rule of law. The power of the opinion is precisely its ability to draw the reader into an appearance of law that it creates. Reading Marbury we see only the rule of law with its claims of indifference to individual political actors, of permanence, and of representation of the people. The rule of law begins with the suppression of the political conflict over the rule of law itself. We do not see the contest among individuals, the contest over the transient, political origins of law, or the competition between the Court and the president to represent the people. Marbury is read and given authority long after this context has been forgotten. The conflict between revolution and the rule of law is no longer a conflict personified and dramatized in a conflict among institutions and personalities. It nevertheless remains a conflict in our imaginations, in our sense of political identity and historical meaning. In our imaginations, law never manages wholly to displace revolution. Thus, even the courts, when forced to confront a citizen who will not suppress his belief in the "right of revolution," find themselves agreeing that "many patriotic Americans both at the present tie and throughout the course of this country s history" have believed in a "right to overthrow the government by force or violence."24 Jefferson was right: we are all Republicans and all Federalists. Not, however, because we are one group that unites both. We all live in the conflict of meanings that Marbury shows us as a drama of courts, elections, and personalities. Recognizing the political geography of this historical conflict will help us understand the structures that continue to characterize our political imaginations.

17

2 An Archaeological Approach to Law

This chapter introduces both the conception of politics and the methodology that I pursue in the rest of the book. I start with a sketch of the rule of law. The rule of law is not an established political condition but a way of understanding political experiences that is always in a contest with competing understandings. The conflict between Jefferson and Marshall that I described in the first chapter is an example of this conflict. Jefferson's skepticism about law is rooted in an understanding of politics that emphasizes what I shall call political action. I shall follow the sketch of laws rule with a similar overview of political action. I then describe my methodology. The method must be adequate to the object of inquiry. My object is neither legal events nor legal rules. Rather, it is the system of beliefs that support an understanding of the political order as the rule of law. How do we imagine political space, time, and authority—ourselves and our community—when we see our political life as the rule of law? I call my method archaeological, because it starts with a paradigmatic legal event—Marbury v. Madison—and systematically uncovers the deep structure of the imagination that gives meaning to that event.

18

An Archaeological Approach

Finally, I juxtapose this inquiry to contemporary legal studies. Here I describe a general failure of the modern academy to approach the rule of law as a distinct form of meaning. Law has been seen as an epiphenomenon that must be pierced to expose an underlying reality of economic forces or political interests; legal scholars have failed to recognize the connection between law and cultural identity. The archaeology of law s rule explores this connection. THE RULE OF LAW

What do we mean when we say that we live our lives under the rule of law? Four characteristics, already evident in Marbury, offer an immediate starting point for the inquiry: (1) the rule of law is permanent; (2) it is not the rule of men; (3) it is an expression of popular sovereignty; and (4) it is maintained through violence. I mean these characterizations only as rough approximations, but together they give a preliminary picture of the rule of law. Each suggests a line of further inquiry, which will be taken up in subsequent chapters. The Rule of Law Is Permanent Marbury's argument for judicial review begins with the proposition that the Constitution established by the people is "designed to be permanent/'1 The permanence of law is not an endless future duration; the law of the polity is not a law of nature. The rule of law is permanent because it is a project of indefinite future dimension. The Constitution does not contain a sunset provision.2 The rule of law contemplates only its own continuation. This is why we associate stability and predictability with it. Nothing that can happen within the ordinary course of the polity's life can disturb the rule of law. Law can attach to every possible event. It gives order and meaning to the whole, as well as to the parts, of the polity. Only the extraordinary can disturb laws rule. Extraordinary events may come from the outside in the form of invasion, but they may also come from inside the polity in the form of revolution. Equally important as this expectation of future duration is laws regard for the past. A critical element of our belief in the rule of law is that the future of the political order should be the same as its past. Laws rule is an exercise in the maintenance of political meanings already achieved. It links the future to the past. So the problem of laws rule in Marbury appears to the Court as a problem of maintaining the Constitution in the face of political innovations created by the other two branches of government. To abandon the problem of interpretation of meanings already present in the legal order, and to ask only how we can best order the future, is to abandon the rule of law.3 This regard for the past is not a claim about the grounds of interpretation

19

20

The Rule of Law

within the law. It is not an argument in support of originalists over those pursuing more expansive interpretive approaches. From the backward-looking character of law nothing in particular follows about either the derivation of meaning from the past or the application of that meaning in the future. Although the rule of law is inseparably linked to debates about the meaning of historical events, it does not make those debates any easier to resolve. The distinction between law s rule as an exercise in the maintenance of past meanings and law creation as an exercise outside of law provides one of the fault lines along which arguments over particular judicial decisions regularly occur. We cannot escape this debate. No proposition is more common in a dissent than the claim that the majority has transgressed the limits of the rule of law by making new law.4 We understand the rule of law by virtue of the contrast with the creation of new law: to follow the law is not to make it. When this distinction collapses—as it regularly does in legal theory—the distinctiveness of law itself disappears. This contrast is present when constitutional law presents itself as the product of revolution: "The fundamental goal of the American Revolution had been a government of laws and not of men."5 Regardless of whether this is true as a statement of revolutionary ambition, it is the way the Revolution appears to the rule of law looking back upon it. Revolution appears to the legal imagination as simultaneously the opposite of law and its origin. It is not accountable to law, yet it accounts for the law we have. Laws task is to maintain the truth of this revolutionary accomplishment. What is true of revolution in its relation to the legal order generally is also true of the less dramatic instances of the creation of particular laws. We have an ordinary intuition that law is different from politics and that law begins only after politics ends. Law settles the political battles—at least temporarily—not because it is a compromise among conflicting political interests but because it is the acknowledged point at which we "put politics behind us." Partisan politics operates in arguments over the creation of new law, but it cannot operate within the domain of law itself. We believe in this ideal even as we know that in fact the interpretation and application of law remain deeply enmeshed in the same political battles out of which legal texts emerged.6 Absent from the rule of law is a sense of the independence of the present. A decision under law represents a commitment of indefinite future duration. This displacement of the present is not unique to the rule of law; arguably, it is a characteristic of the entire dimension of the political. A political understanding of a person or an event always places it within a narrative that connects the community's past to its future. The rule of law is one particular form of this narrative.7

An Archaeological Approach

A politics of the present would ignore a community's narrative of its past and its hopes for the future. Political identity would collapse into individual desires, which are themselves a function of the present moment. The futures relevance would be limited to the present value of future interests. Such a focus on the present is the perspective of economics, which sees the future as an aggregation of present moments. An economically driven model of politics sees political arrangements as a function of the shifting strength of present interests. An economic market, however, becomes an actual political arrangement only after it is placed in a narrative of a people s history—for example, the struggle to achieve a market order—and, perhaps, given a redemptive role in that people s future. Whether or not economics is in conflict with all political understandings of identity, it is in conflict with the essential historicity of the rule of law. In the present moment of law, we are always looking backward to determine how the future is to be ordered. I shall take up this problem of the structure of laws temporality, including its relation to revolution, in chapters 3 and 4. The Rule of Law Is Not the Rule of M en The rule of law is always contrasted with another sort of rule: the rule of men. Marbury expresses this directly: "The government of the United States has been emphatically termed a government of laws, and not of men"8 Were the rule of law identified with any particular individual or group of individuals within the larger polity, then it could not have the expansive temporal structure just described. Individuals are finite; only the community is temporally indeterminate. Conversely, because the rule of law is not the rule of men, it has an open-ended temporal structure. Minimally, this contrast of the rule of law and the rule of men means that those who exercise political power have no unique status or privileges in the application of law. Law cannot make exceptions for particular individuals because of who they are or because of the political power they exercise. Law demands equality between ruler and ruled. The denial of special privileges extends beyond a formal rule of equal standing under law. A system of political order that expresses only the self-interests of those who happen to hold political power is not the rule of law. The rule of law cannot be an expression of the will of some particular group or class, even if that group uses the forms of law to pursue its ends. If the content of legal rules is nothing more than the self-interest of those in power, there has been a failure in the rule of law. This contrast between the rule of law and the interests of particular individuals is the source of another recurrent criticism of particular laws. To ex-

21

22

The Rule of Law

plain a legal rule as a self-interested exercise of power by a group of individuals is to criticize the legitimacy of its claim to be law at all. Cass Sunstein has argued that there is a general constitutidnal norm prohibiting lawmaking that consists solely of "naked preferences."9 Laws rule must appear to be the rule of no particular individual, both formally and substantively. The independence of law from any particular subject accounts for many of the virtues associated with its rule: equality, impartiality, and universality. That the rule of law purports to present these virtues is not a function of the content of the law—as if all law were somehow essentially egalitarian. Rather, what constitutes equality is a subject of endless debate. The powerful always tend to think of their own interests as those of the entire community, their views as the perspective of neutrality, and their reality as objective.10 What the law presents as impartial may not be so at all when considered from a moral point of view. American law has not generally respected the equality of minorities, women, or the poor. Yet the rule of law has always held itself out as not the rule of particular individuals. Laws appearance of equality is not a substitute for debate over the morally correct understanding of equality. The important point here is not the moral characteristics that attach to particular laws or sets of laws but rather that the rule of law cannot appear to be the rule of particular individuals. The rule of law is the rule of no one. This rule of no one can be used as a source of criticism—when we expose the existing laws as the rule of someone—but it also operates internally as the source of a series of demands we put upon those who speak in the name of the law. Law must appear to be the rule of no one, even as particular individuals are authorized to make decisions under, and give voice to, it. The strategies by which the rule of law suppresses the appearance of the individual subjects— most importantly, judges—who purport to speak in the name of the law are considered in detail in chapter 5. Suppression of the appearance of a unique subject who speaks with the authority of law is only half the task of maintaining the appearance of law as the rule of no one. The other half lies in what is actually said about the particular events that come before legal decision makers. To the legal understanding, the meaning of the event cannot lie in its unique qualities—the fact that it is the product of particular individuals operating at a specific moment and place. Just as the rhetoric of law suppresses the appearance of a judicial voice, so it suppresses the appearance of the particular actor. In looking at the event, we must see the expression of a legal rule. Law understands the changing events and individuals of the political order as the background against which the "permanent" order of law appears. Law does not deny the possibility of novelty or the fact that novel events occur. But

An Archaeological Approach

it does deny that the source of meaning of an event lies in its novelty. Laws account of an event always points to more law. A particular regulatory decision, for example, is the product of regulations, which are a product of statutory schemes, which are themselves a product of constitutional assignments of responsibilities, which are the product of revolution. Only in the final step do we move beyond the law. This scheme of legal explanation acknowledges that political forces apart from law can enter at multiple points. These forces outside of law offer competing accounts of the event. We can, for example, explain a particular regulation as the result of a statutory delegation or as a product of a political contest before the agency decision maker. If we see it only as the latter, then we do not see a rule of law apart from the rule of men. The rule of law deploys a series of rhetorical strategies that aim to suppress the appearance of political novelty. These strategies might be thought of as a legal syntax of political meaning: they provide the structure within which particular political events can be read as expressions of laws rule. They make us see our political world as the rule of law, not men. These strategies will be investigated in chapter 6. The Rule of Law Is a System of Representation The authoritative source of law is always outside the law itself. Law makes present—it re-presents—in a temporally extended form, the normative ground of the political order. The most enduring Western symbol of laws origin is Moses' descent from the mountain with the tablets. Moses conveyed a law that represented to the community the will of a sovereign God. The sovereign continues to be considered the source of law, despite changes in the conception of the sovereign. Law appears to us as the expression of the sovereigns will; the sovereign is the normative origin of the legal order conceived as a single subject acting at a particular moment in time. In a system of political belief that takes popular sovereignty as its first principle, the rule of law must appear to represent the people: law is authoritative because it is representative. In a modern constitutional democracy, the rule of law must also be the rule of the people. Representation is the equation that links these two seemingly disparate ideas. Marbury introduces the idea of a permanent constitutional law as follows: "[T]he people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness."11 The people "establish" what the law then maintains. Law holds forth—represents—this original action of the sovereign people. Its authority derives from theirs. There must, therefore, be some point of contact between

23

24

The Rule of Law

the law and the people in order to found the representational relationship. That point is often imagined as a moment when the people acted as a single subject. But representation is a complex concept that cannot be reduced to an imagined historical event. The nature and operation of representation in the rule of law, including the relation of representation to interpretation, will be taken up in chapters 7 and 8. These three propositions specify the grammar of law. Together, they describe the subject (no one) the verb (to represent) the tense (past) and the object (the sovereign people) of law. The fourth proposition moves beyond grammar to the force and power of law. The Rule of Law Is Violent The rule of law is an organization of political meaning that shows itself through violent interventions in the lives of citizens, as well as noncitizens. This does not differentiate law from other forms of political order. It does, however, specify the domain in which law rules. The rule of law is a construction of political history, and that project, at least in our experience so far, has proceeded through violence. The rule of law is not an exception to political violence; it is deeply enmeshed in it. At every point in a discussion of the rule of law we must keep in mind that law claims the power of life and death, that law makes itself seen in and through the bodies of those who fall within law s empire. Economics is a science of desire that, ironically, is indifferent to the body. The subject is a mere placeholder for interests, an intersection of vectors of desire. An economy is indifferent to who stands behind these desires, just as it is indifferent to the control of desire. For this reason, the economic order knows no jurisdictional limits; it is essentially a global order. But the rule of law attaches to a particular polity. It is constitutive of citizen identity. It specifies a set of meanings for which it is prepared to demand that these particular individuals—citizens— sacrifice themselves and, conversely, for which citizens are prepared to sacrifice themselves. War may be a disruption of economic order, but it is not of political order. War remains well within the rule of law. Emphasizing this violent element in the rule of law is a necessary corrective to the disproportionate influence on jurisprudence of the Hobbesian vision of law as the realm of reason that displaces the violence of nature. Nature does not threaten the citizen; law does. The state of nature makes no appearance in a world of political order. The violence we perceive is founded on conflicting ideas of the meaning and possibilities of the political order. The social contract is not simply another contract. It is enforced not through damages but by sacrifice. Although sacrifice is not the explicit theme of any of the

An Archaeological Approach

following chapters, it is an organizing theme of much of my argument. How does law maintain the power to demand sacrifice? How does sacrifice create the power of law? The rule of law operates simultaneously through the organization of the political imagination and the deployment of violence. These are not separate moments. Law s structuring of the political imagination makes possible law s violence. Belief in the rule of law is a capacity to read meaning into and out of the bodies of laws victims. In part, the violence of law is directed at those who are outside law: criminals and enemies. In part, it is directed at citizens, who are asked to sacrifice themselves and their individual interests for the sake of the maintenance of the rule of law. The system of meaning that sustains this sacrifice is one that appears permanent, independent of any particular person or persons, and representative of the people. Jefferson, who may not have appreciated the first two elements of the rule of law—permanence and indifference to individuals—well understood the connection of self-rule and sacrifice under the rule of law. In his First Inaugural Address, he declared: I believe this... the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the form of kings to govern him? Let history answer this question.12

Jefferson links the rule of law to both self-government and individual sacrifice. Law links the public and the private, not, in the first instance, by offering public protection of the private. Rather, through law, the private self takes up the public order as its own. Law appears as a public order of personal concern. Yet Jefferson s claim that this government of law is the worlds best hope is tinged with a reflection on the fallen state of man, within which all politics occurs. Are there angels to govern us? No. We can rely only on ourselves. And we are not angelic. Are we adequate to the task? Only history can tell. History has become the narration of the success or failure of the project of self-government. This narration begins with the Revolution—the moment of laws origin. History would end were people to overcome themselves and reach that angelic state in which they could govern themselves without suffering the temptations of power. Laws domain is the construction of political history.13 This fourfold description of the rule of law should not be misunderstood. I

2S

26

The Rule of Law

have not been describing the nature of law as it actually operates in the polity. None of these propositions sets forth the truth of social institutions. They describe a set of beliefs about the rule of law that together constitute a way of understanding political meaning. To describe these beliefs is not to accept them as true but rather to pursue a phenomenological account of a cultural artifact. There is nothing in the rule of law that we can actually identify as permanent. No ongoing historical project can be permanent. Law changes constantly: new laws are made, old laws reinterpreted. There is no objective measure by which we can separate genuine novelty from interpretive innovation. It is a truism that everything is both continuous with and different from everything else. Whether we see continuity or difference is a matter of our own perception. The courts must read historical texts and events in ways that make them applicable to new facts. New contexts inevitably shape the meanings we perceive in the past. Whether this is growth or just difference depends on the point of the argument, not upon the truth of the process. Even a constitution meant to be permanent cannot eliminate change from the legal order. Nor has change been cabined by the formal amendment process of Article V. Ironically, judicial review, which was justified in Marury on the grounds of laws permanence, is now seen by many to play a central role in negotiating the conflict between the permanence of law and the novelty of political life. Others respond that if the Court introduces novelty through the process of judicial review, then the Court becomes simply another political actor.14 Judicial novelty, they argue, turns the rule of law into rule by the courts and thus rule by the particular individuals who happen to occupy the Bench. There is no true or false position in this argument. Rather, the argument itself occupies a fault line that the rule of law makes possible. Similarly, if the rule of law truly must stand in contrast to the rule of men, then the rule of law has never existed. No system of rule is independent of those who hold political office. Who makes law and to what ends? Who applies it and with what considerations? We know that we cannot ignore such questions if we are interested in accomplishing our ends within the political order. At least since Charles Beard raised questions about the personal interests of the Founding Fathers, we have had a strong suspicion that the rule of law, even constitutional law, never separates itself from the rule of men.15 This remains true of judges and lawmakers. They are neither empty ciphers nor eroic characters who have sacrificed their unique personhood to the rule of law. If personhood did not matter, we would not be so concerned about the character of judicial nominees. We know that the rule of law remains deeply embedded in the rule of particular men and women. We know this, however, not

An Archaeological Approach

as a fact that negates law but as an argument that always attaches to the rule of law. The same kind of criticism applies to the claim that the rule of law represents rule by the sovereign people. Who are the people apart from the law in which they are represented? The people are not an identifiable subject in time and space. If the people cannot be identified outside the law, how can we assess the claim that the rule of law is a system of representation of the people? "The people" appear as a way of speaking about and imagining political order, not as a prepolitical fact. Individuals exist; communities may exist. But "the people" occupy a time and space of sovereignty that is not a place into which any individual can enter. If the rule of law is not separate from the rule of men, is not permanent, and is not representative of a distinct people, what is it? It appears to be all these things. This is exactly what the rule of law is: it is a way in which political order appears. It is a way of approaching the political order, of perceiving meaning in political events and actors, including the self. The rule of law is a structure of beliefs about the meaning of the polity. The truth value of the rule of law lies not in objective facts but in the deployment of power to sustain these beliefs. The rule of law is true not when it is objectively separate from the rule of men but when it exacts a punishment or supports a sacrifice. In the political domain, there is no line between belief and power. Beliefs shape our own behavior and the behavior we expect and accept from others. They shape the way force is deployed. The rule of law is simultaneously a wy in which political order appears and an organization of power. Ultimately, the rule of law is constitutive of an "imagined community," to use Benedict Anderson s phrase.16 But in politics, imagination determines who prospers and who does not; who rules, and who is ruled; and ultimately, who dies, and wh does not. To call the rule of law an appearance does not diminish its importance. This was the point at which the legal realists and many of their modern descendants took a wrong turn. Having shown the rule of law to be only a constructed appearance, they thought that the truth of the legal order must be located elsewhere. But all politics is a matter of appearances. The truth of the rule of law is its appearance. LAW'S OTHER: POLITICAL ACTION

The rule of law operates within the contested domain of the political imagination. It is one effort to structure political perception. The three elements of the rule of law that I have described as the grammar of law also provide a use-

27

28

The Rule of Law

ful schema against which to plot alternative appearances of the political domain. These alternatives deploy different political grammars. The temporal structure of laws rule is the construction of the future through the maintenance of past meanings. For this reason, the rule of law is always vulnerable to the charge that it constitutes governance by the dead hand of the past and thus perpetuates an unjust status quo. Although I suggested above that a politics of the present moment may not be politics at all, there is a familiar form of politics that looks primarily to the future. On this view, the meaning of political events is located in their contribution to a future that is better than the past. About every political institution and event, we can ask what it contributes to our future well-being. Individuals can measure their own political contribution by what they have done to make a better future for themselves and successive generations. A future-oriented politics can look at particular acts, institutions, and rules or it can look at the entire structure of the political order. When an engaged citizenry regard termination of past order and reconstruction for the future as a general political project, we enter a revolutionary situation. Every political event can be appreciated for the novelty it introduces, just as much as for the law it maintains. Political actors always promise novelty; they promise changes that will improve the political order. Everyday politics may be less dramatic than revolution, but we can see it as a continuation of the revolutionary project of terminating the old and remaking the future. The am biguity in our assessment of the political runs deep and is irresolvable: Do we value the political order because it allows for the possibility of reassessment and reconstruction, including revolution, or because it is the rule of law? As we have seen, the rule of law suppresses the appearance of the individual subject; it is the rule of no one in particular. Again, there is a vibrant idea of politics that takes the opposite view of the appearance of the subject. On this view, politics is seen as a field for personal distinction, for great deeds and great words by the individual subject. The political actor seeks to perpetuate his or her memory by creating a singular appearance of the self. The goal of this politics is not maintenance of an already established legal order but the achievement of a personal fame that can give shape to the future. In a politics of individual distinction, the founder occupies a unique position. The founder has a special ability to identify personal achievement with the political order to which he or she gives shape. This is a Machiavellian theme in political theory, but it also appears in American political thought. Lincoln's Lyceum Speech of 1838 praises the special position of the Founders: "All that sought celebrity and fame, and distinction, expected to find it in

An Archaeological Approach

the success of that experiment [of constitutional creation]. Their all was stacked upon it:—their destiny inseparably linked with it."17 Lincoln notes that for succeeding generations a politics of personal presentation, that is, of personal fame, can as easily lead to constitutional destruction as construction. Political destruction, no less than political foundations, provides an opportunity for lasting fame. This subject-driven politics can take less dramatic forms as well. A commonplace of our political experience is the politician who promises to be unique. This politician will introduce new structures, programs, and ideas into the political order. Such a politician s regard for law extends no further than assuring him- or herself that a proposed course of action will not be declared illegal—or, at least, that he or she will not be publicly identified as a lawbreaker. Law appears as a sort of side constraint, while the meaning of political experience lies in the distinction of the self from others.18 The rule of law is, in addition, a representation of the popular sovereign. When law rules, the sovereign is not directly present. To find one s political identity through participation in the legal order is to understand the self as a representation of the sovereign. I shall argue later that the modern democratic state is characterized by diverse claims of representation: every political actor claims in some way to represent the people.19 For now, however, I would like to emphasize that not even in the modern state is all politics representational. The representational character of the rule of law arose from a powerful alternative experience of the relationship between the self and the political community, which I shall call instantiation. Instantiation realizes political meaning through its embodiment. This experience of meaning is not detachable from the embodied forms in which its presence is felt. There is no distinction between represented and representative. The state in its premodern form was not represented in the king. The king was fully and completely the state. He was the locus of political meaning, because that meaning could not be detached as an object of representation from the point at which it appeared. The king s body was simultaneously his person and the mystical corpus of the state.20 The king occupied all possible political space.21 To participate in the political community was to be a part of the king s body. Instantiation is the traditional form in which religious and political meanings are experienced. The part makes present the whole by becoming it. In traditional Christian thought, this is the form in which the meaning of the eucharist appears. The bread does not represent the body of Christ; it is Christ. Christ himself does not represent God, the father. He is fully and completely God but also fully human. Instantiation is characteristic of the experi-

29

30

The Rule of Law

ence of the sacred. The sacred is a realization of transcendent meaning within the finite: not the representation of an other, but its full and complete presence. In this way, the sacred intrudes itself into daily life. It makes its presence felt with revelatory force.22 Instantiation remains a vital part of our experience of the political. It can take an extreme form in the demagogue who claims to embody the state. It takes a more mundane form in the popular desire to be in the presence of, to touch, those with political power. In spite of what we know of the presidents representative function, there is an irresistible urge to see and touch this embodiment of political meaning. The compulsion of presence—to be in the presence of those who have power—can never be explained by representational forms of meaning. The continued presence of instantiation beneath our representational politics is seen in the double nature of sacrifice. Sacrifice can be experienced as the expression of a political judgment. Believing a liberal political order to be a valuable moral achievement, I am willing to give up competing interests and values for its maintenance. Politics, including the legal order, presents risks; it has costs. Those who obtain its benefits may have to bear its costs. In this form, sacrifice is experienced as a pure cost—unfortunate but justified. The demand for sacrifice may test political commitment, yet we are better off to the degree that we are not called to sacrifice. Political sacrifice can also be experienced not as a cost but as the achievement of a positive political meaning. The nostalgia of the veteran for the intensity of political meaning experienced in war is grounded in this alternative meaning of sacrifice. To put the self at risk for the polity, to suffer for the state s endurance, is to experience a fullness of political meaning not present in ordinary life. This feeling of living in the presence of a greater meaning is beyond representational politics. It is meaning within the characteristic forms of instantiation. Popular sovereignty has generalized the model of instantiation from the unique privilege of the king to the ordinary citizen. Each person is not only a potential representative of the sovereign but also an instance of the sovereign. Each of us wishes at some level to be the embodiment of the state, to overcome the private, finite self by embodying the history-creating power of the state. The sacrificial act is the realization of a public meaning in and through the body. The rule of law maintains its representational claims in contrast to this politics of instantiation. From the perspective of law, revolution appears as a particularly dramatic form of nonrepresentational politics. Revolution appears as direct action by the sovereign people. The suffering of each individual in the revolutionary en-

An Archaeological Approach

deavor is a suffering of the whole people, understood as a single intergenerational subject that continues throughout the history of the state. Revolution was not action by representatives of the sovereign people; it was the people acting. The foundation for the representational claim of law appears as a nonrepresentational, direct expression of political meaning by the popular sovereign. This is revolution s appearance to a legal imagination that looks upon the American Revolution as its own origin. It should not be confused with the appearance of revolution to the engaged revolutionary. I am not making a historical claim about the character of popular political thought in the 1780s. The American Revolution coexisted with ongoing political institutions of representation. Revolutionaries brought with them traditional conceptions of law—for example, the rights of Englishmen—as well as alternative conceptions of politics. Laws understanding of revolution was nevertheless one aspect of the revolutionary experience. The revolutionary voice could claim to be the voice of the people. Although the Declaration of Independence speaks in the voice of political representatives, the Constitution speaks in the voice of the people. Similarly, in the gatherings of people out of doors, the people were thought to be present.23 These three elements of what I am calling the not-law characterize a politics of unique subjects, pursuing novel actions, in order to give shape to the future through an experience of the immediate presence of meaning. This is a politics that shares a great deal with the prophetic religious tradition: the appearance of the divine is a felt presence that distinguishes a particular actor who would begin anew the order of the community. Like the elements of the rule of law, these elements of the not-law are loosely associated together. I shall generally refer to laws other as political action. This is a simplification that will allow me to focus on laws appearance, which is always a construction of political appearances working against other possible appearances. The unity of political action, as I portray it, is only in its not being law. However, as this discussion suggests, there are any number of ways not to appear as law. A complete account of the forms of the political imagination with which the rule of law must contend would have to consider all the various combinations of elements. Different forms of political action will stand in opposition to different aspects of the rule of law: a politics of individual distinction will appear opposite law s suppression of the subject; a politics of novelty against law s maintenance of the past; a politics of instantiation against laws claim of representation. To each of these forms of political action, the rule of law appears as a loss of meaning. It seems to be political passivity, satedness, and defense of the status

31

32

The Rule of Law

quo. From the perspective of action, the creation of law may be a meaningful political experience, but to live under the rule of law is to give up just this experience of creativity. To be governed by law is to be governed by someone else's political decisions. Jefferson again gave direct expression to this set of concerns about the rule of law: "[N]o society can make a perpetual constitution or even a perpetual law. The earth belongs to the living generation.... The constitution and the laws of their predecessors are extinguished then in their natural course with those who gave them being Every constitution, then, and every law naturally expires at the end of 19 years. If it is enforced longer, it is an act offeree, and not of right."24 The rule of law resists the yearning for a politics of distinction, novelty, and presence. Law can neither eliminate action nor yield its place to action. Law and action are not separate things competing for the limited space of the political realm; they are ways of seeing and doing, arguments made to justify assertions of power. They are positions in a continuing contest of appearances. Is the value of the political located in its openness to novelty or in its maintenance of the past? Is it in the possibilities for distinction by a unique self or in loyalty to a subjectless legal order? These questions are never settled. The conflict between law and action creates the imaginative space of our political life. Consider the uncertain place of war as a field for realizing political meaning. Political action extols the virtues traditionally associated with the battlefield: these include the opportunity to distinguish the self through novel acts, as well as the opportunity to use that novelty to reorder the state. The state remembers: it commemorates those who distinguish themselves through sacrifice in battle. Their personhood becomes a reference point for future community organization. The battlefield offers an opportunity for individual fame, which is achieved by a melding of the private and the public. The political meaning of battle for the individual may be experienced as the direct, unmediated presence of the state in and through the self. The self on the battlefield is wholly public but simultaneously unique. The soldier is not simply making a representational claim that can be made equally well by every other citizen. He does not disappear in his uniqueness when he makes the public his private concern. The battlefield may be the final point—and a peculiarly democratic one—at which the individual can experience himself as the state.25 The unique possibilities for action on the battlefield make the experience of war the defining moment of political meaning in many citizens' lives.26 Dangerous as war is, it has enriched the political dimension of their experience. Politics always puts citizens at risk. The uncomfortable truth is that the virtues of the battlefield may offer a possibility for political meaning that oth-

An Archaeological Approach

erwise fails to appear in modern experience. The bureaucratic organization of the state diminishes the possibilities for political action and increases the sense of alienation from politics. War conveys to the ordinary citizen some of the virtues of political action ordinarily experienced only by an elite of powerholders. This, however, is not the only appearance of war within the domain of political meaning. Law also makes a claim on the battlefield. The battle is equally the defense of the rule of law. Increasingly, war appears as a form of law enforcement. Of war we also ask, is it "legal"? It is only "legal" if it is a use of force in response to a violation of law. War has become not just a contest among political powers but a defense of law.27 Law calls upon the individual to sacrifice the private self in order to maintain the continuing presence—the permanence—of law. The battle is not a field for the appearance of individual virtue; it is a test of the capacity of law to project its own representation. The survival of individuals—even of all individuals—is not of primary importance. What matters is the continuing historical realization of the particular order of law. For this reason, the process of legalizing war is consistent with an increasing willingness to hold the entire population hostage to the continuing existence of the political order. The entire state goes to war because each member equally represents the state. The pervasiveness of laws representational claims means that the people can go to war without leaving their homes. The battle may offer the soldier an immediate sense of political presence through action, but to law the soldier is not the state; he only represents the state. The perfect expression of laws understanding of war is the tomb of the unknown soldier. Every soldier stands in a representative relationship to the popular sovereign. Law celebrates the unknown, but representative, soldier; action celebrates the heroic deeds of the individual.28 Thus, from the perspective of action, honor may extend to the virtuous enemy. The virtues of action appear equally on both sides.29 But to law, it matters which side one is on: there is a law enforcer and a law violator. Modern wars end in war trials—a legal procedure—not in a mutual celebration of chivalric virtues.30 There is no single truth of the experience of battle. Different meanings ex ist side by side.31 The experience of war is a play of the contesting appearances that together constitute our experience of the political. What both perspectives share is the location of meaning in suffering bodies: sacrifice. The meaning we read in sacrifice, however, is no less contested in politics than in religion. Law confronts action as "the other" that politics makes possible. Action is that which must be controlled and suppressed by law. This problem defines

33

34

The Rule of Law

law itself, which is why we associate law with permanence, not novelty; with impersonality, not individual subjects; with courts, not popular political movements; with representations of the people, not the people themselves. Each term is meaningful only by reference to the other. When we organize the experience of law around these terms, we confront the alternative experiences of the political. Law does not eliminate these alternative forms. Rather, it takes a position in the contested field of political experience. But to take a position is to acknowledge that alternative positions can be taken. To value one term always raises the possibility of a challenge founded on the other term. The rule of law is not a fact but a complex appearance that is maintained by institutions, rhetorical strategies, and conceptions of the self. To know the law is to maintain appearances. Every appearance simultaneously discloses and conceals. The rule of law is no different: it makes us see things, but it does so by concealing much from our sight. What the rule of law attempts to conceal is political action—a politics constituted by novelty, self-defining subjects, and presence. When we look in the direction of action, law would have us see only the absence of political meaning in the state of nature: destruction, disorder and the dissolution of the self. This, however, is never the only story that can be told. METHODOLOGY

Modern theory begins with the realization that the distinction of the self from the other is itself a construction of the subject. What we see and how we see it is, in large part, a product of our own imaginative possibilities. Both self and world have appeared differently at other times and places. This is true of different cultures and of the deep past of our own culture. It is equally true of the developing individual, who must learn to construct the distinction between self and other.32 The significance of the other lies not in a natural attribute that it possesses but in the placing of the object into a web of meanings and possibilities. The ultimate question for reflection is to what extent we can clarify the structures of our own experience. This has been the explicit concern of philosophy since Immanuel Kant.33 Arguably, it was already the question when Socrates placed the philosophical inquiry under the injunction "Know thyself. " This is an issue for theory, but it also has practical implications. If we can grasp the conceptual limits of our experience, can we transcend them in an act of autonomous self-creation? Are we inescapably bound to the structures of thought and imagination in which we find ourselves? Can we reach a point at which we are what we make ourselves to be and not just what we already find

An Archaeological Approach

ourselves to be? If even within our own culture, the appearance of the self has changed dramatically over time, can these appearances be made the subject of deliberate choice?34 If we ever reached a point of perfect critical clarity, we might find nothing to see and nothing to do. In that case we might say that freedom has outrun truth: the free, reflective subject finds no truth from which to reconstruct a world. There may be no Archimedean point from which to reconstruct a world of meaning. Our projects—and ourselves—may all be products of history. They may be contingent but nevertheless inescapable. In this book, I turn the Socratic injunction of self-knowledge upon the rule of law. The point of such a reflective inquiry into the rule of law is neither to understand what the law respecting a particular subject matter is or should be nor to offer a theory of the legitimacy of law. Answers to these questions are located within particular systems of belief, that is, within possible worlds of meaning. My aim, instead, is to make clear the structure of meaning within which our experience of public order as the rule of law occurs. Language is a useful analogy to the political order, and the methodological problems of reflecting on language make a good analogy to the problem of reflecting on the rule of law. First, our ordinary understanding of the self is inseparable from our use of language. What it means to be a subject is determined by a social phenomenon—language—that is itself contingent upon subjects who are, at least in part, shaped by it. No person gives speech to himor herself. Nevertheless, no language exists apart from its speakers, or at least its potential speakers. Even if the fact o/language is not contingent, the substantive distinctness of the language one speaks is contingent. Languages literally die with the last of their speakers. Subjects, on the other hand, are born into language as an ongoing institution. As David Tracy has written, "I belong to my language far more than it belongs to me, and through that language I find myself participating in this particular history and society/'35 Similarly, we are potential citizens of the state before we are anything else. The state is not abstract, anymore than we are speakers of language in the abstract. We are not first individual subjects, who then choose to join the polity. From the begining. our imaginatiom is shaped by a particular political universe that claims us before we can claim otherwise. We do not choose to arrive at a particular place in history. Any choices exercised, any theories constructed, begin from within this position. In modern American thought, personhood is deeply intertwined with a legal concept of citizenship. To be a person is to have legal rights and responsibilities. We conceive of human rights as legal rights: every person is entitled to a political order that puts in place basic legal rights. Even more than as a mini-

3S

36

The Rule of Law

mal set of rights, the rule of law appears as a comprehensive order of the political domain. Just as no experience falls outside language, no event falls outside laws order. There is no element of our communal life about which we cannot ask: "Is it legal?" The simplicity of that question, like the simplicity of a name, conceals the way the rule of law has already structured the appearance of the event or institution. Our political universe is in large measure the rule of law. Of laws rule, too, we can say: "I belong to it far more than it belongs to me." Nevertheless, the rule of law, like language, does not exist apart from the practices of individual subjects who maintain it as a common project. Second, a language is a system of regularities and exceptions that can be described. Language is, in this sense, accessible to reason; it can be described as a system of relations among elements.36 Yet it is not the product of any one persons rational efforts. Just as no one produced language, no one chooses a language on the grounds of its reasonableness. Although some individuals choose among languages, no one does so because one language is in and of itself better than another. The choice is determined by the external context that establishes the people with whom one communicates. The emergence of a single, universal, and perfectly ordered language was a dream of the Enlightenment, which mistakenly identified reason with a single rationality.37 Similarly, the rule of law has a structure that reflection can plot. We can describe its elements and the categories of meaning that the rule of law perceives within the political. Nevertheless, it would be a mistake to approach the rule of law as if it were the product of someone's rational efforts. We are each of us, before we make any choices, members of a political order that establishes the shape of the history that preceded us and powerfully influences—even if it does not control—the future that will succeed us. We find ourselves in an ordered, social whole that may demonstrate reasons although these are not the reasons for its operation. This is a hard point for Americans to keep in mind because so much of our law—including the Constitution itself—appears to be a product of rational efforts and choices by particular individuals. But these efforts at construction occur within a shared set of beliefs about the rule of law. We argue about the particular propositions of the Constitution, but we do not usually argue about whether there should be a constitution. These underlying beliefs, which make possible the particular choices and arguments, are the object of this inquiry. The rule of law, for example, includes a particular experience of temporality. This is not an object of choice. It is better described as a felt necessity. It guides constructive efforts within law; it establishes the possibility of law. To understand the rule of law, then, we must suspend any presumption

An Archaeological Approach

that it is a product of rational design. The structure of the legal imagination, I argue, shares at least as much with religious belief as with logic.38 Much that informs belief in the rule of law is not rational at all. Reason may operate within the law—that is, we may strive to bring rationality to the law we have— but reason has little to do with our commitment to the rule of law itself. And although our commitment may be reasonable, we are committed well before we know whether it is reasonable. Indeed, we are likely to remain committed even if it turns out not to be reasonable. The rule of law begins as experience, not theory. A reflective inquiry into the rule of law must begin with an analysis of the structure of that experience. The rule of law is a set of beliefs already operating in a political order that is, in part, a consequence of just those beliefs. Laws rule is not an abstraction at the end of a jurisprudential inquiry. Although it may be useful to approach some laws as if they were the product of rational choice, there is no self-evident reason to start the analysis of the rule of law with this presumption. Finally, language allows us to understand—to take as a discursive object— language itself. We can ask what it means to be a speaking subject. We can, for example, discuss the origins of language. To do so is to attempt to trace the possibilities that language brings into being. We can also compare languages in order to describe the different possibilities of meaning that each entails. In both these ways, we create some distance between the speaking subject we are and the reflecting subject who pursues the inquiry. "Every discourse expresses conscious and unconscious ideologies, whether the someone who speaks or writes is aware of them or not/'39 These ideologies are exposed when we take discourse as our object of reflection. When we do so, we are inevitably forced to take a stand—an ethical stand—on the self we find ourselves already to be. Taking such a stand, however, does not mean that we can free ourselves of the language we find ourselves to have. Similarly, the political order gives meaning to every interaction of subjects.40 The political order includes eveiything from sacrifice for the state to the organization of economic life to the production of future citizens within the family. It includes the largest historical movements, as well as the most personal individual choices. Even private actions are subject to the political judgment that they are or are not a matter of concern to the state. Freedom of religious belief, for example, represents a political judgment and a political practice. The distinction between the private and the public is a distinction made from within a political order. It is not a fixed line, but a variable political structure.41 Rather than examining particular political phenomena, we can take up the question of politics itself. We can ask what meanings our political imagination

37

38

The Rule of Law

makes possible and try to imagine thir absence. In this way, the rule of law, as the general order of the polity, can itself be subject to a political analysis—an analysis that takes the rule of law not as truth but as a distribution of power that itself needs to be analyzed and exposed. We do so by comparing the rule of law to other possible political orders, including the past orderings that appear within our own history. In part, we do this by inquiring into the possibility of a prelegal order (a state of nature) or a postlegal order (a Utopia). In part we do this by invoking competing conceptions of the political that continue to exist alongside law. Just as we can interrogate language only from within language, so we can examine laws rule only from within the political. Nevertheless, because the political is not exhausted by law, this task may be less difficult than the similar analysis of language. Questions about the shape of the world that language makes possible are not narrowly normative; their point is not to claim that this world is either good or bad, better than some or worse than oters. Similarly, we can take the appearance of the public order in and through the rule of law as a subject of reflection without demanding an answer to the question of whether it is good. The normative perspective on the rule of law that emerges at this third level of inquiry is that mixture of sympathy and dismay that has always accompanied reflection on humankinds "fallen" character. Law appears as both the achievement of human freedom and a limit on human freedom. This book is situated within each of these three methodological dimensions. First, the rule of law is not a political ordering into which the subject enters by making a choice to participate. The rule of law is constitutive of our experience of self and community. It is intertwined with whatever knowledge of the self we have. Second, despite laws constitutive character, we can create enough reflective distance from the self to elaborate the structure of belief that constitutes the rule of law. We can show how this belief makes possible the meaning of our political identity as well as the normative universe of our political order. Finally, having exposed these structures, we can look at the deployment of power they entail. Every belief is a shaping of self and other. Each sets the boundaries of possible behavior and thus establishes the power of a political order. Knowledge and power are inseparable in politics. The inquiry into the shape of our belief in the rule of law is necessarily an inquiry into the nature of power in contemporary society. I have tried to avoid the narrow normative character of most contemporary work in legal theory, which consists either of arguments for reform of particular areas of law or of justifications for the rule of law generally. The former is work in legal doctrine, the latter in jurisprudence. Jurisprudential work tends, in the end, to be no less reformatory than work in doctrine. Its goal is to

An Archaeological Approach

formulate the grounds upon which law can make a legitimate authoritative command. These grounds then provide a norm for the critique of law. Nonetheless, even a descriptive account implicitly makes a claim with respect to the freedom of the reflective subject. It is, moreover, a claim of freedom that seems to contradict the principles upon which this inquiry is based. How we approach a system of order itself has a history that sets limits on the possible shape of the inquiry. The history of science describes this changing conceptualization of the order of things. The history of philosophy is in large part a history of changing conceptualizations of the subject and of the social order. Law too has a rich history of changing explanations of the origins and nature of law. At different times, the source of law has been ascribed, for example, to the divine, the king, the popular sovereign, the historical volk, or, more abstractly, to a science of law. The reflective inquiry seems, in short, to stand always in need of yet another meta-inquiry. We seem either never to begin or never to end the reflective inquiry into the conditions of our experience. Is it possible to expose the nature of the legal imagination without participating in the functions of law? After all, most of these efforts to explain law serve the practical function of supporting it. They are responses to the subject who raises doubts about laws claim to authority. To say, for example, that law is the will of the sovereign is only an answer to a doubting subject who maintains certain beliefs about sovereignty. It is not a proposition that can be analyzed as if it were a statement about a set of facts. Rather, it is itself an effort to maintain a particular set of contingent political relations. Can we stand within law in order to understand how law structures a world, yet simultaneously stand outside that world in order to take it as an object of thought?42 Most contemporary efforts to study law from the outside, in fact, lose sight of law completely. But is the alternative to see the world only as law would have us see it? Are the resources of thought ample enough to support a practice of freedom within a theory of law? Or is freedom of thought inevitably displaced by the power of the idea of laws rule? Can we describe the rule of law without becoming participants in a legal practice of justification? After all, this analysis is directed at the distribution of power and knowledge that largely shapes our own self-understanding. There is an inescapable normative perspective in the freedom that is a necessary condition of this inquiry. Without an affirmation of the possibility of free thought and a belief in the value of this form of freedom, the inquiry could not begin. It can begin only with a challenge to the truth claims upon which our ordinary experiences of the self and the political order rely. Only if theory can locate itself at least provisionally in freedom can the inquiry be

39

40

The Rule of Law

more than yet another moment in the self-presentation of law. Without such a freedom, a theory of law tends to be an apology for law. This freedom, however, does not support a normative position that translates easily into a program for reform of law. We may escape the limits of law in reflection but not in life. But can we escape the perspective of law even in thinking about law? There is no final answer to this question. We cannot think ourselves free of all contingency. We cannot locate ourselves outside history in order to see the whole clearly. At best, we can try to erect a temporary space between the self and the different aspects of the rule of law. We can examine the structure of the legal imagination by gradually sifting through its elements. Foucault thought an answer to the problem of the relation of freedom and power could be found through a combination of genealogical inquiry into the historical development of a concept or practice and a description of alternatives. This is a kind of undermining of the present both from within and without. Rather than locating an Archimedean point from which to evaluate the self and its structures, Foucault s theory suggests that the imaginative occupation of other potential selves can offer a perspective of freedom. Such an approach can reveal the historical character of the a priori—the contingency of the structures that shape our imagination.43 In Legitimacy and History, I pursued a genealogical approach to American constitutionalism. I focused on the paradigm shifts in the meaning of self-government over the past two hundred years, tracing the sequence of conceptual models that have characterized American constitutional thought. Here I pursue an alternative but complementary approach. I shift from genealogy to archaeology: not Foucault s idea of an archaeology of discursive practice but the archaeological recovery of an event.44 Instead of addressing the sweep of history, I concentrate on the multiple layers of meaning constitutive of a single paradigmatic event. Marbury is that event. My concern is not with doctrinal claims of Marbury but with the structure of thought that the opinion both assumes and seeks to maintain. How does Marbury perceive the American polity, constructed through revolution and constitution? To understand this I shall range widely, moving from small details of text to some of the largest problems of philosophy and political theory. The text can help expose a larger structure of thought, just as that structure can help explain the text. Each supports and checks the other. This movement describes a process of standing alternatively within and without the rule of law. We need to describe this system of belief both from within—How and what do we see when we look from within the perspective of law?—and from without—What does the rule of law suppress from its field of vision? This ex-

An Archaeological Approach

posure of the layers upon layers within Marbury is what I mean by an archaeological approach. Genealogy and archaeology do not conflict. Each is a way of trying to establish some freeom within the space of theoretical inquiry. They work together to expose the dependence of our thought on historically contingent conceptual structures. They do so in a way that holds out the promise of freedom in and through the philosophical inquiry. THE DISAPPEARANCE OF LAW FROM LEGAL THEORY

Archaeological inquiry is a form of critical thought. It seeks to explain the conceptual, not the social or political, conditions that make the rule of law possible. The inquiry focuses on the structure of the political imagination, rather than on empirical facts about the polity. Critical inquiry in this sense is largely absent from the legal academy. There, critique has meant the exposure of false belief, not the investigation of the conceptual conditions of belief. Modern legal scholarship often takes for granted that law should be explained by appealing to phenomena outside law. Some may appeal to economic interests; others to conflicting political interests. Scholarship must expose these underlying forces if it is to understand the origins and character of law. An archaeological approach rejects this starting point. Lawyers trained in the modern law school have a deep belief that law should be approached as if it were instrumental. Law is seen as merely a means, which should be treated like other means for meeting individual and group objectives. Politics is seen as homogeneous, and it overwhems law. Archaeology is first of all the recovery of law from a homogeneous politics. If law is valued only as a means, then it must always be open to reform by those who can legitimately claim to set the ends of the political order, as well as by those who possess expert knowledge concerning the design of social institutions. In the modern state, the former are elected politicians; the latter are social scientists. The rule of law must, therefore, be continuously open to politically determined changes in values, on the one hand, and to the insights of social science, on the other. This, in summary form, has been the theoretical ground of the positive program of law reform that has been on the political agenda since the rise of the administrative welfare state. Legal scholarship has, for the most part, supported this program. The intellectual roots of this vision of a properly ordered democratic state go back at least to the work of the British utilitarians.45 Its strongest modern sources are in the legal realists. They put forth a twofold program of critique and reconstruction of the rule of law.

41

42

The Rule of Law

The legal realists criticized the existing law as nothing more than a distribution of power among particular interest groups and individuals. To understand the law we have, we must pierce law's pretensions, that is, the claim that there is an objective science of law. Legal decisions, particularly those of the courts, are explained by the interests—political, psychological and economic—of those exercising power within the institutional apparatus of law. Law is, in this sense, epiphenomenal. It must be seen through if we are to grasp the truth it denies. That truth is interest, not reason. If law can make no claims of its own, then the reform of law becomes a matter of applying the current insights of social science in order to reach the values articulated through the political process. The rule of law as an autonomous system of order must give way to expert management based on social science. As Myres McDougal summarized the legal realist position: "[L]awis instrumental only, a means to an end, and is to be appraised only in the light of the ends it achieves."46 The question for the legal theorist is no different from the question for any other programmatically oriented social scientist: "[W]hat is the most effective strategy . . . for securing certain generally accepted social ends?"47 The choice of ends is a question for politics; the organization of law to meet these ends is a matter of social science. Law itself falls out of the equation. Archaeology rewrites the equation by finding law already at the origins of our perceptions rather than at the conclusion of an argument. The legal realists assumed that because there is no autonomous science of law (except Christopher Langdell s false science) legal events must be understood as the deceptive appearance of phenomena that are better explained in the technical vocabulary of social science. McDougal s work, for example, is characterized by a rejection of the ordinary language of law in favor of an invented vocabulary that allows a new, scientific organization of legal phenomena.48 If the law we have is not the product of a rational science, then rationality must be brought to the law. The false, classical science of law must be replaced by a true science of the political. The sources of rationality are not internal to law but must be derived from the expert knowledge appearing simultaneously in the emerging social sciences. Law may be explained as an economic, psychological, or social anthropological phenomenon; it cannot be explained on its own terms.49 Modern legal scholarship continues to live under the impact of legal realism. It rejects out of hand the self-presentation of law as an objective system of abstract rules, neutrally applied by independent judges whose access to the law is through a distinct course of legal reasoning in which they have been specially trained. Scholarship s end is to pierce the false appearance that law

An Archaeological Approach

creates. It then offers suggestions for laws reconstruction, suggestions that are informed by appeals to values and bodies of knowledge outside of law. Although a fundamental split emerged in legal scholarship in the 1970s between those interested in law and economics and those interested in critical legal studies, the two schools share a common origin in the legal realism of the first half of the twentieth century.50 Together they represent the critical and positive ambitions of legal realism. Law and economics inherited the positive, social science agenda that the legal realists brought to their project of reconstructing legal rules. Different legal realists appealed to different bodies of social-scientific thought, such as psychology, sociology and economics, in order to pursue the program of reconstructing law on a scientific basis. The dominant place of economics in legal scholarship today reflects the dominance that economics has achieved among the social sciences. Economics has gone the farthest of the social-science disciplines in realizing a scientific ideal. If law is to be made a product of a science of social phenomena, then economics will have the dominant voice. The critical legal studies movement, on the other hand, has continued the negative ambition of legal realism. Law, the crits tell us, is always the product of particular interests. The available legal materials are so diverse and open to interpretation that virtually any position can be justified through legal argument.51 Accordingly, legal results can never be explained by the legal rules. The truth of the law can be found only by looking at those who use the rules for particular ends. People who have the power to make law do so with class and social interests in view. No objective vision of justice informs their political activity of law creation; there is only a contest for power in which the powerful usually win. Law expresses no truth beyond that of power. Law must be reconstructed to match new political ideals, and in the crits' articulation of these ideals, economic efficiency takes a subordinate place to just distribution. For both schools of thought, scholarship retains fundamentally the same twofold task pursued by the legal realists: the negation and reconstruction of law based upon an extralegal clarification of values. The two schools look in different directions for those values and thus imagine fundamentally different projects of legal reconstruction. Nevertheless, they remain a part of the legalrealist tradition in refusing to see the claim for the independence of law as anything other than a false metaphysics, if posed as a claim about the objectivity of law, or a false front for factional interests, if posed as a claim about the neutrality of law. For both, the self-portrayal of legal institutions is, at best, a kind of false consciousness. The law we have is to be replaced by a new law that will be fully transparent to a source of truth outside the law.

43

44

The Rule of Law

Much contemporary legal scholarship rejects the approach of law and economics as well as that of the critical legal studies movement. It tries to stay within the terms and arguments of law as they emerge from the courts and other legal decision makers. To the degree that doctrinal legal scholarship does rest on a theory of law, that theory is likely to go by the name of legal process.52 The legal-process school tries to save law by emptying it of a distinct substance. The virtues of law are now found in its capacity to assign different types of issues to a variety of decision makers who deploy different procedures and exercise different capacities for judgment. On this view, the rule of law is not a substantive system of belief but a procedural overlay put on conflicting interests whose sources lie outside of law. Henry Hart and Albert Sacks—the founders of the process approach—summarized this view when they wrote: "[D]ecisions which are the duly arrived at result of duly established procedures [for making decisions] of this land ought to be accepted as binding upon the whole society unless and until they are changed."53 In constitutional law, there have been two influential versions of processbased theories. The earlier was that of John Ely, who located the virtues of constitutional law in its preservation of the forms and processes of democratic, majoritarian decision making.54 Decisions arrived at through the democratic process provide the substantive values under the constitutional rule of law. The only role for law, independent of the outcome of political majoritarianism, is that of policing the political process to assure its procedural legitimacy. Any effort by the courts to supply substantive values in the name of law represents an illegitimate seizure of power. The rule of law, on this view, can have no substantive meaning because law has no substance. Once again the rule of law disappears as a source of political meaning and self-identification. A newer version of process theory is found in the growing interest in deliberative democracy. On this view, the process at the heart of law is deliberation.55 Periodic elections aggregate existing preferences, but law establishes an ongoing process of public discourse in which preferences are transformed through the elaboration and justification of values. The rule of law is again located in the process—discourse and reason giving—and not in particular substantive values. The rule of law, however, is not simply talk about whatever is judged to be of interest to a collection of speakers. The discourse of law is not just a matter of giving reasons. Legal discourse is characteristically different from other forms of discourse and reason giving. The reasons of law are uniquely its own. Political action, no less than law, can elaborate reasons in a public rhetoric. My inquiry moves against the grain of this entire field of modern legal scholarship. I accept a good deal of its impact: its dismantling of an objective,

An Archaeological Approach

formal science of law. I agree that the rule of law is not what it purports to be: objective, neutral, and deductive. But I do not agree that it follows from this critique that the rule of law has nothing unique to offer, that we must turn to nonlegal sources to explain it, or that a theory of law s integrity cannot reach beyond process. We must stop approaching laws claims as if they were descriptive of actual institutions or processes of decision making, only to be disappointed when we find that the descriptions fail to match the political reality. We must instead approach the rule of law as a set of beliefs by which members of the American culture understand themselves and their world. The rule of law is a structure of the imagination before it is a structure of political events. The rule of law may be our dominant political myth. Archaeology is an exploration of that myth. In modern legal scholarship, the position closest to my own is that of Ronald Dworkin. Laws virtues, he believes, must be elaborated from within the operation of law, not by measuring law against some extralegal source, whether economics or politics. He too sees law as an interpretive activity. Law is discursive, but it is not simply a formal process of reason giving. The rule of law is a discourse about values that have already deeply informed the community s understanding of itself as a community of a particular sort—one that acts in a unified and principled manner. In all these respects, he elaborates critical elements in the operation of the rule of law.56 The temporal structure of the community under law, the unity of that community, and the problem of interpreting a legal text are all central elements of the account I offer as well. Nevertheless, Dworkin s inquiry stays within the bounds of a narrow problem he inherited from H. L. A. Hart. This is the problem of judicial discretion. Hart denied that the judge was following the rule of law when he or she exercised discretion in a hard case.57 Dworkin believes that this contradicts the judges own sense of the character and burden of his or her decisions. Judges believe that they must say what the law requires, even when the facts do not easily fall under a single, explicit rule. To construct a theory adequate to this experience of judicial decision making, Dworkin breaks down the distinction between law and morality. To support his claim that there is a single correct answer to questions of law, he takes into law virtually the entire moral dimension of our experience. The result is that he loses sight of laws politically contested character. The rule of law is indeed a complete account of our experience of the political. It is, nevertheless, a contested account. Dworkin s overwhelming focus on the problem of judicial discretion presents a picture of laws rule, on the one side, and of the personal preferences or beliefs of the judge, on the other. But the important contest is not between law and the personal or private as-

45

46

The Rule of Law

pects of the judge. Rather, it is between conflicting appearances of political meaning. Law does not exhaust our perception of the political. We must describe the operation of the rule of law in this contested political domain, in which each side claims to represent the truth of our experience of ourselves as political beings. Archaeology abandons the search for a single truth. Without that burden, it can begin the recovery of the rule of law.

PART II

The Temporality of Law

This page intentionally left blank

3 Political Time: Law and Revolution

Jefferson's First Inaugural Address includes a short description of what he terms the "essential principles of our Government... which form the bright constellation which has ... guided our steps through an age of revolution and reformation." Nowhere in this list of principles does the rule of law appear. Instead of recognizing an age of law following upon the turmoil of the Revolution, Jefferson describes a continuity between periodic elections and revolution: they are different methods of accomplishing the same end. He speaks of "a jealous care of the right of election by the people—a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided." Elections can have this effect only if the will of the majority is respected: "absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism."1 Jefferson s few references to law in the address assign to it the same function of calling forth popular action by the people: the call of law is a call to arms; the will of law is the expression of the electoral outcome. The alignment offerees that Jefferson describes would have been clear to

49

SO

Temporality of Law

his listeners. According to Republican Party rhetoric, the Federalist administration had moved national institutions away from government by the people and toward a replication of the repudiated system of British rule. The president was becoming a monarch, the party leadership an aristocracy. Additionally, the federal courts were extending the rule of British law through their unilateral adoption of the common law. In a private letter a year earlier, Jefferson had summarized these same points: "I consider all the encroachments made on [the constitution] heretofore as nothing . . . compared with the wholesale doctrine, that there is a common law in force in the US I have no doubt it has been decided to cram it down our throats. In short it would seem that changes in the principles of our government are to pushed till they accomplish a monarchy peaceably, or force a resistance which with the aid of an army may end in monarchy."2 Against this alignment of common law, courts, centralization, and a national armed force, Jefferson appeals to the will of the majority. The majority's action in the 1800 election is only a milder form of the peoples action in the Revolution. The people stand ready to act. Whether that action will take the peaceable form of election or the violent form of revolution depends on the character of the government s response. If government respects the will of the majority, then election is an adequate form of popular action. If government fails to respect that will, revolution becomes necessary. These are different forms of the people s rule, identical in aim but not in method. For Jefferson, then, the election of 1800 is a continuation of the revolutionary/constitutional project of the founding: the election, he claimed, "was as real a revolution in the principles of our government as that of 1776 was in its form."3 The election is, in his mind, a return to the original constitutional program—for example, with respect to states' rights and freedom of speech.4 The revolutionary quality of the election, however, is not located in its substitution of a correct for an incorrect interpretation of the constitutional text. The real dispute is over the character of the American political order. Does the value and meaning of the polity continue to derive from the spontaneous action of the people, or does the rule of law replace popular action?5 Jefferson sees the election itself as an expression of popular action that is continuous with the Revolution. The action of the people forms the common link between the election of 1800, the Constitution of 1787, and the Revolution of 1776. Underlying and uniting both the Founders' politics and electoral politics under the established Constitution is a single theme of republicanism: rule by the popular majority. Every generation has the right "to make the constitution what they think will be best for themselves." Jefferson s appeal to the Constitution against the Federalists, then, is hardly a claim for originalism. Rule by a

Political Time

law laid down by a previous generation is, he believes, rule by force. It will lead to an "endless circle of oppression, rebellion, reformation."6 The Federalists agree that the recent election should be understood as a kind of revolution. Not, however, the same as the revolution of a quarter-century earlier. They see it as a turning away from the achievements of the earlier revolution and the constitutional order already founded. For them, the link between elections and revolution must be broken in order to stabilize the political order and save the constitutional achievement from the fate of all previous republics: "'What has been the ruin of every Republic? The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save them from themselves/ Do not... 'commit the fate of America to the mercy of time and chance/ "7 If every election shares in the authority of the Revolution, then no political order can survive the vicissitudes of time and chance. Law, not majority rule, is the polity's defense against time. The people may be the revolutionary answer to a corrupt or unjust regime. But short of revolutionary situations, the people must be protected from themselves. For the Federalists, the Constitution had already secured "all the principles of rational and practicable liberty." The moment for the "tempestuous sea of revolution" had passed.8 The Constitution must be held to as law, against the popular will of the moment. Law alone can distinguish true political liberty from the popular claims of "demagogues, who filch the confidence of the people."9 The Federalists identify a popular politics of novel action with demagoguery. From the perspective of the rule of law, rule by a particular person can never be other than a falling away of the polity from a virtuous order to the vices of demagoguery. For Jefferson, political time exists in a single dimension filled by popular action—or by the failure of popular action. In January 1800 he wrote: "[W]e are sensible of the duty and expediency of submitting our opinions to the will of the majority and can wait with patience till they get right if they happen to be at any time wrong."10 The people are responsible for themselves at all times. They may manage this responsibility well or poorly, but their lack of judgment is not in itself a reason for their overthrow. In the conflict of reason (rational and practicable liberty) and will (the will of the majority) the Federalists would give priority, at least in the ordinary operations of the state, to the former, while the Republicans would assert the latter. Jefferson expresses this ordering of will over reason in his First Inaugural Address, when he appeals to "this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable." The Federalists recognize that Jefferson wishes to flatten time and make the ordinary events of politics continuous with the "tempestuous sea of revo-

SI

52

Temporality of Law

lution." To do this, they believe, is to risk the political achievements of the past. The people, according to the Federalists, are unreliable. They are subject to a wide variety of incidental influences that will emerge in the course of time—including the influence of the demagogue. The political order must, therefore, distinguish between the time of revolutionary action by the people and the time of the rule of law.11 In their view, Jefferson refuses to make the distinction and is, therefore, a dangerous force: a demagogue. For Jefferson, the rule of law cannot displace the first principle of a republican government, which is rule by and through the popular majority. A rule of law that is independent of popular will is a tyranny of the courts. Jefferson would, for example, make judges subject to popular election and severely limit their terms of office.12 For the Federalists, too much reliance on the popular will means the end of the Constitution as law. Behind the drama of Marbury is this deep conflict over the temporal shape of the nations political life: the question of the place of revolution in the self-understanding of the citizen. HANNAH ARENDT ON REVOLUTION

No one has thought more deeply about the political project of free self-construction at the heart of revolution than Hannah Arendt. Her book On Revolution provides an account of political meaning that starts from revolution and never gets to law. Her aim is to recover the revolutionary tradition; she believes that the loss of this tradition has led to a systematic disappearance of public life and values. The alternative to revolution is, in her view, the displacement of political life by private ends and interests. Not coincidentally, among the American Founders, she thinks that Jefferson alone had a deep appreciation of the need for a revolutionary politics that extends beyond the founding moment.13 Arendt provides the philosophical foundation for Jefferson s belief that the time of revolution must expand indefinitely to include all political time. An exploration of the strengths and weaknesses of Arendt s position provides a first approach to the contested space of political meaning within which the rule of law operates. Arendt finds the deep attraction of revolution in an experience of freedom. For her, the meaning of revolution cannot be detached from experience. There is no abstract truth of revolution by which we can measure the success or failure of the revolutionary project. She views revolution from the perspective of Aristotle s concept of action.14 Action, unlike activities that sustain the biological self or produce particular products, has value only in the performance itself. Revolution provides on the largest scale an opportunity to exercise

Political Time

the uniquely human ability to create, to begin anew. Revolution s value is located in this experience of free creativity. Politics begins with deliberation. It is not, however, a private course of reasoning but a putting of word and act into a public space. It is practice, not theory. There is no political identity apart from the public display that holds out, and thus establishes, the self. Political action is a performance before others who are equally interested in seeing and being seen in this public space. Just as a word must be heard by the others who speak the language, so the act must be seen by others who pursue a common political practice. Political action, therefore, requires a world of equals, who together sustain the political space. In the modern age, a politics of performance among equals is attained in moments of revolution. Only then does politics become more than a means to personal satisfaction; it becomes a process of self-formation through mutual public engagement in discourse and action. Arendt also believes that every modern revolution has failed. Revolution s failure is, for her, the failure of the project of political freedom. Without freedom, there can be no public happiness, regardless of personal satisfaction. The entire dimension of public value disappears with the failure of the revolutionary project.15 The political order has become only a means to private satisfactions. Arendt gives two different accounts of the failure of modern political revolutions, one suited to what she calls the Old World and one to the New. The Old World account is simpler: the history of Europe since the French Revolution reveals, in her view, a set of economic circumstances in which a free, revolutionary politics could not sustain itself. Political freedom can survive only when politics is separated from the socioeconomic conditions of life. Without the satisfaction of basic human needs, politics will always be corrupted by the requirements of the body. In her terms, the political freedom of revolution is overwhelmed by the demands of the "social question." Politics has no answer to extreme poverty, but neither can politics continue without regard to the social question. The social question is the political appearance of unrelieved poverty and, therefore, of the burden of life itself. When the masses mobilize, their first priority is to use all the means at their disposal—including political means— to escape from desperate need. That people must eat before they can debate is, for Arendt, a fact about the conditions within which a free politics must struggle for realization. Modern revolution mobilizes the masses and therefore sets the conditions for its own destruction. This will remain true as long as there is no answer to the social question. The American Revolution alone, according to Arendt, escaped the de-

S3

54

Temporality of Law

structive appearance of the social question. New World abundance made possible a purer politics. Arendt is aware that this politics was in part sustained, like its classical Greek counterpart, by slavery; the slavery of some may be a condition of the free politics of others.16 Arendt suggests that once the plight of the slave arouses the compassion of the politically free, politics is doomed. The needs of the poor will always be more pressing than the demands of political freedom. Arendt refuses to see in the subordination of political means to "mere life" any manifestation of a politics. As in ancient Athens, politics remains a privilege of the rich. This is not because the rich are entitled to special rights but because only they can turn their attention toward the possibilities of free action. Starving men do not sacrifice themselves for political opinions. If political action is a kind of self-sacrifice, Arendt suggests that it paradoxically requires a satisfied—or at least a sated—private self in order to begin. One does not offer the masses speeches but bread. A failure to do so may cost one one s head in revolutionary eras. Necessity will always overwhelm freedom. For Arendt the social question demands expert management. There is no room for political disagreement, for the clash of opinions, on questions of elemental necessity. Arendt would have us believe that disagreements over methods of production, for example, are apolitical. These are issues that can be solved by expert knowledge; politics stands on this domain, not within it. Politics has no source apart from the free act and the freely formed opinion. People become free by acting and speaking freely. As long as the needs of the body determine behavior, politics has not yet emerged from the state of nature. Arendt sees the recurrent descent of revolution into terror as a resurgence of nature and a failure of politics. Terror is the destruction of the free space of opinion and action by the overwhelming immediacy of need.17 That the social question overwhelmed revolution seems a contingent fact arising out of the poverty that continued until the late twentieth century in Europe. The failure of the American Revolution to preserve a politics of free action leads Arendt to an even bleaker conclusion about the possibility of a nontragic politics. This failure is ultimately located in the temporal self-contradiction of the revolutionary project. Arendt terms this "the paradox of foundations." Revolution is an experience of freedom insofar as it is a break from the past and the establishment of a new beginning. It celebrates the novelty of action. Free political action, however, is not simply the aberrational, the unaccounted for, or the unexpected. Such action would be discontinuous with both the past and the future. It would stand alone as an empty gesture.18 Action must make a positive political claim as well as a negative one. The revolutionary act pr

Political Time

excellence is, therefore, the founding of a new order.19 Conseuently, revolutions cannot be successful unless they end. To continue the free action of revolution would be to consume every new beginning. A successful revolution must deny the revolutionary experience to all who succeed the founders' generation. The paradox of revolution is that it cannot preserve its own achievements without destroying the very experience of political freedom that makes it valuable. Arendt sees one resolution to this paradox. The revolutionary moment must itself be extended—augmented is her term—to include the subsequent history of the polity. She finds this expansion of origins in Rome's constant appeal to its foundational act. She finds the same phenomenon momentarily appearing in the spontaneous organization of the communes and Soviets in the French and Russian revolutions. It makes an appearance, as well, in Jefferson s proposal for a ward system in American political life.20 In each of these small-scale political spaces, the direct experience of public freedom in and through action and opinion is to be maintained. Revolution becomes permanent by being cabined within the local community. Law may order the larger political structure, but free political action continues at the local level. Instead of a liberal legal order preserving a space for free private action—for example, in family or church—a "revolutionary" legal order would preserve a commu nal space for free public action. Arendt knows that no such system has ever developed. Political order seems inevitably to become institutionalized after a successful revolution. In place of spontaneous political action at the local level, we find the development of a single, continuous political order extending from town to nation. Po litical parties organize across all these dimensions, seeking advantage and opportunity wherever the possibility appears. The opportunities for free action that attract Arendt to revolution, if they survive at all, are limited to professional politicians. Of course, they too may subordinate the public to the private. There is a reciprocal development of the social at the expense of the political. Individuals now locate their happiness outside the domain of political display and free action. Politics comes to be taken for granted. Worse still, she believes it becomes a means to private ends. In a complete inversion of values, the point of the political is now to sustain the social.21 By a different path, the social comes to overwhelm the political in the New World just as in the Old. Political action no longer appears as an end in itself. The revolutionary experience of political action, which Arendt refers to as the experience of an "absolute," gives way to an understanding of politics as a legal order that serves as a means to private security and individual well-being. Everyone asks of the government that it provide the resources for their own

SS

56

Temporality of Law

private happiness. Government becomes a burden, a cost to be justified, not a political activity pursued for its own sake. Arendt has a single scale by which to measure the value of political experience: the citizen's life in the classical polis. In this world, politics may well have appeared to be independent of economics.22 The social question never became an issue because those preoccupied with necessity could not even gain entrance to the political fora. Part of the reason Arendt reaches back to this classical political ideal of public action and public speech, however, is to escape an altogether different, but much more modern, idea of the autonomous subject: not the desiring subject, but the Kantian subject, who struggles with the moral rule in order to give the law to him- or herself. For Kan, freedom is aligned with law. We realize our freedom in subordinating th particular self to an appropriate law. Like the Arendtian subject, Kant's moral subject acts in a manner discontinuous with ordinary time. This subject too creates itself and thus appears as if from nowhere. Yet unlike the Arendtian subject who celebrates public appearance, Kant's subject displaces the self of ordinary public appearances,23 The Kantian subject acting under law aims to overcome his or her particularity. The Arendtian subject strives to display just this uniqueness. Arendt s most important achievement is the recovery of the autonomy of the political. Politics is not a mere expression of some deeper underlying reality—economic class interests, for example. It stands on its own and is its own source of meaning. Yet Arendt interprets the political order entirely from the perspective of action. The result is that she identifies both the rise of the social question and the establishment of the rule of law with the death of politics. These are the European and American versions of the death of politics. The rule of law has the same effect on a free politics as does the terror. Without political action, there is only the perversion of a free politics by the needs of the body. In place of laws permanence, Arendt wishes to live in the pure present of revolution. In all of this, Arendt has gone seriously wrong. She grasps the central problem: revolutionary action is not simply liberation from the past but also the foundation of a new future. Revolutionary action must end in law. This is indeed a paradox. Action is an assertion of novelty that law denies; law is a maintenance of order that action denies. Arendt tries to resolve this contradiction through a vision of perpetual revolution. Revolution, however, is no more entitled to be the privileged point of access to the political than is law. One cannot solve the paradox by taking hold of only one side. Arendt systematically privileges one side of a series of conceptual oppositions. Her vision of political action privileges novelty over the past, self-crea-

Political Time

tion over self-realization, freedom over order, and individual display over communal continuity. In place of these political oppositions, Arendt would have us see the conflict between action and law as a conflict between the mind and the body, which becomes for her the opposition of the public and the private. Her praise of revolution strikes a rich chord in our political self-understanding. She offers an image of political action organized around the self-presentation and self-creation of the individual subject. This is a nonrepresentational, direct politics in which the acting subject places the self at the foundation of a new political order. Nowhere, however, does she recognize the equally strong—and equally attractive—tradition of the rule of law. In a book on the nature of political meaning, there is virtually no mention of law. Reducing laws rule to the interests of the body misrepresents our experience of the political through law; it also causes Arendt to present a distorted and partial view of revolution. For us, revolution appears only within a political context that is equally defined by law. The rule of law is precisely not a political space in which the individual constructs and displays a unique and novel self. But neither is it a politics reduced to the private needs of the body. Political meanings are always mind-in-body, the idea made flesh. The rule of law is a subjectless politics in which every individual is equal to every other—regardless of need; in which there is no privileging of the unique subject; and in which political time expands to include the past and future in a single, permanent whole. The political space of laws rule holds little attraction for Arendt because it is not a space for a performative politics of individual fame. The two trials at law that she cites with enthusiasm are both instances in which the defendants committed morally justified acts of political terrorism and then used their trials to demonstrate the need for action outside of law.24 Arendt insists on reading the revolutionary experience of a "new beginning" in terms of the Greek experience of political action, instead of the religious idea of revelation. The former had no place for a single truth. The polis was to be a space for the free exchange of opinions—politics, a matter of persuasion and competition among opinions. The future was held open to the continuing possibility of persuasive reversals of opinion. This vision of the free exchange of opinion has not, however, given force to modern revolutions. Revolution has been driven, instead, by claims of political truth. The modern revolutionary acts not with the moderation characteristic of an exchange of political opinion in the classical agora but with the conviction of revealed truth. The freedom of modern revolutions is experienced in the "truth," which sets one free. The modern revolutionary has more in common with the biblical prophets than with Arendt s Athenian gentlemen. He or she

57

58

Temporality of Law

acts on "self-evident" truths, with little tolerance for reasonable disagreement within an ongoing discourse. If modern revolution is the secular form of revelation, then the problem of law in a postrevolutionary state is the problem of meaning in a postrevelatory world. The relation of revolution to law replicates that of the sacred to the profane; law holds up revolution as its own source and truth. The American rule of law understands itself as maintaining the truth of the Revolution. Law may end the experience of revolution, but it is not, for that reason, a complete turning away from revolution. Arendt cannot see this because she refuses to allow any separation between the experience of revolution and the truth of revolution. Because Arendt insists on taking political exchange within the Greek agora as the measure of free action, she cannot see the forms of modern mass politics as anything other than a corruption of political freedom. But the violently destructive character of modern politics has not been the result of demands made by the body's necessities. Political meanings directly fuel this violence. Not the physical needs of the body but the need to sacrifice the body to an idea of political meaning places violence at the center of politics. For the citizen, bread is never merely bread. It is a demand for justice. The masses are as deeply entrenched within the political space as the elites. They remain in this space regardless of whether they pursue revolution or law. There is nothing about need that precludes participation in politics. Politics is a conceptualization of one s self in history. The poor, no less than the rich, confront the problem of political identity. The revealed political truth of modern revolution creates a new world that is broad enough to encompass an entire nation. This is evident in the histories of modern nationalism, of mass conscript armies, of the willingness to sacrifice entire societies to political meanings. Mass political violence cannot be blamed on the economic needs of the poor. Democracy, in the first instance, is about power and participation, not economic redistribution. For Arendt, revolution has no truth that can be embodied in law because it has no truth apart from its experience by the individual. Law is not, therefore, a form of free politics. This is not how the rule of law presents itself in our political imagination. Law and revolution are the twin forms within which we understand the sovereign to construct history. The rule of law is not a politics of the body's physical needs; it is just as capable of demanding individual sacrifice as other forms of politics. Indeed, if Armageddon ever arrives, we are likely to go out speaking of the defense of law, not revolution, as the meaning that justifies total sacrifice. Law, no less than revolution, claims to be the product and condition of po-

Political Time

litical freedom. Revolution and law are in a constant struggle in which each claims to be the truth of the other. Revolution is laws source; law is revolutions product. The struggle is inescapable because revolution and law are linked in experience and definition. They are two halves of a single experience of political meaning. Each may try to suppress the significance of the other, but in the end neither can win. The tragedy of modern politics for Arendt is that it fails to maintain the promise of a classical ideal of freedom that is sporadically revealed in revolutionary moments. But it is a mistake to view political life as a failed effort to be something other than what it is. Arendt is correct to emphasize that politics is, first of all, a kind of experience of meaning. It is a way of locating the self in time and space, through relationships a variety of communities—one s own and others. Before it exists as fact, politics is a structure of the imagination that makes those facts possible. A structure of meaning cannot be a privative mode of something else. We may wish to judge political meanings by measuring them against some other set of values, but first we must understand them on their own terms. REVOLUTION AND REFORM

The distinction between revolution and reform may count for little to the historian surveying the development of legal practices and institutions. Revolutionary fervor can result in little real change, as the forms of legal order show continuities that bridge the turmoil of revolution. Conversely, gradual reform can achieve substantial change over time. A comparison of present legal structures with those of the polity s distant past may reveal dramatic changes, even when there has been no moment of revolution. Nevertheless, from the perspective of those standing within an existing political order, revolution and reform convey very different meanings. Reform occurs within the law; revolution outside it. The distinction, therefore, offers a point from which to explore the relation between law and revolution. We can distinguish revolution from reform along three dimensions: temporal, substantive, and procedural. In each dimension, we shall see that law and revolution are tightly bound to each other: together they define the field of our political perception. The temporal dimension of revolution is one of discontinuity. The announcement of revolution marks a deliberate break within the self-understanding of a polity s history. Revolution appears to break into the political order from outside. In its most extreme form, revolution claims to offer a new beginning to political history. The French Revolution gave this idea dramatic

59

60

Temporality of Law

form when it introduced a new calendar that marked the Revolution as year zero. Because of this appearance of discontinuity, revolution is always problematically related to the circumstances that precede it. It does not appear in ordinary time. It cannot, therefore, be a direct consequence of some set of causes. When we try to explain revolution as the consequence of determinate causes, we view it from a perspective outside of political experience itself. Revolution appears to the citizen as the realization of a possibility that was always present. It may be triggered by an event, but the trigger is not the cause. Revolutionary action breaks apart normal political chronology. This break is never fully explained by the past against which it stands. It is, for this reason, unpredictable. Countless societies endure injustice and misery indefinitely without turning to revolution. There is no formula for determining when a legal order will become intolerable enough to spawn a revolution.25 We cannot know at what point the revolutionary claim that the people are acting will reappear. The Declaration of Independence notes that "mankind are more dis posed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Nor can we know when law will be so weak as to be incapable of suppressing revolution. The conflict between action and order, between revolution and law, cannot be measured by an objective calculus. Its resolution is always a matter of the actual distribution offerees, which can never be evaluated in the abstract. As long as the existing political order appears inevitable, revolution cannot occur. It does not matter whether the necessity of the present order is founded in beliefs about nature or in a recognition of the asymmetry of power. Revolutionary action cannot begin until the imagination sees the permanence of the existing order as a "false necessity."26 The very claim to permanence made by the legal order invokes revolutionary action as a response. Because law ordinarily appears to be permanent, its dismantling requires an extraordinary political act. Only action outside of law can do away with law. Revolution always appears as an end and a beginning. Political time is to begin anew, founded now on the new truth brought forth by the revolution itself. What occurred before the revolution no longer speaks with the authority of law. One of the earliest documents of the American Revolution provides a concise statement of this position: '"Whereas . . . the American Colonies are declared to be in a state of actual Rebellion, we conceive that all Laws and Commissions confirmed by, or derived from the authority of the King or Parliament, are annulled and vacated, and the former civil Constitutions of these Colonies for the present wholly suspended."27 That which continues across the revolutionary breach survives not because it is law but because it is affirmed or validated in a new act of choice.

Political Time

Revolution reveals, in practical action, what has already been realized in the imagination: laws claim of permanence is an aspect of laws appearance, not a fact. Revolution must "kill the king" in order to show that the polity can survive the introduction of novelty, that the people can create a new political order for themselves.28 As a new beginning, revolution draws its substantive ideal from outside the existing legal order; revolution is not an effort to perfect what already exists. It operates at the intersection of the imagination and political history. The sources of revolutionary ideals are bounded only by the breadth of the imagination—nothing is ruled out in advance. We cannot predict where the new revolutionary truth will be located. Revolution can, for example, locate those forms of power that must be reconstructed in the organization of production or in the hierarchy of the patriarchal family. Revolution reveals the social-political order to be a human construction, any aspect of which can become part of the revolutionary project of reconstruction. This substantive ideal provides the common source for condemnation of what exists and construction of the new. All law—existing or imagined—can be measured against this ideal norm. Destruction and construction are inseparable moments in translating any ideal into material form. Every creative act must first negate the existing order. For this reason, Jefferson, in speaking of first principles, links "revolution and reformation."29 The revolutionary truth, like the truth of the prophets, destroys the existing order for the sake of a new creation. Again, this is not a question of what actually happens, as if change can be measured by an objective standard. Rather, it is the appearance of a new origin to those standing within the political community. Finally, revolution is not bound to any fixed procedures in establishing a new beginning. No legal order can set limits on the forms and methods of revolutionary action. American political protests in the early stages of the Revolution appealed to "the rights of Englishmen." This discourse was not adequate to the revolutionary project because it was always vulnerable to the retort that a claim of rights under English law was inseparable from the obligations imposed by English law, including taxation.30 Revolution appears self-validating. Because of its disregard for the legitimating procedures of the old order, revolution can appear to be a part of a legal order only in retrospect. Even then, it is a part solely in its role as origin; it is never a product of law. In sum, the revolutionary consciousness describes a political project of freedom that transgresses the existing order through an imaginative act, allowing the citizen to stand outside legal boundaries, both substantively and procedurally. From that position of exteriority, history gains a new beginning.

61

62

Temporality of Law

The freedom of revolution encompasses both a negation of the past and a positive construction of the future. All these terms—transgression, exteriority, negation, and construction—mark revolution as an appearance to a political imagination already deeply structured by law. Revolutions occur only after law has achieved an imaginative currency in the self-understanding of the polity. We do not imagine the founding political act within the state of nature— the social contract—as a revolution. Revolutions are origins of a particular sort. They are origins within an ongoing project of law s rule. Appearing from outside, revolution reveals the fragility of the political order in which we live. The claim that the legal order can be remade suggests that there may be no social structure beyond the reach of the revolutionary project. There is, therefore, only a short step from the revolutionary project of constructing the new polity to that of constructing the "new man." As Gordon Wood shows, the American Revolution marks the emergence of a new understanding of the self that has ramifications not just for political governance but for family life, business, property ownership, culture, and patterns of friendship and association.31 Within a project of reform, on the other hand, constraints operate in each of the dimensions in which revolution appears unbounded. First, reform is directed at only a part of the existing legal order. It is never a complete starting over. Reform conserves while perfecting. This means that reform is always self-consciously, temporally situated. Reform responds to the opportunity of the moment. It is historically specific. It places itself in a continuity of temporal development, arguing that it is the correct move at a particular moment. Reform is likely to articulate an agenda: a set of steps deployed within a model of calendrical time. Revolution has no such agenda; it has, instead, a land of timeless quality. Second, reform is a process of better realizing those substantive values that are already present in the legal order. Reform measures law by the values already operative in the legal order. In this way, a legal order can simultaneously appear to be complete and subject to development. Reform is not the extension of the rule of law to areas of behavior as yet unorganized by law. It is the internal elaboration of law.32 Similarly, the procedures of reform have already been established before any particular project begins. Reform is validated by the legal authority of the means used to accomplish its end. There is a priority of means over ends. We do not ask if a reform is good before we acknowledge its claim to be part of the authoritative legal order. In part, this is because reform elaborates the substantive rule of law we already have. But it is also because the process itself establishes reforms authoritative quality. Ultimately, substance and process

Political Time

merge under the rule of law: the meaning of reform appears to inhere in the rule of law that is followed in its accomplishment. The opposition of revolution and reform creates the inevitable conundrums of constitutional amendment. Is amendment a space for correction and elaboration—for reform of existing law—or is it an opening for a kind of peaceful revolution? Can we speak of unconstitutional amendments? Can an amendment, for example, introduce a new substantive norm that contradicts, rather than elaborates, the existing constitution? Can we have an amendment that starts with the sentence "All previous provisions of this constitution are null and void"? Need every amendment follow the legally specified procedures for its own validation? We receive different answers to these questions depending on whether we look at amendment as a moment of legal reform or as a peaceful reappearance of popular revolution. Amendment as a process of reform appears to be bound by the limits of law: in the case of the U.S. Constitution, the procedural specifications of Article V—as well as substantive limits in the document as a whole.33 Amendment as renewed action by the people appears unbounded, substantively and procedurally. There is no correct resolution of this conflict. Amendment is simply a point of contest between competing understandings of the political order. If we approach amendment as if it were a free act of the people, the appearance of legal constraints seems contradictory.34 Whenever the people appear, one cannot ask whether they are acting lawfully. Rather, we must ask the opposite question: What value does the people s free act assign to the existing legal order? The people s appearance as acting subject is the revolutionary break in time. The right to evaluate the legal order without preconditions is a necessary condition of popular sovereignty.35 The potentially uncontrollable character of a constitutional convention, as envisioned in Article V, has always been a source of the general reluctance to assign to such a convention the amendment-proposing function.36 From the perspective of law, however, the truth of the amendment process is reform, not revolution. Limits do not contradict the process of reform; they make it possible. Amendment appears not as a means of keeping alive the possibility of revolutionary action. Rather, it is a kind of safety valve: a point from which corrections can be made when the more routine processes of law reform fail. Indeed, many of the most important amendments—including the first ten—have been contested as unnecessary.37 Or, if necessary, they were thought only to correct an error in the interpretation of law by the Supreme Court—not to introduce new principles of governance.38 There is a powerful urge under the rule of law to view all amendments in this way. Amendment is

63

64

Temporality of Law

seen as a point for internal elaboration of the legal order we already have, rather than as a source of revolutionary action. Under the rule of law, there will always be an effort to substitute reform for revolution. Law offers a limited amendment process in place of revolution.39 Bruce Ackerman argues that the limits on constitutional reform are designed to test the strength of popular movements against an ideal of revolutionary mass mobilization.40 These limits have a far simpler and more direct purpose: they stabilize law and thereby tend to close off the possibility of revolution. The rule of law would not gain stability by claiming to be perfect. Yet it gains stability by claiming to be perfectible. If law is perfectible, there is no need for a freedom outside it. Every legal order allows reform but controls the terms within which reform can occur. The problem for the revolutionary is that these terms are inadequate to his or her vision of truth. There is a mismatch between the imaginations grasp of an ideal and the possibilities for realizing that ideal within the existing legal order. Whenever the revolutionary voice of freedom outside of law appears, reform becomes a dangerous point of cooptation. Reformers are often, for this reason, the victims of revolution. Looking at law from the perspective of revolution, we are likely to misplace the significance of reform to the rule of law. We are not attached to law because it is reformable, although our attachments would be stretched were it unreformable. We are attached to law because of what it already is, not because of what it might be. Reform does not fill the space of political meaning occupied by revolution. That space is already occupied by the rule of law. Reform is not revolution in smaller bits or revolution extended over time. Laws relation to revolution begins before the issue of reform even arises. The rule of law cabins the urge toward revolution not so much by promising reform as by claiming to be the truth of revolution. The rule of law seeks to fill the political imagination in such a way that the revolutionary project of free self-construction is indefinitely deferred. Revolution does not disappear from the legal imagination. It is, however, displaced to the outer edges of law. It is not internalized as reform but externalized to laws borders. REVOLUTION AND FREEDOM

In revolution, we see an expanded image of the psyche of the modern individual. We have inverted the Platonic idea that the political order, with its stable class divisions, is an image of the soul. Not order but revolution provides the modern analogy of state to soul. Both state and soul appear as projects of selfconstruction. No order—political or psychological—is so stable that it cannot

Political Time

be overthrown. The question of self-reconstruction never disappears entirely; it is only deferred. Plato's comparison of city and individual crosses from metaphor to synecdoche when we realize that the individual stands on both sides of the analogy: he or she possesses a soul complete in itself and exists as a part of the city. Similarly, revolution is both a metaphor for self-creation and a point at which the self realizes its own freedom. The free subject is at the center of laws idea of revolution. Revolutionary action appears to the legal imagination as the paradigmatic free act. The freedom of revolution includes an ability to imagine the political order as other than it is and to act on the basis of this imagined norm. This is freedom in the dimensions of thought and action. Both are necessary for an understanding of the self as a self-constituting subject. Whatever may be true of economic, historical, or psychological accounts of revolution, no account of revolution s appearance to law is possible that fails to affirm the autonomous character of the subject. The destructive and constructive elements of revolution roughly correspond to these ideas of free thought and free action. The freedom of thought makes possible the negation of every possible political structure. No ideal can be translated into material reality without suffering some corruption. No actual political institution or agenda is fully adequate to the pure idea. No revolutionary actor can be wholly pure of heart. Revolution's response to the inevitably fallen character of human beings can become terror.41 Terror is not a politics of the body in need, as Arendt believed. It is just the opposite: a rage at the inevitable failure of the individual and the polity to express the revolutionary truth. Political terror has its roots in the myth of the Fall. The fall away from the revolutionary ideal is always understood as moral failure—as sin.42 Terror begins with the revolutionary destruction of the forms and embodiment of the old order. But the power of negation in revolution is limitless. Terror can turn inward, from the political institutions of the old order to the products of the revolution itself. The Federalists accused Jefferson and the Republicans of being Jacobins because they believed them to harbor this destructive desire. If they came into power, they would destroy what law had built.43 Jefferson's well-known response to Shays' rebellion is a graphic example of this impulse toward negation as a revolutionary virtue: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."44 Revolutionary destruction simultaneously asserts the possibility of autonomous self-formation in history and proclaims the failure of that project. It is the rage powering a desperate search for a point from which the project of

65

66

Temporality of Law

construction can begin. Because no point can hold this ground of pure possibility, revolutions can be unforgiving. Freedom without negation is insufficiently aware of the contingency of all political order. But only the affirmative act of revolutionary constitutionalism can provide hope for a new order. Without this affirmation, political freedom may become a self-consuming terror beyond our capacity for endurance.45 Terror without hope is the demonic possibility within politics: the rage at the inevitable incompleteness and imperfection of history. If the demonic destructiveness of revolution is not displaced by the divine power of construction, then revolutionary action gives way to counterrevolutionary reaction. A constitution is designed to bring an end to a period of revolutionary negation. It is intended to establish a new rule of law that will, in turn, make a claim to permanence. A constitution simultaneously declares the revoluion over and substantively complete. It cannot successfully do the former without doing the latter. The termination of revolution depends, therefore, upon the constitutional product of revolution. Yet there is no product that in and of itself has the power to terminate the revolutions campaign of negation. There is not an answer, as if there were a single embodiment of the revolutionary truth responsive to all political needs. Revolutions product can always become yet another institutional form against which revolutionary forces may be mobilized. Revolutions, including the American, are often unsuccessful in their first efforts at constitutional construction. Subsequent products are not necessarily better; they may only be later. If revolutionary action realizes the free subject as a political actor, the continuing potential for revolution reveals the continuing possibility of a freedom outside of law. To ask the question of revolution—Is now a moment to pursue a new revolution?—is to see, if only dimly, such a domain of freedom. In the question itself, the constructed, and thus contingent, character of the legal order appears. That order has been made, and so it can be made again. We cannot imagine ourselves as free within law, unless we imagine ourselves acting freely outside law. The permanent law knows itself to be a contingent fact. It appears to itself as a revolutionary inheritance. As such, it knows itself to be neither natural nor divine. Its place is in the entirely human project of history. The question of revolution has never disappeared from the American mind. The Declaration of Independence puts forward that question as the defining attribute of the relationship between the free citizen and legitimate institutions of government: "[Wjhenever any form of government becomes destructive... it is the right of the people to alter or abolish it, and to institute new government." A government that denied even the abstract right of revolution would deny the conditions of freedom that are the foundation of its own

Political Time

legitimacy. It would secure its own permanence by force, that is, by suppressing the right of the people to abolish it. We cannot revere the Declaration without implicitly affirming our own freedom as potential revolutionaries. Revolution may not be considered a serious political option at every moment, but revolution remains a permanent possibility in the political imagination. To the American mind, the rule of law is the shape of political order between an already accomplished revolution and a potential revolution. To maintain the rule of law is to say "not yet" to revolution, while saying "yet still" to past revolution. In response to the contemporary question of revolution, we construct an appearance of law as a revolutionary inheritance. A new revolution is not required, because we still live within the revolutionary truth. As long as this appearance remains, would-be revolutionaries can be treated as false prophets.46 A polity in which the revolutionary imagination could not arise would be one in which the political order appeared to be a form of sacred ritual. Law borrows from ritual and may tend toward it.47 Indeed, ritual may be used by law to suppress the revolutionary imagination. Yet law cannot wholly suppress the possibility of revolution without suffering a transformation. Revolution is, in this sense, a "transcendental condition" of law. Law differs from ritual in understanding itself as potentially subject to a revolutionary reconstruction. We cannot think of ourselves as within the law without simultaneously understanding the possibility of action outside of law. Action outside of law is not the chaos of an unorganized state of nature. The novelty of revolution stands on the other side of law. Having entered into a political order, there is no going back to nature. The continuing threat to laws permanence comes not from nature but from revolution. Because revolution is a necessary conceptual condition of the rule of law, it is imagined as the actual origin of law as well. It is meaningless to ask how much of our law traces its source to the revolution. We can answer equally that it all does or that none of it does. The link is not in a sequence of cause and effect but in the imaginative construction of political time. The rule of law requires the possibility of revolution in order to place itself within the domain of freedom. In spite of a popular tendency to focus on actual, historical revolutions, the conceptual order places priority on the question of revolution, that is, on the possibility of a new revolution. Were revolution an exhausted possibility, law would be an inheritance from a mythical age of action by demigods. Every legal order appears as a potential object of revolutionary negation, even if it seems to have emerged from time immemorial.48 Focusing on the possibility, rather than the fact, of revolution allows us to draw connections between the American rule of law and a common-law order.

67

68

Temporality of Law

Law and revolution, therefore, have a common conceptual origin. We cannot conceive of the rule of law apart from revolution or of revolution apart from law. They are linked ways of understanding the political order. They are different forms of expression of a single idea of freedom. The political order can be made and, then, made again in a never-ending process. Law and revolution are different moments in this single process. Were we to give up our idea of revolution, we would lose our idea of law—and vice versa. The permanence of law is, therefore, not the permanence of nature. The permanence of law is only the absence, the not-yet, of revolution. The modern rule of law does not claim to be a mere substitute for or a displacement of revolution. It is not what we fall into at the point of revolutionary exhaustion. Rather, law contends that it is the product—indeed, the goal—of revolutionary freedom. The limits of law are the constraints that the free subject of revolution sets upon itself.49 To live under law is to make manifest freedom s power to create and shape a world. In spite of laws conceptual debt to revolution, law cannot celebrate the practice of revolution; law must maintain itself against the threat of revolution. It must, therefore, appear to be a product of revolutionary freedom at the same time that it constrains that freedom. There are a number of ways in which law suppresses the revolutionary imagination, all of which operate well before law appeals to force to suppress revolutionary action. I shall concentrate on these strategies for negating or containing the appearance of political action in chapter 6. One strategy, however, is particularly relevant to the problem of laws relation to political freedom. This is laws understanding of the free subject of revolutionary action. The rule of law does not recognize action by the individual subject. For law, revolution is action by the sovereign people. In their absence, the rule of law recognizes only its own permanence. A system of law can be permanent only if it constrains novelty, which is always the product of a free subject. Law must, therefore, be a subjectless system of order. More precisely, the wholly free subject recognized by the legal order is never the same as the individual subject who appears under the rule of law. Only the former can take the legal order itself as an object for revolutionary reconsideration and reformation. In American political thought, this free subject is the "sovereign people." Revolution is action by the people, not by a collection of individual subjects. The sovereign people have the power to disregard law and act in a new manner. They alone have the power to give the law to themselves. The individual citizen is not an autonomous political subject; the individual does not create the law under which he or she lives. Instead, the citizen is subject to the law. From the perspective of law, the individual citizen who purports to act

Political Time

free of law is always dangerous and often criminal. That action is a threat to be suppressed by law. To every assertion of freedom by an actual citizen, law can oppose its own rule as the "truth" of freedom. Law already embodies "the principles of rational and practicable liberty/'50 Because law understands itself as a product of freedom, it need not respect any individual citizen s counterclaim of freedom. The rule of law has already assumed for itself all the freedom it is prepared to recognize. Law, whose claim to legitimacy depends upon a revolutionary act outside of law, condemns as "not free" every act outside of law. The rule of law is always prepared to force the individual to be free. Law is prepared to see only one subject: the sovereign, who for us is the people. Were law ever to see the people directly, it would dissolve in that gaze. In the confrontation between the rule of law and political action, there is no objective measure of when the people are actually present as an acting subject. Instead of the people asserting a sovereign right of law negation and creation, the rule of law sees an aggregate of individuals acting unfreely outside the law. This conflict led Rousseau to distinguish between the general wll of the sovereign people and the will of all, which is only a collection of particular wills.51 In practice, this confrontation is the test of power at issue in a revolutionary struggle. An unsuccessful revolution never appears as a failed act by the sovereign people. In retrospect, the people seem never to have been present at all. The right to claim that the people have acted is at stake in the battle between revolution and law. This is not a question of counting votes. What is at issue is laws capacity to maintain itself as the truth of freedom. The people under law are never the same as the sovereign people whose action created the law. The people under law make up an aggregate of individual subjects; the sovereign people is a single subject capable of action. For the individual citizen, the way to participate in the sovereign people s freedom is not by joining with others to initiate new actions but by complying with the law. Laws assertion that it embodies the truth of revolutionary freedom is not a description of a particular set of facts but an effort to displace indefinitely the move toward revolution. This does not make it a false claim. Freedom, like other political norms, is always contested; it appears at any number of points in a political order, each of which can be set against the others. REVOLUTION AND THE BOUNDARIES OF LAW

Law and revolution are joined in the American political imagination. This connection, however, hardly makes them compatible. When revolution appears, law disappears; when law appears, revolution disappears. Law and

69

70

Temporality of Law

revolution cannot coexist. They mark different moments in the history of a single polity. This is a unity in difference spread across the historical narrative of a people. Law simultaneously embraces revolution and distances itself from the possibility of revolutionary freedom. Revolution is the actualizing of a freedom that law frames as either already realized, and therefore over, or potential, and therefore appropriate only for a future moment. American constitutionalism is suspended between an inexplicable origin, when the people acted, and the acknowledged possibility of a second coming of the people. The maintenance of law is never natural. Law begins and ends in the most unnatural of acts: revolution. Laws time is the period between revolutions. This complex subordination of law to revolution is the secular appearance of the religious idea that law is subordinate to revelation. Saint Paul, for example, describes Christ as "the end of the law."52 He calls for "[death] to the law through the body of Christ."53 The law he condemns is the Judaic law, whih had theretofore appeared as a representation of an earlier act of divine revelation. The new revelation of Christ simultaneously ends history and disposes of the need for law. For the Jews, history was constituted through the maintenance of a legal order that represented divine will; to be born again in the body of Christ is to take a position outside history. This position cannot last: history does not end, regardless of the eschatological promise. Christ's revelation must itself become the point of origin for a new law, that is, a new representation and a new history, which is the Church as a temporal institution. This Pauline sense of the transitional quality of law explains why Abraham Lincoln, our greatest rhetorician of law, always referred to the Declaration of Independence as the moment of national origin. The Declaration contains a deliberate, self-conscious presentation of the openness of the legal order to new revolutionary moments in which the people return to reorder their political lives: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes— But when a long train of abuses ... evinces a design to reduce them under absolute Despotism, it is their right... to throw off such Government, and to provide new Guards for their future security." An explicit awareness of the contingent character of the legal order informs the Gettysburg Address, in which Lincoln reminds his liteners that constitutional orders do indeed "perish" and must be begun again. Laws maintenance is the special task of the generation he addresses precisely because the Civil War has revealed the fragile character of the rule of law. Licoln struggles continually to deny that the war is the second coming of the people—or of a new people—and to portray it instead as the attack on law's order by a mere aggregate of individual "armed insurrectionists."54

Political Time

Lincoln shows us that an awareness of the beginnings and ends of law need not weaken, but may instead deepen, the belief in law as the permanence of the political order.55 The transitional quality of law makes possible the linkage of permanence with a quality of uniqueness. Because law is perishable, its maintenance appears as a task for us: one for which Lincoln can call upon the nation to sacrifice. It is the product of our forefathers; it is our task to maintain. Permanence in history is not forever. Maintaining the historical project of the state may, however, be the closest to permanence an individual can come. Although the imaginative construction of the meaning of the rule of law necessarily contains an openness to the possibility of a new act by the people, from within the law itself there is never any reason for such an act. A legal order is an unlimited temporal project. It is subject to termination from without—a sort of divine intervention—but never transformed on its own terms. The rule of law sees the future only as a space for endless self-replication, a carrying forward of meanings already established by the revolutionary act that was its origin. Law and action are perfectly opposed here. Political action is not itself historical. It appears in time but is not a continuation of that time. Action lasts only as long as the doing. For this reason, revolutionary action is indifferent to the distinction between negation and construction. The terror is as much a field for action as the founding. Law, on the other hand, is completely historical. It lasts until it is disturbed from without. Although opposed, each stands in need of the other. Each finds in the other the condition of its own possibility within the temporal space of politics. Thus, both law and revolution claim to be the truth of the other. Law appears as the truth already realized by the sovereign people in and through revolution; revolution, the truth of free self-construction at the heart of the modern conception of the rule of law. Our concept of law cannot begin without revolution. But our conception of revolution cannot begin without law, and not just because revolution needs an object to negate. More important, of any revolution we can always ask, "Whose revolution is it?" Revolution itself knows no boundaries. It reveals a political truth to all who see that truth as their own.56 In this too, it shares in the quality of revelation. Revelation belongs to all who can stand within it. By looking to the rule of law that carries forth the revolutionary truth, we know to whom the revolution belongs. Revolution is action by the people who fall within laws jurisdiction. Revolution and law cannot coexist in fact, but they are compatible in the imagination. They are related to each other in the same way as the sacred is to the profane. The sacred and the profane are defined in terms of each other;

71

72

Temporality of Law

each exists by pointing to the other. They, too, are linked in the imagination but never meet in fact. The sacred makes possible the profane, yet whenever the sacred appears, the profane disappears. The profane is whatever isn't the sacred, but it secures the sacred as its own source.57 The profane "memorializes" the sacred. Similarly, law must acknowledge its own disappearance if revolutionary action appears. Nevertheless, without law memorializing revolution—holding forth its truth—revolution would disappear into the chaos of a state of nature. Revolution without law is simply lost to the imagination. Revolution and the sacred, accordingly, share an idea of revelation. Revelation is an unexplained break in the temporal order; an extra-ordinary event that redefines the future by breaking with the meaning of a particular past. Future order will have to make reference to this event because it provides the new measure of meaning. The appearance of God to Abraham or the appearance of Christ refounds history. Each establishes a new point of origin that renders the past insignificant, except insofar as it contains intimations of the revelatory event. The same is true of the appearance of the sovereign people at a revolutionary moment. The political past no longer has a usable meaning, except insofar as it is seen as a preparation for this event. There is always something divine about the coming into being of that which was not caused by the existing state of affairs. Novelty is always miraculous. Traditionally, the novel origin of the political order derived from the gods. Rousseau reflects this tradition when he writes: "It would require gods to give laws to men."58 The ability to create the new takes the subject out of the order of nature. By creating the new, individuals establish the conditions of their own existence. They thereby displace the gods as the creators of themselves. Thomas Hobbes directly invokes the analogy to the divine in his description of the activity of political creation: "[Through an original covenant] is created that great LEVIATHAN called a COMMON-WEALTH, or STATE . . . which is but an Artificiall Man The Pacts and Covenants, by which the parts of this Body Politic were at first made, set together, and united, resemble that Fiat, or the Let us make man, pronounced by God in the Creation."59 People appear divine in the political dimension precisely because they make themselves anew. History is the domain of our divinity, just as nature is the domain of the gods. In each domain, order appears to have its source in free action: will alone brings order into existence. In political life, the capacity to will the self into existence is the unavoidable and enduring presence of the question of revolution. What will has created, will can negate. Just as a natural order of Gods creation is subject to his negation, so a political order made by the people can be unmade by them as well.

Political Time

Marbury captures the extraordinary character of revolution when it describes action by the people as "a very great exertion [not] to be frequently repeated/'60 It is, therefore, a rare act. It is experienced with an intensity—great exertion—that marks its extraordinary nature. Revolutions are both exhausting and dangerous. So is revelation. Just as no one can live continuously within the shining forth of revelation, no one can live continuously in a state of revolution. Standing within revolution or revelation, one can see no reason for it to end. An idea contains no hint of its own finitude. The soul knows only its own immortality. It is not in the nature of either revelation or revolution to set these limits. Rather, the limits are an inexplicable fact, a given of our existence, like the soul s discovery that it exists within a finite body. That revolutionary action cannot continue indefinitely is a similar sign of the givenness of the person. To try to live wholly in the domain of revolution or revelation would not be divine, but demonic. Revolutions that do not end in time end with the consumption of their own children. Nevertheless, because of the value revolution places on the openness of the future to deliberate reconstruction, even successful revolutions are unlikely to end easily. This is in part a problem of the practical difficulties of stabilization that follow a period of revolutionary turmoil. More problematic is the appearance of politics after a successful revolution. The space of politics appears to the revolutionary imagination as a domain of free subjectivity, calling for novel actions measured by a morality of responsibility.61 Revolutionaries are likely to have at best ambiguous feelings about abandoning an idea of "permanent revolution." Any stabilization of order may appear as a return to those limits that created the need for revolution in the first place. The revolutionary wishes to found a new order yet at the same time objects to being bound by any order. There is no natural endpoint of revolutionary action. Jefferson s qualms about a constitution that proclaimed a permanence beyond the generation of its adopters illustrate this ambivalence.62 Although it was the French Revolution that marked the emergence of the most serious problems of transition from revolution to law, the problem is always there. Revolutionaries who embrace order too soon will be labeled counterrevolutionaries. The first people exhausted by revolution often do not make it to the new order. They are eliminated by the unbounded quality of the revolutionary action they have brought forth. For law as a system of governance of the actual political order, the revolutionary will is to remain a possibility only in the imagination, not a fact to be realized yet again. Laws acknowledgment of revolution is only in part a legitimation of the authority of revolutionary action. It is simultaneously a strategy for constraining the possibilities of free political action.

73

74

Temporality of Law

The fight against revolutionary action is, therefore, always the defense of law. Revolutionaries who fail are tried for treason. If they fail early enough, they are treated as common criminals. Law can never be open to revolution without negating itself. Law conserves that which revolution seeks to destroy. A law with no power to conserve, to suppress the novel, is not law at all. Were the political order to become an uncontested field for novelty, the very idea of revolution would disappear. There would be no order against which revolution had to contend. Revolution without negation might be angelic, but it is surely not human. It would be a form of divine creation, of creation ex nihilo. In modern political theory, this is the moment of origins: the original political act behind the veil of ignorance does not have to overcome the resistance of law. It is imagined as a prepolitical act that makes possible politics in the dimensions of both law and revolution. Real revolutions begin in the imagination, but they end in the streets. It is no accident that we continue to celebrate the streets as the public forum that is both source and guarantor of our liberty. We celebrate the idea of the streets long after their real threat to law has disappeared.

4 Locating the Self in Political Time

The conflict between law and revolution reaches its deepest expression in their opposing attitudes toward time. The revolutionary looks to the future. He or she sees the present as a means to a new or remade future. The past is valuable—if at all—only insofar as it teaches something about the task of political reconstruction. Ever the revolutionary in his own self-understanding, Jefferson reflects, near the end of his life, on the relation of the Constitution to the present generation s political task: "[W]e were novices in [the] science [of selfgovernment]. Its principles and forms had entered little into our former education. We established . . . some, although not all its important principles." Although "successive improvements" have been made in this science, as experience under constitutional government has increased, no one has "yet so far perfected our constitutions, as to venture to make them unchangeable/' The task of political reconstruction confronts every generation; each "holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves."1 In short, learn from the past, don't revere it. The rule of law, on the other hand, looks to the past not as a single source of information among many but as the origin of the political meaning of the com-

75

76

Temporality of Law

munity. It sees the future as the space for the continuation of an already established order. The people have already acted; the law they created is permanent. As Marbury puts it, the task now is "to say what the law is," not to create new law. Such an attachment to law appears to Jefferson, and generally to the revolutionary consciousness, as a failure of the present generation to assume its responsibility for the political order. The conflict between law and revolution is experienced as a conflict between past and future, tradition and possibility.2 Is the task of each new generation one of replicating the political virtues of the founders or one of maintaining the work they have already accomplished? Are the founders models to be emulated or heroes to be revered? In the end, there is no choice to be made; there is only conflict. There is no middle ground between political self-construction and laws maintenance. Conflict, not compromise, characterizes our experience of the political. Law and action cannot reach an easy division of the field of political meaning. They relentlessly challenge each other, making all-encompassing claims upon the self and the community. The middle position is as difficult to hold on to asthe present, which is always stepping into the past or showing forth the future. We can plot this conflict by examining the distinctive moral stance that each perspective supports. TEMPORALITY AND POLITICAL MORALITY The rule of law claims loyalty as its source of moral support. Loyalty is the subordination of self to an other; it puts the interests of the other ahead of those of the self. The moral vice that is the opposite of loyalty is self-regard. Loyalty supports trust; self-regard supports distrust. A leader values subordinates who can be trusted; they must be loyal above all else. Loyalty is not just a virtue among individuals. An entire regime—including one of law—demands lyalty. Citizens are expected to be loyal to their polity. A failure of loyalty is not just a difference of belief among citizens but a betrayal. Treason disturbs us not because it stems from mistaken belief; rather, it is a violation of the obligation of loyalty.3 We are much more repulsed by the citizen who fights against his state than by the enemy alien—even when both share the same beliefs. The former violates an obligation of loyalty. There may be disagreement over what loyalty requires in particular circumstances; citizens can disagree over the nature of the principles to which the state is committed, as well as over the best interests of the state. But the limits of loyalty are reached when the citizen seeks to resolve these questions without regard for the past of the community. Citizens who turn against the existing order of

The Self in Political Time

the polity for the sake of an imagined future order can claim the virtue of loyalty only with difficulty. Such citizens may be acting justly and even responsibly, but they are not subordinating their selves and their own judgments as loyalty demands. Loyalty to ones own vision of the right and the true is no loyalty. The virtue of loyalty arises within particular, historically given situations. There can be no loyalty in the abstract. Nor is there a universal loyalty to all humankind. One cannot determine to be a loyal person prior to or apart from a range of existing relationships. One can be loyal to friends, family, church, party, or state. One cannot be loyal to a stranger or to someone as yet unborn. Loyalty attaches to the relationships within which I already find myself, not to those I might enter. We sometimes speak of loyalty to a moral ideal—for example, to an ideal of justice. But this is a secondary use of the term; it simply adds emphasis to the substantive ideal at issue. To be loyal to an ideal of justice is to be just insofar as one understands the demands of justice. Loyalty as a unique virtue attaches to the historically situated individual and describes an obligation to others. Loyalty does not arise from my plans for the future but from the past I already have—regardless of whether I was responsible for its creation. Thus, the paradigmatic obligations of loyalty run to family members. When the Athenian laws speak to Socrates in the Crito, they demand that he recognize their claim to his loyalty, which they base upon the care he has received from them over his entire lifetime. Accordingly, they assert a claim on Socrates' loyalty that is as strong as, or even stronger than, that of his parents.4 Obligations of loyalty can be created or deepened by consent, but they are not the same as obligations that arise from promise or contract. One can make promises to strangers. To break a promise is not necessarily to violate an obligation of loyalty. The same is true of contracts. One can choose to violate a contractual obligation without acting immorally, as long as one is willing to make up the damages. Obligations of loyalty are not convertible into other currencies. Nevertheless, a moral claim to loyalty may become more compelling when a relationship provides an opportunity for termination and that opportunity has been declined. The Athenian laws tell Socrates that he could have left Athens. His failure to exercise the choice to do so was, in effect, an affirmation of an obligation of loyalty. Leaving Athens would not necessarily end Socrates' obligations of loyalty, but it would diminish the scope of those obligations. Of course, no one can leave one's family, although one can leave a spouse. This tie does not lessen, although it may complicate, the obligations of loyalty. But one can break off other associations, and this freedom serves as a check on their

77

78

Temporality of Law

capacity to make claims in the name of loyalty. It may also allow one to resolve potentially conflicting claims of loyalty. Revolution, on the other hand, finds support in the morality of responsibility, which is the moral stance that takes its fundamental orientation from the capacity to act, to bring something new into being. Responsible individuals ask how they should use their power to act. Because responsibility looks at the possible, rather than the actual, it moves toward a universal perspective. Legal prosecution may be the cost of acting in a morally responsible way. If the Athenian laws invoke the morality of loyalty in the Crito, Socrates himself invokes that of responsibility in the Apology. He is politically dangerous because he acts responsibly instead of loyally. This means that he acts in Athens as he would anywhere: he pursues justice.5 Although responsibility is the morality of revolution, the content of responsibility is not limited to post-Enlightenment understandings of rational, universal moral norms. This was indeed the morality of the paradigmatic modern revolutions—the American and the French. Jefferson, in the reflections on revolutionary origins quoted above, writes that the revolutionaries "appealed to those [laws] of nature, and found them engraved on our hearts."6 But the moral stance of responsibility is broader than this particular form of universal reason, just as the morality of loyalty is broader than the particular relation established between citizen and state in a democratic polity operating under the rule of law. Responsibility rests on a perception of an open future, the shape of which depends upon individual actions. In different historical periods and different contexts, the substance of responsible action will be understood differently. Revolution rejects the automatic privileging of the historical particular that characterizes loyalty. Indeed, revolutions first task is to overcome the moral claims of loyalty. It undermines the pull of the past by rewriting history, which becomes a narrative of coercion and abuse by those who rule, and by shifting the political focus to the future. Breaking with the past, revolution opens an unconstrained future. Thus, the revolutionary imagination sees in itself a model for all humankind. Alexander Hamilton opens the Federalist Papers with the reflection that "it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice."7 Outside the bounds of loyalty to a particular past, the American Revolution offers universal lessons. This claim to paradigmatic status appears incongruous. If revolution is action by "a people," how can it have a meaning beyond that people? The structure of revolutionary thought, however, does not occur within a paradigm of

The Self in Political Time

consent but of revelation. Just as revelation is a showing forth of the transcendent in particular, so is revolution. The meaning revealed in revolutionary action is not a meaning constructed or decided upon by particular subjects at a particular moment; it is a truth that appears within or through their actions. It is their truth, but it is not their particular possession. Responsibility is the appropriate moral attitude toward future generations, just as loyalty is the appropriate attitude toward past generations. A morality of responsibility can undermine communal loyalties. Strains on familial and local communities, for example, correspond to the rise of an ethic of individual responsibility. Nor is it surprising to find that the national community remains the one form of political association that can still demand loyalty as a matter of law. We can no longer imagine treason against state or local communities. The traditional description of offenses against private authority—husband or master—as "petit treason" strikes us as the archaic expression of a patriarchal society.8 The national community, with its unique history, still claims to constitute individual identity, even as an ethic of individual responsibility, with its ideal of self-creation, displaces local and familial communities.9 Loyalty and responsibility do not always conflict. The morality of responsibility may conclude, under some circumstances, that loyalty is appropriate. Sometimes loyalty is the responsible form of moral behavior—even the revolutionary brigade needs loyalty among its members. Responsibility does not, however, presume loyalty as a first principle; it may compel choices that conflict with the obligations of loyalty. Revolution may be morally responsible behavior even as it violates the obligations of loyalty. Similarly, the morality o loyalty may, in some circumstances, entail responsibility. Loyalty to a particular historical community may include accepting its embrace—at least in some contexts—of a morality of individual responsibility. Debates over the appropriate character of liberal education, for example, often involve just this juxtaposition of loyalty and responsibility.10 Even when we achieve a practical reconciliation, loyalty and responsibility are still not reducible to each other. They do not collapse into a single virtue. Rather, they remain distinct, if overlapping, moral phenomena. When they are unaligned, we have no single answer to the relative priority of either. Moral intensity is possible on both sides. When this conflict is experienced within the individual subject, we have tragedy.11 When it is experienced in the society generally, we may have civil war. Both sides consider their behavior to be morally compelled. Each may be correct, although the moral grounds to which each side appeals may be incompatible. The conflict of law and revolution is only the most dramatic form of a conceptual opposition between past and future that can attach at any number of

79

80

Temporality of Law

points in the life of the individual and the society. Every structure of order has this double aspect: it can appear as a meaning to be maintained or as a setting that makes change possible and, indeed, calls forth change. Order can appear as a horizon or as a starting point. We can find the moral content of our behavior in loyalty to the existing order or in taking responsibility for a future order. This conflict appears not just in the political order but also within the order of the family, of local communities, or even within the psychological order that is one s character. We constantly labor under a tension between the virtues of loyalty and responsibility. We wish to behave consistently with who we already are. Who e are is inseparable from the many demands of loyalty within which we are located: loyalty to family, friends, school, community, workplace, polity. Yet we also wish to realize our own freedom by taking responsibility for our own selfdefinition. To create the self is to put forth possibilities not realized in the past. We wish to bring ourselves into being, and yet we wish to respect those things that we already are. We can never answer the question of why we are loyal to some relationships and not to others. Or, conversely, why we take responsibility for some aspects of ourselves and not others. In truth, we are exhausted by the tasks of moral behavior in either direction. We inevitably fall into an uneasy compromise: a compromise of fact rather than principle. We cannot defend our choices beyond pointing to our own finite character. Moral health may be only the suppression of an irresolvable conflict. Just as we experience the conflict of loyalty and responsibility in our own lives, we experience the same conflict in assessing how we should act toward others. We wish to respect their freedom, yet we expect them to be loyal to us. This problem of contradictory expectations becomes even more intense as we think about our relationships to future and past generations. We cannot assume a direct responsibility for the future without asserting our freedom from the efforts made by previous generations to construct a future. When we act responsibly toward the future, we may simultaneously fail in our obligations of loyalty to the past. We ask future generations to show the virtue of loyalty to us, while we fail in just that virtue toward our predecessors. Conversely, when we are loyal to past generations, we may fail in our responsibilities to the future.12 Psychologically, we would like to be loyal children, yet responsible parents. The temporality of the individual life span allows some reconciliation in the passage from childhood to adulthood. Sad as it may be to contemplate, there is a kind of freedom that comes with the death of one s parents. But the life of a community does not allow a similar compromise in the political conflict of loy-

The Self in Political Time

alty and responsibility. We are tragically unhappy in politics because political life is itself an unsolvable contradiction. This is not just the paradox of foundations that Hannah Arendt identifies.13 It is an inescapable tension at every moment within the political order. The Federalist Papers reflects this tension between loyalty and responsibility when it considers the relation of future generations to the constitutional project. Those generations will need a "reverence for the law" and "prejudices" in favor of the rule of law.14 These are the feelings of loyalty. But the virtue of loyalty cannot easily take hold if the constitutional order is easily or frequently amended. "Frequent appeals [to the people] would... deprive the government of that veneration which time bestows on everything."15 Although ease of access to a process of reassessment and revision may encourage responsible action, it undermines a project that requires loyalty. Thus, th conditions under which responsibility can take hold and operate are not the same as those that produce loyalty. And loyalty is what is required for theconstitutional order—the rule of law—to succeed. For this reason Madison argues—against Jefferson—that although "a constitutional road to the decision of the people ought to be... kept open," it should not be available except "for certain great and extraordinary occasions."16 Laws task is to defer revolution to a future extraordinary occasion. Liberal political thought claims to have resolved the conflict between loyalty and responsibility by striking a kind of geographical compromise between law and action. The public order of the state is to be "laws empire." There we live under the rule of law, with obligations of maintenance and loyalty. Simultaneously, liberal thought opens a space for action in the private domain. In our private lives, we are to be autonomous, self-creating subjects. This is a distinctly modern reading of the separation of the private and the public, one that inverts the traditional subordination of the private to the public. In classical thought, the private was the domain of the household, the public that of a politically active life. In the former, individuals could display neither the public virtue of loyalty nor that of responsibility. Freedom, upon which both loyalty and responsibility make a claim, required a public space of appearance to others. Socrates, who pursued a politics of responsible action, was a wholly public figure, treating all his fellow citizens as if they were family members.17 This is the line of thought that Arendt continues in her analysis of revolution. Because she understands revolution to occupy the only fully public space in the modern age, she sees it torn apart in the conflict of responsibility and loyalty. The distinction of a public and private domain reemerges in modern thought with the separation of religious belief from political life. The substitu-

81

82

Temporality of Law

tion of religious belief for household maintenance, as the subject matter of the private, puts a positive value on privacy. There are now two competing domains of "fully human" value: religion and politics. The model of the private is not the individual household but the community of the church. The private is thereby transformed into a competing form of the public. Each, however, is subject to its own internal tension of responsibility and loyalty. In politics, this becomes the tension between revolution and law. In religion, it is the tension between the ideals of personal responsibility for the content ofones faith and the maintenance of a religious tradition, with its distinct canon, ritual, and priesthood. This tension appears in its largest terms in the Reformation s reaction to the order of the Catholic Church. Indeed, this structure of religious revolution provided intimations of the political revolutions to follow.18 The liberal strategy of compromise through division of moral jurisdiction fails in the first instance, then, because the same tension of past and future, loyalty and responsibility, reappears in the private domain. The Supreme Court s late twentieth-century privacy cases drive this antithesis to its farthest point by asserting a freedom to make the body itself—its life, death, and procreation.19 This is the appearance of the private from the perspective of the modern liberal rule of law. The private is defined as the space for literal selfcreation.20 If we could so make ourselves, then the freedom of action and the morality of responsibility would have won a victory in the domain of the private. But it is just in the givenness of the body that we find the limits of our own freedom to make ourselves.21 These cases are difficult because when we confront the symbolic points of the body's existence, we find that we are already subject to claims of loyalty. For some, life itself is a gift that imposes upon us obligations of loyalty to its giver—God, family, or community. To others, the value of life is located only in the capacity to act responsibly and create meaning for oneself.22 The double direction of temporal experience and moral obligation is inescapable. An even deeper challenge to liberalism s strategy of jurisdictional division arises from the recognition that the distinction of the private from the public can be seen only within an existing legal order. The private is not outside the rule of law; it is a product of legal definition. From the perspective of revolution, the line can always be redrawn or denied completely. The compromise of liberalism, therefore, only looks like compromise from within the rule of law. Laws claim that the private is outside of the scope of politics may appear not as a form of protection for free action but instead as another mechanism for suppressing radically free action. This, for example, is the feminists claim when she contends that the public-private distinction is simply another means of subordinating women.23 Protection of the private appears to her as an effort

The Self in Political Time

to undermine her own political freedom. The same political critique of the private was pursued earlier in the twentieth century by those who sought to use the mechanisms of state power to protect employees from their employers.24 In sum, the distinction of the public from the private is a contestable political move, not a compromise between law and action or loyalty and responsibility. We value both the possibility of revolution, which affirms the radical freedom of the political subject, and the permanence of law, which affirms the already successful shaping of history into an enduring human project. To say we value both is not, however, to suggest that there is an easy balance between the two. We cannot spend part of our day as revolutionaries and part as lawabiding citizens. There is not one part of the polity in which law rules and another in which revolutionary action is pursued. If the rule of law were to extend across only part of the political order, this would be not a partial success but a complete failure of law. "No one," we say, "is above the law." A law that applies only to some actors and on some occasions suggests that the forms of legality are being used for ends that subvert the rule of law. We cannot justify a limit on one person by appealing to law when we are unwilling to apply the same rule to others in similar situations. What is true of particular laws is true of the rule of law generally. We cannot locate a space that is outside laws rule. About every possible event we can make a legal determination: it is either permitted or prohibited by law. Lws rule does not mean that there is no place for discretion by judges or other political decision makers. The rule of law subsumes discretion not by insisting on a single answer but by locating the meaning of the discretionary act outside the decision itself—for example, in the allocation of the authority to decide.25 Similarly, our notion of revolution moves inexorably toward that of total revolution.26 The revolutionary attitude fails wherever it neglects to evaluate any institution or practice inherited from the previous order. To the revolutionary imagination there is no fixed point of privilege. Nothing is exempt from revolutionary reconsideration. About every possible event in the political order, the revolutionary can ask whether it should be maintained or reconstructed. To understand the rule of law, we must look beyond reasons defense of a legal order—the subject of traditional jurisprudence. We must look instead to the experience of the political as it makes conflicting claims of loyalty and responsibility. The problem of laws origin is one of creating a political order in which self-consciously novel action is displaced by legal permanence. The problem of laws rule is one of constraining the novelty of political action. For revolution to give way to the rule of law, the political order must change its ap-

83

84

Temporality of Law

pearance. It must come to be seen as meaningful only insofar as it maintains an already established order. The virtue of loyalty must displace that of responsibility. This transition is never easy, and no permanent harmony can be established between these two ways of thinking. THE TRANSITION FROM REVOLUTION TO LAW

Revolution and revelation share a common temporal structure. Neither can perpetuate itself within ordinary time. To endure, each requires a transition from the epiphanic moment to a stable order. Both must accept the structural necessities of the ordinary. The sacred must place itself at the origins—the borders—of the ordinary. The action at the heart of revolution must become a lesson to be learned, an ideal to be institutionalized. It must place itself at the origin of a different sort of politics. When revolution itself becomes the permanent possession of an individual or group, politics takes the familiar forms of the personality cult or the revolutionary vanguard. Both are unstable forms of political order. They are neither successful continuations of action nor successful transitions to law. They are contradictory attempts to institutionalize free action. Long after they have been experienced, revolutions must be read. Permanence requires establishing a historical memory. The meaning of the action must, therefore, be divorced from the experience of freedom. This transition is inevitably a transformation as well. Novelty remembered is no longer novelty; action institutionalized is not action. What is remembered is, in part, the ideational content of the action. If action is the process of embodying an idea, of giving historical shape to a meaning grasped first by the imagination—for example, the revolutionary ideal of justice—political memory is the reciprocal process of reading the idea from its concrete embodiment. The idea read by memory need not correspond to the idea that was present to the mind of the actor. The way up and the way down are not the same. More precisely, we have no way of knowing whether they are the same. We cannot step back in time and interrogate the actor, even if that actor could give a precise representation of the meaning of the action. Nor is there any reason to think that a text conveys the same meaning to every group of readers, especially when the readers are spread out over time. Nevertheless the text is read as if the meaning perceived were that upon which the revolution turned. It is read as the meaning of the revolution. Memory operates in a context different from that of a political actor s apprehension of abstract ideas. What appeared as self-evident truths to the actor will not appear similarly abstract to memory. Not an idea s quality as abstract

The Self in Political Time

but its quality as "ours"—our truths—infuses memory.27 Remembering the revolution is not the same as studying political science. Memory sees the idea through the past act; it does not disregard the act or the actor. Political memory works at the intersection of abstraction and loyalty. These particular ideas inform our memory, because they have supported individuals and a political society to which we are already loyal. The transition from revolution to law requires production of a text for future generations. The first generation writes the book of state; later generations read it. The text of revolution is, in the first instance, the bodies of the revolutionaries themselves. The abstract idea becomes the foundation of a new legal order only when individuals are willing to engage in acts of sacrifice for it. To the individual participant, a revolution is a withdrawal of the body from the existing legal order and the investment of the body in a new set of ideas. The old order is negated by this withdrawal of the central political resource: the body of the citizen. When citizens are no longer willing to sacrifice themselves to the existing order, it becomes an empty shell. What had been an embodied set of meanings is seen now as a set of ideas without the power to make a claim upon the citizen, on the one hand, and a set of bodies free to invest in new meanings, on the other. A revolution belongs to a people because they carry forward its meaning in the sacrifices they have been willing to make, and continue to be willing to make, in order to maintain the meaning of a particular polity. Lincoln captures this linkage of revolution, body, sacrifice, and text when he mourns the passing of the generation that bears the scars of the Revolutions violence: their bodies are a "history bearing the indubitable testimonies of [the Revolution s] own authenticity, in the limbs mangled, in the scars of wounds received, in the midst of the very scenes related/'28 History is used in its double sense here. First, the bodies are a historical text. Second, the bodies are themselves the site of the historical experience. The body as text speaks of the body that has suffered to make real an idea of the political. In the scarred body, history writes its own text. Sacrifice is the inscription on the body of an ideal meaning. The scarred body is a visible symbol of the political meaning for which the individual is willing to give him- or herself. It tells us what that person holds to be of ultimate significance—the meanings for which he or she is willing to give up the satisfactions of the private body. The scarred body is always a public text; it proclaims the penetration of political meaning into every point of life s order.29 Law begins with the act of reading the marked body. Sacrifice makes the body a text, a bearer of an authenticated testimony; it is the point of contact

85

86

Temporality of Law

between an ideal meaning and an actual history. If we wish to know who we are, we need to understand those ideas for which we are willing to sacrifice the self. If we are unwilling to make any sacrifice, then we may not be anyon at all. We have no character, only desires. The desiring body is not read; it is satisfied. It makes no public appearance to others. It leaves no trace. Indeed, its very existence is a matter of indifference to others. Reading the bodies of the revolutionary actors, the next generation—and every generation thereafter—asks whether it is willing to continue to sacrifice for the truth embodied in those founding texts. This is the point of contact between revolution, law, and war. In war, the present generation continues the sacrifice first taken up by the founders. The continuity of meaning between revolution and war is the rule of law. As Americans, we fight, if we ight, for the Constitution.30 There is a subtle substitution of text for body. War tests whether a government so conceived can endure. A political order that cannot demand sacrifice of its citizens does not have the power to maintain itself. It is form without substance. This is the testimony of the recent collapse of the Soviet Union and the governments of Eastern Europe. When the citizens were no longer willing to sacrifice themselves to the ideas embodied in those polities, the governments collapsed. Ideas without the power of embodiment have no historical force. They become what they began as, mere abstractions. Sacrifice is an investment of ones finitude. Its symbol is a marking of the body: an indelible alteration.31 It is not an investment to be recouped. The origins of political order are represented as a sacrificial act because this investment of the idea in the flesh makes history possible. The greatest symbol of this myth of origins is Abraham s sacrifice of Isaac: a paradoxical act by which the giving up of the only son is to make possible the generation of a historical nation. Not calculation, but faith, fuels this sacrifice.32 Sacrifice founds political time, rather than ending it, even when there are no more sons to carry on. This is also the paradox of a historical Church emerging out of an eschatological expectation. In order for the Church—an institutionalized meaning within historical time—to begin, a sacrifice must be made. The Word must become flesh and the flesh must be destroyed through a sacrifice that affirms the sacred presence. The acts of regicide that mark the transition to popular regimes in more recent Western history demonstrate this same structure of sacrifice as foundation. Killing the king is a symbolic sacrifice of the entire nation. Through this act, the nation takes on a new meaning. The killing of the king is simultaneously an act of liberation and a marking of the body of the state with a new meaning. The people kill the king. Yet the people die alongside the king, be-

The Self in Political Time

cause the body of the king is the corpus of the state. Killing the king is simultaneously a withdrawal of meaning and an investment of meaning. The people are on both sides of this act of regicide. Freud captures this double sense of sacrifice and sacrificed in his story of the origin of civilization, in which the original act of patricide realizes not the promise of freedom but the internalization of conscience.33 With conscience comes law, and with law, history. The meaning of each of these violent acts is always contested, becoming clear only in retrospect—only if the revolution is successful. Nothing is an origin in and of itself. Origins depend upon what comes next. Thus, the martyr enters a contest with the state for the privilege of investing a violent act with meaning. Sacrifice always carries a double meaning: to sacrifice and to be sacrificed. Martyr and criminal replicate the conflict of responsibility and loyalty in the dispute over the body's death. The martyrs act of withdrawal from the body is a means of embodying an alternative idea through a competing sacrificial act. That sacrifice denies the state the power to determine the meaning of the martyr s death.34 Conversely, the state refuses to recognize the martyrs self-sacrifice, seeing instead only a disloyal criminal whose punished body becomes a visible sign of the states conception of itself. The scarred body turns us from a focus on an indefinitely open future to the givenness of the past we already are. The body reminds us that we enter the political domain with a limited set of resources and that every choice is an investment of a wasting asset. The scar is the mark of the investment. It is the most visible sign of the used body, of the givenness of that which we find ourselves already to be. We may regret that we have only one life to give for our country, but it is just that limit that makes us historical beings. Without such a limit, the present would be a mere game; it would generate no history. For political man, the present is always deadly serious. There is only a short step from reading the body of the revolutionary war veteran to reading the Constitution as the revolutionary text. Realizing this was Lincoln's rhetorical genius. In place of a reverence toward the wounded bodies of the Fathers, who were disappearing, Lincoln called for "a reverence for the constitution and laws" which could endure indefinitely.35 The scarred body directs the gaze away from the future and toward the pain already suffered to bring into being an idea of the political. This is the fundamental movement of the rule of law. The rule of law is not government by abstract principle: judges are neither political scientists nor philosopher-kings. It is rather a process of interpreting the meaning of texts that have come into being through and alongside acts of sacrifice already performed. The body lends the authenticity of its sacrifice to the text that is the product of revolution. The product of the spent body is the legal text. The sacrificed body establishes this

87

88

Temporality of Law

text as ours, the one for which we, as a unique polity, can be called upon to sacrifice again. No theory of the contractual origins of law—whether or not they lie behind a veil of ignorance—is ever capable of explaining why a par ticular system of law is uniquely ours. Efforts to explain or derive laws rule from the perspective of reason alone inevitably ignore the geographic and temporal boundaries that are at the core of our experience of the state. Interpretation is laws mode of understanding because it captures both these aspects of sacrifice, that of ideal meaning and that of embodied form. Interpretation aims at the ideal content of law; there is always a "principle" that informs law. The content of these principles depends on the particular character of our moral belief. If all laws were only ad hoc compromises between competing interests, the rule of law would fail to stand apart from the rule of men. Law would stand on the same private interests and desires as the market. The rule of law, however, points to a higher set of ideals and a different understanding of the character of the subject. Law rests on ideas of justice, because justice informed the revolutionary's act of sacrifice. In spite of the search for principle, legal inquiry can never give up its regard for particular artifacts. Law cannot look directly to the principles themselves. Moreover, the interpreted object is never just any text. Americans read the Bill of Rights rather than the Declaration of the Rights of Man, even if both aim at an ideal of citizenship. We are already bound to particular legal artifacts; they demand our loyalty. The course of reasoning from revolution to law necessarily moves through the body—and from body to text. In politics, an idea becomes a legal text only through an act of sacrifice.36 An idea for which no is willing to sacrifice is of no political relevance. To be a member of the polity is to read the historically given meaning of the state in one s own body. Each of us is already an embodied past. I am by birth an American; my children are as well. Participation in this history literally runs in the blood.37 The state may call upon each of us to sacrifice the body to maintain the historical project that is the state. Lincoln's revolutionary war veterans bear only more visible signs of the sacrifice—real or potential—that establishes the link between each of us and the state. A citizen unwilling to sacrifice the self has a problematic relation to the state. He or she fails in an obligation of loyalty. Of course, the state may compel, as a matter of law, that sacrifice. In that case, one becomes a victim of the state. But laws violence reaches many who are not members of the state. A person for whom the legal order makes no meaningful claim is truly an alien, even if he or she was born within the state. Or, if not an alien, then a revolutionary committed to refounding the law of the state. Law is the text read out of past acts of political sacrifice. The rule of law is

The Self in Political Time

the system of political order founded on the interpretation of those texts. When we maintain the law, we maintain the meaning of these acts. We fulfill an obligation of loyalty: an obligation not to forget and so make as nothing the significance of the lives and deaths of our predecessors. The continued willingness to sacrifice for law is a replication of these original acts, a re-presentation of their meaning—not, however, as an experience of revolutionary freedom but as an experience of political loyalty. Sacrifice and interpretation are, therefore, linked. Sacrifice is the process by which ideas are embodied in historical artifacts; interpretation is the reverse process, by which the ideal content of the historical artifact is realized. Loyalty links interpretation to sacrifice. It directs interpretation to a particular set of sacrificial acts as those that contain our meaning.38 Disputes within the rule of law are over the political texts we are to read—there are multiple texts—or over the nature of the ideas we can find represented in those texts. The rule of law is always a mixture of our moral ideals and our historical past.39 When the texts no longer appear as ours, or when they are no longer capable of embodying our ideals, law gives way to revolution. A new act of revolutionary sacrifice refounds the state by embodying a new set of ideals. The scarred body is the idea already represented. But the body does not point us in the single direction of the past; it points forward as well. Because we understand ourselves as having a future, we always appear to be temporally incomplete. Short of death, the project of marking the body is never entirely secured against the future. New marks can always displace the old. To turn from the scarred body to the openness of the body to scarring is to turn from law to revolution. Revolution is a new investment of the body, just as law is a reading of the already invested body.40 We not only read the body as an already marked text, but we know that we have the possibility of rewriting the text. This is the continued presence of the question of revolution and the morality of responsibility. Just as we have a past because it is already set, we have a future because we know that we will die. The self-consciousness of our own death gives us the future as a project. The body makes of us a temporal double: it holds forth the past just as it holds open the future. The political order occupies this contested space of the body's meaning. It occupies this space in the double dimensions of law and revolution. These are not the only possible meanings of the body—consider, for example, those at issue in romantic love. They are the appearances of the body in our political experience. The body gives us a particular past (the law), and it forces upon us responsibility for our future (revolution). The direction in which we turn, however, is unpredictable. Politics holds open both a process of transubstantiation, of turning the

89

90

Temporality of Law

body into a representation of an idea, and one of interpretation, of reading the idea already instantiated in the body. These processes intersect on the contested ground that is the finite body. If we were merely bodies or merely ideas we would not have that peculiarly human dimension which is history. If we fail to find a meaning in our own bodies, then we locate our self-identity outside the political order. (For this reason, Plato described philosophy as a dying to the body.)41 We may, in that case, become political cynics, indifferent to law and revolution.42 History is both the doing and the text that describes what has been done. The embodied self is inevitably and irretrievably both. We cannot make coherent the contradictions experienced between past and future, order and action, law and revolution. We want to shed the responsibility of action and find the meaning of our life already given. We want the virtue of loyalty to relieve us of the moral responsibility for action. If we did not wish for this, the historical project of the state could not begin. Yet we do not believe that true freedom exists within the bounds of loyalty. Loyalty without responsibility is an incomplete account of our political experience. We cannot only look backward; we want to create ourselves and our polity. Wholly to forsake this responsibility creates a pattern of life that has its own pathologies of numbing compliance, which can create horrors as troubling as those of permanent revolution. THE SOURCES OF MEANING IN POLITICS

The rule of law is a complete ordering of the political domain. The question of the lawfulness of every possible political event can be asked and answered. We do not require a judicial determination but neither are we surprised by the pervasive character of the courts in our political life. While the courts are not alone in asking this question and making this determination, it is their primary function. The relentless judging of legality is true even in the creation of new legal rules. We can always ask whether a law is "lawful" without falling into tautology. From the perspective of the rule of law, the legislative product is not the bringing forth of something new but the actualization of possibilities already established by prior law. In America, judicial review—at issue in Marburyitself—illustrates just this proposition. What Congress declares to be law may not be law at all. That depends upon whether the Court finds the legislation to be authorized by the already established Constitution, which is "the fundamental and paramount law of the nation."43 Legislative activity, therefore, is itself subject to the legal order. The Court s role is to maintain that order by

The Self in Political Time

suppressing any legislative claim to unbounded freedom. As Marbury puts it: "[Either] a legislative act contrary to the constitution is not law... [or] written constitutions are absurd attempts... to limit a power in its own nature illimitable."44 An illimitable power to act is not the rule of law, even if it is a power to make new laws. There can be dramatic disagreement about the appropriate interpretation of the law, even if all the parties are examining the same legal artifacts. The rule of law is a framework of political meaning, not a set of true propositions. Nevertheless, the boundaries of the rule of law as a distinct perspective would be transgressed if a court—or, for that matter, the legislature—were simply to ask itself what would be the best policy for regulating future conduct. If political decisions can be justified only by practical considerations—or if they are unique responses to unique sets of circumstances—then the rule of law is indeed an absurd attempt to limit a power in its nature illimitable. Even a judge who believes that the best outcomes, as a matter of management of a complex society, are reached by just such pragmatic judgments cannot declare that this is what he or she is doing. Such a future-oriented, pragmatic approach belongs to the critique of law; it is not the appearance of the rule of law.45 The difference between the possible and the actual matters little in the legal attitude. The substantive meaning of an event under law is already exhausted in the determination of its possibility. The event shows itself as an instance of a preexistent legal rule. This does not mean that we come to the event with an explicit set of rules that limit the available meanings. Indeed, we may not even know the rule until we read the event as a manifestation of it. We shall then see the rule, however, as something that makes the event possible, rather than vice versa. The uniqueness of the event is not legally cognizable. Law speaks, for example, of "the presidency," not the particular president. The power of the president—as a matter of law, not fact—does not turn on who occupies the office. The same indifference to the actual is reflected in the Courts admonition that "[e]xtraordinary conditions do not create or enlarge constitutional power."46 Whatever the exigencies of the present, they cannot be the source of law. When we speak of equality as a basic virtue of a legal system, we have in mind this indifference to the particular person, rather than any distributive ideal. In every event, law locates meaning by appealing to an already established order. The meaning of the event may be wholly negative, that is, the event may be read as a negation of law. In that case, laws response is to label the event illegal and to invoke remedial mechanisms to suppress it. This event is not cognizable as a matter of law. The only event that law recognizes as meaningful outside of the existing order is revolution. Revolution is the point at

91

92

Temporality of Law

which law recognizes its own limits; it is the point at which possibility must give way to actuality. Conversely, this actuality informs laws possibilities. Thus, the authority of the legal rule is always traceable back through the polity's history to the revolutionary event—to action by the sovereign people. The route back may take a number of steps. There may be intervening judicial decisions, legislative acts, or regulatory measures. But about each such step, we can ask whether it was legal and the answer will point us further back toward the revolutionary origin. Laws disregard of the actual in favor of the possible does not mean that short of revolution nothing ever happens in a system of law. Rather, law does not view the event from the perspective of its happening. What matters to law is the possibility of the event as the realization of an already established rule. Law's task is to maintain the past in the present and so to construct a future that is continuous with the past. Maintenance has room for reform, for more perfectly realizing the legal order already in place, but it has no place for a novelty that cannot be understood as reform. Understanding the legal meaning of an event is a problem of interpretation. Interpretation always has the quality of reaching for a meaning that is already there—even if we don't know where. Interpretation is not an act of poetic creation. Neither is it the presentation of a meaning that already exists in some other mind—perhaps the mind of the texts author. Nevertheless, it is easy to see why legal interpretation often falls into the language of intent. This language creates a metaphoric space in which the idea can be imagined as waiting to be discovered by the interpreter. The rule of law, however, is not a thing (not even a thing in someone's mind) but a way of seeing and understanding. The present meaning of the legal order always appears to be fully constituted by its own past. Ronald Dworkin s image of the judge as someone who is writing a new chapter in a chain novel is a close approximation of this experience.47 Yet Dworkin confuses reading and writing in the process of interpretation. Legal interpretation reads the event as if it were a chapter in a book that is already written yet previously inaccessible. To say that the legal meaning of the event is exhausted in its possibility is not to say that we know these possibilities before the event occurs. Legal interpretation is a reading of possibility out of actuality. We see through the event itself to the rule of law that was always there, even if unrecognized. That someone outside the law could identify the free play within this selfappearance of historical continuity is irrelevant to the rule of law. The only worry that appears within the rule of law is that our interpretation may be incorrect. Serious challenges can be mounted only by competing interpreta-

The Self in Political Time

tions that operate equally within the rule of law. Courts do not worry that there may be no law at all; they worry about what the law is ,48 The distinction between the possible and the actual, which is of no significance to law, is critical to revolution. The domain of action is not possible worlds but the actual world. Action focuses on the moment of choice, when someone takes responsibility for doing one thing rather than another. Action distinguishes this moment and this actor from all that came before and all that will come after. Revolution breaks out of the limits of the possible by creating the new. Law would limit this moment of novelty and celebration of the actual to revolution. Yet every event can be seen to share in this revolutionary quality of celebrating the novel. On this view, the event is not fully understood from the perspective of its possibility; it is not merely a continuation of what already is. It must be grasped in its uniqueness. The act is a coming into being of one particular thing from among a multitude of possibilities. In its possibility, it is indistinguishable from what might have been; in its actualization, it gains political significance. Action looks, for example, not at the presidency but at the president. Not at the possibilities of the office but at the winner of the election. This is not law s view; it is, nevertheless, an alternative view of the political with which law must always contend. What seems novel to the actor may appear predictable to the observer. Even the revolutionary may appear to observers as someone acting within a well-established course of behavior. The significance of the event, to the observer, may lie in its link to a much larger pattern of order—a pattern of which the actor may be unaware. That pattern might, for example, be based on an economic theory or a psychological profile. Action and law are imaginative constructions of experience from within a political order. They do not exhaust the possibilities of meaning in a course of events. Laws power to declare an act illegal, and thereby negate its appearance, is one aspect of the contest between law and action. It is, in fact, the least subtle of the forms of understanding deployed by the law.49 Laws strength is not measured by its response to illegality but by the pervasiveness with which we identify the meaning of the political order with the rule of law. The willingness of the citizen to sacrifice the self for law constitutes the proper measure of laws power. Similarly, the strength of action is measured not by a willingness to violate law but by an indifference to law. Action dominates when we forget to consider the legality of an event, when law s voice is pushed to the margins. Marbury sees both the tension between revolution and law and the necessity of moving from revolution to law. Although it addresses the novelty of

93

94

Temporality of Law

revolutionary action, the opinion subtly portrays revolution as an act that merges into its own opposite. The appearance in history of the people was a novel political act. Yet this act was "designed to be permanent."50 If we ask what it was that the action of the people created, the answer is the rule of law. "The government of the United States has been emphatically termed a government of laws, and not of men."51 A government of men would be one in which law failed to control action. It would be a government in which individual subjects maintained a freedom to act without regard for law. These free subjects are not "the people," whose free action precedes law but also produces law. A government of men promises individual freedom for some but a dangerous lack of freedom for others. Free subjectivity within the political order, rather than at its boundaries, does not appear as a virtue. It represents the danger of tyrannical government, of a politics of inequality and privilege. To the legal imagination, outside of law there is only a collapse of the political order into the state of nature. The only exception to this is revolution. But revolution is always at a temporal distance—past or future—from the present of law. The rule of law is, accordingly, the rule of no oneTo be the rule of no one, it must appear to be the product of everyone. The choice, it seems, is between the freedom of the people and the freedom of individuals. The former produces law; the latter, oppression. As the French revolutionary Saint-Just proclaimed a few years later, "No man can reign innocently."52 From the perspective of the rule of law, this is not simply a problem of monarchy. It is the problem of political power in the hands of any free subject, including (apparently) the revolutionary.53 The choice that appears from within the perspective of the judicial opinion is the same choice that appears from within the perspective of revolution: a choice between the sovereign people and a tyranny of individuals. The sovereign people link law and revolution, and oppose both to a government of men. The Court articulates the same defense of law as the product of the freedom of the people that one finds, for example, in Rousseau.54 To the courts, the Constitution appears as law and law appears as the end of revolution. From the Courts perspective, the revolution is over: the rule of law has taken into itself revolutions vision of free political action. The judicial perspective is not, however, the only perspective. The transition from actin to law is seen as a necessity only from within the rule of law. The political order continues to encompass both law and action. The election of 1800, which is the source of the problem before the Marbury Court, testifies to the continuing, unresolved conflict between law

The Self in Political Time

and action. That election makes clear that the Constitution did not by itself create a rule of law, indifferent to particular individuals. Questions of fundamental political import are raised in the election. Particular individuals continue to matter. Not just law, but real people facing real choices govern the polity. The meaning of the political order has not been exhausted in the construction of a constitutional order. The political domain remains surfeit with novelty. The rule of law is an ongoing struggle with action; it is not a thing already accomplished. Writing a constitution is neither the beginning nor the end of the rule of law. Having witnessed both the postcolonial and post-Soviet waves of constitution writing abroad, we can hardly be surprised by this lesson of Marbury. If the election of Jefferson and the defeat of Adams shows us the continuing place of free subjects and action in the political order, then Marbury shows us laws response. The opinion bears on its face the problem that free action creates for law. The case arises because Jefferson—the new president—acts. He prohibits delivery of Marburys commission as a justice of peace. This is a novel event: an action. It is a political action, but not because it could not be justified by reference to a legal rule; Madison s lawyers, had he chosen to appear before the Court, could have spoken. Arguments about the possible legality of Madison s behavior miss the point of Jefferson s revolutionary claim. Jefferson asserts a power that derives not from a legal rule but from his electoral victory. His behavior is political action because of how he understands what he is doing. He is breaking with the past and asserting a new power based upon the revolution of 1800. He is creating a new political appearance, for which he takes responsibility. He is not following a rule or realizing an established possibility. The meaning of the act for him resides in its uniqueness. For Jefferson, delivery of the commission depends on a series of contingent choices: Whom will the voters elect? How will the victor choose to act? Between Adams' appointment of Marbury and delivery of the commission there is a space opened for political action. When we see the events in this way, we view them from the perspective of action. Viewing Marbury as a political appointee—his commission was signed by Adams on the final day of his administration—Jefferson asserts a stronger political power. This is a test of power, the assertion of one action against another. It is, on a smaller scale, a repetition of the electoral contest. The conflict over Marburys commission seems to be another confrontation between Republicans and Federalists, between Jefferson and Adams. For Jefferson, the courts are only another part of this contested domain; they are not a thing apart from ordinary politics.

95

96

Temporality of Law

The contestable quality of the political order is plain from the fact that neither Jefferson s action nor the Courts response surprises us. Jefferson s action is hardly out of the ordinary. Politics remains a domain of novel actions by free subjects. The rule of law does not eliminate individuals. A world of law alone would be a world in which literally nothing happened: there would be no transition from the possible to the actual. Free subjects under the rule of law do not disappear into that ethereal subject, the people. Law may only recognize action at the regime s temporal boundaries—its origin and end—but it must constantly contend with action. Nor is it the case that Jefferson's action necessarily introduces injustice and oppression into the political order, as the Court would have us believe. His action may equally be seen as opening a space for justice within the political order. He invokes justice to counter the injustice of Adams' manipulation of the letter of the law in the midnight appointments. Jefferson acts in the way he believes tol>e politically responsible: he will not listen to a lecture on loyalty to law from a Chief Justice appointed by Adams.55 Marbury explains the problem that action creates for law in this way: "But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated [T]he rights [Marbury] has acquired are protected by the law, and are not resumable by the President."56 Law protects against novelty by political actors. Laws protection is temporal permanence. There is an inversion here of our ordinary perception of the order of reality. Law is assimilated to nature: law creates a fact which cannot be made never to have existed. The act of the president, on the other hand, is a mere political appearance—an illusion—incapable of displacing a law that has become real. Law appears as fact; action is reduced to a mere appearance. This effort to identify law with nature points to the real fragility of the order at stake in Marbury. Jefferson's action is not cognizable in the judicial domain. It can make no appearance under law. Making no appearance, it is "presumed" by the Court never to have occurred. As the Court says, that "which the President cannot lawfully forbid... [he] is never presumed to have forbidden."57 Denied any space within the judicially constructed appearance, the action can have no legal effect. It is as if it never happened. This is not a statement of fact but an end to be achieved by law's victory over action. It is all a matter of appearances, of strategic disclosures and concealments. To the Court, Jefferson's act may be mere noise, but to Jefferson it is the Court that appears as mere noise. Law is no more capable than action of making a fact which has existed never to have existed. Marbury has been denied his commission. This too is a fact that ultimately the Court cannot undo. The battle between law and action is in the domain of appearances; it is a battle

The Self in Political Time

over what we choose to see, not over the things themselves. Do we see Marbury with or without his commission? Do we share a common perception, or does that depend upon whose voice we hear in this contest? From Marbury we can learn something about how judicial power works. We can see in the opinion how the Court manages its own resources. We cannot, however, see the workings of action. No one appears in Marbury to construct for us a world from the perspective of action— Jefferson's world. This counterperception of the political order remains unspoken, but nevertheless threatening, throughout the opinion. The risk of Marbury is that the opinion will fail to convince. If that happens, then the Court will be seen not as the voice of law but as one political actor asserting itself against another. We shall hear John Marshall, not the law, and we shall hear him as Jefferson must have heard him. Marshall's assertion of judicial review will seem to be an act of political novelty no different in land from Jefferson's denial of Marbury s right to the commission. We shall see a clash of wills, not the rule of law. The transition from action to law is not a moment in the history of the polity, a point at which subjects—as well as their posterity—somehow lose themselves in a people that brings forth the law. Law and action do not meet at a single intersection. They are, instead, contending appearances of order. The political order makes possible both law and action. It brings them forth, however, as opposing forces that recognize no compromise or easy balance. The contest takes place at multiple points; when and where it will surface is unpedictable. Nowhere is law so secure that we cannot see the novelty within the event; nowhere is action so secure that we cannot find a rule of law by which to measure the event. Only from the perspective of the rule of law is legitimate action limited to revolution. Laws perspective, however, is essentially contested. The political order continues to invite initiative, choice, and novelty. This is not simply a matter of protecting a private domain for autonomous action. The political order remains the space within which public freedom is acted out. It is the space for showing forth the individual subject as a unique, free actor, as much as its the space in which the rule of law appears. Politics is both spaces, not by being in part each but by being wholly each simultaneously. Just as law banishes action to its own margins, action banishes the permanent order of law to its margins. To action, the importance of law lies in its negation of certain possibilities. Law exists as a frame; the significant choices are still to be made. If law moves from the borders into the political order itself, it appears to action as the status quo threatening to preserve an unjust order. Laws claim of maintenance appears to action as only the dead hand of the past controlling the present. Action takes as its task not loyalty to the status quo but

97

98

Temporality of Law

the correction of its injustices. From the perspective of action, a permanent order—law's promise—is projected into the distant future, when justice will finally have been achieved. Only then can we abandon novelty for permanence. As Jefferson said, constitutions can be "unchangeable0 only after they have been "perfected."58 Until that time, what is required is not preservation of past meanings but novelty in the service of justice. From the perspective of action, law is one background condition against which the free act must assert itself—others include habit, custom, and the particular distribution of interests and power among diverse groups. All these conditions are subject to reexamination and displacement by new acts. These background conditions are only temporary resting points in the history of political action. Nothing more is possible until action has finally reached its ideal measure of justice. From the perspective of action, revolutions are not unique. They are more intense moments of a continuous striving to make the political order more just. Novelty now appears as the important characteristic of the political. A responsible political course is to seize every opportunity for improvement. Theodore Roosevelt expressed this view when he described the president as "a steward of the people bound actively and affirmatively to do all he could for the people [unless] such action was forbidden by the Constitution or by the law." Law frames actions, but politics derives its meaning from novelty. Roosevelt rejects law s perspective when he continues: "I did not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance."59 This concisely expresses the morality of political responsibility. We expect a "new deal," a "new covenant," a "new frontier," and always "new ideas" from our political leadership. Every political leader promises that things will be different and will be better. Every political leader wishes to appear unique. Each wishes to inherit from Jefferson not just a wellmade order but a life of political creativity. Revolution is laws conception of action—it is a construction of action from the perspective of law. Revolution and law are an inseparable pairing to the American political consciousness. Apart from this pairing, an alternative understanding of politics as action is possible. On this view, law is not the end of action. Rather, politics appears as an open field for construction by unique subjects bringing forth novelty and innovation in order to secure justice. This was Arendt s view of revolution "augmented.W6° Revolution augmented, however, is outside of the cycle of revolution and law in which we understand our own political history. It is action unhinged from law. If revolution is laws conception of action, then the idea of revolution should itself be considered a deployment of power, the end of which is sup-

The Self in Political Time

pression of the perspective of action in the ordinary operations of politics. At issue in this account of laws debt to revolution is not so much the meaning of past revolutions but the place of political action today. By rendering the revolution unique, law seeks to secure its own dominance over action. It announces that the time for action is over. This does not mean that revolutionaries never self-consciously see their relation to law in the same way that law sees it: as destroying the existing legal order and constructing a new rule of law. Revolutionaries are citizens; they share the categories of law. Revolutionaries seize the possibilities for novel action that law itself holds open. Before the Revolution, the colonies did not exist in an unfettered state of nature. They were already under the rule of law. My division of citizens into two groups, "subjects under law" and "political actors" is, of course, an expository convention. There are multiple possibilities of meaning, different ways of understanding the political order generally, as well as particular events within that order. Each of us understands and responds to these conflicting meanings. The struggle between action and law does not involve questions of fact or of what category we place ourselves in. It is a matter of how we see and what we can see. Events are not by nature law or action, a maintenance of past meanings or an opening to the future. They appear as such only after contestable operations of understanding. The judicial opinion, if it is to succeed, must span the novelty of human action and the permanence of law. It must do so in such a way that we see the world of political order in the light of the law. It must suppress the action within the event; it must show us the rule of law realized in the event. It must make us respond with loyalty to the past, rather than with a sense of responsibility for the future. The rule of law must fill the political imagination if the judicial opinion is to succeed. It fails if we feel that we are acting irresponsibly by complying with law. We cannot conceive of a political order without law. Political order makes history possible. For us, the rule of law is the unity of history experienced from within.61 To refuse to accept the past is the pathology of action. Yet if law gives history its unity, then action gives history its diversity. To refuse to accept novelty is the pathology of law. Without law, novelty would be mere change. Wihout novelty, law would be mere ritual. History is neither mere permanence nor mere change. Action and law must intersect. This does not mean, however, that they are reconcilable or that there is a secure place for each in the overall political order. Law and action intersect in politics as forces contending on a field of battle. Law and action are in a ceaseless dispute over the "right" to characterize the political order. Each tries to subsume the other in a comprehensive account of the

99

100

Temporality of Law

whole. Each tries to claim in the particular event an affirmation of its view of the meaning of the political. Conflict, not compromise, characterizes the soul and the state. We wish to fulfill all our potential. But that is no more possible for a polity than for an individual.

PART III

The Rhetoric of the judicial Opinion

This page intentionally left blank

5 The Rule of Law and the Suppression of the Subject

Marbury immediately announces that we are in a world of appearances. The opinion begins with a reference to an earlier order of the Court, requiring Madison "to show cause why a mandamus should not issue."1 The secretary of state, however, makes no appearance. He offers no showing. In these opening lines, we are obliquely reminded of the political battle surrounding the federal courts in the first years of the Jefferson administration. Madison refuses to speak to a Court constituted by the Adams regime. His attitude toward the Supreme Court is similar to his attitude toward Marbury himself, whose authority to act as a justice of the peace he denies. Madison declines to recognize either the Justices or the justice of the peace. He will allow neither to appear within his field of vision, the limits of which have been set by the 1800 election. Jefferson s election changed the distribution of political power. For Madison to speak to the Court—or to deliver Marbury s commission—would be to sustain the past in the present. It would allow law to compensate for political and electoral failure. For Jefferson and Madison, the election marks a new beginning of political time: a second American Revolution. Whatever occurred

103

104

Rhetoric of the Judicial Opinion

before that date must be filtered through the fact of the election. Jefferson does not recognize Adams' appointments, and he pardons individuals who were convicted under the Alien and Sedition Acts passed during the previous administration.2 Having won the electoral contest, Madison and Jefferson do not wish to rejoin the fight on the field of law. Nonaction before the Court is for them a continuation of their already successful political actions. Nonappearance is another means of asserting their political power. Madison, therefore, will not enter the Courts world of appearances. For him, Marburys case too strongly resembles politics as usual. If law is to control politics, it must appear to be something other than a continuation by other means of the struggle among parties and politicians. If that is all law is, then the courts are indeed the weakest branch: "[T]he judiciary is beyond comparison the weakest of the three departments of power.... [I]t can never attack with success either of the other two."3 The new administrations response to the claims of law is to marshal the political tools at hand: nonappearance, impeachment, legislative repeal, and the power to pardon. These are formidable political weapons. Madison's failure to appear in response to the Court order is part of a strategy of silencing. It is the litigants equivalent of the congressional effort to silence the Court by postponing its term. Marburys case was delayed a year and a half as Congress canceled two successive terms of the Supreme Court. In politics, not to respond is often the strongest response of all. It expresses the contempt of the powerful for the powerless. Madison treats Marburys case as only a change in forum of a continuing political battle over the status of federal judges and the federal courts—a battle that the Republicans were well on their way to winning. Yet there is a difference. The battle waged, for example, over the repeal of the 1801 Judiciary Act was fought within Congress. Of course, interest in the repeal extended well beyond Congress. Nevertheless, a debate about the courts is not the same as a battle with the Court. There had not yet been a confrontation between the Jeffersonian conception of a politics continuous with revolution and the federal courts themselves. This confrontation was potentially present in Stuart v. Laird, which was contemporaneous with Marbury, and which raised the issue of the constitutionality of the repeal of the 1801 Judiciary Act.4 The Court chose not to join the issue there. Instead, Marbury became the site at which the Court responded to the new administrations view of the revolution of 1800. It is not without reason, then, that Madison fails to appear. He sees the case as another attempt to reopen, now on more favorable grounds, a political battle already lost by the Federalists. If that were all the case was, the Justices

The Suppression of the Subject

would have no reason to believe that the Court could successfully confront Jefferson. They, no less than Madison, can read the election returns. For this reason, the Courts response to Madison's silence is not simply to assert its authority to act or to demand action of others. The Court does not, for example, enter a default judgment. It orders no action. It does not even take the obvious step of telling Marbury that he may act as a justice of the peace without the possession of his commission. Instead, the Court fills the silence created by Madison's failure to appear by constructing an appearance of law to stand in place of the initial appearance of the case as simply another instance of the political confrontation. The Court self-consciously seeks to displace first impressions—the political battle—by a new appearance: "Impressions are often received without much reflection or examination ... in such a case as this." Of this common political perception of the dispute, the Court states: "An extravagance, so absurd and excessive, could not have been entertained for a moment."5 The rule of law is the new impression, built out of reflection and examination. Madison s failure to appear suggests the absence of a common space in which the rule of law and political action squarely meet.6 Each responds to the other by keeping to its own world. Each side sees the other within its own framework. One will act but not speak to the Court; the other will speak but not act in the political order. The speech of law must confront the novelty of political action. In God alone do word and act always coincide. For the rest of us, there is a conflict of laws rule and political action. By the end of the opinion we must see law, where previously we had seen only a political contest. The rule of law must be distinguished from the rule of men. To accomplish this, the Court itself must appear as something other than a group of men pursuing their own course of political action. In this chapter, I focus on the character of the judicial voice—whom we hear speaking. The rule of law cannot appear as the empowerment of the judge as a particular subject. It cannot appear to be the rule of men, even if those men happen to be wearing judicial robes. This puts a twofold demand upon the Court. First, the opinions of the Court cannot appear to be the personal opinions of the individual Justices. Second, the Justice cannot appear to be the same person he or she was before taking on the judicial role. Both these transformations involve the suppression of the appearance of the individual subject. AUTHORSHIP AND AUTHORITY Marbury v. Madison appears to us first of all as a text. When we open the Case Reporter to this text, however, we find that the actual opinion of the Court is

I OS

106

Rhetoric of the Judicial Opinion

only a part of the entire text reported. The transition from the Reporters description of the pleadings to the authoritative judicial pronouncement is marked by the words "opinion of the Court."7 The name of the author does not appear. We may think that the Chief Justice wrote this opinion—he did deliver it—but the text does not announce his authorship.8 Instead, it locates its origin and authority wholly in the institution of the Court. Before the appointment of Chief Justice Marshall, the Court generally followed the English custom of issuing seriatim opinions in contentious or difficult cases.9 Under that practice, the case was an occasion for each Justice to set forth his own views of the controversy. To determine the outcome, one had to find a common ground within a majority of these individual expressions of opinion. The Court abandons this practice in Marshall's first term. Instead of a number of differing opinions, each identified by author, the goal is now to produce a single authoritative "opinion of the Court." Identification of the author of a legal text can have two different effects, each in tension with the other. On the one hand, authorship helps to establish the authority—or lack of authority—of a text. The text is seen to share in the status of its author. For example, a work written by Chief Justice Marshall is, for us, special. It is entitled to the same respect we accord the man. His authorship alone privileges a text in the constitutional-law canon, as well as in the canon of early American writings. We pay attention to Marshall's opinions in a special, deliberate way. Even a dissent—a text that claims no institutional authority—gains stature through the status of its author. For this reason, the canon of constitutional-law texts includes some dissents.10 The great dissent gains its authority not because it correctly predicted future law—many unknown dissents did that as well. Rather, the dissent s authority is a function of its author. There are no great dissents by obscure Justices. The process, moreover, is not unidirectional: the dissent as a personal work offers an opportunity for increasing one s personal stature. One can become a "great dissenter." But authorship is equally a way of limiting a text and its potential impact.11 Authorship suggests possession: it is uniquely the authors text. An authored text is a localized text. Ascribing authorship to a text is a way of establishing distance between the reader and the text. This distance is the inverse image of the authors identification with the text. This double character of an authored text is reflected in the work of the lower courts. A trial court opinion is an authored text. Its tentative character as an expression of the rule of law is implicit in its authorship. Authorship both reflects and contributes to the vulnerability of the decision to reversal on appeal. If written by a well-respected judge, it gains in authority. But it never avoids the problem of possession: it is still one particular judge s opinion. A

The Suppression of the Subject

trial court opinion, for this reason, has little precedential authority. As one ascends the hierarchy of appellate courts, the authorial voice recedes farther and farther, until it is nothing more than the voice of disagreement. In sum, authorship and authority are inversely related in the judicial opinion. From the perspective of the rule of law, an authored judicial text always threatens to appear as a personal opinion. It is an expression of views on a subject, about which others are equally entitled to have different opinions. In the modern practice of the Supreme Court, an authored text is generally a dissent or a concurrence: a text that is uniquely the authors own opinion, even when other Justices choose to join it. Conversely, the relation of an individual Justice to the authoritative opinion of the Court, even when he or she wrote that opinion, is never one of authorship but only of delivery: "Justice delivered the opinion of the Court."12 Only in 1970 did the Reporter begin the practice of describing other Justices as "joining" the opinion.13 Before that, the connection of the other Justices to the opinion was unannounced. An inference could be made by looking to the dissents and concurrences. But this inference always had about it a speculative air: Could one really infer agreement from silence? The opinion of the Court was not reducible to the common ground of the personal opinions of a majority of the individual Justices. The rule of law conceals what we all know: the opinion is an authored text. The opinion appears without an author, and thereby loses the subjectivity of authorship. The judicial opinion is free of the dialectic of authority and individual possession. Indeed, no standard legal reference work organizes opinions by author.14 To study the opinions of a single judicial author is to place oneself outside the discipline of law. It is to approach laws product from a dimension other than that of law s authority. It is to pursue, instead, history, biography, or literature. Of course, the rule of law is not pure. We regularly assign authorship. We continue to have an interest in the great judicial figure as a unique subject.15 We do not view judicial opinions as simply the rule of law; we are interested in them as literary productions or cultural phenomena as well. We refer to Marbury as a "Marshall opinion." But this is a loose way of speaking. There is no formal place under the rule of law for giving simultaneous recognition to authority and authorship. The authorless judicial opinion invites readers to establish a multiplicity of relations to the text. Because it is not the possession of an author, it may be freely approached by its diverse readers. The text can appear as the voice of the Court, of the government, of the Constitution, of the people, or simply of the law. The opinion may mean one thing to the parties before the Court, another to lower courts and other branches of government, something else again

107

108

Rhetoric of the Judicial Opinion

to the general public. Moreover, the opinion s meaning is not stable over time. It is always subject to reinterpretation as it is approached by different readers. The opinion s audience will include the Justices themselves, who will eventually read the opinion as an external authority. The reader of the opinion of the Court does not ask what the particular writer of the opinion meant in the words chosen. Interpretation of the legal text never proceeds by drawing inferences from biographical information about the author. The multiplicity of relations and meanings that attach to the text does not reduce the opinion to a subjective play of meanings. The text provides a common point of authority for diverse relations. The authority of the unauthored text is given dramatic form when we see the opinion come to control its own writer.16 No author can withdraw this text. Nor does the writers change of mind have any effect on the text s authority. Even if a Justice were to declare a previous opinion a mistake, that statement would have no bearing in and of itself.17 Justices do not issue errata slips. The writer has no more authority than any other Justice to offer a "correct" interpretation of the opinion. Without an author, the opinion of the Court appears to be of uncertain origins. It appears in time but does not share in ordinary human chronology. It is not an event among other events. The text does not purport to rely on any individual s imagination. It is not the invention of an author, to be accounted for by biographical information regarding the author. It locates itself not in the authors life but in the unique temporality of the judicial corpus. This is a time that is not linear but multidimensional. The opinion can take as its starting point literally any point of chronological time through which the law has already moved. Nor need it move through the corpus of past opinions in any particular order. Legal reasoning, as it appears within the opinion, is overwhelmingly analogical.18 Analogical reasoning constructs new relations and new orderings of the materials. The persuasive power of analogy lies outside the logic of deduction as well as the logic of causal sequence. An opinion is neither an abstract, timeless truth nor a historical event, limited to the particular circumstances of its emergence. The freedom of the opinion from ordinary time does not make it an expression of pure reason. Opinions are not timeless in the way a mathematical theorem or a scientific demonstration is. The suppression of the judicial author is not analogous to the disappearance of the author from a mathematical or scientific proof. The content of the opinion is not an abstraction waiting to be discovered by reason or an abstract truth presenting its written appearance in the text. The opinion exists only alongside other texts of identical status. Its real home is in the Case Reporter. In a post-Langdellian world, the power of the rule of law cannot be located

The Suppression of the Subject

in its formal deductive character. Yet it does not follow that the opinion is only the convergence of a series of particular forces, personalities, and events. Indeed, one of the ways the authority of an opinion is undermined is by recasting it as the opinion of its "author." This critique connects the opinion to its context; it recasts the text as an event. The opinion is then seen as one action among others. It may gather support from other Justices, but it now appears vulnerable to a change of context or even a change of mind.19 Instead of seeing the authorless opinion, we count votes. The opinion of the Court is not discovered through a process of aggregating and comparing several acts of self-reflection by individual Justices. The opinion does not preexist its production, as if it were the common ground of these individual states of belief. Individual Justices may have personal opinions, just as each of us may have an opinion on any particular controversy. But the Court has no opinion apart from the product of judicial craft. Its opinions are not discovered; they are constructed. The opinion of the Court is a text, not a state of mind. Personal opinions can provide the ground for action, even official action. Institutional structures can be established that attempt to do no more than provide a mechanism for locating preferences held by a majority.20 Asking participants to vote may be one such institution. The Courts function, however, is not simply to decide through a majority vote. Its judgments are not implicit attributes of the individual judges' opinions waiting for an occasion to become explicit. The opinion of the Court does not follow on the decision; rather, the judgment is represented always as the end of—a consequence of— the opinion. If a case were no more than a moment for free action by each Justice—a moment to formulate a personal opinion—then every judicial outcome would remain contestable. Each outcome would appear as a political compromise that would justify a responsive compromise on the next occasion of conflict.21 Action does not meet counteraction in the Court. Rather, action meets opinion. The aim of the judicial opinion is to transform a real conflict in the political order into an expression of the legal order, with its stable distribution of rights and responsibilities. Every conflict threatens to introduce novelty into the political order. The opinion aims to eliminate this threat by showing us the already existing legal order. The Courts earliest practice was to produce seriatim opinions. Seriatim opinion writing was an inheritance from the English court system that did not transfer well to the new American legal order. In a common-law tradition, this practice rests on a belief that the law is independent of the court and stretches back in a changeless fashion to time immemorial.22 It precedes not only indi-

109

110

Rhetoric of the Judicial Opinion

vidual judges but the entire court system. Laws origin, on this view, lies in custom and practice. The role of a court is not to create law but to locate an already existing law. If the law already exists independent of the court, the single voice of a united court is not necessarily more accurate than diverse voices looking at the same body of law. Just as scientific inquiry does not necessarily improve when performed by committee, neither does a committee of judges improve the discovery of common law. This analogy to scientific inquiry is present in Jefferson's objection to the Marshall Courts introduction of the practice of issuing a single "opinion of the Court." Discussing the traditional English practice, Jefferson writes: "Besides the light which their separate arguments threw on the subject, and the instruction communicated by their several modes of reasoning, it shewed whether the judges were unanimous or divided, and gave accordingly more or less weight to the judgment as a precedent. It sometimes happened too that where there were three opinions against one, the reasoning of the one was so much the most cogent as to become afterwards the law of the land/'23 If law is, like scientific endeavors, an effort of discovery and articulation, then many minds are better than one. This idea, when cast in chronological terms— many generations are better than one—was itself a principal justification of the wisdom of a common-law approach and of its advantages over statutory law.24 But if there were no law "out there" to be discovered, what would hold the various judges' opinions together? Constitutional law was not—at least not yet—the common law that seemed to recede into an immemorial past.25 Indeed, constitutional laws origins were well within living memory. Without a common-law tradition, it wa not easy for each judge to establish a relation to an independent law. A seriatim practice would not, under these circumstances, suggest the independence of the body of law from the particular institutional form of the courts or from the individual members of the Court. Instead of expressing the indifference of the rule of law to the individual who happened to be judge, seriatim opinions under these circumstances suggested the dependence of law on the particular judge. The practice seemed to demand that each Justice express a personal opinion. This was how Marshall perceived the practice and why he abandoned it in order to emphasize unanimity within the Court.26 The different appearance of a seriatim practice on the two sides of the Atlantic was largely a function of the English confidence in the common law, as opposed to the tentativeness and novelty of American constitutional law. Marbury captures something of this confidence in the common law when it observes that "[i]n Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court."27 This

The Suppression of the Subject

is hardly an accurate description of English political reality. It is rather, the American Court s perception of the operation of the rule of law in and through English courts. Ironically, in a postrevolutionary world, the Court looks back to England as a model for the rule of law it seeks to establish under the Constitution. Jefferson is no king, but neither is the American constitutional court a common-law court. The Court will have to find new grounds to support the rule of law. The American political order at the turn of the century is filled with action and novelty. It measures its chronology by the memory of living individuals. In Great Britain, the king may know, or appear to the courts to know, that he is not a free subject, empowered to act outside the law. He may know that he must appear as the embodiment of law. In 1803, however, it is not yet clear that anyone in the American political order knows that the rule of law is not only an expression of sovereignty but a limit on the sovereign as well. The problems created by seriatim opinions in American courts are well illustrated by the conflict of personal views expressed in Calderv. Bull, decided a few years before Marshall joined the Court.28 The case involved a probate dispute and the Justices agreed on the particular outcome. Nevertheless, a dispute arose about the nature and limits of legislative power. Each Justice set forth his own personal beliefs. Each seemed compelled to locate his views on the judicial role within a larger set of beliefs. Thus, Justice Chase takes a long detour to discuss the limits on legislative power in a "free Republican government": "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power.... An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." He defines his own political identity, which he expresses in his judicial function, by reference to these principles: "To maintain that our Federal, or State, Legislatures possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy."29 There will be no heresy in his text. This, however, is only Justice Chase s opinion. It invites a contrary expression of views from Justice Iredell: I f . . . the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgement, contrary to principles of natural justice— [A]ll that the Court could properly say... would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

111

112

Rhetoric of the Judicial Opinion

Iredell sees himself as the possessor of one opinion among many, all entitled to equal respect: "The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject/'30 Justice Paterson too feels a need to reveal his personal beliefs: "I had an ardent desire to have extended the [ex post facto clause] to retrospective laws in general I have always had a strong aversion against them But on full consideration, I am convinced, that ex postfacto laws must be limited."31 The judge may have a better and worse opinion—on full consideration—but it is still his opinion. To these opinions of the individual judges, all other citizens are invited to oppose their own opinions. In Calder, the need to decide the case becomes an occasion for each Justice to set out his own opinion. Each opinion emphasizes the presence of the judge behind the decision. The decision operates at the intersection of their personal views. It is an action taken by the group of Justices. As such, it can change as the views of the members change. Each Justice brings to the case a set of already formed convictions, shaped by a personal history of political involvement. This is true not just as a matter of fact but as a matter of explicit appearance. In Calder, the rule of law does not appear as an alternative to political action. It appears instead as the product of a set of choices made by individuals—judges—authorized to assert their beliefs through a particular institutional mechanism. The seriatim opinion thus emphasizes the contingency of the judicial decision. Each judge s opinion is just his own opinion. Each opinion is entitled to equal weight because each rests on nothing more than personal beliefs. We may, with Jefferson, find some opinions "more cogent" than others. Or we may, with Iredell, find the opinions regulated by "no fixed standard." In either case, the Court is only a means for aggregating these distinct, individual sources of authority. This need not mean that each judges opinion is arbitrary or capricious. Each may have his reasons, which may even find common ground. But if these reasons are to appear they must be located within the arguments of the individual Justices. The Court as an institution voices no view: it has no opinion about the rule of law. Authored texts threaten to make the Court another political actor. These are the terms by which Jefferson argues for a seriatim practice. The opinion of the Court gives a false appearance of a rule of law that is something other than a deficient mode of political action: "The practice [of an opinion of the Court] is certainly convenient for the lazy, the modest and the incompetent."32 To Jefferson, Justices should be judged as individuals pursuing a course of action. There is no subjectless voice of the law:

The Suppression of the Subject

The Judges holding their offices for life are under two responsibilities only. 1. Impeachment. 2. Individual reputation. But this practice [of delivering an opinion of the Court] compleatly withdraws them from both. For nobody knows what opinion any individual member gave in any case, nor even that he who delivers the opinion, concurred in it himself. Be the opinion therefore ever so impeachable, having been done in the dark it can be proved on no one. As to the 2d guarantee, personal reputation, it is shielded compleatly. . . . It saves them the trouble of developing their opinion methodically and even of making up an opinion at all. That of seriatim argument shews whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself. . . . It would certainly be right to abandon this practice [announcing an opinion of the Court] in order to give to our citizens one and all, that confidence in their judges which must be so desirable to the judges themselves, and so important to the cement of the union.33

Jefferson sees judges in the same terms as he sees other political actors: all are subject to removal and to popular censure. Judges are removed by impeachment, instead of election or dismissal. Yet when linked to popular censure, this is not a difference in land. To survive politically, judges must achieve the "confidence" of the citizens. Without taking responsibility for their own words and deeds, no such confidence can be gained. The difference between law and other forms of politics disappears in Jefferson s critique. He argues for an opinion-writing practice that makes clear the views of the subject, who exercises authority through the judicial vote. Whenever the judicial rule of law appears to be merely another form of the rule of men, the reformist tendency will be to argue that judicial practice must clearly present the individual who is exercising authority. From this perspective, the rule of law threatens a systematic obscurity, keeping us from seeing the person who is the judge. Jefferson is hardly alone in this view.34 The insistence on perceiving the real subject/actor behind the law is a continuing theme in American political life. This insistence is neither silly nor false. It is the working out of a political logic that sees the rule of law as a false appearance of political action. The important point is not to judge between the variety of political appearances but to see how the rule of law resists this effort of political appraisal. The authoritative expression of law must appear as something other than the opinions of particular individuals, if the rule of law is to appear different in kind from the rule of men. The development of an American rule of law required the institution of "the opinion of the Court." The opinion had to be severed from its author. Without the opinion of the Court, the rule of law

113

114

Rhetoric of the Judicial Opinion

would appear to be the operation of a council of wise, or perhaps not so wise, individuals. American constitutionalisms appearance as the rule of law has continued to be threatened whenever the individual Justices emerge into view as the authors of the opinions. The authority of authorship is never permanent. The authority of the Court depends, therefore, upon its suppression of the appearance of judicial subjectivity. One modern form of this problem is found in the worry expressed about the contemporary Court s tendency to fragment, producing a multiplicity of opinions—none representing the opinion of the Court.35 The Court may more easily tolerate dissents than outcomes that fail to present an opinion of the Court. Without an opinion of the Court, the rule of law appears to be nothing more than the intersection of a group of individual Justices' opinions. A dissent, on the other hand, does not claim authority. The dissent is one opinion among others—both on and off the Bench—none of which purports to be authoritative. The dissent does not undermine the authority of the opinion of the Court, because it recognizes that authority lies outside of itself—in the opinion of the Court. If a dissenting position does eventually become the position of the Court, the source of authority for this position is never represented as the dissenting voice. Indeed, the rule-of-law virtues of a decision overruling a precedent are attacked by linking the new position to the past dissenting voice.36 The dissenting voice is controlled by being marked as dissent. The rule of law operates independent of the dissent, which is thrown back into the realm of the personal and individual. The dissent is tacked on to the report of the case: it appears after the opinion and after judgment has been rendered. It is the beginning of a discussion that occurs after the rule of law has been established. There is a strong tradition that treats dissent as a land of sport: the dissenting Justice rejoins the majority in any subsequent affirmation of a rule of law to which he or she initially objected. Having stated his personal view, the dissenter "should yield to the obligation that is upon him to live with the law as it has been stated."37 The institutional thereby displaces the personal and subjective. Whatever discussion the dissent may have begun is truncated. When dissent appears as more than a momentary aberration on a path toward unanimity, it begins to threaten the appearance of the rule of law. We cannot know how much dissent—from those on and off the Bench—the appearance of the rule of law can tolerate. Academics may argue that a diversity of voices on the Court is a necessary element of a progressive rule of law, that the Court and the nation are better

The Suppression of the Subject

off when there is a vigorous debate over the substantive content of our legal commitments.38 This may be true as a matter of the moral progress of the political order, but it is not true as a description of the internal ideal of the rule of law. The Marshall Courts desire for unanimity remains the ideal. Brown v. Board of Education was stronger and better for its unanimity. Roe's appearance as the operation of the rule of law may not have suffered originally from the dissents it contained, but it has suffered from a continuing inability to control the dissenting voices. Justice Harry Blackmun is reflecting on the failure of Roe to appear as the rule of law when he reminds us in Planned Parenthood v. Casey that "I am 83 years old" and that the future of Roe turns upon "a single vote."39 The point is not that unanimity demonstrates a stronger judicial position or represents a larger political consensus in the nation.40 Rather, what is at stake is who and what we see when we read the opinion of the Court. Because the opinion does not belong to the individual judge, it can appear to belong to all. It must appear to be what any citizen would say and thus what all would say together. A well-crafted opinion aims to speak in the voice of "we the people." It reminds us of that mythical moment when all first spoke in a common voice. The people speaking annuls the appearance of a judge acting. The dissenting voice challenges the opinions appearance as the voice of the people. The longer and louder it makes that challenge, the more others are likely to fail to hear the people when they look to the Court. In the first words of text—"opinion of the Court"—we find the suppression of the subject characteristic of the rule of law. Not Marshall's opinion but the opinion of the Court confronts the political actions of the Jefferson administration. The opinion must literally create its own authority, both because there is no tradition upon which to rely and because the contest in which the Court finds itself goes directly to the meaning of the rule of law in the American political order. The opinion creates authority in the first instance by suppressing authorship. The text conceals its own origin as an act of writing produced by a particular subject with a personal history of individual involvement in the controversy before the Court. Suppression of authorship is not a deception that the powerful deploy against the weak; power is the product, not the condition, of this construction of appearances. The denial of authorship is not the only instance in which the opinion creates power by concealing information we might otherwise take for granted. The opinion does not set out all that is known about itself or all that is known about the case. The entire opinion is a combination of knowledge and ignorance, of assertion and denial. It falls in the domain of appearances, in which every appearance is simultaneously a seeing and a not-seeing.

I IS

116

Rhetoric of the Judicial Opinion

THE DISAPPEARANCE OF THE SELF AND THE CONSTRUCTION OF A WORLD

The separation of the rule of law from the rule of men requires the suppression of the appearance of the judge as an individual subject. The authorial voice is just one point of possible individual appearance. The black robes and the standardized rituals of the courtroom are other examples of this suppression. More important, however, is the distance created between what the judge knows as an individual subject and what he or she knows as a judge. The black robes are a symbol of the division the rule of law strives to maintain between the person of the judge and the judicial function. Not just the personal voice but personal knowledge must be suppressed by the rule of law. The judge appears to have neither private will nor private knowledge. In part, this is a matter of occupying different roles: the judicial role must be kept apart from other roles the individual occupies—family member, entrepreneur, or political partisan.41 But the idea of a role does not fully capture what is at issue. Law makes a claim of ultimate meaning upon the individual. It claims the right to sacrifice the individual to maintain this meaning. The claim of law is not only final but pervasive. The rule of law is a characterization of the entire public order. We live under law at all times and in all places within the polity. As a characterization of public order generally, the rule of law makes possible and assigns a place to all other roles, which can be taken up or discarded. The rule of law is not, therefore, one role among others. The judge is responsible for maintaining and articulating the rule of law. His or her special role within the institutional structure of law is, in one sense, a role like other public roles—one need not be a judge. But this role is performed by giving voice to the rule of law. To this degree, the judicial role is a paradigm of the meaning of citizenship under law. The Justice, in particular, symbolizes our aspiration for citizenship under the rule of law.42 Donning the robe suppresses the self and thus makes the judge a representation of all citizens. This transition from an individual having opinions to a member of a Court issuing opinions is at stake in the judicial rite of passage, the confirmation process. The nominee explicitly engages in a public process of disavowing his or her own subjectivity. The nominee appears to empty his or her mind of existing opinions. Judgment will, from now on, be based upon the opinion of the Court, not upon the opinion of the individual subject.43 The nominee makes a commitment to approach each case anew, without regard to all that he or she may already know or be. The rule of law demands of the judge the same sort of disavowal of the previous self that it demands of

The Suppression of the Subject

the juror. This produces an appointment process full of contradictions and tensions. The presidents choice of candidate is based upon who the nominee already is, which forms the basis for inferences about how he or she will vote once on the Bench. Nevertheless, in the process of confirmation everyone must publicly deny the relevance of all those characteristics that in fact account for the choice.44 Attempts to resolve this contradiction in either direction cannot be satisfactory. The Senate cannot respond to the political choice of the president by deploying its own standards of political action. It cannot make the confirmation process a direct test of political strength. It cannot explicitly declare that the rule of law is only another forum for political action. Neither, however, is it possible for the president to ignore the politics of nomination. He or she is asked to make a choice, not to act according to a rule. That choice will inevitably be measured in political terms. A president cannot ignore the political contest that surrounds the nomination and simply select the "best" person based on a standard of legal ability. There is no such standard. Even if there were, it would not resolve the conflict between the rule of law and political action. Chief Justice Marshall may have been our greatest jurist, but that would not have made him more acceptable to President Jefferson. A president will always be inclined to judge law from the perspective of action. Contradiction inheres in the function of the confirmation process. It is a process that starts in a world of political action but ends in a world of law. What is relevant in the former is not permitted to appear in the latter. Bridging the two is not so much a matter of inquiry by the Senate as a performance of a ritual of transformation. No one can be satisfied by the routinized answers nominees provide to standardized questions. The nominee is not explaining his or her views but performing a ritual of denial. These are the first symbolic steps in the suppression of the self required by the rule of law.45 The ritual of personal transformation may originally have been located in the administration of the oath of office. Marbury ends with a reminder that the judges relation to the rule of law is a moral obligation arising out of the oath of office. But as the imaginative power of the oath before God has declined, an alternative public ritual had to be found. The public confirmation hearing has occupied this space. The late twentieth-century ritual of the confirmation hearing is but a recent form of an old idea attached to the rule of law: the subject who is the judge must have no personal, prior history and thus no knowledge of anything outside what appears within the formal judicial process. Two positive ideals are implicit in this demand. First, it should not matter who the judge is. If the rule of law is not to be the rule of men, the judicial decision cannot be contin-

117

118

Rhetoric of the Judicial Opinion

gent upon the particular judge who happens to occupy the Bench in a given proceeding. Second, the judge must apply the law without partiality toward any of the parties. These ideals are related, but they are not the same: a judge could be neutral in the latter sense yet still make a forceful personal appearance in the former sense. We don't want judges who express idiosyncratic views, even if they are impartial toward the parties. In both instances, the problem arises from the appearance of the judge as a unique subject in place of the subjectless rule of law. Much in the institutional structure of law—including the use of anonymous juries and multimember panels on appellate courts—is designed to suppress both kinds of subjectivity. I suggested above that the rule of law locates itself in a unique time in which the past is continually present. This is the present constituted by the simultaneity of each case in the Reporter system. The suppression of the personhood of the judge also requires the rule of law to operate in a unique space. This is not the ordinary space in which events unfold but the space of the courtroom in which these events are refracted. The judge cannot see beyond the edges of the courtroom. The time of the judge expands to include the permanence of law. But the space of the judge contracts to what can be seen from the Bench. Events reappear in the courtroom stripped of much of the particularity that characterizes ordinary perception. The event is reconstructed at the intersection of a number of legally stylized accounts.46 Because Marbury is a case in the Supreme Courts original, not its appellate, jurisdiction—a critical conclusion in the argument itself—the Court s access to the facts is not limited to a written record passed on from a lower court. Like other courts, the Marbury Court sees evidence, not facts. It has no direct access to facts outside the courtroom. It is separated from the relevant facts of the controversy both spatially and temporally. The question for the Court is not what happened but what the evidence shows. That evidence includes written affidavits and oral testimony. No matter how certain a judge may be of a fact—even the fact of a criminal act—that certainty is irrelevant to the legal judgment until and unles it is the consequence of an evidentiary showing. All that the Court is allowed to know is what it can see from within the courtroom. What can be seen is a function of what may appear before the Bench. Any knowledge that an individual Justice might have had about Marburys situation cannot appear in the opinion. Memory is not evidence, even when the memory is a result of direct perception. Chief Justice Marshall perfectly illustrates this point. Marshall was a judge within the constructed world of the opinion, but he was also an actor in the drama before the Court. Because he was Adams' secretary of state, he had to know a great deal about what happened to Marburys commission: Was it

The Suppression of the Subject

signed and sealed? Was it delivered? If not, why not? The fact of this personal knowledge is barely suppressed when his brother James appears to provide critical testimony. Yet none of Marshall s direct familiarity with the facts can appear in the opinion. There can be no reference to the facts outside of judicial appearances, even when those facts are in the immediate possession of the judge himself. If cases were occasions for the expression of the judges personal opinion, this limitation would make no sense. If judges were given authority to act as individual subjects, there would be no reason to exclude relevant information. Other political actors are expected to act on the basis of all of the information in their possession, regardless of its source. They do not willfully ignore what they know to be true. Indeed, the more they know—from whatever source— the better.47 Marbury vividly displays what is a commonplace of our understanding of the judicial role: Marshall the secretary of state is not the same person as Marshall the Chief Justice. The two occupy the same body but see and hear different things. They do not live in the same world. The old Marshall acted in a world of political action; the new one speaks in a world of law. Justice Jackson makes the same point in another moment of confrontation between Court and president, 150 years later: "[A] judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself."48 The world of law is a highly constrained set of appearances. Nothing makes an unmediated appearance in it. Not even the personal identity of the judge disrupts the ordered whole of the rule of law. The judge conceals the appearance of a personal self behind the anonymity of a plain black robe and in th authorless voice of the Court. We are not to see and hear the person of the judge; we are to see and hear only the rule of law. Corresponding to these exterior appearances is an inner shift in the imagination of the judge. The world that the judge perceives is limited to sources that appear within the common space before the Bench. Nothing is to appear to turn on who the judge is. We have no reason to doubt that judges believe this about themselves, just as they hope citizens perceive them in this way. The courtroom sets itself apart in complex ways that include rituals and symbols—the raised bench, the jury box, and the techniques of legal proof. But it also sets itself apart as a domain in which our everyday knowledge and experience no longer count. Legal knowledge is specialized knowledge in two dimensions. First, there is the knowledge of the law, independent of any particular case. This is what is taught in law schools, although it continues to accumulate in the experience of the practicing lawyer or judge. To know the law is

119

120

Rhetoric of the Judicial Opinion

not to know anything in particular; it is rather to know a range of possibilities. This knowledge sets the domain of possible meanings. The lawyers knowledge is an understanding of possible analogies, of a set of contexts and categories in which an event can come to have legal meaning. It is this quality of a "determinate openness"—an openness within a range of possibilities—that makes the lawyer a difficult and suspect character for many. Lawyers tend to categorize. Their interest as lawyers is not in the novelty of the event or in personal feelings about an event or person. Instead, they subordinate the actual to the possible. They do not wish to know everything about an event; rather, they wish to know what kind of an event it is.49 Second, there is the knowledge that moves from this range of possibilities to the actual case at hand. This is knowledge of how the law structures the particular event. In this respect, each case represents a new beginning of knowledge. Each case is its own world, built from within the courtroom. It is built within the categories law has already made possible and through the means law recognizes. The knowledge of the actual, built in one case, does not carry over into the next.50 Each case must begin anew to reconstruct the world as it appears under the rule of law. Which world will actually appear from among the possible worlds of law cannot be known in advance. Knowledge under the rule of law is either abstract or particular. There is little space in the legal order for the accumulation of experience that contributes to the ordinary perceptions of the world.51 Unlike other political actors, a judge cannot rely upon personal intuitions that are grounded in generalities. Judges cannot appeal to trust, to their reputation for prudence or practical wisdom, as a ground of their authority.52 More exactly, when lawyers do make such an appeal, they take themselves out of their role within the rule of law as it functions in and through the courts. The world of the lawyer as practical statesman is a world of lawyers operating largely outside the courts. Trust has no place in a system that suppresses the appearance of the individual. When Jefferson complained that citizens could have no confidence in their judges because of the suppression of the appearance of the individual, he was voicing just such a need for trust in politics generally.53 Of course, we would like to be able to trust our judges. But what is usually meant by this is that we would like to believe that they will decide cases on the basis of the law. We don't wish to trust them as individuals of good character and broad experience. It is not that we cannot imagine a political system that relies on the practical wisdom and virtue of its leading figures. Such a system might, in some respects, be more attractive than our own. But this would be a different system from the one that we understand as the rule of law.54 The only everyday knowledge that is admitted into this world of law is com-

The Suppression of the Subject

mon knowledge—common in both senses of the word. It is knowledge that all judges hold in common: there can be nothing unique or personal to the judge in the taking of "judicial notice/*55 And it must be truly common knowledge: knowledge so universal as not to be contested by anyone either within or outside the court. No matter how expert the judge, no matter how much he or she knows about a particular topic, action, or event, specialized knowledge cannot appear. Even to possess this knowledge may be a ground for recusal.56 In the world of law, more knowledge is not necessarily better. Indeed, it is usually worse. In a world increasingly dominated by claims of expert knowledge, we ask our judges to remain generalists.57 What the court sees, then, has only an indeterminate relation to what actually happened. The Court does not necessarily see the actual event better or more clearly than others. No doubt some limits on judicial appearances do contribute, in some cases, to clearer vision, removing the obscuring effects of bias, faulty memory, or partial vision. But the same limits, in other contexts, exclude much that could otherwise have been seen. Adding to the incalculable effects are differences in lawyers' strategic competences as they seek to manipulate evidentiary and procedural rules to advance a litigation strategy. These differences are exacerbated still further by the substantial differences in resources available to various parties.58 The indigent party, trying to display the truth as he or she saw it, may have none of the resources necessary to make that showing. The wealthy party may deploy the rules endlessly to obscure the appearance of what happened. Every procedural rule and evidentiary requirement, as well as every institutional structure, excludes some appearances and strengthens others. There is no neutral perspective from which we can make a judgment of whether the system as a whole shows us more of what really happened than some other system. There is no way we can add up the costs and benefits and make a comparison. To ask whether this substitution of one sort of appearance for another is an advance toward truth is pointless. The judicial task is to construct an appearance under law. It is not to find out what happened. There may be no simple "fact of the matter." The event itself is past. It operates now only as a commn endpoint of any number of reconstructions. We have no way of measuring these competing appearances against the truth. Truth functions here only as a normative claim made possible by our participation in diverse appearances. We understand this when we say—after a trial, for example—"in the eyes of the law, he is innocent," even if we think that as a matter of fact, he did it. This is only a more dramatic instance of the ordinary operation of the rule of law. The appearances that law sees are the products of its own operations. As the example ofMarbury shows, the Court s knowledge is in some ways a

121

122

Rhetoric of the Judicial Opinion

deliberate ignorance. The Court sees some things, refuses to see others. In fact, the Court does not see the event at all. The judges are in a position similar to that of the prisoners on the bench in Plato's cave. The prisoners were allowed to see and discuss only the images cast on the wall in front of them. These shadows were twice removed from the actual events: they were the shadows cast by constructed figures. Judges, too, see not images cast by the real events but the results of evidentiary constructions. The "real" events happen beyond their view. They cannot turn their heads to get a better look. Even the judges, as prisoners on the bench, cast shadows on the wall. This is all they may know of each other and all we ordinarily know of them. Legal discourse is never directed at the unique person of the judge. Plato, too, termed the epistemic quality—the state of mind—of the prisoners on the bench opinion. He also linked opinion to a discourse about appearances. Neither the judge nor the prisoner can turn to look at the thing-in-itself. Each sees a constructed world of "evidence" that is only a shadow of reality. Within the cave there is no perspective that will allow the prisoners to perceive both worlds—the real and its appearance—simultaneously. There is no way to measure the adequacy of the shadows by reference to the real, as long as one remains on the bench. To attain that perspective requires a departure. One cannot be within the law and judge the law itself. The rule of law seeks to be complete. Nothing is to appear from outside. The only measure of law to those on the Bench is more law. Those committed to the interpretation of the appearances will always resist anyone who claims that reality lies elsewhere and that it offers an appropriate measure of the meaning and value of the law. Every judge must live the double life dramatically symbolized by Chief Justice Marshall. Each knows that there is a reality outside the courtroom, yet the commitment to the rule of law is a commitment to suppress this knowledge. This division of the person from the self may be the only way in which the judge can live with the violence done in the name of the law.59 The judge must punish and condemn. To do so requires that the judge resist the ordinary appeal of mercy. Conversely, this suppression of the person of the judge may be the only way in which laws victims can accept their fate. They suffer not at the hands of the judge as a subject but at the hands of a law that knows no subjects—neither themselves nor the judge. Laws suppression of the subject, however, is not merely a defensive posture; it does not simply make laws violence possible. The disappearance of the subject characterizes the rule of law as an experience of meaning, as a valuable order of existence. Heretofore, I have looked only at what an individual must give up in order to move from the rule of men to that of law. But this moment of suppression is also a moment of empowerment. Meanings are gained as well as lost.

The Suppression of the Subject

Legal constraints on what appears and how it appears cannot be measured on an axis of truth—that is, as a departure from some neutral position of truth. Rather, they must be measured on an axis of power. To the Court, and to all those who perceive the rule of law, these rules function as positive resources for the construction of a world. They set the rule of law apart from ordinaryxperience and perception. This setting apart is a necessary condition of the power of law. Judicial power is not the power of a freely acting subject. Marbury is not a personal combat between Marshall and Madison. Nor are judges arbitrators. They are not chosen by the parties to resolve a particular dispute. Their power does not depend upon concessions from the parties. They make a claim to know what the law requires in every event. The suppression of the self, which is a kind of deliberate ignorance, is an assertion of this expertise and thus of a power to decide. Judges occupy a place in a structure of state authority that gives them access to some of the mechanisms of state coercion. But this is not the source of their authority. Indeed, in Marbury the Court may actually possess no such power. Marbury's success is not a gathering to the Court of institutional levers over coercive force. The judges claim to authority is a function of his or her claim to know the law; the judicial decision is an expression of that knowledge. The openness to the law, rather than senatorial confirmation, is the source of judicial authority. Knowledge under the rule of law is discontinuous with ordinary perception. Ordinary citizens, of course, also perceive the political order as an appearance of the rule of law. Yet even the ordinary citizens perception of law is not an ordinary perception. To see the law, the citizen must appropriate the same constraints on ordinary experience—the same concealments—that the judge manifests. A judge is not a social mechanic; knowledge of law does not emerge from a greater familiarity with the details of the everyday social order. The rule of law flourishes when much of what we ordinarily know fails to be seen. Knowledge of law always requires the suppression of other kinds of knowledge. Chief Justice Marshall's suppression of the knowledge obtained by his previous self is not, therefore, a negative act but a positive act of empowennent. It is continuous with the judicial suppression of the author, and contributes equally to the authority of the rule of law. Marshall cannot confront Jefferson as the onetime secretary of state and expect anything other than the silent dismissal that Madison offers. By suppressing that personal history, the contest with Jefferson can be successfully joined. When we read Marbury, we do not see John Marshall, the Virginia politician, deeply enmeshed in national poli-

123

124

Rhetoric of the Judicial Opinion

tics at the turn of the century. Instead, we see a Justice engaged in multiple acts of identification: first with the Court, then with the rule of law, and finally—as I shall argue below—with the people. This identification beins in an act of concealment of the self. Nor do we see Marbury as a local party hack pursuing a political attack on Jefferson. We see him as a citizen whose legal rights have been violated. Marshall and Marbury are both constructed appearances. The appearances are not deliberate deceptions, but neither are they simply facts. They are, in Platos term, "noble lies": appearances within a complex world of legal meaning. A court empowers itself by creating the conditions of its own knowledge. It constrains appearances in order to ground its claim. The court gains power by knowing less, or more important, by knowing differently. It does not create these conditions out of nothing; it does not exist in a vacuum. It stands in a tradition of possibility that has both a vertical—historical—and a horizontal—contemporary—dimension. The latter situates law among currently competing understandings of phenomena. The rule of law must see differently, but that which it sees cannot appear so different as to look absurd or wrong to other forms of perception. The rule of law cannot stand on divine right after the general demise of belief in divine intervention. It cannot stand on claims of natural law when there is no longer a general belief in such a thing. Its speech cannot risk ridicule. The rule of law also stands in a historical tradition. We inherit legal institutions and a language of legal claims. This is not a universal truth. We quickly learn the contingency of laws appearance when we try to graft the rule of law onto a foreign culture lacking similar traditions. Law is an object of knowledge for subjects with our conceptual constitution. We already stand in a long tradition of law that begins not with the Constitution but with Moses. The rule of law is not a single thing even within this tradition. Nevertheless, the tradition sets the boundaries of possibility within which contemporary forces arrange themselves as the rule of law. For Plato, it was enough to describe the prisoners in the cave as viewing a mere appearance to condemn their lack of self-understanding and the illusory character of their claims to knowledge. But the judges on the Bench possess a quality lacking in Platos prisoners: they know that they are sitting on the Bench. They self-consciously police the boundary of the courtroom; they deliberately suppress their own subjectivity. The judges are not just spectators of the shadows; they are also the puppeteers of Platos drama. They are both active and passive in the world of appearances. This self-conscious acknowledgement of a double role is one of the characteristics that distinguish modern from classical thought. For Plato, human-

The Suppression of the Subject

land had fallen into a world of appearances. To explain the fall required a myth. Birth itself—the entombment of a timeless soul in the body—was the great mystery.60 The active soul was already on its way out of the cave. For modern thought, humans are the autonomous source of their own condition. The appearances they see are acknowledged to be the products of categories of thought and imagination they bring to experience. Nowhere is the active, constructive character of knowledge more apparent than in a courts commitment to the rule of law. The Court deliberately creates the appearances that then serve as the objects of its own knowledge. Knowledge is possible because of judicial power, but that power exists only because of the possibility of judicial knowledge. Knowledge and power are linked as different perspectives on a single phenomenon. Knowledge is the product of power; power the product of knowledge. To understand this circle we must turn from the Platonic image of the prisoners on the bench to the Kantian approach to the finite conditions of human knowledge. Kant turns the Platonic understanding of appearances on its head. Instead of seeing the limits on our access to a truth outside ourselves as a description of our fallen state and of the difficulty of knowing anything, Kant locates the conditions of knowledge in our finitude. We can know only that which has the conditions of its appearance within our own understanding. The structure of the understanding sets the limits on the possibility of appearances, but in doing so it makes possible the only kind of knowledge we are capable of. Because the sources of appearance are in the self, the object of knowledge can be understood. We can never move beyond appearances to a thing-in-itself, but appearances provide an ample and inexhaustible field for human knowledge. Kant, one might say, celebrates our life on the bench. Kant assumed that there was only a single world of appearances and that it appeared to everyone. He did not, therefore, connect the epistemic function of world creation to the exercise of power. If there are multiple worlds of appearances, then there are multiple ways of being in the world. Behavior follows on appearance; what is to be done is a function of what is known. Conflicts among the diverse worlds of appearance are measured in terms of power, not truth; there is no common truth by which to measure diverse worlds. The intersection of competing truths is always a conflict over ways to be in the world. The resolution of such conflicts is what is meant by power. Power is the capacity to maintain a way of being and a way of seeing. It is an ability to control what others see, to create a world for self and others. Power is strongest not when it coerces compliance but when alternatives are not even imagined. To fill the imagination completely is the goal of power.

125

126

Rhetoric of the Judicial Opinion

A court is an artificial person in this Kantian sense. The world it sees and maintains is the rule of law. To see this world is to deploy a set of categories that establish what may appear. If no one cared about the rule of law—if, for example, law were seen as only the expression of narrow class interests— judges would have neither knowledge nor power. They would know nothing but their own imaginings; they would be without power to order the social domain. This is what happens to judges when they determine the law under conditions of revolution. When Jefferson declares the election of 1800 the Second American Revolution, he threatens Marshall and the Court with just such a status of irrelevancy: the opinion of the Court might appear to be nothing but the imaginings of discredited party interests. The judicial role is powerful because we already deeply believe in the rule of law. Judges operate within the contingent character of that belief. Nevertheless, whether we continue to believe in the rule of law is, to some degree, a function of how well judges maintain appearances. A judge's knowledge of the rule of law functions analogously to a doctors knowledge of health. The doctors power is also founded on a claim to special knowledge. When the doctor identifies an injury or a disease, he or she is not simply stating a fact. Rather, he or she is setting forth a predicate for an intervention in the body. Power flows from knowledge, but knowledge is made possible by the openness of members of the community to this form of power/intervention on their bodies. When we accept the idea of medical expertise, we make possible a certain land of intervention on our own bodies. And when we are open to this form of intervention, we open a space for medical expertise. To resist the doctors prescriptive action looks "irrational." Indeed, in extreme cases, resistance is taken as a sign of further illness. In the history of medicine, doctors have often made what now appear to be false claims to knowledge. They have often endangered the health of the body, when measured by our present understanding. Nevertheless, the empowerment of physicians did not depend on the abstract truth of their claims to knowledge. What mattered was that a claim to knowledge was made, that medicine appeared as a domain for expert knowledge. To resist the doctors power required a claim to some other truth. A challenge to power requires a challenge to knowledge. The claim to expertise, however, is precisely a claim to possess all the relevant truth. Who has the truth of the body's health, if not the doctor? Challenge was always possible at the margins. A doctor whose patients died too soon would not convince many that he or she could claim expert knowledge. Moreover, the doctors knowledge had to incorporate, to some degree, new truths about the body—regardless of where they came from—or

The Suppression of the Subject

it would itself be marginalized. The doctor cannot wholly control the appearance of the body. The medical profession cannot appear to be working directly against the popular perception of the body's health. Yet for the most part, doctors have been extremely effective at excluding other claims to knowledge of the body's well-being. Apart from the claims of some religious groups, competing knowledge claims struggle against a general perception of quackery. To understand why doctors act as they do at any given time requires an elaboration of the body as it shows itself in the doctors world of appearances. This is not the world in which we first experience the body nor where we experience it most of the time. Rather, it is the product of rule-bound constraints on ordinary appearances. What the subject experiences as health may appear to the doctor as an asymptomatic condition; it may be a false appearance, despite the immediate feeling of well-being. To understand why the body appears as it does to the doctor would require at the least an elaboration of the history of medicine, including the contests medicine has waged with other disciplines of the body, as well as a consideration of the wealth-distribution effects of the medical profession.61 The former considers the possible shape of a "medical knowledge"; the latter considers the interests at stake in the knowledge we have. Not even this would offer a complete account of why we have the medical/health world we do. It would, however, begin to articulate its shape, its possibilities for change, and the likely points of resistance to that change. The world created by medical expertise cannot be measured against an independent norm of the truth of the body—not even the extension of life qualifies as an uncontested norm.62 The body is a locus for contending claims of knowledge and power, not a thing-in-itself with a preexisting truth. What is true of medicine is equally true of law. Courts make a claim to knowledge that founds their power. This requires the creation of a world of appearances not just for judges but for all members of the political order. This, in turn, requires rules—categories of understanding—that create the possibility of expert knowledge. To understand why the rules are the way they are would require an elaboration of the history of lawmaking. This history would have to include institutional functions under the rule of law, especially the role of the courts, and the conflicts among different institutions asserting political authority. We would also need an account of the wealth-distribution effects of the legal order. We cannot, for example, explain the difference between an adversarial and an inquisitorial system of judicial discovery by measuring each against its ability to reveal the truth. Each system has been built up internally within an ongoing legal project. Each emerges from a com-

127

128

Rhetoric of the Judicial Opinion

plex of historical and institutional factors. Each results in different distributions of power among judges, lawyers, jurors, and parties.63 A judge responds to the world that makes an appearance within the courtroom. Appearance and response are not separate functions. The constructive role blends into the responsive role. Just as the doctor responds to the appearance of a threat to health—an appearance that is in large part the doctors own creation—so the judge responds to a threat to the rule of law that is, in large part, a judicial creation. To see a violation of law is to recognize that a remedy is required. The is and the ought are not separated, as if one were positive and the other normative. Rather, the knowledge the court possesses is from the beginning a knowledge of rights and remedies. We may experience injuries in everyday life, but we do not experience violations of rights until we see the world as the court sees it. Marbury may have suffered an injury, but we do not know that he suffered a violation of a legal right until after we read the opinion. Courts are not alone in their perception of the rule of law, just as doctors are not alone in their perception of the medical world. Those officially unconnected with the courts do not participate only on specific occasions—for example, through the filing of a complaint or a notice of jury duty. They participate whenever, as members of the polity, they recognize the political order as constituted by legal rights and responsibilities and understand these concepts as they have been constructed by the courts. The world the courts create is not just a world for the courts. It is what we mean by the rule of law as the order of the entire polity. Yet, without the institutional structure of the courts, the rule of law would quickly come to mean something different. The rule of law is, for us, inseparable from the power of courts. Nevertheless, if Americans had not already had an understanding of the possibility of such an order, courts could not have occupied this position in the constitutional scheme. It makes sense for Marshall to claim that the aim of the consttutional founding was to create a government of law, not men. Worlds are not invented from nothing, even if they are constituted by appearances. They are ongoing projects, which at every moment contain certain possibilities of change. Marbury pushes the inherited world of the common-law courts in a new direction. It does not invent the "opinion of the Court/' But what had previously been occasional now becomes central. Marbury does not invent the norm that requires suppression of the judge s previous experience and personal understanding. But what had been a vaguely felt norm—often abused—becomes critical. Even in its assertion of judicial review, Mrbury is not inventing. There were occasional examples of practices analogous to judicial review in the colonial courts, despite its absence from the English system

The Suppression of the Subject

of parliamentary supremacy.64 Marbury takes a practice that had been on the periphery and makes it central to the judicial function and so to the American rule of law. From the perspective of power, what matters is not so much the content of legal rules and categories as their existence. The power of a court is a function of the rule of law not the quality of law. True, rules can be better and worse; but the moral quality of particular laws or even of an entire system of laws is not central to their function. We do not have law because it is good: Marbury proclaimed the achievement of the rule of law at a time when that law included slavery, women's disenfranchisement, and other gross inequalities. Each of us could imagine a better set of legal rules. This should not lead us, however, into the fallacy of believing that the rules we have are the realization of a particular person s view of the best rules or that they can be easily modified to better grasp some truth that appears outside the law. The response of Plato's prisoners to the philosophers program of revolutionary change was to try to kill him.65 To understand the world we have, we must understand the scope of possible worlds available. This is a function of beliefs and interests—of what we can say, of what we believe we should say, and of our perception of our own interests.66 These are not independent elements: our interests are deeply affected by our beliefs, just as our beliefs reflect our interests. Marbury shows us this joining of possibilities with interests in the contest of power. It is an effort to realize one possible world. To describe the rule of law as an appearance is, therefore, to emphasize that the law we see is in large part a function of what we do not see. Yet just as the individual voice of the Justice does not wholly disappear behind the opinion of the Court, the private knowledge and experience of the judge do not wholly disappear after the ritual of confirmation. The private self, as I have used the term, includes all those forms of knowledge that operate outside the rule of law. It includes, for example, our everyday experience and our familiar generalizations. Law would have us believe that all these nonjudicial appearances are sources of individual bias—a threat to laws objectivity and neutrality. They are therefore to be suppressed. But what is suppressed occupies an ambiguous position. The concealed self always threatens to reappear as the "true" self. It threatens to expose law as a mere appearance that must itself be measured by the newly recovered truth. It is no accident that the strongest assault in this century on the constructed appearances that constitute the rule of law went by the name of legal realism. Legal realists claimed that reality was what the courts refused to see in their elaborate construction of appearances. They sought to recover what

129

130

Rhetoric of the Judicial Opinion

the courts considered merely private, and so accidental and/or personal, as the truth against which to measure the false, public appearances of law. Appealing to the new social sciences, the legal realists attempted to invert laws categories of the revealed and the concealed. That which law concealed was now seen as the truth of the legal order: a truth that could be exposed through the techniques of psychology, economics, or anthropology. Judges were thereby revealed as prisoners of appearances that were largely their own creation. They had only opinions—false opinions, at that—when knowledge was possible. Wearing the blinders of the law, judges could not see the truth of the social order. The legal realists exposed the rule of law as neither permanent nor well-ordered. The rule of law was, they contended, only the rule of particular individuals with particular interests. The suppressed self of the judge was the hidden truth of law. To understand the truth of law, we need, therefore, to understand the undisclosed interests of those who make it. What law purported to be and what it actually was were two different things. This form of critique—measuring laws appearance by the suppressed truth that fails to cross the borders of the courtroom—is not limited to academic theorists of the law. Whoever measures the judicial opinion by a claim of extralegal knowledge pursues the same critical program. The sociologists critique of the laws representation of the criminal defendant, the feminists critique of the courtroom appearance of the rape victim, or the economists critique of what passes for a rule of reason in judicial analysis of business practices are all variations of this argument. The political left criticizes the Court for seeing corporate speech as if it were the speech of a soap-box lecturer; the political right criticizes the Court for seeing children as if they were autonomous moral agents shorn of attachments to family and community. Each accuses the judges of a self-induced blindness. Each purports to measure the judicially created appearances of the rule of law against an extralegal reality. Each critic claims to know a truth that allows an appraisal of law from a perspective outside of law. Each would dispel opinion by knowledge. The argument is in each case located on the fault line created by law s need to suppress much that we know in order to create its own appearances. In each instance, what is suppressed is now recovered as the "truth," while the appearance of law is attacked as false or illusory. Because this fault line necessarily exists at the point at which law appears, the rule of law always invokes a program for the reform of law. The rule of law is simultaneously permanent and never settled. It is not a mindless carrying forward of the past but a negotiation of the appearance of a permanent past through a continuing set of challenges that

The Suppression of the Subject

come from outside the law. The outside of law is constituted in the very creation of law. It is a presence that can never be escaped. The negotiated perimeter of laws appearance often appears in the dissenting voice on the Bench. Justice Brennan, for example, accuses the majority of willfully ignoring reality when it rejects a statistical showing of racial discimination in the application of the death penalty. The majority does not challenge the validity of the statistics; rather, it refuses to see the phenomenon that the statistics reveal. Brennan describes the Court as living in a world of false appearances: "[W]e remain imprisoned by the past as long as we deny its influence in the present."67 Brennan is accusing the Court of suppressing the truth: a truth that he can see because he, along with everyone else, stands simultaneously within the rule of law and outside it. This 1987 suppression of a statistical showing recalls a similar suppression in 1905, when the Lochner Court expressed a lack of interest in what statistical studies revealed about the health of bakery employees.68 In each case, laws appearance suppressed an alternative appearance. That very act of suppression is a source of laws power, but it is also a point of potential vulnerability. Justice Thurgood Marshall makes a similar accusation in his dissent from the Court s invalidation of an affirmative action set-aside plan adopted by Richmond, Virginia: "In adopting its prima facie standard [of illegal discrimnation] ... the majority closes its eyes to th[e] constitutional history and social reality [of racism]."69 Again, Marshall is standing both within and outside the Court when he makes his claim. He is not disagreeing about the proper interpretation of a precedent or about the proper extension of a particular legal rule; he is measuring the Court s perception against a truth that remains visible outside the construction of a legal world. The rule of law would always have us close our eyes to some aspects of our knowledge and experience. For this reason, the dissenting voice—on or off the Court—can always call upon the Court to open its eyes. On occasion, the force of this critique can occur within an opinion of the Court itself. A famous example appears in Jones and Laughlin Steel, in which a newly formed majority describes the dissenting Justices, who would actually follow recent precedents, of asking the Court to "shut our eyes to the plainest facts" of the economic reality of the Depression.70 If law refuses to see what the rest of us cannot help but see, laws rule cannot survive. The claim of judicial blindness in each of these cases asserts a need to renegotiate the boundary between the rule of law and competing perceptions of the world. The Court is accused not simply of making an error but of living falsely. Each of these demands that the Court "open its eyes" carries forward the theme and metaphor of Plato s cave: the only way to pierce the appear-

131

132

Rhetoric of the Judicial Opinion

ances created by law is to turn to the light and to open one s eyes. What has been concealed must be revealed. The rule of law, as we shall see, deploys its own claim that it is proceeding with open eyes.71 What we see depends on where we look and how we are disposed to see. These examples show the complex character of what originally seemed to be a simple demand that the judge suppress his or her private self and private knowledge and examine only the law and the evidence. The rule of law is an appearance; every appearance both reveals and conceals. This double character of appearance is both its strength and weakness. Suppression of those opinions about self and others that each Justice holds independent of the experience on the Bench creates the appearance of laws neutrality and integrity. It allows the rule of law to appear to be a closed system of reason unaffected by personal biases or even by the ordinary struggle of opinions in a world filled with doubt. But what is suppressed doesn't just disappear. It remains available as a "hidden truth," a point from which laws appearance can be challenged. We can always reverse the terms of what is appearance and what is truth. Law now appears as the illusory appearance, while the previously unvalued and suppressed becomes the truth. To be a judge is both to open and to close one s eyes. It is to see some things but not others. The question is not whether one can see everything, or see the world pure. There is no single right answer, but only a continuing dispute over the correct direction of ones gaze. For this reason, the rule of law exists in an uneasy tension with the reform of law. The Court cannot ignore the multiple voices criticizing the law, both on and off the Bench. But neither can it simply adopt any of them. The reform of law is a program with multiple, often inconsistent, agendas. There is no final resolution in which a perfect coincidence of judicial knowledge and the truth of the social order is achieved. Critics would replace one appearance by another. The judge can never just be herself. Too often scholars forget that their discursive activity is not the same as that of the judge. Scholarly critique may appear to have the same interpretive quality as judicial opinion, but this critique actually has neither of the distinguishing characteristics of the judicial opinion. First, scholarship is always authored. Indeed, its effectiveness depends heavily upon the identity of its author. In spite of the plethora of law reviews that make it possible for virtually any scholarly critique to appear in the academic community, an unauthored article is unlikely to enter the corpus of legal criticism.72 Although authorship supports scholarship, it also identifies the work as personal and so not the law. Second, scholarly work has an open and unlimited access to a world outside of

The Suppression of the Subject

judicial appearances. No scholar can claim that the discoveries of other disciplines are irrelevant. Their relevance may be contested, but it cannot be ignored. Law schools are, for this reason, continually spawning new classes in "law and ." To be closed to developments outside the courts would disqualify scholarship s claim to be what it purports to be: an unbiased pursuit of truth. There may be no such thing; nevertheless, scholarship is committed to constructing a particular appearance of this pursuit. No real challenge to the courts* representation of the rule of law comes from the presumption of scholars to speak the law truly. Only scholars believe that the best theoretical argument is entitled to rule. The stakes in law are measured not by logic but by loyalty to a way of life. Most scholarship is ignored by most courts most of the time. Even that which is cited is used in an eclectic manner. Nothing compels a court to respond to its critics. The serious challenge to which law must respond comes from the conflicting appearance of the political domain as a space organized not around law but around action.

133

6 The Strategies of Law

Marbury is both the opinion the Court has and the opinion the Court creates. This combination of having and creating is captured by the linkage of perception and speaking in the text. The opinion locates itself in a world of sight and sound. The Court looks and listens. Evidentiary and procedural rules determine what may appear before the Court. They establish the evidence, those shadows of reality that constitute the controversy to which the Court will address itself. The Court perceives in these shadows a legal world—a world of rights, violations, and remedies. It perceives the law already in the facts or the facts already organized by law. Yet the opinion is not a passive act of perception; it is the Court speaking. We have no access to a moment of pure judicial perception before the opinion is formulated. Looking, listening, and speaking form a single whole. The seeing and hearing of the Court are always contained within a speaking. What the Court can say depends directly upon what it sees and hears. Conversely, what it can see and hear depends upon what it can say. Legal rights that cannot be spoken cannot be seen. This linkage of speech and perception is no less true for each of us: what we can see and what we can say are

134

Strategies of Law

both functions of the imagination. The rule of law is a set of categories that structures the imagination. First the Court s, then our own. The status of the opinion is always double. It is first the field in which the appearances before the Court are re-presented. It brings back what has already appeared before the Court. Only in this representation do those initial appearances come to have a stable legal meaning. Before their reappearance, their meaning is sufficiently indeterminate that it can be used to support many divergent, even conflicting, opinions. Second, the opinion is itself an appearance created by the Court in a speech act. When others read or hear the opinion, the Courts speech literally becomes an object of perception. As an appearance, the opinion replicates at a higher level of generality the indeterminacy characteristic of the evidence before the Court. Precedents, too, are capable of supporting many different opinions. Their meaning, as well, is stabilized only in a re-presentation—a stabilization that is itself temporary. Appearances can endlessly multiply in this way. Every appearance makes a showing of something that is not itself. Each can, in turn, become the object of another appearance. The mirror of the real, which is the appearance, can itself always be captured in yet another mirror. From within the Court itself there is no breaking out of this cycle of appearances. The Court is an opening to law, presenting appearances that themselves immediately become the source of further appearances. The opinion is not the law itself but an appearance of law. The law never shows itself directly. We can look directly at the Constitution, but the text is not the rule of law. The text does not rule; it is lifeless until it gives order to experience. The event must be seen as an appearance of law. The judicial function is to maintain the appearance of the rule of law. In pursuit of this function, the Court has neither the passivity of a mirror nor the freedom of an artist. Each time the Court constructs a new appearance, it constrains its own future.1 These constraints are not progressive limitations on what had otherwise been a freedom of judicial action. The Court did not begin free and gradually fill in the limits of the law. The opinion always sets forth the Courts perception of what the law is. The quantity of legal precedents does not affect the quality of the judicial task. Judicial precedents constrain the Court s own future but not by binding the Court to a particular rule where it had not earlier been bound. Rather, the already stated opinions create resources for an interpretive act. The need for interpretation is not escaped by creating more sources. The link in the opinion between speech and perception explains why the judicial function, as we understand it, is limited to the resolution of cases or controversies. The Court does not interpret law in the abstract, useful as this

13$

136

Rhetoric of the judicial Opinion

might be as a guide for the behavior of citizens and government agents.2 It does not set forth the law as a system of rules that is then put in place by other people and institutions. An analogy to medicine is again helpful. The doctor does not elaborate abstract principles of human biology. Rather, he or she deals with a world of actual suffering and real injuries. This does not mean that there are no useful abstractions to be made or that a doctor can function without some knowledge of these abstractions. Nevertheless, we don't appeal to the practicing physician for those abstractions. Expertise in the articulation of abstract propositions is neither a necessary nor a sufficient condition for exercising the doctors craft. From both doctor and judge, we expect an expertise-in-use. The Court s voice is bound to its perception. It sees rights and violations of rights when it looks at actual controversies. Its speech sets forth these perceptions. Were the Court to try to elaborate the law as an abstraction, it would enter a domain of argument unsupported by appearances. Where perception ends, theory begins. Judges are not necessarily good theoreticians. The abstractions they give us are likely to be oversimplified. Justice Holmes captured this idea in his Lochner dissent when he wrote: "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise."3 The judicial function has its origins not in the philosophical discourse of jurisprudence but in the decision of actual controversies. If judging is a form of wisdom, it is practical reason, not theoretical insight. The rule of law is, first of all, a form of governance. For the Court, legal rights are perceptions not because the abstract norms governing social and political life are self-evident truths but because legal rights are characteristics of persons and institutions in the contexts in which they interact with others. Accordingly, judgments of law are supported by arguments from analogy: the Court perceives order within a present conflict by understanding its similarities to other contexts that have already been ordered by law.4 The rule of law requires that like cases be treated alike. Of course, in the abstract, nothing is like anything else. Yet the Court is committed to the proposition that nothing is so new that it cannot be ordered by describing its analogical likeness to earlier instances of the rule of law. There are no gaps within the rule of law. Likeness is not a quality inherent in the world. Analogies cannot be known in advance. Nor are they abstractions removable from the actual appearances. They depend on the categories in which, and the exemplars by which, the experience is ordered. Analogies structure the perception of law, but only after they are set forth in the speech of the opinion. Analogical reasoning is, accord-

Strategics of Law

ingly, the construction of these likenesses; it is not their discovery in an objective world that exists before its interpretive elaboration. Analogical reasoning is the opposite of deductive reasoning, which would derive legal rights from abstract principles.5 Deductive reasoning has some place in legal argument, but it stands on a prior organization of perception under categories that establish likeness and difference. Only then can we know the basic subjects and objects to which the major and minor premises of a deduction apply. Who, for example, counts as a person? What counts as speech? With respect to what characteristics is equality measured? We answer these questions by analogical reasoning from paradigms of which we are already certain, not by deductions from abstract definitions.6 The opinion of the Court, then, is irrevocably tied to appearances, to what the Court sees. The opinion is not resolvable into a theoretical discourse. The opinion always ends before argument ends; it ends with a claim of authority that this is the way the world is. And the world is this way because the Court s capacity to see has been exhausted, not because it could not be otherwise. Learning the rule of law is a matter of acquiring habits of perception; it is not a matter of mastering abstract doctrines. The problem of creating a rule of law in newly emerging democracies illustrates the link between practice and law. Drafting a constitution or a legal code is not even a first step in producing a government of law. Habits of perception are not created overnight—perhaps not even in a single generation. This emphasis on appearance and perception does not make the opinion any less an interpretive act. The opinions linkage of perception and speech means that there is no escaping interpretation. There is no moment of pure perception, just as there is no moment of pure reason, under the rule of law. Perception cannot free itself of opinion; and every opinion is an interpretation. The judicial opinion, however, is not just one interpretation among others. Interpretation in law is not the same as interpretation of a literary text, about which everyone may be equally entitled to an opinion. The authority of the judicial opinion is not something added on to one particular person s opinion after the interpretive act is complete. The authoritative quality of the opinion may be analytically distinct from its interpretive quality,7 but it must work from within the opinion. There is no separate agency that grants judicial authority. There is only a court speaking. The power of the courts cannot be divorced from their institutional setting— the fact that they exist within a complex hierarchy of structured institutions. But the maintenance of that hierarchy, the power to speak and confidently expect institutions and individuals to respond, ultimately depends upon the power of the judicial word.

137

138

Rhetoric of the Judicial Opinion

The success of the opinion depends upon whether its audience perceives the law in the same way the Court does. The judicial opinion must, therefore, suppress the appearance of its own speech, in favor of perception. The speech of the opinion is to be transparent to the perception of law. Listening to the Court, we are to perceive the law. To the extent that readers of the opinion draw a distinction between perceiving the law and hearing the Court, they reduce the opinion to a form of political action that can be measured against the law just as any other action can. The most common critique of the Court is that it is making policy, instead of following the law. The audience may perceive the law elsewhere—the law may, for example, be in the possession of other courts or earlier judgments of the same court. Alternatively, there may be a failure to perceive law at all, reducing the whole of the political order to action and counteraction. The political order, I have argued, is always a field of dispute between two different ways of seeing and experiencing: law and action. Where law is indifferent to particular subjects, action seeks to distinguish the individual subject. Where laws end is to maintain the past, actions is to shape the future. Law cannot acknowledge the subject s aim to realize his or her own freedom in a new beginning. Conversely, the political actor cannot acknowledge laws claim that the time for novelty has passed. This is a struggle not just in public debate but within each individual.8 Even ifMarbury appears as a successful performance of the rule of law, it cannot mark an end to the conflict of law and action. Marbury can, however, help us answer a critical question: What is the place of political action in a polity committed to the rule of law? I have already answered this question at the most general level: the rule of law displaces action to its temporal borders. Revolution precedes and succeeds law. But the conflict between law and action is not solely a matter of beginnings and endings. The conflict continues deep in the everyday perception of political events. Law must suppress the appearance of action at the retail level, that is, in the particular event. What appears before the Marbury Court is an image of the political conflict between Adams and Jefferson. The Court looks out at a world driven by political actors. Nevertheless, it sees law. The appearance of law occurs within categories that are likely to be foreign to the actual political conflict. What appears are not Federalists and Republicans contesting the distribution of power after the election but legal rights and legal violations. The Court sees a world of "law, not men." The rule of law, however, is not a world without men. Legal rights attach to actual people behaving in various ways in changing contexts, but they are not the same as the actions or the people acting. The actions are ephemeral; they

Strategies of Law

are bound to the particular circumstances. To account for the acts of presidents Adams and Jefferson, for example, one would have to look to the particular circumstances—both personal and political—in which they found themselves. The relevant context would include the election campaign as well as the "riotous proceedings" in the streets of Washington on the eve of Jefferson's inauguration.9 Action is contingent upon such fortuities. Even virtue needs an adequate field for its display. Whether one confronts such a field is in no small measure a matter of fortune.10 A legal right, however, once it comes into being, is independent of the back-and-forth of political conflict and the changing strengths of political interests. Law purports to be independent of fortune. Furthermore, to give an account of a person s actions, we would have to locate the individual within the diverse factors that constitute his or her biography. The legal rights that the individual bears are indifferent to this complexity. Indeed, when legal rights are made to turn on the particular characteristics or identity of the individual, we perceive a failure of law. Character is neither rewarded nor punished in law. Legal contests are not resolved in favor of the "better" person, although this is the resolution we hope for in contests of action. Virtue and vice do not match the categories of legal rights and wrongs. The Marbury opinion moves through three questions, each of which presents in a new form the juxtaposition of political action and the rule of law. The first section formally asks whether Marbury has a right to his commission. It then shifts rapidly to the question of whether Marbury is, in law, a justice of the peace. Answering this question requires a confrontation with Madison's action of refusing to provide the requested commission. This is the question of the origin of particular legal rights. The origin of the rule of law is revolution, that is, law follows upon action. Do we find the same relation of law to action in the quotidian events of political life? The second section asks whether the law provides a remedy for the violation of a legal right. Since Marbury is, by law, a justice of the peace—the answer provided to the first question—how can he be denied that which proves his legal status? This requires a confrontation with the limits of law in any system of government. Law cannot wholly displace action within the political order. The political order is essentially historical, and history is constituted by permanence and novelty, by law and action. Laws permanence is limited by free action, just as action is limited by law. The Court must confront the boundary between law and action as a line beyond which it cannot go. The distinction between the two is mediated, from the perspective of law, by the doctrine of remedies. The Courts remedial powers are at some point frustrated.

139

140

Rhetoric of the Judicial Opinion

That point always comes well before the need for remedies has been exhausted. The limits on judicial remedies mark the boundaries of the rule of law. Finally, the opinion asks whether Marbury is entitled to the particular form of relief that he demands. This leads to yet another discussion of the permanence of law, measured now against the generation of new law. This is the most serious challenge to the rule of law. It reflects the fluid character of appearances. The Court approaches the possibility of the disappearance of law itself. Law may appear, even to the Court, as simply another form of political action—another domain for innovation and novelty by particular subjects. At that point the Courts understanding of itself would shift as well: the Court would become another actor in the field of politics. The Court allows the appearance of political action directly into the rule of law in order to assert again the power of law as a frame of appearance that displaces the novelty of action. This is the meaning of judicial review in the contest of power that is Marbury. Before turning to each of these questions, however, a brief methodological reflection is in order. My goal throughout this book has been to elaborate the rule of law through an archaeological inquiry into Marbury as a paradigmatic event. I have been careful not to use the arguments of Marbury itself as the measure of laws rule. Rather, I have tried to understand the qualities of the political imagination that make these arguments possible, as well as plausible. What I shall now argue, however, will expose me to the criticism that I am allowing Marbury fs arguments to carry my argument. Each section of the opinion, I maintain, deploys a different rhetorical trope in order to sustain the appearance of law in the controversy before the Court. Each is a technique for making us see action elsewhere—that is, not where we are presently looking. My exploration of the varieties of judicial strategies cannot rest simply on the fact that Marbury's three sections use three rhetorical techniques for maintenance of law, however. I need to suggest an answer independent of Marbury to the question of why three and why these three. Hayden Whites work on the deployment of the classical forms of rhetoric in historical writing suggests a possible answer.11 According to White, the four classical rhetorical forms—metaphor, metonymy, synecdoche, and irony— provide a comprehensive account of the ways a field of historical knowledge can be organized and presented in a single narrative. The same tropes inform legal argument. It should be no surprise to discover that the rhetoric of law is, in fact, rhetoric. Neither is it surprising that the need to deploy the rhetoric of law fully and persuasively in the Court s confrontation with Jefferson pushes the Marbury opinion through the full range of rhetorical possibilities. Metaphor establishes the elements of the field of legal cognition. Through

Strategies of Law

metaphor we understand the people as an actor, revolution as a form of action, and the rule of law as a kind of order. Metaphor establishes the relation between soul and polity that makes the political psychology of law possible. Metaphor also establishes the relation of revolution and revelation that structures the temporality of law, that is, the particular shape of laws permanence. Metaphor, in sum, creates the objects of appearance that must be rhetorically related within a single whole. Each of the sections of Marbury deploys one of the other rhetorical tropes. The first section uses a model in which law follows action as effect following cause. This division of the political order into a temporal sequence of cause and effect is a use of metonymy. "By metonymy . . . one can simultaneously distinguish between two phenomena and reduce one to the status of a manifestation of the other. This reduction may take the form of an agent-act relationship ... or a cause-effect relationship/*12 The second section of the opinion deploys a jurisdictional metaphor. Law orders the whole but includes within itself a space for action. What had been a relation between two distinct perspectives—competing as macroscopic approaches to the whole of the political universe—is now internalized within laws domain. This localizing of action as a part within a single perspective that is law is a deployment of synecdoche. "Metonymy asserts a difference between phenomena construed in the manner of part-part relationships By the trope of Synecdoche, however, it is possible to construe the two parts in the manner of an integration within a whole that is qualitatively different from the sum of the parts and of which the parts are but microcosmic replications."13 The ideal synecdoche is one in which "the individual is treated as a replica of the universe, and vice versa."14 Localization of action within law is just such a replication of the largest structure of our political universe within the microcosm of the event. The final section of Marbury creates a self-reflective division within the law itself. This is the meaning of judicial review. It allows us to see what purports to be law as not law at all. Here the opinion deploys the trope of irony. "The aim of the Ironic statement is to affirm tacitly the negative of what is on the literal level affirmed positively, or the reverse/'15 Once judicial review comes into operation, we can never be certain what is law and what is not, or how long a claim to be law will last. As White elaborates: "The trope of Irony . . . provides a linguistic paradigm of a mode of thought which is radically self-critical with respect not only to a given characterization of the world of experience but also to the very effort to capture adequately the truth of things in language/'16 After Marbury, every legal claim is potentially an ironic claim.

141

142

Rhetoric of the Judicial Opinion

MARBURY'S RIGHT TO THE COMMISSION

In the first section of the opinion, a simple model of the relation of action to law is described: action precedes law. Law brings order and stability to the indeterminate realm of political action. This sequential relation of law to action replicates, at the level of the ordinary operations of law, the temporal paradigm that appeared at the highest level of abstraction.17 Just as the rule of law followed revolution, so law continues to follow action in the ordinary course of political events. If Marbury has been appointed, then "the law continues him in office for five years."18 The appointment is a free act of the presidents. It is not controlled by law. Once the appointment is made, however, we move from the domain of political action to that of law. "Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease."19 Law can never begin if action never ends. The beginning of law is the end of the individual subject s will. Marbury has no legal rights as long as the controversy is seen from within the appearances of political action. Only after the appointment has been made do legally cognizable rights accrue. "The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it."20 A reordering of the world has occurred such that power now derives from the legal right itself. This claim of law does not measure actual strength. Yet this claim seems so "natural" that it may take the reader a moment to realize that there is no political reality that corresponds to this alleged power. Marbury hardly has an absolute unconditional power of accepting his appointment after Jefferson takes office. His going to the Court, as well as his failure to exercise the power of a justice of the peace, are expressions of his lack of power. Nevertheless, he appears to have that power in the eyes of the law. This is not a form of dissembling by the Court—it is what the Court sees when it looks at the controversy. There is, according to the Court, a "last act" of the president, after which his will is precluded from further effect: "[T]he last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction."21 Here, law is creating its own necessities. If the Court is to see legal rights, it must not see action. Marbury has turned the fortuitous world of political action, where events follow an uncertain and often contradictory pattern, into a world of order and stability. In this world of law, what is is determined by what must be. The Court has not actually done anything. It has, however, created a new appearance that can compete with the appearance of action by subjects wielding po-

Strategies of Law

litical power. To this world of political action, it juxtaposes its own world of law. In the former, power is an expression of the subjects will; in the latter, power is a function of rights. Corresponding to the problem of moving from action to law, from novel political acts of free subjects to a permanent legal order, is an epistemic problem: How does the Court know when such a transition has been made? There must be a mark or sign of laws supervening presence. The movement from political action to law must evidence itself. Traditionally, the supervention of law was literally marked by a sign: the seal or the oath.22 Each symbolized the transition from a fortuitous world of actors to a permanent world of law. Each associated the otherness of law with the divine. The divine, however, must give evidence of itself. Similarly, the first section of the Marbury opinion, which bgins with the words "[what] appears, from the affidavits," remains deeply concerned with evidence. Indeed, only from this perspective does the opinion s puzzling focus on Marbury s commission, instead of on the question of his status, make sense. Rather than asking whether Marbury is a justice of the peace, the opinion asks whether he has a right to the evidence of that status: the commission. The commission is "not necessarily the appointment, though conclusive evidence of it." The appointment is "evidenced by no act but the commission itself." The commission has a unique status that mediates between the domain of free political action, occupied and asserted by the president, and that of legal rights and the permanence of the rule of law. The opinion describes this mediating role as follows: "The last act to be done by the president is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment . . . has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act."23 The commission has the dual role of completing the appointment—it is the last free act of the president—and of evidencing the appointment. Whether the commission comes into being is a fortuity beyond the reach or concern of law. But after it appears, its meaning is exhausted in its representation of law. This double role is captured in the opinion s calling the commission an "open act." It is an act and so an expression of the free subjectivity of the president. Whether the act occurs is entirely up to the president. An explanation of the appointment as a historical event would have to explore the changing political circumstances and the president s own commitments, beliefs, and interests. In deciding whether to perform the act, he is accountable only to his own "conscience" and the "country."24 These are the sources of will. There is, as yet, no law. The act is all. The appointment viewed as an action is the creation of a new meaning—a novel event—in the world.

143

144

Rhetoric of the judicial Opinion

Among the constellation of memorable actions that can mark a presidency, the making of appointments surely is one of the most important. A president shows himself in these actions. The appointments process can easily become a test of presidential character. Whom does he choose? Will he fight for a troubled nominee? As on other battlegrounds, we judge character by the actors performance. The opportunity to show strength of character is always equally an opportunity for failure—a chance to show weakness of character. No matter how much a president tries to create and thus control the image of himself through his actions, the future remains beyond his grasp. A president cannot control the consequences of his own appointments. Eisenhower is remembered, in part, for his appointment of Chief Justice Earl Warren; Nixon, for his appointment of Justice Blackmun.25 Actions succeed and fail in a domain of novelty, where risk is everywhere. Every action is a hostage to the future. The appointment is "evidenced by an open ... act." The public quality of the political domain should not be confused with the assertion that the commission is open. Public and open do not refer to the same quality. A public politics is often pursued by secret actions. The secret, back-room deal does not lose its public character. Much that concerns the public is not open at all. This is as true of the secret negotiations of the XYZ mission, as it is of Aaron Burrs plot to lead a secessionist movement in the west.26 The appointments process, from the perspective of the president as actor—as well as from that of possible nominees—occurs largely in secret. The judicial commission, hoever, is entirely exhausted in its open character. This openness is a part of a unique public space—the rule of law—that exists only in and through its openness. There is and can be no secret law.27 Whenever claims of a secret law surface, we suspect an abuse of law and a failure of the rule of law. The open act thus transcends the domain of the individual political actor by entering into the public permanence of law. The private character of the individual will drops out of the account of law. It does not matter why an appointment was made, once the commission appears as an open act. Law is indifferent to the quality of character displayed in presidential acts of appointment. The actors virtue—or lack of it—has no bearing on the legality of the appointment. The interpretive problem of law never refers to the secret intentions of those who have the public power to make law. This is as true of legislators' intent as it is of executive intent. Legislative history is never the history of personal motivations.28 Legislative intent is never discovered by putting legislators on the witness stand. They have no privileged access to legislative intent because their private knowledge is of no relevance to law. The production of law is evidenced only in open acts.

Strategies of Law

The open act does, however, raise a new problem: deception. What looks like a commission may be deceptive. Deception is a false evidencing that becomes possible in a world of open appearances. Deception threatens to undermine the distinction between law and action. If the appearances of law can be set through deception, then law invites action. To prevent deception, the evidencing of an act requires stabilization by law. The authenticity of the commission must therefore be evidenced: "The signature [of the president] is a warrant for affixing the great seal to the commission.... It attests, by an act supposed to be of public notoriety, the verity of the presidential signature."29 Of course the problem of stabilizing appearances can always reappear, producing an infinite regress. The seal may itself be part of the deception. Halting this regress is not a matter of logic. The evidence of authenticity must have a source outside political action. This was the traditional role of the divine sanction associated with the seal or oath. This role has now been wholly internalized by the law. The secretary of state, who affixes the seal, must not himself be infected by a subjectivity that can offer a ground for deception. According to Marbury, he is not: "The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president.... He acts, in this respect... under the authority of law, and not by the instructions of the president/'30 Law here requires a set course of movements by the secretary of state. Law is wholly indifferent to who occupies the position, as well as to the course of political actions by which that person became secretary of state. Law speaks to the office, not the officeholder. When law controls behavior, it eliminates the free subject. To act under the authority of law, therefore, is not to act at all. Behavior required by law cannot be accounted for by looking at the will of the subject and/or the circumstances under which the subject finds himself. A secretary of state could, of course, fail to perform as the law requires. He could perform his public role for "secret" reasons. He could fail in the creation of appearances or even create deceptive appearances. He could do so either on his own authority or as an instrument of the president s will. Indeed, this accounts for the case before the Court: Madison has failed to create the appearance that seems to be required by law. He has acted instead on the instructions of the president. He has acted "under color of his office," but not as the law requires. "Under color" refers to a false appearance.31 Law has colored, but not controlled, the subject; he remains a political actor. The result is a kind of evidentiary deception: Marbury does not appear to be what the law purports to have made him. Although Marbury cannot show himself to the world as a justice of the peace, he nevertheless appears before the Court as what he is under law. The

I4S

146

Rhetoric of the Judicial Opinion

Court s perception is not bound by the actual events that may have occurred or failed to occur outside the courtroom. Instead, its perception is fully constituted by the open character of law. The Court explains that legal fictions may have more reality than what the evidence shows actually to have occurred: "When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labor of inserting it in a book kept for that purpose may not have been performed/*32 Madison, it turns out, cannot control the appearance to the Court of the office of the secretary of the state. Whether the open act has occurred is a question of the Courts perception, not of the manual labor of the secretary. Madison s action in denying Marbury the evidence of his office appears before the Court not as a free political act but as a legal violation: "To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right."33 The Court does not see Jefferson and Madison as acting in a political contest. Rather, it sees the legal right in its privative mode, that is, it perceives a violation. To see a violation of law is not the same as perceiving a political action. Action draws on its own sources of meaning and its own forms of power. A violation of law draws its meaning— negative as it may be—from the rule of law. To the Court the meaning of the act is exhausted in its negative character: it is not-law. A gap has emerged between the "precise course [of behavior] accurately marked out by law" and the behavior of Madison. This perception of a failure of legal right advances the opinion to an inquiry into remedies. Before the opinion can move on to the question of remedies, however, it must address one other possibility that would suggest that Marbury has never left the world of political action for that of the permanence of law. Marbury may indeed have been appointed, but he may still be "removable at the will of the executive."34 In that case, the failure to deliver the commission would appear not as a violation of an existing right but as a termination of a legal right. The permanence of law cannot mean that a legal right once created can never end. Permanence is not timelessness. Legal rights come into existence, and they go out of existence. Even the Court believes that Marbury s legal status as justice of the peace is limited to a term of five years. On this alternative view, legal rights would continue to follow from political acts. The question is, Which act determines which legal consequences? Is the relevant act Adams' signing of the commission or is it Madison s refusal to deliver the commission? Is the relevant act the appointment by Adams or the termination by Jefferson? The latter, just as much as the former, can be generative

Strategies of Law

of legal rights or, in this case, the termination of existing rights. Both are open acts; both can support a transition from action to law. It would hardly offend the rule of law to conclude that Marbury has no right to his commission because he is not, as a matter of law, a justice of the peace—even if he once was. Marbury's answer to the question of whether Marburys right to the commission is terminable by a new act of the executive is unsatisfying. The opinion does no more than look at the terms of the statute that created the position. This statute created a five-year term, which the Court describes as "not revocable/' Given the Courts reading of the statute, Jefferson's action appears as a nullity. It is an effort to do what the law says cannot be done. If it cannot be done, it cannot be recognized. It is at best an act "under color of law." But even if the Court has properly interpreted the statute—itself a debatable proposition, because the text of the statute says nothing about revocation—one can still ask whether Congress has the legal authority to make the appointment not revocable. Law follows action, but no particular legal meaning follows from any particular political act. The action does not itself mean anything under law. More precisely, it means too many possible things. There are always alternative readings. Some of these would give effect to the termination as itself an instance of a legal rule. The president might, for example, have the constitutional—and so legal—authority to dismiss all holders of appointed office, who are not protected by a constitutional guarantee of life tenure. On this view, Jefferson s act of terminating the appointment would appear to be the source of legal rights, while Congress* effort at law making—again assuming the Court had properly interpreted the statute—would appear to have no legal significance. Congress, not Jefferson, would be the law violator. We can easily imagine the modern executive branch defending the legality of the president s action on just this ground and the two houses of Congress arguing in defense of the constitutionality of the statute s five-year limitation on presidential authority.35 What Congress calls a law may be one in name only. It too may be a deception, a false appearance. We could easily regard the statute under which Marbury claims a legal right to governmental office as nothing more than a last grasp at power in the dying days of an exhausted and repudiated administration. Although Marbury is centrally about the relation between the courts and political actors, the real uses of law extend beyond the courts. Law is also a strategic resource that the political branches of government use against one another. The statute creating the office of justice of the peace can make no claim to permanence beyond its capacity to maintain itself in the conflictual world of political power. If it is to be law, it must be seen as law. Whether it will

147

148

Rhetoric of the Judicial Opinion

be is not a question of abstract right. It is not a question of whether Congress was objectively correct in its view of the constitutional reach of its own authority and of the limits on the president. Rather, it is a question of conflicting perceptions and of the power of each institution or actor to instill its perception in others. The courts are an element in this world, but the conflicts are multidimensional. Law is a strategy for the maintenance of political meanings, but it is not a world apart. Marbury goes no farther than reading the appearance of law within the statute. The Courts vision is bound by the statute, as it sees the statute. But there is no particular reason to end the argument here. There is no consideration, for example, of whether the five-year appointment as justice of the peace is consistent with Article Ill's life-tenure requirements for federal judges.36 The Court s perception of law ends well within the boundaries of where argument could extend. But although there is no justification for this limit on the judicial discourse, it would be a mistake to think that any other point of termination would have been better justified. An endless refraction of law is possible. In law, every rule has its exceptions; every analogy can be qualified by other analogies. Each argument that is considered generates more alternatives that call for further consideration. Conclusions are not the products of abstract rules but ways in which the Court sees the world. Legal argument never departs from perception. Perception, although it may have its reasons, is not a deduction from reason. DO THE LAWS AFFORD MARBURY A REMEDY?

The second section of the opinion is in many ways the most puzzling. It seems to establish with all of the seriousness of a first principle that the laws of this country must afford Marbury a remedy for his injury. "[I]f the laws furnish no remedy for the violation of a vested legal right," the government of the United States "would cease to deserve this high appellation [of a government of laws and not men]."37 Yet we know that at the end of the opinion Marbury will not receive any remedy. If Marbury continues to suffer the effects of Jefferson s action, despite the violation of his legal right, does it follow that ours is indeed a government of men, not laws? To understand the function of this section of the opinion, we must adopt a broad understanding of the significance of a legal remedy. Viewed narrowly, a remedy is intended to make whole a plaintiff who has suffered an injury to a legal right. Broadly conceived, however, a discourse on remedies concerns the limits of law. What is beyond the remedial powers of the courts is not within the rule of law—at least as law appears to the courts. Remedies define the

Strategies of Law

reach of law. Where there are no remedies, there is only a politics of individual subjects and free action. Implicit in the concept of a remedy, therefore, is the idea of the boundaries, if any, on the rule of law. If this is correct, then there is a sense in which the explicit question of the second section of the opinion seems already to have been answered. The conclusion of the first section was that Marbury had a legal right to the commission. If to speak of remedies is to speak of the boundaries of law, then if Marbury has a legal right, there must be a legal remedy. How can a recognized claim to a vested legal right not fall within the boundaries of law? Within the terms of the first strategy—where law follows action—the transition to law is already complete; there must, therefore, be a remedy. To understand the second section, then, we must move beyond a temporal, cause-and-effect concept of the relation of law to action. Not every political action results in law. Temporal succession is not the only relation the rule of law can have to the actions of individuals. The discourse on remedies is an exploration of the boundaries that continue to protect a domain of action even within the rule of law. The imagery of time—law follows action—now gives way to one of space—there are separate spaces for law and action. Law stabilizes action both by completing it (section one) and by localizing it (section two). From laws perspective, action is either already completed or occurring elsewhere. The argument of this part of the opinion begins with these reflections: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court."38 This is the form in which law's virtues appear to popular opinion. Unredressed injury defines a state of nature in which only the strong are free. Law follows upon and reforms the chaotic disorder of this state. Thus, the first duty of government, that which marks its coming into being, is to provide for the redress of injury. Law displaces the false freedom of nature with the true freedom of civil liberty. So far, this is onl. a popular version of social-contract theory. The Court is repeating the myth o. its own origins. In this myth, law follows the state of nature, not revolution. The social contract has displaced the revolutionary covenant as the origin of law. The story becomes more complicated, however, when we recognize that a government given the power to redress injury is inevitably given the power to commit injury as well. The rise of political order makes possible civil injury as well as civil liberty. What I am calling civil injury does not exist prior to the state

149

ISO

Rhetoric of the Judicial Opinion

Before that point, injury is only what the naturally weak suffer at the hands of the naturally strong. Once the state displaces nature, strong and weak become functions of political power. Civil injuries can range from abuse by the coercive powers of the state to unfair discrimination. The protection of law must, there fore, include protection from those empowered by a legal regime. To allow unaccountable power violates the duty of government to secure the citizens liberty "[w]henever he receives an injury"—that is, from whatever source, inside or outside of government. To achieve this end, the citizen must always be able to claim the protection of the laws. Not even a king, let alone a president, is allowed to use political power to cause injury. Since "the government of the United States has been emphatically termed a government of laws, and not of men,"39 it must meet this minimum remedial condition. Although these sentiments are by now a political/cultural commonplace, this is surely a puzzling statement to appear in an opinion written in 1803. The revolutionary grievances of the colonies had been directed at the oppressive use of political power by the king and his government. Were the views that the Marbury opinion expresses true, they would call into question the very need for the Revolution. The opinion suggests that all that really had been required to remedy the civil injuries of which the colonies complained was a "respectful petition" to the appropriate authorities. The king, after all, "never fails to comply" with the rulings of the courts. And the courts must provide a remedy whenever there has been an injury. This view of the king and the rule of law should be contrasted with the remarks in the Declaration of Independence about the failure of colonial petitions. "In every stage of these Oppressions we have petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury."40 The Courts mouthing of the platitudes of law exposes the inadequacies of this understanding to account for the revolutionary origins of the American political order. The Court understands itself to be the authoritative voice of the political order, able to control even a king. On the Court depends the rule of law; only under the rule of law can liberty displace oppression. Yet this view is fundamentally incompatible with the need for and experience of the Revolution. Revolutionary action displaced the rule of law—English law to be sure, but what difference should that make if the relevant comparison is with the state of nature? This transition from law to revolutionary action was the movement from oppression to justice. The alternative to the rule of law in the recent American experience was not the oppression of nature but the liberty and justice of Revolution. Law can make no privileged claim to the realization of justice. Law, like revolution, can be measured by the "opinion of mankind." The Declaration of

Strategies of Law

Independence is addressed to this opinion. Beyond the historical particularity of law, there remains the universal perspective of justice. What was the failure to which the Revolution was an appropriate response? The Courts description of Great Britain as a government of law suggests a problematic set of alternatives. Either law is not necessarily just, or law is an incomplete ordering of the political domain. In either case, the rule of law may not be a necessary or sufficient condition of civil liberty. The first alternative denies that the difference between civil liberty and civil injury lies in the rule of law. Law too may be an instrument of oppression. Unjust law is a problem that may be beyond the Court s power to remedy; the rule of law is not necessarily a virtuous rule. The second alternative asserts that the rule of law is never fully able to displace the rule of men. Law may simply create new opportunities for individuals to pursue the same interests that operate in a state of nature. A king—or a president—may have power by virtue of law, but he may use that power for ends that are unregulated by law. On this view, the image of the social contract as a point of transformation from nature to polity is questioned. Instead of a simple dichotomy, political power and natural desires may support one another. Political power may not transform the order of nature; it may simply enhance and redistribute power within that order. Justice under law may remain the interest of the stronger. Under the first alternative, the problem leading to the American Revolution was with the law itself. The king and his government may have continued to respect the law, but the law itself was intolerable. This is the problem of unjust law. Marbury speaks of the need for law to offer its protection whenever an individual receives an injury. What, however, is the measure of "injury"? Law will remedy only those injuries it recognizes. On this issue there will be substantial variations among political orders, each of which may claim to represent the rule of law. Is private property theft or a fundamental human right? Is poverty itself a legally cognizable injury? Surely no legal system promises a remedy for every injury that anyone suffers: the broken heart, the poor investment, the moral insult, the mortal illness. Law does not offer a general plan for salvation. Alternatively, the problem to which the Revolution was a response may have been that the king and his government failed to rule under law. The law might have been just but insufficient. The exercise of political power may be beyond the laws capacities for control. No formal petition was or could have been adequate to cabin the kings power. Law, in this case, appears as an inadequate source of constraint on political action. When law fails, action has to be met by action. The site of that confrontation shifts from the courtroom to the battlefield.

151

152

Rhetoric of the Judicial Opinion

The Declaration of Independence puts forward both views of the problematic character of English rule. The kings government has passed unjust laws that disadvantage the colonists for the benefit of others. The Declaration refers to these unjust laws as "pretended legislation." Simultaneously, the king has failed to respect the legal rights of the colonists. "He has," for example, "dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people." Laws weakness is exposed on both grounds: unjust laws and an inability to constrain injurious official actions. Each position points to the inadequacy of the simple, but popular, notion that the rule of law displaces nature and thus secures civil liberty against a false idea of natural freedom. Despite the Marbury Courts Panglossian view of the rule of law in Great Britain, the colonists had seen "repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States." Freedom and justice remain problematic even under the rule of law. There may be no resolution of the paradox that empowerment to prevent natural oppression inevitably substitutes the threat of civil injury for that of private injury. This is an old conundrum of political theory. Marbury has not yet formulated an answer to it, other than to suggest that when courts speak the law, even the king complies. This formulation is, of course, spoken to a president who has chosen not even to allow his agents to appear before the Court. If the new American political order does purport to have an answer to this conundrum, perhaps it should be sought in Madison's design of separated powers and multiple political checks, rather than in the old saw of the rule of law. Or, more accurately, law may work as one among several forms of checks and counterchecks. The appearance of the rule of law that Marbury invokes at this point is, therefore, little more than a deliberate suppression of the revolutionary origins of the American polity in the failures of the rule of law. The new American constitutional order did not arise out of a state of nature but out of a revolutionary response to the political order that had the strongest claim to the title of the rule of law. By asserting the courts' power to control the king, the Court creates an appearance of its own power to control political action. This is the appearance that the Court holds up as both the end of law and the world in which it already lives. Law s satisfaction with itself is complete because it appears to itself to rule justly and completely. All the while, the real question in Marbury is whether law rules at all. The Court presents the rule of law as a condition achieved. The actual origins of law are irrelevant because the transition from action to law is already complete. Laws origin appears only as a distant past, the chaos of a mythical

Strategies of Law

state of nature. The appearance of laws permanence suppresses the memory of its own recent origins. Thus, the Revolution itself, the particular origin of this system of law, threatens to disappear: American courts appear as a continuation of a rule of law that was present in the English courts. This move in judicial self-presentation is equally an effort to structure the citizen s political imagination such that he or she sees no alternative to laws rule. Its institutional counterpart is the new federal courts' willingness to invoke and rely upon English common-law precedents.41 Where is the Revolution, if the American rule of law is continuous with the English? The judicial practice of deploying English common law had itself invoked a strong response from political actors, including Jefferson, who saw in it a repudiation of the revolutionary achievement.42 But if the alternative to law is the state of nature, then what could be wrong with invoking a continuity of the rule of law across the revolutionary moment? The suppression of origins is equally a suppression of the continuing confrontation of law and action. The major problem of section one of the opinion was the indeterminate character of the relation of law to action, when that relation was conceived sequentially. We were never quite sure which act was the last act before law and which act violated the law that already existed. Section two deals with this indeterminacy by projecting the relevant action into the deep, mythical past of nature. To recognize the origins of law in a political struggle against an unjust rule of law would explicitly open up—within the legal order itself—the continuing question of revolution. We would need to ask whether the present rule of law was unjust. That question invites a moral perspective outside the rule of law. It is not a question we should expect the courts themselves to raise. Law never achieves closure on the struggle against action because law can never wholly close off the problem of injustice within law. As long as the choice for law is posed as a choice for liberty over oppression, political order over natural chaos, and justice over injury, the outcome is clear. Law need leave no place for injurious action outside the law. But only the courts pose the choice in this manner. Even for the Court to do so requires a remarkable degree of willful blindness to the political struggles that surround the courts themselves. Only for the courts does the rule of law emerge from a mythic moment in which law was victorious over nature; the political actor may not share this perception of a simple dichotomy of law and injustice. If a dichotomy appears to this actor, it is equally likely to appear in a reverse form: liberty and justice will be aligned with action, against law. Revolutionaries choose justice over law. The judicial attempt to submerge the problem of action into a myth of

(S3

IS4

Rhetoric of the Judicial Opinion

deep chronological origins inevitably leads to a new emergence of action— conceived now in spatial rather than temporal terms. The Court is not likely to reflect on the possibility of unjust law,43 but it is deeply aware of the possibilities of injustice that law cannot reach. Marbury touches on this difficulty when it juxtaposes the following observations to the earlier remarks on law, civil liberty, and the universal availability of remedies: Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy? That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted.44

The Constitution, the Court now admits, cannot reduce all politics to law. It leaves a space for political action, unregulated by law. Constitutionalism is no longer the transition from the chaos of nature to the permanence of law; rather, it is a division of the political domain into distinct spheres of law and action. To recognize action is not to abandon the achievement of the rule of law. Instead, the achievement of law is one of circumscribing action, of putting action in its proper place. The extent of this concession should not be minimized, despite Marbury's. derisive description of a mere political act—as if what is not ordered by law cannot be important. This mere act may, the Court immediately recognizes, "respect the nation." Moreover, this concession deeply conflicts with the previous image of the rule of law as a system of civil liberty that displaces unredressed injuries arising in a state of nature. The Court now recognizes that political actions may indeed cause injuries and that those injuries may be beyond the reach of judicial remedy. In this lawless domain, there will be "misconduct" and "injured individuals." Politics now appears to be irreducibly dangerous. Law cannot make the political order wholly a domain of peace, stability, and safety. Civil liberty and civil injury seem to go hand in hand. The injuries worked by the president are not simply the accidental consequences of a president s private self intruding into the public position of the presidency. Such injuries may indeed occur, but Marbury is pointing toward a more fundamental problem: the injuries at stake here are made possible by the political order. Jefferson is causing injury to Marbury for political, not personal, reasons. Law does not exhaust government. Even a government of law is not a government without individuals. People pursue conflicting ideas of the ends of political action. A govern-

Strategies of Law

ment of law remains a dangerous thing. Legal remedies cannot undo every injury. How, then, does Marbury respond to the problem of the limits on laws domain? The Court has already suggested that these limits are not delineated by political status. Even the king, it has said, is subject to the law. Madison's status as secretary of state does not, by itself, remove him from the law. "Is it to be contended that the heads of departments are not amenable to the laws of their country? . . . [T]he theory of this principle will certainly never be maintained."45 Nor does Marbury pursue the cynical tautology that law is whatever those with political power decide it is. Law is not simply the power of the stronger; it is not what rulers do to the ruled. Were that the case, the distinction between the rule of law and the rule of men would collapse. Conversely, law is not the control the ruled exercise over their rulers. Madison, after all, does not appear in response to the Court s order. The reality is somewhere in between, which means that the distinction of ruler and ruled is an inadequate framework for understanding how law works. The rule of law is not simply the product of a contest between the powerful and the weak, the elite and the masses. Rather, the rule of law is a common vision. Whatever the effects of law on the distribution of wealth, they are not themselves the explanation for our common belief in the rule of law. The rule of law is not something done by one class to another. It is a way of apprehending the political order that is common to all members of the polity. Marbury tells us two things about the line separating the rule of law from political action. First, the definition of this line is itself a function of law and therefore the responsibility of the courts. Law establishes what is and is not law. In modern terms, the courts supervise their own jurisdiction. In Marbury's terms, the rule of law makes an exception to itself when it recognizes a place for political action. Thus the source of the presidents extralegal powers is represented as identical to the source of law: the Constitution. "By the constitution ... the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience."46 Executive power has no essential nature that controls law s approach to the president. Rather, law is itself the sole source of the extralegal character of executive power. Marbury's most basic assumption is that the Constitution is law: "fundamental and paramount law." By placing the source of political action in the Constitution, the Court asserts that action too is a product of law. In section one of the opinion, law succeeded action. Here, law precedes political action because law appears now as the source of the whole political order. Law does not confront the otherness of action as a thing apart or beyond itself. Action no

155

156

Rhetoric of the Judicial Opinion

longer precedes law temporally; nor is it outside the law spatially. Marbury asserts that the distinction between law and action is internal to the law. This same internalization of the relation of law to action is expressed by the Court today in the political question doctrine: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution/'47 This is a claim to the comprehensive character of the rule of law, in the face of political phenomena that cannot be ordered by law. The rule of law controls the conditions of its own nonappearance. Second, if the line between law and action is to be a function of the law speaking through the courts, it must be the result of a rule. It may not be represented as a series of ad hoc compromises with political power: "If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction."48 From the perspective of action, the line may have no more regularity than the cease-fire line of a battle. But the rule of law requires a legal rule. A court can only perceive the significance of an event through an appeal to a rule. In the absence of a rule, the event seems to be unbounded novelty. So understood, the event is either of no significance—"a mere political act"49—or it signifies the end of the rule of law— revolution. Between these extremes, all political significance is, for the courts, a matter of law. Law must map the possibilities of action. But how is it action if it is subject to the rule of law? Marbury avoids contradiction here by asserting the rule of law at a higher level of generality. A rule of law is to determine where action is permissible, while saying nothing about the content or significance of that action. Were the Court unable to assert this jurisdictional control, then action would appear as both not-law and its own source. When action is self-legitimating in this manner, law exists under the threat of revolution.50 The boundaries on revolutionary action do not respect laws limits. When the Court tries to articulate the content of this jurisdictional rule, it is less than successful. It cannot rely on official status alone, without violating a first principle of the rule of law: that it is not the rule of men. Law cannot simply privilege the president to act outside the constraints of law. That would convert the president into the sovereign and re-create the old conundrum of the relation of the sovereigns will to the rule of law.51 The relevant distinction cannot, therefore, be that of the president from everyone else. Thus, heads of department too may act as mere organs of the president s will, in which case "their acts are his acts."52 But if heads of departments, why not others subject

Strategies of Law

to the president s will? Such an exception for presidential action would swallow the rule of law. Furthermore, not every act that rests on the presidents will is privileged: "[W]hether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act." Certain acts, whether performed personally by the president or by his "confidential agents," are not "examinable by the courts." With respect to these acts, the "opinion [that] may be entertained of the manner in which executive discretion [is] used" is not the judicial opinion; it is, instead, public opinion.53 But which acts fall in this category? Although the Court seems to be reaching for the lawsuit entitled Marbury v. Jefferson—a lawsuit that would announce the subordination of executive action to the rule of law—there have been, in fact, extraordinarily few lawsuits filed against the president in American history.54 There is little doubt that in 1803 Jefferson would not have recognized such a lawsuit. He would have viewed it as yet another contest of political power: the power of the Federalist Party against that of the Republicans, or perhaps even more personally as a political challenge from his cousin John Marshall. In the Burr case, several years later, Jefferson again confronted Marshall s assertion of a judicial authority over the president—now the authority to serve a subpoena on the president. He reacted strongly: The leading principle of our Constitution is the independence of the legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each, to protect itself from enterprises offeree attempted on them by the others, and to none has it given more effectual or diversified means than to the executive.55

Jefferson cast the dispute between Court and Executive as one of action versus counteraction. He continued to have a blind eye for the rule of law. So far the opinion has said only that the Constitution recognizes a domain of political action in which the president exercises his own discretion. There, he is subject not to the judicial opinion on the rule of law but only to popular opinion. The Court has not yet articulated any rule that would tell us whether this particular assertion of political power by the Executive is examinable by a court.

157

IS8

Rhetoric of the Judicial Opinion

In fact, the opinion never does articulate that rule. Instead, it collapses back upon itself, declaring only that the line is one between politics and law: "The subjects [of presidential discretion] are political. They respect the nation, not individual rights/'56 This is only to repeat the problem: How do we know when individual rights are at issue? We cannot rely on the fact of injury: the discourse on presidential discretion begins with the recognition that some injuries are beyond judicial remedy. Nor can we rely on the status of the injurer or the injured. There is nothing about the parties here that suggests when we are dealing with law rather than action. Madison, in denying Marbury his commission, was acting as an instrument of the presidents will. Jefferson made the relevant decision when he decided to regard the last-minute judicial appointments of President Adams as "nullities/'57 This seems a perfect example of the head of a department's acting as a "political or confidential [agent] of the executive, merely [executing] the will of the president/'58 The Court does see individual rights in this controversy, rather than a matter of national politics. But the Court cannot prove that the controversy must be viewed in this way. Once again perception is settled outside the bounds of argument. From Jefferson's perspective the issue of Marbury s commission concerns the nation. This is hardly an implausible claim. Not only are the immediate consequences of the election of 1800 at issue but so is the general capacity of a president to implement policies through control of political appointees. For this reason, the presidents constitutional power to terminate political appointees remains today an issue of theoretical controversy.59 Marbury, after all, was hardly chosen under some objective, apolitical vision of the administration of the rule of law. His appointment was intended to secure, despite the change in administration, a continuing base within government for the defeated political party. Political power and legal rule are so intimately intertwined here that the Court's claim that there "may be difficulty in applying the rule to particular cases," but not "much difficulty in laying down the rule," sounds wholly factitious.60 We are constitutionally incapable of extracting a single legal rule from these circumstances—at least one that moves beyond tautology. Instead of offering a rule by which to distinguish the domain of law's rule from that of political action, the Court seems to look to the institutional source of authority. It asks whether the department head is functioning as an agent of a legislative program: "[W]hen the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law." The Court repeats this appeal to

Strategies of Law

institutional authority when it asks whether the plaintiff s claim rests on "a constitutional or legal discretion," meaning a discretionary power assigned to the president by the Constitution or by a statute. Marburys claim, the Court asserts, rests instead on "a specific duty... assigned by law."61 This assertion rings particularly hollow when, a few pages later, the Court recognizes that "the acts of congress are silent" on the specific duty at issue in this lawsuit: delivery of the commission.62 More important, coming just pages before the opinions affirmation of the supremacy of the Constitution over legislative products, the Courts appeal to the statute specifying the secretary of state s responsibilities is less than convincing. Instead of delineating the line between law and action, the Court falls back on Congress. This, however, is an obfuscation. The statute is not only silent on the formal matter of delivery, it is also silent on the central issue of presidential power—to wit, Jefferson's assertion of a power to terminate. The important question, moreover, is not whether the president s discretion has been restricted by Congress. Rather, it is whether the presidents power to terminate appointments can be limited by a rule of law. This is what the opinion sets out to answer when it asserts that law—the Constitution— sets the jurisdictional limits on action. If there is a constitutionally created presidential power to act freely in this area, then no law, statutory or otherwise, can determine his behavior. If the appointment is a matter that concerns the nation, then neither Congress nor the Court can restrain presidential discretion—regardless of the injury Marbury may suffer. Yet it is difficult to imagine anything a president does in his official capacity that would fail to concern the nation in one way or another. We seem to be no closer to understanding the place for action within law than we were at the outset. The inadequacy of looking to Congress to resolve the issue is evident if we compare the statute granting legal responsibilities to the secretary of state with the one assigning mandamus jurisdiction to the Supreme Court. The Court declares the latter unconstitutional at the end of the opinion. One could say, however, exactly the same things about the mandamus responsibilities assigned to the Court by section 13 of the Judiciary Act of 1789 that the Court says about the duties statutorily assigned to the secretary of state: "[A] specific duty is assigned by law [—the Court is assigned the duty of issuing writs of mandamus—], and individual rights [—e.g., Marburys right to a remedy—] depend upon the performance of that duty."63 Whether Congress has the authority to create law in either area cannot be resolved by looking only to the terms of the statute. Instead of clarifying the boundary between law and political action, the opinion seems to obfuscate every time it approaches this boundary. We not

159

160

Rhetoric of the Judicial Opinion

only do not know how to distinguish the domain of law from that of action, but we are not even sure where the president stands in relation to the courts. Perhaps law cannot reduce its own other—action, personified here in the president—to an instance of a legal rule. It may need to claim that it can do so in order to secure the rule of law, but the very project seems a contradiction in terms. How can action be made a function of law? Perhaps there is no line articulated because no rule is possible: law recognizes action when it does not have the power to do otherwise.64 When and where law will be powerless is a matter of fact, not rules. In the twentieth-century crisis brought on by President Truman's seizure of the steel mills without legal authorization, Justice Jackson described a similar obscurity in law s recognition of action: there exists a "zone of twilight in which ... any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law."65 Twice now the Marbury opinion has faltered at the critical moment when an action is to be read as an instance of law. The Courts reading is clear, but the reasons for that reading are substantially less so. The Court never seems to get to the underlying questions, turning in both instances to a congressional pronouncement. There is a profound silence at the heart of the opinion. The ransition from action to law, whether conceived of temporally or spatially, occurs within this silence. Why and where does action stop and law begin? Conversely, what are the limits of law? There is no clear line to be marked—only a constant struggle at the borders. Law is grounded not in argument but in an act of perception, which is ultimately inexplicable. The opinion can never say enough to clear the field of all opposing arguments. Seeing differently always remains a possibility. We do not really expect Jefferson to read this opinion and realize the error of his own views. Although we may use arguments to create perceptions, we cannot prove a perception by argument. Argument in law, even when it appears to have a deductive form, is part of a strategy of persuasion, not a demonstration of logical necessity. Its truth lies in its power to persuade. The Court sees rights violated and remedies called for when it examines the controverted events. To see the world in this way requires the exclusion of other views. The opinion silences by failing even to hear, let alone give voice to, the claims of political action. Arguments of law are not abstract arrangements of principles. Law review articles are not the law, no matter how well argued. Getting the law right is not a matter of realizing the hidden truth of doctrine. We cannot separate the rule of law from opinions, or opinions from the institution of the courts. "It is emphatically the province and duty of the judicial department to say what the law is."66

Strategics of Law

This is exactly right. What the law is, is what the judicial department says it is.67 The truth of this proposition lies neither in the legal realist s claim that the rule of law is simply a prediction of what judges will do nor in a unique judicial capacity for legal argument. The judge is bound by the law he or she perceives. The Court cannot construct an argument for law all the way down. There is no penetration to first principles. The link of the rule of law to the courts rests in the fact that the law is a way of seeing the world. As such, it exists only in and through the institutions and individuals that share that perception. At the point of the opinion s silence, perception displaces argument. Just when the Court fails to articulate the rule that is to distinguish law from political action, it claims that the matter is perfectly clear: "The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive,... nothing can be more perfectly clear than that their acts are only politically examinable." The converse proposition—that laws domain extends where "individual rights" are at stake—is "equally clear/>68 The Court is not dissembling when it proclaims this clarity. The path of inquiiy the Court has pursued really has clarified matters for it— and perhaps for us as well. Perception is not proven by argument, but neither is it independent of argument. Speaking as it has, the Court has come to a certain perception. This again is the double status of the opinion—both construction and perception. The divide between law and action in a stable political order is no doubt clear. It is clear, however, in the same way that any social practice is clear: not because we understand the principle upon which the distinction relies but because we know how to orient our behavior within competing domains of meaning. The more we try to explain this division, the more confused we are likely to become.69 The stability of the line is always at risk because the meaning of human events is always contestable. Nevertheless, the Court s discourse may have helped orient both itself and its readers. They may all now see more clearly, even if they cannot speak with a demonstrable logic. The Court sees appearances, and it maintains appearances. This is the operation of law. It is not philosophy. The philosophical inquiry into the distinction of law from political action is a discourse that has no end. The opinions effort to set forth a rule was a promise it could never fulfill. Were the Court seriously to engage in that inquiiy, it would never again return to the particular events of the case. The Court would set off on an endless theoretical discourse. Yet without the distinction of law from action, the Court would lose its privileged claim to see the world differently from those engaged in the day-today battles of political life. The Court must maintain what it cannot ultimately explain.

161

162

Rhetoric of the Judicial Opinion

In the end, the Court sees and speaks of what it sees. It holds up its vision. It asks that others see as it sees. This simultaneously entails a hiding of its own self-knowledge and a silencing of other voices. Law and action do not engage directly because they are fundamentally incommensurable. There is no reasonable resolution of their conflict. They engage on a field of power, not argument. That field is neither the courtroom nor the White House. The battle is fought in the self-understanding of the individual citizen. The cumulative product of this battle is the history of the polity. Even there, nothing is settled because history does not exist apart from the imagination of those who write and those who read it. Ultimately, each person and each institution will read history according to the categories through which it sees the world.70 The rule of law and political action each contest the other s vision of the political order. Each claims a knowledge that founds its power. Jefferson knows that it is all political action. For him, the Court is to be treated as simply a manifestation of the lingering grasp on power by the defeated Adams administration. The Court proclaims its own counterknowledge of law. It sees Madison as a lawbreaker to be brought to justice within the law. Conflicting claims to knowledge are conflicting claims to power. Power has been a hidden theme of the opinion thus far, but it threatens to break fully into the open in the final section. Here, the Court comes as close as any court can to a self-awareness of the relation between law and power. THE POWER OF THIS COURT

The final section ofMarbury begins with a recapitulation, sketching what has by now become a clear appearance of rights, responsibilities, and remedies. "Impressions... received without much reflection or examination" have been displaced by the mature judicial perception.71 On "first view," the case appeared to be "an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the executive." This perception has given way to the opposite view: "[I]t is not perceived on what ground the courts . .. [are] excused from the duty of giving judgment that right be done to an injured individual."72 What had been seen as an inappropriate intrusion is now seen as necessary. What initially appeared to be arbitrary political action by the Court—intermeddling—has become a legal duty. The reversal is so complete that a judicial failure to pursue Marbury s claim would now appear to introduce a dangerous subjectivity into the legal process. The opinion of the Court has made the order of law appear in the controversy. This appearance achieves a thorough recharacterization of the political actions that generated the controversy. These actions are no longer closeted

Strategies of Law

within the "secrets of the cabinet."73 In the secret confines of the executive cabinet, the president may have decided upon a course of political action. The Court denies a public appearance to this assertion of political power. The Court drives secrecy—and so action—out of the public space by seeing only law: "[T]he performance of [that] which the president cannot lawfully forbid . . . is never presumed to have [been] forbidden."74 The cabinet is no longer seen as an alternative source of political power; it becomes, instead, a private space.75 Just as Madison fails to appear in Court, so do his political actions fail to appear in the opinion. What appears instead is a series of violations. The Court sees these actions as mere negations. They are not assertions of a secret power working its way in the public-political space. Rather, each is a negation—a false appearance—that should itself be negated by the public order. Similarly, the officer who performed the acts seems to the reflective opinion of law to be affected with a false appearance. The officer may occupy an "exalted station," but he appears to the Court to have acted only "under color of his office."76 His actions have a false coloring of political value that must be stripped away. The exalted station must be seen through in order to see the reality of not-being. Political action has, at this point, been fully arrested by law. Action is the appearance of novelty. Like birth itself, the genesis of action is in the closed and secret interior of the subject. There is no accounting for the coming into being of the new. Myth, not reason, provides an account of origins. But to the Court, these novel acts have brought forth only negation, the nonbeing of the illegal. Judicial perception sees within the single dimension of the openly public. It refuses to see the revelatory character of action, its showing forth of a secret self. The Court does not see the sovereign people acting through their elected agent. It sees only Madison breaking the law. It suppresses the novelty of the revolution of 1800 and sees instead the permanent legal order. In all of this, the Court purports to be saying nothing new; it is only repeating the understandings of law that both Executive and Congress have already acknowledged. Even the appropriateness of the mandamus remedy is said to rely on a "doctrine . . . by no means . . . novel."77 It fits within the established order of law. The Court is not itself acting; it is not initiating novelty. It is merely seeing clearly, sorting out the false appearances from the true. At this point in the opinion, it seems that nothing remains for the Court to do but to enter the remedy. Indeed, this appeared already to have been the conclusion of the first section: "[H]aving this legal title to the office, [Marbury] has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws... afford him a remedy."78 The

163

164

Rhetoric of the judicial Opinion

case seems over; everything is now clear. Marbury suffered an injury to a legal right from a high political officer whose status does not protect him from a claim for redress. How can remedy not follow violation in a government of law? "The very essence of civil liberty," we have been told, "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."79 Yet just at the moment when judicial speech must transform itself into remedy, the Court falters. It withholds the remedy to which Marbury is entitled as a matter of law. How can this not appear as a failure of a government of law? The problem of action and free subjectivity now shifts from the Executive to the Court itself. The failure to make Marbury whole, to remedy the violation of a right, looks like a free political action on the part of the Court. To explain this remedial failure, we are likely to look not to the law but to the political circumstances in which the Court found itself. If the Justices pick and choose when to order a remedy and when not, then they must be regarded as subjects with individual wills of their own. This is not law but its absence.80 For a second time, the problem of free action arises inside the Court itself. No longer as the problem of the voice of the Justices—the problem met by the disappearance of the author81—but now as the problem of making the legal rule effective. If the decision to impose the rule of law upon the political domain depends upon the subjectivity of individual judges, then the distinction between the rule of law and the rule of men collapses. Law is simply action pursued by judges. This failure of remedial power is a failure to remake the world into an appearance of law. At stake is the power of the Court to insist upon the truth of its perception. The Court may see Marbury as a justice of the peace, but does it have the power to make others see him this way? Arguably, the immediate remedy is just one dimension of this power. There may be compensations elsewhere. The Court may fail in the short term, but succeed in the long term. Perhaps there are occasions when a Court deliberately adopts a long-term strategy of this sort. Consider, for example, the Warren Courts invocation of "all deliberate speed" as the standard for achieving school desegregation. Even so, the particular remedial failure serves as a measure of power, of what the Court can achieve now. To adopt a "long-term strategy" is implicitly to recognize that the political order is not now the rule of law. The Court s remedial failure in Marbury is a response to superior power. It is an inverse image of Madison s failure to appear before the Court. The Court chooses to limit its appearance within the domain of political action. It does nothing, and it does not demand that others do anything. But although Madison s absence was an assertion of power, the Courts absence is an expression

Strategies of Law

of its lack of power. Madison expressed his disregard for the Court by not appearing; the Court reveals its powerlessness by not ordering a remedy. The failure to order a remedy reflects the Court s awareness of Jefferson s superior position in the contest over the power to order the political domain. Laws victory over action may not extend beyond the courtroom. The Court may have little expectation that outside the courtroom, its voice is the one that will be heard and so shape the popular political imagination. Jefferson has the power to name his election a revolution. The Court does not have an equal power to name the election a moment under the rule of law. Just as Madison s action failed to appear in the judicial opinion, except as a form of nonbeing—that is, illegality—so the opinion of the Court seems not to appear within the domain of action. We can easily imagine—as the Court must have imagined—that in the secret exchanges of the presidents cabinet, the opinion would be viewed as itself a form of nonbeing—as appearing "under color of action" but having no cognizable truth. The Executive would reject the opinion as empty of any real political force or effect. It would be seen as a legal fiction, not as the Court uses fiction to displace fact but as words with no relation to fact. The failure to remedy suggests the inadequacy of the strategies of law so far deployed in the opinion. In the first section, law ordered action by succeeding it temporally. But we could never determine with certainty the point at which action ended and law began. In the second section, law carved out a distinct jurisdiction for action, limiting action by prescribing its reach. But no definition was adequate to settle a single border that separated laws domain from actions. Each strategy depends upon a fragile perception that is constructed in a rhetorical performance that can never fully reveal its own grounds. Each has to suppress alternatives; each conceals aspects of the case. Each strategy is an effort to maintain appearances, which are always simultaneously disclosures and concealments. That which the Court attempts to conceal can always be revealed as the secret truth behind the appearance. Every disclosure is vulnerable because it rests on a reversible act of suppression. Success or failure depends upon the persuasiveness of the opinion, but that in turn depends upon the interests and beliefs—the frame of mind broadly understood—that the audience brings to the case. Nothing has been said that cannot be answered. Whether those answers or the judicial perception structures the appearance of the political event is beyond the control of the Court. The Court cannot force anyone to see the political order as it sees it. This lack of control is given a visible presence in Madison s failure to appear: he fails even to open himself to persuasion. It does not follow from this, however, that the confrontation between law

165

166

Rhetoric of the Judicial Opinion

and action is resolved by each individual as though a free choice could be made. The structure of our perception is not an ordinary object of choice. Choice succeeds, rather than precedes, perception. If there is any choice to be made here, it is more like a religious leap of faith than a deliberate decision. More important, it is simply wrong to think in terms of a resolution. There are no universal solutions. Even the extreme moment of revolution is likely to be clearer in retrospect than during the events themselves.82 There is always a conflict between the perception of law and that of action, both of which are equally constitutive of the political order. Even in the resolution of the particular case, the individual cannot choose to see law instead of action or action instead of law. Madison could choose not to appear, but he could not equally choose whether that choice would seem, even to himself, to be a violation of law. We do not invent our categories of perception on each occasion; we do not see only what we want to see. Neither, however, is it simply a matter of chance whether we see the political order as a domain of free action or of law. Our perception has a history. We perceive law because of a certain history of legal institutions and the articulation of legal meanings. History creates possibilities and even likelihoods. The continued realization of those possibilities, however, depends upon how each institution, and ultimately each subject, explains itself and frames the controversies that appear within its horizon of vision. Law is not perceived apart from institutions articulating the law. Action is not accomplished apart from the political claims of actors. Subject and object, knowledge and power are inextricably linked. Neither complete freedom nor complete determination but rather a range of possibilities in which we can struggle to create the self or accept what we already find the self to be—this is the best description of our situation within the competing possibilities of political appearances. Recognition of the competitive relation between law and political action is impossible within the terms of the judicial opinion. In a world of appearances, not every disclosure is welcome. Honesty is not always a virtue.83 We do not wish to be reminded of the absence of a foundation for our firmest beliefs, whether in the rule of law or the legitimacy of self-government.84 Recognition of this ceaseless competition for power would undermine the very meaning of the rule of law that is at stake in the confrontation. How can law understand itself as permanent if its appearance depends upon the shifting outcomes of a battle over power? If law must compete with and try to displace the appearance of political action, how can law itself not appear as simply another form of action? Competition, in short, drives law toward a self-contradictory appearance. Indeed, this accusation—or commendation, depending on ones point of

Strategics of Law

view—that law is nothing but another form of political action is often leveled against Marshall for his handling ofMarbury. The legal discourse of the opinion is seen as an obfuscation, designed to distract the reader from the grab for political power that is the real story. On this view, Marshall skillfully manages a strategic retreat. He escapes the problem of remedial failure by finding a lack of jurisdiction. This finding excuses his failure to enter a remedy. More important, it allows Marshall simultaneously to accuse Madison of lawlessness and to establish the power of judicial review. This analysis of the opinion goes on to claim that Marshall avoided the real point, which is not whether the Constitution is superior to statutes but who decides whether a statute is consistent with the Constitution. The question of who—which subject—is always the question of political action. There is no "who" under the rule of law. The most important example of this approach to Marbury is Alexander Bickels The Least Dangerous Branch.85 Bickel tries to save law by making it continuous with other forms of politics. In spite of his attempt, this approach inevitably ends up hollowing out law from within. Power is a contradiction at the heart of the law. Law must appear permanent, yet every assertion of power contains a risk of failure. Any failure at all will appear to threaten the whole of the rule of law. Law does not win localized victories over action; it cannot tolerate defeats as long as they are balanced by victories. From within law, any remedial failure will always appear to be the total capture of the political order by action. Law never explicitly concedes defeat; it never admits powerlessness. A partial law is not the rule of law at all. The rule of law must always claim that no one is above the law. Accordingly, the Court must suppress any disclosure that law confronts action as a conflict of power. Were the Court itself to give voice to the contingency of law, it would make law appear as its own other—action. The strategies of law must, therefore, make the remedial failure itself appear as an instance of laws rule. A strategy, as I use the term, is not a course of action chosen after deliberation. Law is not something put over on the masses by clever judges and lawyers. Rather, a strategy is a way of understanding within a contested conceptual domain. The rule of law is a series of strategies for maintaining the appearance of law. The final strategy of the Marbury opinion must protect law from the risk that remedial failure will disclose the laws own dependence on the dynamics of power. Unless Marbury is to end in a mass of contradiction and failure, the Court must offer a reading of its own remedial powerlessness that finds in that weakness an expression of the rule of law. The transformation of the remedial failure into law is an especially difficult problem in Marbury, given that section 13 of the Judiciary Act of 1789 explic-

167

168

Rhetoric of the Judicial Opinion

itly grants the Court the authority "to issues writs of mandamus, in cases warranted by the principles and usages of law/*86 Marbury s is such a case: mandamus is the traditional judicial remedy for the failure of a government official to perform an administrative function. The Courts failure to do for Marbury what the rule of law requires—remedy must follow injury—despite the empowering appearance of section 13, threatens to introduce novel judicial action into the system of law. The contest between action and law extends to all political appearances, including the appearance of the judicial enterprise itself. The Court can see only law. Where the law recognizes a space for free action, the Court must be silent: "Questions in their nature political . . . can never be made in this court/'87 It can see itself only as the instrumentality of law. To see itself in this manner requires a constant concealing of the possibility of judicial subjectivity and free political action. Twenty years after Marbury, Chief Justice Marshall expresses this judicial self-understanding in yet another classic statement: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution/'88 The Court responds to its dilemma of powerlessness by the assertion of the power of judicial review. This is the irony that characterizes the final section of the opinion. In effect, the Court detaches law from its origins in particular political actions, thereby locating the institution of the Court in a timeless space of legal permanence. If law must be permanent, then the Court needs an object commensurate with that permanence. It finds/creates such an object in the Constitution. This is to split the law in two; it is to judge law by reference to Law. This is the third strategy of laws rule. It is the ultimate expression of judicial power. The comparable move from the perspective of action is revolution itself—claiming the reality of a new beginning. In both cases, the form of knowledge finds an object commensurate with its own requirements: an ultimate permanence and an ultimate novelty. Constitution and revolution are linked as the extraordinary outside of ordinary politics. Each serves as a measure of the ordinary. Because both occupy a point outside ordinary political space and time, each is convertible into the other. Revolution and constitution are each the truth of the other. Or, more precisely, each is the appearance of a common truth: the people.89 Marbury argues that judicial review follows from the permanence of the Constitution. The temporal sequence it imagines is first a founding constitutional act by the people, next a legislative act, and finally an act of judicial evaluation that measures statute against Constitution.90 Because the people

Strategies of Law

intended their Constitution to be permanent, judicial review is required. This representation of the sequence within the rule of law inverts the real order of the opinion, which begins with the needs of the Court and ends with the people. The Court s argument for judicial review effectively displaces permanence onto the object of knowledge. There are no permanent things in history. There are only claims of permanence made for strategic purposes. Permanence is a function of the institution that perceives law, not of the object perceived, and law s permanence cannot be detached from the institution whose task it defines. This is exactly how the permanence of law functions in the opinion: it is used by the Court to establish its power to order the political domain. The Court artfully puts into the mind of the people its own strategic need for an appearance of permanence: the people, not the Court, intended the Constitution to be permanent law. This is our ultimate myth of law. The Constitution does not found judicial review; rather, judicial review invents the Constitution. Judicial review gives us the Constitution as our permanent law. Law requires permanence, but permanence is an appearance that can attach at any number of points within a legal system. Chancellor Kent, another early exemplar of legalism in the American political order, appealed to the common law, rather than to the constitutional founding, as the source of permanent law.91 The permanence of law can even be located in natural law.92 Moreover, the permanence of constitutional law should not be confused with a privileging of the founding act or of the constitutional text. In the late nineteenth century, for example, the permanent constitution was identified with the evolving, unwritten law of the nation.93 The dissociation of constitutional law s permanence from the Constitution as a text rooted in a particular historical event is one of the most evident characteristics of modern constitutional law94 The judicial function of maintaining laws permanence remains the same in each of these examples, even as the object in which that permanence is located changes. Judicial review is not explained by looking to the Constitution but by looking to the Court. The permanent Constitution is not something that the Court discovers; it is rather an object the Court creates. The permanent Constitution is the reification of the Court s own function. Looking to the Constitution, the Court discovers only itself. It sees the permanence of law because that is all it is "constitutionally" capable of seeing. To the degree that we look at the Constitution through the Court s perception, we too see only the objectification of judicial power. We may think that we are perceiving the truth of an object, but all we are really experiencing is an assertion of power. The Constitution is permanent not because of anything it

169

170

Rhetoric of the Judicial Opinion

contains as an object to be known and not because of anything "the people" did or intended—who are these people and how can they control the future? The Constitution is permanent because the rule of law requires the appearance of permanence. The Court empowers itself by privileging the object of its own special knowledge. As known by the Court, the Constitution creates an open possibility of judicial inversion. What was law can become not-law; what was not-law can become law. Every event can be law or not-law; there is no measure outside of the Court. Thus, the Court s failure to put in place the legal remedy to which Marbury is entitled gains the appearance of law, while Congress' creation of law in the Judiciary Act becomes not-law. Similarly, the Court s own decisions can become not-law, when the Court overrules its own precedents—an overruling carried out always in the name of the permanent Constitution. The Constitution is not the ultimate source of power for the Court but the reification of a claim to ultimate power. Under the judicial reign of the Constitution, no failure of judicial power can challenge the rule of law. The Constitution is, for the Marbury Court, a strategic resource by which the Court projects law beyond the reach of any actual conflict with action. Where the Constitution resides, there is no contest, just pure legal permanence. This permanence is the Courts claim of a power to nullify, to force from the field of political appearance, every possible action. Of course, the Court cannot actually negate everything, but neither would it want to. However, by splitting Law from law and giving Law a time and space beyond the reach of the everyday operations of the political, it creates the possibility of intervening at every possible point in the political order. The Court is bound by the law. But the only law that binds it is the law that appears through the Court s own voice. Object and function collapse into each other. Outside the opinion, there is no stance of law by which to evaluate the Court. We either stand within this judicial world or outside it. To stand within it is to occupy the distance the Court creates between itself and the Constitution. As long as we stand there, we can measure the judicial function by the law. When we do so, however, we are really only giving voice to a set of appearances that the Court has already created. We measure one opinion by another. We attempt to hold the Court up to itself as its own measure. This is the writing of briefs, not fundamental critique. When we fail to convince the Court, we simply move on to the next case. Like all lawyers, we start from wherever the Court stops. When we stand outside the space of the judicial opinion, we can indeed measure law by justice. To do so is to hold open the possibility of action against

Strategies of Law

law. Whether that plea will be heard is a function of laws power. Whether law will assimilate or resist the claim of justice, even if it is heard, is equally dependent on the circumstances of power. By projecting its own function onto an object to which it has privileged access, the Court overcomes the remedial problem ofMarbury. The Court is always able to portray the outcome of its deliberations as the rule of law. This is true no matter which way it rules, no matter how responsive to the claims of political action it finds that it must be. The knowledge of what the law is corresponds to the power of the Court to confront political action. Knowledge of law and judicial power are exact overlays. The Constitution, accordingly, allows the Court s own powerlessness in Marbury to appear as an affirmation of law. This is the great accomplishment of the final section of the opinion: we do not see the Court acting or failing to act but the Court upholding law. Had the Marbury Court the power to construct a political order that matched the appearance of the legal order to which it gave voice in assessing Marbury s claim, it would never have reached the issue of judicial review. Remedy would simply have followed from injury. There would have been no need to discuss the jurisdictional limits on judicial power. Marbury does not pursue every possible line of inquiry or potential legal argument. It could not, even if it wanted to. Even had a more powerful Court turned to this issue, Marbury's reading of the Constitutions limits on the Courts original jurisdiction, as every first-year law student knows, is hardly the only one available; it is not even the most compelling reading.95 The final section of the opinion is a strategic tour de force in which the Court creates the appearance of upholding law when, from Marbury s perspective, it fails to do just that.96 In a final irony, were the Court to order the remedy that Marbury deserves as a matter of law, it would itself appear to be violating laws permanence. To affirm Marbury s rights would now appear to be a novel action. Yet Congress authorized the remedy and, according to the Court itself, Marbury is entitled to the relief he seeks. By splitting Law from law, by invoking the permanence of the Constitution against the statute, the Court gives itself the power to shift the point at which law confronts action. Creating this distance within the law allows the Court to script the drama that will appear in the opinion. Madison s action fades from view, as Congress' action fills the final scene. The problem of action now arises within what had seemed the domain of law: Is the legislative authorization of original jurisdiction, contained in the Judiciary Act of 1789, itself an expression of novelty outside the law? If so, then for the Court to pursue the authorized remedy would be to participate in a novelty that is contrary to the rule of law.

171

172

Rhetoric of the Judicial Opinion

The Court s control over the place at which the permanence of law appears allows it to choose the manner in which it will enter the battle with other political institutions. Yielding to the president, it confronts Congress instead. The structure of the problem, however, remains the same: to see permanence instead of novelty, the rule of law instead of the actions of men. This problem can emerge at any point in the political order, including within the appearance of the Court itself. The rule of law as a system of government is not an abstract permanence. Law must attach to a government that distributes power to real people and institutions that take actions or fail to act. The same event can be read as law or not-law. This is the ultimate meaning of judicial review: the power of the Court "to say what the law is," which means the power to look at any event within the political order and make it appear as law or not-law.97 The opinion has now fully revealed the ubiquity of the confrontation of law and action in the political order. In what appears at first to be a case about law s response to executive action, there have now appeared problems of judicial action as well as congressional action. Action threatens law at every point. Thus, the problem of novelty appears in the final section of the opinion as the problem of the creation of new law, which can itself appear as a source of change and thus a challenge to the permanence of the legal order. To this problem, the opinion seems at first to adopt the same jurisdictional strategy that it took with respect to executive action. The Constitution can be seen as prescribing particular domains in which the legislature may assert its own free subjectivity and other domains in which such a freedom is denied: "If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body."98 The permanent law of the nation seems to recognize a place for both executive and legislative action. In each case, novelty is managed and controlled through a strategy of localization. Within that specific domain, what happens is not a function of law but of the subject s will. Yet this argument does not quite work. It suggests that from the perspective of the only permanent point of law that remains—the Constitution— there is no real difference between making new law and executive action. Wholly to displace laws permanence to the Constitution would undermine the strategies of the first two sections of the opinion; it would suggest that, apart from the Constitution, all that remains is subjectivity, novelty, and free political action. Legal rights—including Marbury s right to his commission— cannot be merely interests contingent on continued congressional approval. This would do no more than shift the threat of action from the Executive to the Congress. There would remain, on this view, only one category of real law: the Constitution. All else would be political action.99

Strategics of law

When dealing with the Executive, the strategy of localization was a function of what appeared to be the unavoidably contingent character of some issues of governance. Law cannot order any political phenomena that will not support a rule. But Congress creates laws from which legal rights flow. The problem that legislative novelty creates for the rule of law cannot therefore be met by delimiting a space for political action by Congress. Instead, the rule of law orders legislative novelty by deploying a strategy of contradiction. New legislation must be part of a single, continuous system of law.100 It may not, therefore, contradict prior law. The Court inverts the traditional legislative rule that the later displaces the earlier. New law is now either the same as antecedent law—meaning a part of a single whole—or it is negated as not-law. New law under the Constitution is never really new; it falls within the paradigm of reform, not revolution.101 The mandamus provision of the Judiciary Act, for example, is not problematic because it represents an intervention of law into what is "by nature" a domain of free action. This is not an area of irreducible discretion that is subject only to changing political forces. Which court will exercise what sort of jurisdiction is a question that is eminently answerable by law. The Court holds, however, that the act violates a preexistent rule of law. The Court s role now is to resolve contradiction in the domain of law: "If two laws conflict with each other, the courts must decide on the operation of each." This, in turn, is a question of which law the Court will see: "Those... who controvert the principle that the constitution is to be considered . . . as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law."102 The Courts role is to see the permanent, fundamental law behind the statute that appears now only under color oflaw. Mar-bury has worked a radical shift in the appearance of the Courts own action. From the perspective of Marbury himself, the Court fails to provide a remedial intervention that would subordinate action to law. Nevertheless, the Court manages to convert this political nonaction into an appearance of the rule oflaw. It accomplishes a different remedial intervention in its rejection of the mandamus provision of the Judiciary Act. By substituting one problem of change for another—legislative action for executive action—the Court makes its remedial failure into an expression of laws permanence. It declares that "an act [section 13] which, according to the principles and theory of our government, is entirely void" will make no appearance within the political order.1^ Marbury ends in a bizarre world, one in which judicial action to remedy the violation of Marbury s legal rights would itself appear as a form of lawless-

173

174

Rhetoric of the Judicial Opinion

ness. Were the Court to attempt to secure Marbury s legal rights, it would turn the legislature into a lawless, uncontrollable political actor. It would make itself into an accomplice in lawlessness. Nevertheless, the Court s affirmation of law s permanence leaves Marbury in a world of action rather than law. This is a world in which the injury done to him by a government of men is not corrected by his attempt to enter into laws domain. The Court always represents the rule of law, but the law does not seem fully able to accomplish its end of ordering the domain of action. It could be no other way. The multiple sources of change within the political system overwhelm laws capacity for control. The appearances cannot be fully ordered by law, because the Court cannot fully control action. Law is not pure, but compromised. It must be because its vision is always contestable. Marbury is left with a right, but no remedy: a position that denies "the very essence of civil liberty."104 In the grand vision of judicial review set forth at the end of the opinion, Marbury is silenced. It is as if we can see only one thing at a time. Marbury is a great magician s act in which we are so busy looking at Congress that we forget to look at the plaintiff who brought us into the courtroom. Only as we leave the room do we find ourselves wondering what happened to Marbury: Did he seek a legal remedy elsewhere? How did he fare? Once again, we see that the opinion excludes, that voice implies silence. What the opinion says about the Constitution is equally true of the judicial voice itself: "Affirmative words are often, in their operation, negative of other objects than those affirmed."105 Marbury has become a negative. The law that we see hides the failures of law that we do not see. Every appearance is both a revealing and a concealing. If Marbury represents the rule of law, not men, it also represents the victory of law without men. We have lost sight of Marbury himself. We are losing sight of all the real actors: Jefferson, Madison, Marshall, and Marbury. We see in their place only "the people." The ultimate victory of law is when we no longer see ourselves at all. We see only that remarkable image of ourselves that is "the people," appearing in and through the judicial opinion. The people represent the final element in the working of appearances in and through Marbury.

PART IV

Law and Representation

This page intentionally left blank

7 The Representative Character of Law's Appearance

A brief summary of the argument so far will help frame the remaining issues. I began by looking at the largest structures of the legal imagination. The rule of law is a way of organizing and understanding political experience. It is a state of mind before it is an order of the state. Central to laws rule is a particular organization of the community s consciousness of itself as a single, temporally extended phenomenon. The unity of the rule of law—despite many laws, it is a single system of rule—expresses the temporal unity of the community as both an understanding of the past and an expectation about the future. Citizenship under the rule of law expresses an understanding of self-identity that is communal and historical. The self-consciousness of the legal imagination is always in tension with competing political understandings of the subject. Opposed to law are political understandings that look to the future, rather than the past. The virtue of politics, on this view, lies in the realization of new beginnings; the self is seen and valued as the source of political novelty. This competing conceptualization of time, self, and community I called the perspective of "political action." The conflict between law and action is consti-

177

178

Law and Representation

tutive of the political domain. Every event can be measured against action or law. It can succeed or fail in either dimension. In part II, I described this conflict of political worldviews. Law situates itself with respect to action in two ways. First, it draws upon a particular form of action: revolution. Law and revolution are inseparable in the modern political imagination. Second, with respect to the ordinary political event, law suppresses the perspective of action. Law reads the political meaning of the event as the realization of a possibility already established by a legal rule. Law is the political shape in which time appears after the last revolution and before the next. Laws rule occupies the temporal space between revolutions. Law and revolution are opposites, but each is also the concealed truth of the other. Each transforms itself into the other. Successful revolutions end in law; revolution is the hidden truth of law. As both the source and promise of law, revolution is laws concept of legitimate political action. It appears to the legal imagination as action by the entire community, understood as a single subject. Revolution is the only form of action that law is prepared to recognize. But it will recognize only the last revolution. In spite of laws validation of revolution, the time for actual revolution is never now. The rule of law simultaneously celebrates the last revolution and pushes the next one into the indefinite future. From the perspective of law, the time for action is either past or not yet begun. Law and action each render comprehensive accounts of the political order. They are the structures through which we experience the meaning of our political life, not just on the grand scale of revolution but in the details of ordinary events. There is a constant struggle between law and action over the construction of political appearances. Laws ambition is to suppress the appearance of action in every event so that we see only the law. Law suppresses the novelty of events and the presence of the unique subject; it makes a continuity of order appear. Political action has the opposite ambition. Action suppresses the continuity of historical experience, seeing instead novelty and unique subjects in political events. Neither the project of law nor that of action is capable of completion because their conflict defines a fundamental ambiguity in our experience of the present. We can understand ourselves and the political world in which we find ourselves as either a continuation of the past or an opening to the future. We can conceive of ourselves as the inheritors of an established set of meanings, with a political obligation to maintain those meanings. Or we can understand the political order as that which makes possible action to create a new future and a new self. We can maintain the self we already find ourselves to be or take

Law's Appearance

the self as an object for free, autonomous construction. This is as true of the political community as it is of the individual. The political order exists in the present, caught between the possibilities of looking backward or forward. Its virtues lie simultaneously in law and revolution, historical continuity and action, loyalty and responsibility. In part HI, I turned to the specific rhetorical techniques that the courts use to maintain the appearance of the rule of law. The rule of law is not exclusively the rule of courts, but the judicial voice is critical to the construction of our understanding of laws rule. I asked how courts persuade us to see political events as instances of laws rule. I began my argument by focusing on the formal characteristics of the appearance of the rule of law as it emerges from the authoritative voice of the Court. Two characteristics of the judicial opinion were particularly noteworthy: the absence of an author and the suppression of ordinary knowledge and experience. Authorship and authority are inversely related under the rule of law; the appearance of the author tends to undermine the power of laws claim. Likewise, the judge cannot declare all he or she knows. The rule of law is a kind of deliberate ignorance. These two features reveal the rule of law as a combination of disclosure and concealment. Drawing on the Platonic image of the prisoners in the cave, I described the rule of law as an "appearance" and the courts* role as the maintaining of appearances. The opinion makes appear a world ordered by law. Construction of that appearance requires expert knowledge. This expertise is more like a form of know-how than a science. The judge s knowledge is not of a body of abstract doctrine; it is an ability to construct an appearance of law within a complex event. Expert knowledge in law has no actual object prior to or apart from the court s own constructive activity. The law that the courts know is the product of that knowledge. I next identified three specific strategies by which law orders political appearances and thereby suppresses the appearance of action: a strategy of temporal sequence, by which law completes action; a strategy of jurisdictional boundaries, by which law provides for the possibility of action within a limited domain; and a strategy of division within the law itself, by which laws permanence is projected onto an object—the Constitution—to which the Court has privileged access and by which it can measure every political appearance. The first strategy declares the time for action over. The second locates the place for action elsewhere. The third allows the institutional voice of the law to choose as the site of confrontation with action a place where law can never lose. The rule of law is not an achieved political condition but a struggle along

179

180

Law and Representation

each of these dimensions. Each strategy is an effort to structure perception, to make the world appear within the categories of law instead of action. There are no deductive arguments for law. If we ask for proof of law s conclusions, we shall never be satisfied. Nevertheless, we often find ourselves persuaded. We see the event as the courts construct its appearance. These strategies for suppressing political novelty operate independent of the specific content of the appearance of law in a democratic political order. We can, for example, perceive their operation in Plato s myth of the earthborn people. This myth tells of citizens who were born from the earth. Each person belongs to one of three political classes, which are determined by the quality of the metal in their individual constitutions: gold, silver, or iron.1 Plato calls his myth a noble lie: it is only a constructed appearance, although it is not for that reason valueless. It maintains and stabilizes the order of the polity.2 The myth is a deliberate invention of Socrates and his interlocutors, but, as in judicial opinion, authorship is suppressed. The myth is presented to the citizens as a representation of permanent truth. The myth s authority requires the interlocutors to conceal the truth that they are the myth s authors, as well as the truth of the citizens* all-too-human origins. How, the interlocutors ask, can this mythical appearance conceal these obvious truths? They acknowledge that the first generation cannot believe the myth. Nevertheless, once it is handed down as truth, it will be believed. Reverence for law, as Madison argued in the Federalist Papers, increases over time.3 Stability requires a myth of origins, but stability also lends its support to myth. Plato's story recognizes the tenuous character of a legal order. Law cannot completely order political phenomena because it cannot wholly suppress novelty. The strategies for dealing with novelty invoked by Plato include that of law succeeding action (the time for innovation is over), that of laws limiting the space for novelty through a concept of "exception" (a child is occasionally born of a different class from that of its parents), and that of the self-conscious, ironic deployment of laws claim (the interlocutors know that they control the myth and can rewrite it if necessary). Laws struggle is to constrain the political consequences of the inevitable appearance of novelty. This is a battle Plato believes law must ultimately lose.4 Nothing lasts forever in politics or nature. Although the rhetorical strategies of law may be similar across diverse systems of political order, the substantive content of the appearance of law necessarily responds to different political beliefs. This is obviously true with respect to particular laws: we expect different laws in different regimes. We can also expect different representations of the source of laws authority— what law is said to be an appearance of. Plato s myth referred law to a divine

Law's Appearance

nature; the Old Testament to a single God; and constitutional democracies to the people. The modern rule of laws relation to revolution, for example, is not a timeless truth, but an appearance of law to a citizenry that measures all political phenomena by a norm of self-government. If law is an appearance, of what is it an appearance? It is the nature of an appearance to represent itself as standing in a derivative relation to something else. What is the something else in the American legal order? Laws claim to be the product of revolution suggests that law is an appearance of the sovereign people. This claim has about the same clarity as Plato's myth of the earthborn people. The sovereign people are not a thing found in the world any more than Plato's Mother Earth can be found. Both are complex constructions within larger systems of appearances. We must investigate how the people appear in and through law. This is the final question of American constitutionalism as the rule of law. It is the last interrogation we shall make ofMarbury. INTERPRETATION AND FAITH

Law is never simply what it appears to be. It can appear as a duty, a distribution of rights, or a grant of authority. In each case, the normative claim of law—its appearance as an authoritative voice—refers to something outside the law itself. If law were nothing but the immediate command of those who have the power to express what it is, there would be no difference between the rule of law and the rule of men.5 Law must point elsewhere to legitimate itself. It claims to be a consequence of some other event or fact, the expression of some other source. That source must possess the characteristics that entitle law to rule. The separation of law from the source of law is an internal, structural necessity of the rule of law. It is as true of a democratic order as it is of a theocratic order. Those to whom God speaks directly do not need—and do not heed—the rule of law. "If you are led by the Spirit you are not under the law."6 Moses saw God, but the nation of Israel saw only the Commandments. In a democratic legal order, representations of the people appear; the people themselves do not. Whenever the people themselves act directly in the public domain, law is silent. Revolutionary justice does not bother with law. The rule of law is threatened whenever the division between the appearance and its source is threatened. Law is silenced not only by the direct action of the sovereign—God, the king, or the people—but also by claims of expert knowledge that purport to provide their own ground of authority. Scientific expertise always speaks for itself. It relies on no authority apart from itself. The truth of law, on the other hand, always lies outside law. Law never speaks

181

182

Law and Representation

in its own voice. Of the representation of law, we can always ask whether it is an accurate appearance. Interpretation is always an issue. Hannah Arendt also saw that claims of special expertise are outside politics, which for her exists only in and through the exchange of opinion.7 She objected that there is no room for a politics of individual display through novel actions and speech if the problems of the polity are thought to be resolvable by scientific expertise. Management is not politics. Arendt failed to see, however, that law too is a form of politics and that the rule of law is equally threatened by claims of managerial expertise.8 Both the Arendtian idea of action and the rule of law understand politics as a project that gives shape to history, one by founding a new order, the other by maintaining a past order. Like every scientific voice, management exists in the present; it tests the past and future against present interests. Law tests the present against the past, while action tests the present against the future. Management is in history but is not itself historical. When the process of government becomes an argument among experts over the content and correct application of scientific insights, the interpretive debate that characterizes law has been abandoned. Expert management may produce an efficient and perhaps even a satisfactory distribution of a society's resources, but it cannot produce the historical-communal understanding of self-identity that characterizes the rule of law as an experience of political order. To the expert, it does not matter how the present state of affairs came about. Loyalty may appear irrational. Indeed, the contemporary emergence of a global perspective is the endpoint of a logic of expert management. Management, as a form of science, knows no borders. The insistence on a global perspective is strongest in just those areas most subject to expert control—the environment, the economy, and disease prevention. The expression of this perspective in international law suggests that the rule of law does not mean the same thing in international and domestic contexts. When critics of the Court can find no source of law outside the opinion, they accuse the Justices of putting their own will in the place of law. Because that will is not entitled to rule, law becomes a false appearance of authority. The voice of the law is then seen as the voice of those speaking; it is the rule of men. This criticism is hardly unique to the judicial function. It appears, for example, in Charles Beard s claim that the Constitution itself can best be understood as an expression of the personal, economic interests of the Framers.9 He, too, drew attention to the collapse of the distinction between the expression of law and the source of law. The traditional identification of law with the will of the sovereign threatened to bring about this collapse. If the law was whatever the sovereign

Law's Appearance

willed, what distinguished a regime that recognized law from a tyranny? Was the distinction to be found in the presence of law or only in the ends for which the sovereign deployed his or her will?10 To create a positive idea of the rule of law, as distinct from approval of the ends for which power is deployed, citizens had to recognize a division within the sovereign. The person of the sovereign had to be distinguished from the permanent sovereign of the nation. The latter needed to be independent of its expression in the former. The particular person who was the monarch could not be the sovereign. Rather, he or she had to be seen to represent the permanent sovereign. The symbolism of instantiation, in which there is no separation between the body and its meaning—in which the body of the monarch is the mystical corpus of the state—gave way to that of representation.11 Once this division occurred, the adequacy of any particular representation could be challenged by appealing to alternative representations of the "tru.e" sovereign. Representations are always subject to interpretation; they can always be contested. Law could now be the will of the sovereign without collapsing into the will of the monarch. At the same time, however, law could be used against the monarch, even while the language of law as the will of the sovereign was maintained. This created the paradoxical situation in which one could oppose the person of the monarch in the name of the true monarch. The quintessential example of this was Parliaments insistence during the English Civil War that "the king as king was on their side, his regal and legal body remaining with them at Westminster while his misled person marched an army against theirs."12 This division of the monarch is a precursor of the strategy of law that I characterized as division: the true law versus the merely apparent law. Marbury captures this idea of the monarch as representative when it states that the king himself always complies with law.13 For the king to fail to do so would be to create a false appearance. The particular sovereign would not then represent the true sovereign. Such a king is king in name only. He may be deposed in favor of a true representation. Each of the three great revolutions of the early modern era (the American, the French, and the English Civil War) begins as a defense of law against the monarch.14 Each begins with an idea of the monarch's representative failure, his failure to make appear in and through himself the true, permanent sovereign. The true representation of the sovereign has become the law, not the person of the monarch. Accordingly, law simultaneously grounds the authority of the monarch and places limits on that authority. The monarch must align her- or himself with law in order to represent the sovereign nation. A failure of representation appears now as a violation of law.

183

184

Law and Representation

Two of the revolutions included a literal act of regicide; the third eliminated the king from the new political order. Regicide establishes as a fact in the political imagination that the kings particular body is only an appearance, a representation of the true sovereign body. In this sense, each of the revolutions began as a project of maintaining law against political innovation, which was identified with false appearances. Only later did the political process initiated in the name of law come to be revolutionary action with its destruction of the old legal order and creation of new representative institutions. This difference between law s appearance and the source it represents creates a permanent space for interpretation. What appears is the legal rule as a text. That this rule represents the voice of God or of the sovereign people does not itself appear. The relation of a representation to an authoritative source is a relation brought to the text by the reader. We see the text as an appearance of the other—or we do not. If the king is seen as an illusory or false representation of the sovereign, he becomes just another citizen: Louis XVI becomes Citizen Louis Capet.15 Because the relation to the authoritative source never simply appears, the logic of appearances contains an internal dynamic of movement toward an ideal in which the representation becomes completely transparent to the source. Appearances require interpretation; the end of interpretation is to see through the appearance to what the appearance represents.16 Only the apprehension of this "truth" could end the interpretive debate. This is not an end, however, that can ever be accomplished. Every explanation is itself only another appearance that generates yet another interpretation. Speech cannot place the subject outside of speech. Interpretation would need to negate itself to accomplish its own end. Interpretation is such a generative enterprise precisely because it seeks what it cannot obtain: to overcome itself. The sovereign can be thought of as the endpoint of this regression of appearances in law. The sovereign is both the originating source of appearances and the endpoint of the interpretation of appearances. It is the unmoved mover of the legal order. To approach the sovereign is, therefore, to approach either the end or the beginning of law. To close the distance between the appearance and what it represents is to close the space in which law operates. It is to bring law back to its origin in the sovereign. This is not a point within law at all. It is the point at which law collapses into its opposite: action and revolution. Interpretation begins only after the sovereign withdraws. Abraham does not interpret Gods command that he sacrifice Isaac. The silence of interpretation is filled by the presence of faith. Faith offers an immediate relation to authority. Faith is a problem of the will, not of the understanding. We cannot

Law's Appearance

reason ourselves to a position of faith. As Kierkegaard said, what is required is the leap of faith that is beyond explanation because its object appears contradictory to reason alone. Abraham s faith, for example, included the belief that he could sacrifice his only son yet found a great nation. The faith of citizens under a democratic rule of law includes the belief that subordination to the authority of the state is simultaneously a free expression of the self. Few are in Abraham s position of dealing directly with God, without the intermediary of a text. Instead, religion requires both faith and interpretation. Indeed, faith is a necessary condition of the interpretation of a religious text, for no interpretation could establish that the text was God s appearance.17 We cannot reason from the text to God. Without the faith that the text is the appearance of God, however, the interpretive enterprise would lose its point. It might continue as a debate about a literary text or an object of aesthetic appreciation. It would not, however, yield authoritative pronouncements. Faith establishes the sacred quality of the text; interpretation gives a narrative shape to the appearance of the sacred. The former is an act of will, the latter of understanding. Faith, then, provides a foundation for interpretation that interpretation cannot itself supply. This is a conceptual, rather than temporal foundation. Faith begins only after its object has already shown itself in an appearance. That is, the object of faith has always already appeared as a discursive object. Abraham s position is not ours. He represents a myth of origins: an experience of an unmediated relation to the sacred. The religious mystic may continue to claim such an unmediated relation, but about this nothing can be said. For us, the sacred is already represented in a text that requires interpretation. Faith is an internal condition of interpretation, not an act prior to or apart from interpretation. Faith grounds the authority of the text; it does not determine the form or content of the interpretive project. Faith does not reveal a source prior to interpretation with which we can compare particular interpretations. Interpretation gives us the only knowledge we can have of the object of faith. Nevertheless, interpretation cannot disavow faith without undermining the authority of the text. Modern literary criticism may conclude that because the author appears only through an interpretation, the author function is unnecessary to the readers confrontation with the text.18 Religion, however, cannot claim that God is dead without transforming itself into the merely literary. The authority of a religious text is inseparable from faith. Faith is also needed in political life. That the interpretation of a legal text sets forth an authoritative rule is a matter of faith. Interpretation cannot itself establish that the Constitution is the appearance of the people; this is ac-

185

186

Law and Representation

cepted by faith. Interpretation itself can never go beyond the text to this source of authority. Nevertheless, law can no more abandon faith in the sovereign as the source of law than religious thought can abandon faith in God as the source of its text. As in religion, faith in the political sovereign is a condition of legal interpretation, but it is not an event prior to interpretation. One does not first become a member of the sovereign people and then take up the problem of laws representation of that people. Faith is experienced within, not prior to, law. Faith makes the legal text an appearance of the sovereign. The sovereign becomes authoritative for the citizen through faith.19 Faith expresses a relation between the individual citizen and that which is conceived of as the source of the appearance of law: the sovereign. Through faith the individual leaps across the divide between self and sovereign. Faith is required to establish the boundaries of the interpretive inquiry. In religion, faith locates a sacred text by specifying the god ofones belief: one is a Jew, a Christian, a Moslem, or some other religion by virtue of faith. We cannot really imagine a choice of religion based upon a comparative assessment— interpretation—of different texts. Similarly, political faith puts one within a particular system of law.20 Faith answers the question of why one observes the law of this community. By faith one affirms one s place in a particular historical community. One makes its law one s own interpretive problem. Faith binds one to the authority of law despite the fact that the interpretive enterprise has no ultimate resolution. Faith binds one to law even before the interpretive processes of law have reached a temporary resting point. We are committed to the law before we know the content of that commitment. If we are bound to the particular historical community by an act of will, it is will in the form of faith, not contract. We do not first read the terms of the contract and then consent to the obligation. Faith locates the authoritative bond of politics not in the legal text but in that which appears in and through the law. For us, the source of law s appearance is the popular sovereign. Although faith secures the authority of interpretation, faith can also be used to challenge any particular interpretation. The inexhaustible interpretive debate is projected onto the object of faith as a superabundance of meaning. Nothing we can say could ever adequately capture the fullness of God. Similarly, no set of interpretative claims ever exhausts the political meaning of sovereignty. Political meaning, like religious meaning, overflows the boundaries of the appearance and of every effort to explain the appearance. Nothing that is said is ever enough; nothing is ever correct without more. Every appearance is always partial. Faith simultaneously grounds and threatens law, both religious and political.

Law's Appearance

Sovereignty and interpretation are linked ideas in the Western tradition— both in law and theology. Sovereignty supports interpretation, not as a temporally prior object creating an appearance but as the conceptual framework that creates the imaginative space in which interpretation works. The sovereign never completely shows itself; it is outside the ordinary dimensions of time and space. It is just this extraordinary character of the sovereign that requires an extraordinary relationship between it and the subject: faith. God shows himself through the creation of an appearance—the world. The meaning of the world is the word of God. Every appearance of the divine in finite space and time—including the person of Christ—is the logos.21 To understand the logos requires interpretation, but to believe that the object interpreted is the word of God requires faith. The world is both a disclosure and a concealment of God. It is a showing forth but never a complete presentation of thing itself. Lake the Bible, the world must be read. Without faith, the whole interpretive project ceases to make sense. If God is dead, there is no appearance to be read. The world threatens to appear meaningless, which does not necessarily mean without interest. The world no longer conveys a meaning to us: it is not an effort to convey any meaning at all. It is only what it appears to be. Similarly, the political sovereign is conceived of as that which precedes law and creates law through its word. Constitutionalism understands the singular act of the sovereign to be the creation of a text. To the legal mind, the only cognizable act of which the sovereign is capable is an act of writing.22 In the beginning was the word. Speaking, the sovereign brought the state into being as an appearance of itself. Were the sovereign to show itself outside of the text, it would displace, not found, a legal order. In revolution, the sovereign shows itself directly in an act of violence independent of a previous text. But at such moments, law is incapable of grasping the meaning of political life. The law is not just one appearance of the sovereign among other possibilities. Rather, for law the sovereign is a function of its production of these texts. We have faith in the sovereign because we already know the law, not vice versa. Within an existing system of faith and interpretation there are no Abrahams—no moments at which faith wholly displaces interpretation. Within the rule of law, there are no more revolutions. The prophetic voice of the people has no room to appear under the rule of law. Faith is cabined as the ground of interpretation. Viewed as a positive act of revelation, the showing forth of the sovereign in a legal text supports an opinion. Viewed as a problematic act of disclosure and concealment, the representation calls forth interpretation. Every opinion can, therefore, become an object of interpretation. Because we have only opinions

187

188

Law and Representation

about the sovereign—not definitive knowledge—interpretation is both required and without end. This association of law and sovereignty has remained stable even as the conception of the sovereign has shifted dramatically over time. From the perspective of the conceptual structure of the rule of law, that the sovereign is conceived of as God, the monarch, or the people matters less than the claim of each to sovereignty. That claim structures a relation between a number of sets of paired terms: sovereign and law, represented and representation, faith and interpretation. This structure can be described and analyzed apart from the particular content of any of its components.23 Law remains throughout the expression of the sovereign s will. "Will" is a psychological metaphor for the showing forth of the sovereign, the generation of a public space through the creation of appearances. Will is the faculty that allows a crossing of the space from a subject-in-itself to an appearance.24 The sovereign exercises its will whenever it shows itself in an appearance. Thus, law is understood as the "will of the sovereign/' Interpreting the law as an appearance of the sovereign, we imagine a faculty of will as the source of that appearance. Will is not separate from the experience of law as an interpretive enterprise. It is only another expression of this same experience of the meaning of appearances.25 Will is the projection of the interpretive quality of political meaning onto a psychology of faculties. Because the sovereign appears, it must have a will. But will plays a double role in the system of political understandings. Will also makes possible the subjects crossing from the sighting of the appearance—the legal text—to the sovereign of which the text is thought to be the appearance. Will is, accordingly, the psychological faculty of the subject that corresponds to the experience of faith. Will marks the end of explanation in both directions: metaphysically, from sovereign-in-itself to appearance but also epistemically, from the appearance back to that sovereign. The sovereign that is the object of faith is a reverse image of the subject who has faith. There is no answer to the question of why the sovereign appears as it does. It was not necessary for God to create the world or for the people to create the Constitution. Correspondingly, it is not necessary for us to see the world as an appearance of God or the Constitution as an appearance of the people. These metaphysical and epistemic statements, if not identical, point to a single experience of meaning in both religion and politics. Will is an idea deeply bound up with a psychology of appearances. For Plato, the admonition to the subject was Know thyself. The true self was to be recovered through a dialogical inquiry. Dialogue was a way of exercising reason, of testing the logic of propositions and exposing unfounded beliefs. There was no

Law's Appearance

place for the will in this enterprise of self-knowledge.26 For the Christian, how the self appears, both to others and to God, becomes a problem of the will. The hidden self is a "false" self that must be transformed through an act of will that gives the self a new appearance. Confession both reveals and transforms. The speech act of confession is not simply one of disclosure of the self. The end of confession is not knowledge of the self. It is rather disclosure as an act of will, a making new in the act of disclosure.27 The subject we are must be stripped away, not simply uncovered, to allow for a new birth. The true self is the appearance that the will creates. The Christian must do more than know him- or herself; he or she must be born again through an act of faith. This same conceptual dynamic is at work in our imaginative construction of the political order. The privileged place of revolution over law represents the foundational role of faith over interpretation. Revolution is the constitutive act of making new in an act of disclosure. It is a stripping away, followed by the birth of a new appearance through an act of will. Revolution is the projection of the confessional mode onto the whole of the society, just as the individual confession parallels the divine creation through an act of will. Finding ourselves already in a political space, we imagine a sovereign as its cause and then interpret law as the effect of this cause.28 The sovereign is an objectification of political meaning, its reification at a single point. Laws permanence is not so much laws own endurance through time—nothing is permanent in this sense—but its relation to a sovereign that is not in time at all. The rule of law, I argued above, is the historical unity of the political order experienced from within. The sovereign is the reification of that same experience of unity. Viewed from without, law may simply look like a regularity of behavior, a regularity that can be explained without reference to the idea of sovereignty. But for the citizen, the rule of law is an experience of the meaning of a political order as a single whole. The structure of this experience links sovereign to law, through the idea of appearance, the process of interpretation, the faculty of will, and the leap of faith. POPULAR SOVEREIGNTY AND REPRESENTATION

The concept of the sovereign is not simply an element in a post hoc rationalization of law, as if law were a thing we find and then explain. Neither, however, does the sovereign precede the rule of law as if the creation of law is an option the sovereign may choose. Rather, the sovereign is a functional part of the system of thought that frames the imaginative space in which the rule of law operates. The sovereign is that which we see through laws representation. It is the source of the law that appears.

189

190

Law and Representation

The rule of law does not specify a particular kind of sovereign; it did not wait for the development of the modern idea of popular sovereignty. But how does the rule of law reflect changes in the conception of sovereignty? This is not a question of the idea of justice that informs laws rule. There may be substantial continuities in the moral ideal pursued by the rule of law, even as the idea of sovereignty changes. Tocquevilles observations about the role of the normative ideal of equality before and after the French Revolution illustrate such a continuity.29 Nor is it a question of the conceptual structure of the relation of sovereign to law. I have already discussed that structure and shown that it does not depend on the content of the idea of sovereignty. Nevertheless, there is an important middle ground between abstract conceptual structures and substantive, ethical norms. This middle ground is particularly important for law, for it provides the conception of the authority of law in a political order. This conception informs individual faith; it determines the character of the relation of the individual to the polity. We cannot understand the rule of law in the American political order without focusing on the particular meaning that popular sovereignty imparts to the law. How, in other words, does the rule of law show itself as the appearance of a popular sovereign? For us, courts, no less than the other political branches, must show themselves as representative of the people. We must turn, therefore, to a more detailed exploration of the nature of representation within a system of political order that locates authority in the people. The people are the sovereign subject on the other side of laws representation. American constitutional thought begins only after the mystery of the monarch s two bodies has been demystified through a concept of representation. Popular sovereignty appears within a network of representational claims. There is no necessary connection between representation and popular sovereignty. Rousseau, for example, believed that the two were incompatible. He thought that as soon as the citizens of a state created representative offices, they lost their freedom. They could no longer claim to be sovereign.30 In this respect, Rousseau remained within the system of political thought that the modern idea of popular sovereignty displaced. The dispute between Rousseau and the defenders of French absolutism was over the locus, not the character, of sovereignty. Both believed that sovereignty could not be alienated, that sovereignty exists only in its physical embodiment, and that the sovereign body must itself act, if it is to retain its sovereignty. For Rousseau, the body of the sovereign was the single body constituted by all the citizens. For the defenders of the absolute monarchy, it was the body of the monarch. Neither position allowed a separation between the sovereign and the exercise of political authority.

Law's Appearance

Rousseau retained the mystical corpus of the state; he severed only its head. This left problems of coordination; it did not suggest a new form of political authority. That new form of authority is political representation. Rousseau recognized that representation is not simply a second-best solution to the problem created by the enlargement of the state. If size is a problem for the maintenance of a free, democratic political order, it can be cured by the division of the state into smaller units.31 Representation is not merely a device for dealing with the state grown large; rather, it is a fundamentally different form of political authority. For Rousseau, it remained an illegitimate form. Because of Rousseau's failure to accept the already accomplished turn toward representation, he has remained a peripheral figure in modern constitutional theory.32 To understand the significance of this turn, we need first to examine the conceptual system that political representation displaced. The move toward political representation—theoretically and institutionally—was not simply the consequence of a political event, in this case, the throwing over of the monarch. Monarchical forms of government are, as I argued above, consistent with representational politics. The development of political representation was instead the result of a fundamental shift in the categories of understanding. A politics of representation rests on a critical conceptual development: the displacement of a symbolism of incarnation with one of representation. Before this shift, the state needed to be embodied in a particular person—the sovereign—in order to appear. After this development, no one is the state, but anyone can represent it. Western political thought shares with Christian theology this movement from incarnation to representation. Christ did not originally appear as a representation of God; he was God.33 There was no distance between what was seen and what was understood. Christ was not a text to be interpreted by reference to a separate truth. There was no distance between representation and represented in Christ. He did not represent anything that he was not also fully and completely. Christ may have looked human, but he was the Word, the Law, the Sacred. Christ shows himself as God not by representing an other—the Father— but by being it. He is all that he means. This is not a limit on his meaning but a statement of the fullness of his being. Accordingly, he takes into himself all previous and subsequent appearances of God. For this reason, Christ is at all times and in all places. He can never be represented but is always fully present.34 Christ overcomes the divide between God and Gods appearance— that is, the world created by God s word. For this reason as well, Christ is the Law; he is not just a representation of

191

192

Law and Representation

law or guided by law. He does not follow the law and he cannot be measured by it. He is not an appearance of Gods word; he is the Word. He is that which faith continually reaches toward: the sacred object beyond and before interpretation. Being in Christ's presence poses a problem not of interpretation but of incorporation. To share in the body of Christ, to be one with Christ, one must be born again in Christ—not study and interpret texts. Christ's coming is the overcoming by revelation of the appearance of God in Jewish law. That law referred to an authoritative source outside of, and prior to, itself. Christ is both man and God in an inseparable unity. Not a bit of both held in balance, but fully and completely each. Christ makes present the other by being it. This is the mystery of the Trinity in Christian thought. Christian theology long struggled against any move toward interpreting the Trinity in representational terms. The Trinity is always one in three. There is no separation of its elements, no space within which representation could operate.35 Above, I called this conceptual scheme instantiation. Incarnation is a paradigmatic case of instantiation. Here, the source of meaning does not appear at a distance; it does not show itself through an other that is kept distinct either metaphysically or epistemically. Rather, to experience meaning is to stand directly in the presence of the meaningful. Understanding occurs within "real presences/'36 The shape of this imaginative space is geographical: not in the sense of an objective flattening of all space but in the sense of sacred presences—a geography of emotional space. Instantiation is not unique to Christ's incarnation. It is the traditional form of religious experience. It is expressed in the archaic totem, the epiphany of the mystic, and beliefs in magic.37 In each instance, there is a making present that requires a suspension of the ordinary categories of space and time. The belief that the representation "is" the object represented is found, for example, in the magical belief that manipulation of a name controls the object named. To control the word is to control the object.38 To the Western understanding, this collapse of the representation into the represented seems a confusion of categories. But the magic of words and symbols has not entirely disappeared from the experience of the political. The recent controversy over extending constitutional protection to the nation s flag, for example, suggests that for many the flag is not merely another representation. Nor has the experience of instantiation of political meaning in and through the body completely disappeared in the face of claims of representation. Sacrifice is the central category in a system of instantiation. In the Christian tradition, God sacrifices his son, the son sacrifices himself, and each individual sacrifices him- or herself in order to become a part of the body of the Church, the mystical corpus of Christ. Sacrifice is not simply a marking of the

Law's Appearance

body; it is not a representation upon the body or a reading of the body as a representation. In a system of representation, sacrifice is the production of the body as text.39 But in a system of instantiation, sacrifice is the moment of rebirth. Sacrifice is a giving up of the finite body in order to be something other than the self one had been. The Aztecs thought that the sacrificed victim became the god to whom he or she was sacrificed.40 Within this conceptual order, one cannot experience an ultimate meaning without literally becoming it. Corresponding to the sacrifice of the body, therefore, is the physical appropriation of a new body: one eats and drinks the body of Christ, for example. Sacrifice and cannibalism are a linked pair.41 They represent a giving up and a taking on. In both instances, the space between self and other is bridged. Transubstantiation is the goal of sacrifice; it is achieved by a literal giving up of one flesh and a rebirth through the taking on of a new body.42 Sacrifice is not, in the first instance, a propitiation of the gods.43 It is a ritual of instantiation. One overcomes the otherness of finitude and separation by engaging in a community-wide ritual that transforms the singular body into an embodiment of a larger meaning. This transformation is experienced as the presence of the sacred. To experience meaning, one has to become other than oneself. This is "new birth" not as metaphor but as experience. The experience becomes metaphoric only when we retroactively apply categories of representation to it. One aspect of the political operation of this conceptual structure of sacrifice is described vividly by Michel Foucault in his analysis of torture at the beginning of Discipline and Punish.44 The body of the criminal was appropriated by the sovereign through torture. Torture drove out of that body all meaning that might have its source in the life history of the particular individual. This meaning came to be seen as nothing at all, as negation. The words spoken by the victim—the confession—were the acknowledgment that his or her previous life was meaningful only in its negation.45 The victim s body affirmed a single, timeless truth: the truth of the sovereign. The tortured body becomes a momentary locus of the experience of that truth as a real power—presence—in the world. In a political world of presences, the body of the monarch and that of the victim coincide: both become wholly and completely the instantiation of the state. One is the display of absolute power, the other the display of absolute subordination. They are the positive and negative images of the same phenomenon. By the eighteenth century, political thought had largely moved away from the symbolism of instantiation, adopting instead the idea of representation.46 In part, this reflects the aftermath of the Reformation, which abandoned much of the religious symbolism of instantiation. The eucharist was no longer the body and blood but only a representation—an occasion for remembrance

193

194

Law and Representation

in which one saw through the appearance to a separate object. To the new worldview, the age of miracles ended with the death of Christ. Nothing in this world could be divine. Finite things could at best represent the divine. Words, too, lost their magical power; they became signs to be understood in their representative function.47 The radical otherness of the sacred was secured now by erecting a divide between the divine and the world of appearances. A world of instantiation was displaced by one of representation. The relation of the individual to the sacred was no longer expressed in rituals of sacrifice and transubstantiation. To the degree that there remained a dimension of direct experience of the radically other, it was now an experience within the individual soul; a private movement of the soul replaced an ontology of the sacred. The sacred was placed at an unbridgeable distance from the ordinary public world. Once again, people lived in a world of appearances: a world that required the double movements of faith and interpretation. The same transformation of the appearance of the sovereign occurred in political thought: instantiation was displaced by representation. The monarch's body was no longer the mystical body of the state. Citizens no longer participated in the sovereign through the mystery of the monarch's body, of which they collectively constituted the corpus. The sovereignty of the state was now potentially represented everywhere but actually realized at no particular point: not even in the body of the monarch. The monarch could now represent the state without being the state. But if he or she only represented that which existed before and apart from him- or herself, the monarch's fate did not determine the state s. Regicide now became imaginable.48 Similarly, torture disappears as a ritual of instantiation. Punishment is no longer a moment for the public display of the sovereign power s to occupy the body. Instead, it is a moment for correction of an interpretation. The criminal must come to a new interpretation of who he or she is, of the meaning of his or her participation in the polity.49 Penitence and contemplation displace torture, just as religion becomes a matter of private faith and interpretation. Sovereignty is, at this point, divorced from the body of the individual sovereign. Instead of a symbolism expressing the embodiment of the general in the particular—the whole in the particular individual—every individual is now understood as an equal participant in the sovereign. Each can be equal because none can claim to be the sovereign but all can claim to represent the sovereign. The popular sovereign is not fully realized in any particular individual or at any particular time or place. Each individual has the same dual role in relation to popular sovereignty. Each is both a part of the whole and representative of the whole. Any citizen may occupy a position of representation. The meaning of the state is no longer

Law's Appearance

experienced in the coronation ceremony or in the capture, torture, and sacrifice of a victim but in the quotidian self-understanding of each citizen. Politics becomes pervasive through representation, even though it is less forceful in any particular appearance. Each person, as a political representative, can be seen through to the whole of which he or she is simultaneously a part. Because each person is an equal part, each stands in the same synecdochal relation to the whole. This representational relation provides a deeper idea of modern political equality than that of equal rights under law. Equality in the latter sense is not limited to democratic regimes. Every regime can be measured against norms of equal treatment, equal opportunity, and equal justice. Only in a regime of popular sovereignty, however, does every citizen maintain an identical representative relationship to the sovereign. In such regimes, no one makes any greater claim as citizen than anyone else. Political representation, accordingly, requires neither the privilege of birth nor the expertise of special knowledge. Popular sovereignty is not based on an idea of the deliberative capacities of each citizen, nor on an idea of the virtues of free political debate. It is not even based on an idea of equality under law. Rather, it is grounded in a shift in the conceptual order: representation displaces instantiation. The American political order was popular long before it was equal. It put at its core the representative meaning of citizenship well before it adopted a morally defensible ideal of equality. This representative relation of part to whole inheres in the American idea of citizenship. But the fact that we can see the state through each citizen does not mean that we shall see this meaning equally at each point. At what point the relation becomes explicit—a matter of special attention and institutional organization—is often unpredictable. The unknown soldier represents the popular sovereign as much as does the elected representative. This was Lincoln's message at Gettysburg, when he figuratively switched places with the fallen soldier. The living president does not dedicate the battlefield to the dead; rather, the dead have already dedicated it to the living: "The brave men, living and dead, who struggled here, have consecrated it far beyond our poor powers to add or detract/'50 This same polymorphous quality of representation stands behind one of our deepest and most popular political myths: anyone can grow up to be president. This must be true, despite vast differences in real opportunities, because each citizen already exists within the identical representative relationship of self to sovereign. At its most disturbing extension, the ubiquitous quality of the representative claim means that even the anonymous victim of an aerial bombardment represents the sovereign. No one can be merely a private person outside politics.

I9S

196

Law and Representation

The political order has thus become an order of representation in which competing claims to represent the popular sovereign are presented. The symbolism of the monarch's body has been lost. To destroy the state, it is no longer sufficient to destroy the monarch. Instead, the entire population becomes a potential target, because the representational claim can appear at any point. Indiscriminate warfare is not just a technical achievement of the twentieth century but a conceptual one as well. Of course, we still find ourselves responding to the traditional symbolism of instantiation. Just as the symbolism of instantiation has not disappeared from the Christian Church, it has not disappeared from politics. We continue to confuse presidents with kings. We want to be in the presence of the politically powerful. We wish to see or touch a president, even though we know that his "political value" is no different in kind from that of every other citizen—including ourselves. Under the rule of law, not even the president has special privileges. But law does not exhaust our experience of the political. More important still, the dynamic of transubstantiation through an act of sacrifice—giving up a personal self in order to embody the state—remains a powerful source of meaning. The potent power of sacrifice remains an everpresent threat to a politics of representation. The transformation of the finite body into an instantiation of the transtemporal state explains much of the violent character of our political life. Violent sacrifice is the common denominator of revolution and war. Sacrifice for the state is still experienced as a political value. Representation, one might say, builds upon an earlier—yet still potent—set of meanings that sound in sacrifice and instantiation.51 The sacrificial marking of the body begins as an act of instantiation but becomes a text to be read. Representation is a form of appearance. It is seeing one thing through another. Looking at the representative, we see that which is represented. Unlike the monarch, the political representative is not the state; the representative is not even his or her particular constituents. The representative is never more than a public appearance of the state. Representative institutions and law both have the status of appearances. The inquiry into the nature of the rule of law in a democratic order must search for that point of intersection between political representation and appearance in law. What is the character of the representative claim made by the appearance of law? THE MECHANISMS OF POLITICAL REPRESENTATION

A relationship of representation exists only to the extent that it is perceived. It is a function of the perception. Nothing represents anything else either by na-

Law's Appearance

ture or apart from an observer. How or why one comes to see something or some action as representative is a function of the lands of relationships one is capable of imagining. Imaginative capacity is, in turn, determined by historical context and personal beliefs. Looking at a priest, some see a representative of God, others see only a person who may represent a community or institutions but who has no relationship to the Divine. The same is true of political representatives. Representational claims, for this reason, can appear where previously they did not exist. Equally, they can cease to be valid. A relationship of representation that is seen by some but not others is contestable. Representation, therefore, is a relationship between three terms: the representative, the represented, and the observing subject. When the representative or the represented are persons, however, each can play a dual role. Each can assume the observers perspective on this relationship. I may, for example, see myself as a representative of my entire family. It is even possible for a single person to assume all three roles. A subject may take a particular act or characteristic of herself to be representative of other aspects of the self or of her "real identity." It may, for example, be useful in some contexts to think of the present self as representative of the past self I have already been and of all the future selves I shall be. Representation, then, is a relationship perceived by a subject. The elements of a representational relationship are defined by reference to one another. Representation may be, but is not necessarily, a relationship established between two known objects. We need not be able to test representations against some other mode of access to the represented. We can speak of representation even when we have no way of assessing the nature of the represented apart from its appearance in and through the representative. Whether the represented even exists apart from the representation maybe a meaningless question. The representative character of the priest is not a function of the existence of God but of our understanding of the meaning of the priests acts and words. All that matters here, all that we experience, is the meaning of the representation. A relationship of representation may, therefore, be constructed wholly through the representative. It is representative because we perceive it as such. Because the terms of a representational relationship are not objectively fixed, there is no guarantee that those "within" such a relationship will all see it in the same way. Those whom I consider to be my representatives and those who claim to represent me do not necessarily coincide. I may see myself as the representative of my family, but my family may not. Each term—represented and representative—can move independent of the other. An elected representative, for example, may see herself as representing those who voted for

197

198

Law and Representation

her (her immediate electors), her constituents (all those who could vote), the residents of her district (voters and nonvoters), or the people generally. The individual citizen may see himself as represented by his congressman, by congressmen who share his interests, by the institution of Congress, or by the whole of the government. Different contexts are likely to elicit different conceptions. Contests of political power will work across all these claims of representation. Institutions and individuals will make competing claims against one another, and they will make different claims in different contexts. Each will guide its own behavior by reference to its understanding of these multiple relationships between representative and represented.52 No single element of these relationships is fixed in relation to the others. Representational claims are fluid and competitive. Political claims of authority in a democratic polity are directly or indirectly claims to represent the people. Every expression of political authority must appear as a showing forth of the popular sovereign. No person or group claims political authority personally; each purports only to be a representative. Other claims of authority appear—those of a doctor, scientist, or priest—but they are not expressly presented as political. These claims assert a validity independent of political events. Even when we say that the doctors or the scientists authority is a function of power, not of some absolute truth, the power we are referring to is not the power at issue in our ordinary political institutions. Indeed, one aspect of the power of the scientific claim resides in its assertion of independence from changing political circumstances. I argued above that in a system of popular sovereignty, any citizen is potentially the locus of a representational claim. Every citizen can represent the people. Nevertheless, the actual representational claims that circulate in the society at a given time are largely institutionalized and regularized. The representational claims of the unknown soldier or of the person enjoying his or her fifteen minutes of fame are unorganized and unpredictable. Their possibility adds fluidity to democratic politics—an unpredictable edge to political experience, which is seen, for example, in the play of public opinion. Institutionalized claims of political representation in the modern democratic polity fall within two general categories. They are based either on the manner in which the representative came to hold office or on the representatives conduct. Political authority is grounded either on a claim of "authorization"—an election, for instance—or on a claim of representative conduct. The dual character of representational claims is evident, for example, in the controversy over virtual representation in the eighteenth century.53 The supporters of virtual representation looked to the conduct of the representative.

Law's Appearance

Those who denied that virtual representation was representation at all looked at the representatives lack of authorization from the represented. The first category of representational claims specifies one or more sources of authorization that enable the particular person or institution to act for—in the place of—the represented. An agent, for example, represents a principal by virtue of an authorization. The source of the authorization is usually the principal but may not be—for example, when an adult is legally authorized to represent a minor. The same process of authorization is at work in an election. The consequence of an election is not so much the creation of a representational claim. Anyone—including the candidates—can be seen, and can claim, to represent the people. The election is instead a public legitimation, an authorization, of one of these representational claims. The election is one intersection between a system of law and a politics of representation. A claim of representation based on authorization looks, then, to the behavior of some one or some group apart from the representative, to establish the relationship of representation. Again, the source of the authorization need not coincide with the represented. An elected representative may, for example, be authorized by his constituents; he may, however, be seen by himself and others—including his constituents—as representing the people. Representation through authorization need not assume that the representative has any special knowledge of what the represented might want in particular circumstances or even of what is in the best interests of the represented.54 An authorized representative often has the "authority" to make what appear to be mistakes from the perspective of the represented. How he or she behaves— short of deliberate abuse of office—may have no effect on the representational claim. The alternative approach to political representation focuses on the behavior of the representative. Representation, on this view, does not adhere in a personal status—however obtained—but in a way of conducting oneself with regard to the interests of the represented. Public interest groups, for example, are representative not because of an act of authorization but because they base their conduct on a claim of special knowledge of, or at least on a special concern for, the needs and interests of the represented. The relevant claim may be that the representative knows how those represented would behave were they present. Or it may be simply that the representative performs in the interests of the represented. Anyone who disputes the claim of knowledge made by such a representative is likely also to see a false claim of representation. We have no single definition of representative conduct. Indeed, representative conduct can

199

200

Law and Representation

even collapse into conduct in the interest of the representative—for example, when we believe that representation arises out of a mutuality of interests between represented and representative. Actual representational claims are likely to combine both sources. The mechanism of selection—periodic election or appointment, for example—is a source of authorization. The authorized agent will also behave in a manner that appears both to self and others as representative. These two claims are not likely to be distinct. A representative may be selected because he or she appears to be someone who will act in the interests of the constituents. Similarly, having been selected, a representative will try to gain knowledge of the interests and needs of the represented—however those are conceived. Nor are the relationships unidirectional: a representative may be elected— authorized—because of his or her success in convincing the electorate that appropriate representative conduct is what he or she understands it to be. In a modern democratic polity, no one claims political power by virtue of who he or she happens to be or because he or she possesses adequate means to attain his or her ends. A representational claim must be made. That claim must refer to the people. Because the people do not exist as a thing to be measured or consulted apart from the representation, a claim to represent the people is always contestable.55 One representational claim confronts another; none can be measured against the people itself. Conflicting representational claims—some based on authorization, some on conduct, and some on both— are always present. Even the division between authorization and conduct is too broad to capture the debate. There is conflict not just between the lands of claims made but also within each category. What knowledge should inform representative conduct? Knowledge of needs or of interests, of short-term desires or of longterm values? Knowledge of constituents or of the people, of whom any group of constituents forms only a part? Which form of authorization is more significant? Election or appointment? Each political representative will make a variety of claims. At most, an institution will emphasize a particular kind of claim as the strongest ground of its own assertion of power. These diverse representational claims do not fall into a single hierarchy. Every claim is likely to spawn opposing claims. Different lands of claims will be privileged at different times. For example, as electoral authorization came to dominate representational claims, senators became subject to elections. Similarly, the electoral college receded from view, displaced by the popular electoral campaign of the president. The same impulse led many states to subject judges to electoral mechanisms.56 Recently, this privileging of electoral claims has been subject to reconsideration. As the effectiveness of elec-

Law's Appearance

toral controls has been questioned, there has developed a renewed interest in representative conduct.57 Contemporary theorists are likely to speak of "deliberative democracy," emphasizing representatives' participation in an ongoing discourse, rather than the source of their authorization. Campaign rhetoric is likely to accuse elected representatives of pursuing a kind of parochial, inside-the-Beltway behavior that fails to represent the people in the rest of the country. Modern "democratic" thought tends to privilege popular elections as the ground of representation, but this is hardly a timeless truth. One hundred years ago elections were as likely to be associated with "mob rule" as with rule by "the people."58 The privileged position, at least in legal theory, was then assigned to representative conduct as opposed to electoral authorization. The true representative of the people was the person who acted in the people s real interests, disregarding the passions expressed in electoral politics. Instead of the countermajoritarian difficulty, scholars and judges worried about the majoritarian difficulty. Correspondingly, the representative character of the rule of law was located not in an act of authorization by the people but in the evolving character of the "unwritten law," through which judges kept the law current with the moral growth of the people.59 On this view, a rule of law authorized by the people a hundred years earlier could not be representative of the contemporary people. The dual character of representational claims has allowed changes in emphasis from authorization to conduct without challenging the fundamental claim that the rule of law is a representation of the people.60 REPRESENTATION AND THE RULE OF LAW

All political authority in the American polity must rest upon a claim of representation. Representational claims, I have argued, are diverse and competitive. The problem now is to fit the rule of law within this general picture of representation. At best, the logic of political representation can be broadly sketched as it intersects with the rule of law. The fluidity of representational claims means, however, that every statement is only a matter of emphasis. The rule of law enters the contest for political power at diverse levels and with multiple claims. These do not form a single, coherent whole. My emphasis will again be on the courts and their representational claims. A more complete account would also examine the uses of legal claims by other political institutions. Revolutions are characterized by the extreme unpredictability of representational claims. Existing representatives are seen as acting under a false

201

202

Law and Representation

claim of representation. New voices appear. Alternative institutions and organizations spring up to challenge the old order in the name of the people; existing institutions face conflicts over the ground of their own representational claims. Think, for example, of the changing character of colonial assemblies in America, of the rise of Committees of Correspondence, and of the Continental Congress. Despite the multiplicity of representational claims during the American Revolution, in retrospect the Revolution appears as an unmediated action of the people themselves. This is laws idea of revolution. It serves two needs of the legal order. First, the termination of earlier representational claims can be accomplished only by the represented, that is, the sovereign people. Only the people have the uncontestable authority to negate a representative claim. Apart from action by the people, one representative claim can only contest another; neither has any final authority over the other. The people themselves had to appear to sever the representative institutions of British political authority. Without their appearance, the claims could always resurface, even if England had been militarily defeated. Second, revolution provides a foundation for a new representational politics: the rule of law. Through revolution, the represented are thought to create their own structure of representation. This is laws conception of its own origin. The modern rule of law grounds its representative claim in an act of authorization by the represented. This is laws understanding of the popular sovereigns achievement of the Constitution. As with other claims of authorization, once the representative comes into being, a disjunction may arise between the authorizing event and the claim of representation. Just as an elected representative may appear to represent all of the people in his or her district, despite election by only a subset, the rule of law may represent the whole of the people—the sovereign people—despite actual participation by only a few in the authorizing act. We do not say that those few represented the whole because that would only start an endless search for the moment of unanimous participation by the represented: a search for the original social contract. Nevertheless, we say that the rule of law represents the whole of the sovereign people. The rule of law grounds its representational claim by creating an appearance of an authorizing act by the people themselves. Legal theorists are often dissatisfied with this representational claim as a ground of judicial authority. Seeing through the appearance that law seeks to create, they understand that what is supposed to have been the people was only an aggregation of particular individuals. This triggers a search for alternative grounds for the representative character of the rule of law. Those grounds might be located in the evolving morality of the nation, in contemporary pub-

Law's Appearance

lie support, or even in the representational claims of other political institutions—that is, in so-called representation reinforcing theories of judicial legitimacy. Three points should be made about all these theories. First, they are all efforts to locate a representational ground for laws claim to political authority. Few argue that laws authority rests on the justice of its rules alone. Morality and law split at the point at which the latter seeks a representational ground. Law is, for us, a form of political authority grounded in a representational claim. Second, the theories demonstrate once again the fluidity and variety of representational claims in a democratic order. Those claims create a debate without end. Third, few of these claims enter into the actual operations of the judiciary as it elaborates the rule of law. At best, these alternative representational grounds appear in a haphazard, sporadic manner. The courts do not point to contemporary popular support, an emerging popular consensus, or evolving moral principles to ground their authority. Nor do they abandon the claim that the law is itself representative of the people by relying instead on the judges' own authorizations through the political process of appointment. The judges' function is to say what the law is, not to behave in a way they personally believe to be representative. Although courts regularly take on representation-reinforcing roles, they do not accept the limits of this function as defining the scope of their authority. They do not appeal to their own views of moral and political rights, and they certainly do not appeal to their own interests. Rather, they claim to be representative because the rule of law, which informs their conduct, derives from the Constitution. The Constitution, in their view, was authorized by the people. The courts are representative, then, to the degree that their conduct holds forth this rule of law. This is how the courts see themselves and how they would have us see them. A judge s representative character, then, adheres in conduct that displays a practical knowledge of law. The judge represents the people when he or she expresses the rule of law. This character of their representative claim puts judges in a fundamentally different position from other political representatives with respect to the moral claims of justice. Elected officials can simultaneously display an appropriate political virtue and act as fully representative when they direct their behavior by their best moral insight. The judge, on the other hand, violates standards of representative legitimacy when he or she does the same thing. The judge gives up his or her claim to representation by acting on the same moral grounds for which we may praise the elected political representative. Because the judge does not rely upon authorization in the same way that an elected politician does, the judge must

203

204

Law and Representation

pursue a course of conduct that is representative before it is moral. Apart from that, the judge maybe good but not representative. And if not representative, then not politically legitimate. To know the law is to know something about the people. To apply the law in one s conduct is to represent the people. For this reason, not just the judge but all those engaged in a contest of law make representational claims. The litigant challenging the government in court claims that he or she is the true representative of the people and that the government falsely appears as representative. The degree to which any citizen can appear in court and make a claim to defend the rule of law against the government is itself an expression of the fluidity of representative claims under a system of popular sovereignty. In any given case, we do not know beforehand whether the plaintiff or the government will appear as the representative of the rule of law and, consequently, of the sovereign people. Standing may be more important than voting in establishing and maintaining a democratic polity.61 The conflict between elected political officials and the courts is likely, therefore, to look like a conflict between a claim of representation based on authorization and a claim of representation based upon conduct. This conflict cannot be resolved by appealing to an idea of the people because it is, on both sides, a claim to represent the people. There is no neutral ground that shows the real people apart from the representation of the people. The people appear only as an object represented. Do we see the people in the authorized representative or in the courts articulation of the rule of law? Inevitably, we see the people in both. There is always and everywhere conflict. We can also see from this why the representational claim of the judge often appears to be more tenuous than that of an elected official. For the latter, the relationship of representation is already established. By virtue of an election, the political actor can claim to be a legitimate representative. That representative appearance continues, therefore, despite wide variations in conduct. Because the relationship of representation is already complete, the politician can view politics as a field of action. It demands novelty and distinction of him or her. Indeed, future electoral success may turn on the ability to distinguish the self by appearing unique to the electorate. On* the other hand, when representation depends upon a course of conduct that can be performed well or poorly, the claim of representation is more vulnerable. The critic challenging a course of judicial conduct is arguing that the judge is not representative. To that critic, the judge appears simply to be wielding unaccountable power. A court must, therefore, continually reestablish its representational quality. It does so by asserting that its conduct is nothing but the rule of law.

Law's Appearance

Courts, I have argued, assert political power on the basis of a claim to representative conduct that rests, in turn, upon the representative character of the rule of law. This is a useful way to distinguish courts and law analytically from other forms of political authority in a polity committed to popular sovereignty. It forces us to focus on the indeterminate character of popular sovereignty. It is a mistake to think of popular sovereignty as if it were rule by a particular subject that consists of all of us at all times. Nevertheless, the description I have offered simplifies as it analyzes. The conflict among representational claims goes all the way down. No institution will completely yield the representational ground to any other. Each institution can and will make both kinds of claims: authorization and conduct. There are no uncontested grounds in political life. Popular sovereignty is a family of loosely connected arguments. Elected representatives generally rest their authority on an act of authorization, but they will also claim to engage in representative conduct, based upon a special knowledge of the needs, interests, and beliefs of the represented. Similarly, judges will generally rely on the representative character of their conduct, but they may cite the confirmation process as a form of political authorization. The litigants claim of standing is no less a form of political authorization than is the presidents election. Now we have come full circle. Authorization depends on the rule of law: who votes, where, and when are determined by looking to law. Law, in turn, depends on authorization. This is true at the general level of the origins of the rule of law, as well as in the particular events of our political life. Authorization and conduct form a circle of argument at the ground of representation. Whether claims of authorization or of conduct are emphasized is a function of circumstances, not of some deep political truth. There is no correct answer. There is only a multiplicity of points from which to make assertions of power. There is nothing inherent in the idea of popular sovereignty that privileges elections. Democracy may be defined in electoral terms, but to do so is to take sides in a continual debate. Popular sovereignty is no less the rule of law. Neither the presence of elections alone nor of law alone proves that a system of popular sovereignty is in place. That depends upon the meaning of citizenship expressed in and through these various appearances of political authority. Popular sovereignty exists when every citizen potentially appears as an equal locus of a representative claim.

205

8 Representing the Opinion of the People

In the previous chapter, I argued that the contest of power in our democratic political order is a struggle among conflicting claims to represent the people. No person or institution is the people. "The people" is an argument, an assertion of power, a claim to rule. The people show themselves in and through a multiplicity of representations. The sovereign people is an object of faith that creates a field of controversial claims of representation. Every such claim provides a point for interpretation. In their total compass they constitute the interpretive debate that characterizes our political life. The competing grounds of representation that I described—authorization and conduct—are at issue in the Marbury opinion. The first section is about the forms of political authorization in a democratic polity. The second section concerns the character of representative conduct. The final section is an effort to establish the priority of the judicial claim to represent the people by moving to the very edge of representation—that is, just to the point where representation threatens to collapse into identity. As a whole, the opinion is an effort to persuade the reader that the Court represents the people—a necessary condition of political authority in a democratic polity.

206

The Opinion of the People

Although section one of the opinion ostensibly concerns the appointment of a justice of the peace, the self-reflective character of the discussion lies close to the surface. The same process of authorization that applies to Marbury applies to each of the Justices of the Supreme Court: nomination, senatorial advice and consent, and appointment. All are continued in office "by law."1 Indeed, the Chief Justice shares with Marbury more than a formal confirmation process: each owes his appointment to the same set of political circumstances. This entire process, from nomination through appointment, constitutes what we can call a "legal authorization" to occupy a position of political authority. Only the law s authorization protects each Justice from a political act of termination. Termination of judge or Justice could take a variety of forms, ranging from Jefferson's withholding of the commission to statutory repeal of the office to the invocation of the impeachment mechanism—and even to a willful disregard of the Court as an authoritative voice. As we read the opinion now, we know that Jefferson was about to turn his own political power toward the impeachment of Justice Chase. We know as well that he had already obtained repeal of the 1801 Judiciary Act.2 We saw that Madison failed to appear before the Court—that is, he acted as if the power of the Court had already been terminated. In these diverse ways, Jefferson showed that he understood his electoral victory as providing a ground for novel action against the judicial status quo. The justice of the peace and, more important, the Justices appeared to him as the unjust perpetuation of a no-longer-representative political power. They had to be replaced by the new representatives. His attack on judicial authority rested directly on a claim to be the authorized representative of the people. Authorization by the people, we learn in this first section, can be as much a matter of law as of election. We see the contes table character of each clai'm of authorization. Although Jefferson s claim of authorization by the people may appear more immediate, because of the indeterminate locus of the people, immediacy does not translate automatically into a stronger claim of representative authority. Only authorization by law can have permanence. Permanence is itself an expression of political power. Representative authority rooted in action by the electorate is sporadic and changeable. Jefferson replaces Adams, as the people turn from one representative to another. From the perspective of the newly elected representative, there is no ground upon which to privilege the claims of his predecessor, even if those claims have been given legal expression. As one Republican Senator and supporter of Jefferson announced in response to the claim that law authorized federal judges to continue in office indefinitely: "Are we to be eternally bound by the follies of a law which ought never to have passed?"3 The people can al-

207

208

Law and Representation

ways authorize new representatives and withdraw previous authorizations. They have done so here. In making such a claim, Jefferson is identifying his own electoral victory with an authorization by the people. The sovereign people never acted, however; the actions were those of a group of timebound individuals who were distributed in complex ways through existing institutions, ranging from the voting booth to the electoral college to the House of Representatives. Marburys claim of legal right confronts Jeffersons claim of political power in the same way that the Courts claim of legal authorization confronts Jefferson s claim of popular authorization. Against Jeffersons election, each Justice can assert his own authorization "by law." Neither Jefferson nor the Court has a "better" claim of authorization, for there is no common scale by which to measure the two claims. Both assert an authorization from the people. Which claim we hear is determined by interest, circumstance, and power. Section one of the opinion, then, concerns the sources of political authorization—how different figures come to hold positions of authority. The next part turns from the contest between forms of authorization to the conflict between forms of representative conduct. According to the opinion, "the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience."4 How does a political actor who exercises discretion—who acts in novel ways—establish a representative relationship? The Court views what I have been calling political action as a competing form of representational politics. Action is representative as long as it is bound by the diverse processes of political accountability. The most important of these is elections—the one to come as well as the one just held. There are also other ways, both formal and informal, in which a president is held accountable at the bar of politics: opposition to his legislative program, mobilization of grass-roots movements in support of (or opposition to) his policies, and the expression of public opinion generally.5 Opposed to this form of discretionary political activity, Marbury places ".jdicial authority": "The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority."6 Judicial authority is now seen to rest on a certain form of conduct: a legal process culminating in an opinion. The judge must answer a question never asked of those whose conduct is measured only by the processes of political accountability: Has a right vested? He or she can answer that question only at the end of a proscribed course of conduct, the purpose of which is to make visible the rule of law. At every point in this contest between president and Court, a representational claim is made. A government of and by the people is also a govern-

The Opinion of the People

ment of law. Judicial practice does not displace representation; rather, conduct under law competes with political accountability as a ground of representation. The judge s conduct must make visible a claim of right, but the judge does not represent the holder of that right. Different judges do not represent different interests or constituencies. It does not violate our sense of political representation to describe a congressman as representing only a part of the whole, whether particular constituents or particular interests. The political institution as a whole—Congress—represents the whole, while each member may represent only a part. Each judge is analogous to the whole of Congress. The individual judge always represents the entire political order as a system of law. Section one of the opinion distinguishes between two claims of authorization: political and legal. Section two distinguishes between two forms of representative conduct: discretionary and judicial. Section three shows how a claim to give voice to the law can be a claim to represent the people. The Courts assertion of representation .always verges on a claim of identity with the represented. The voice of the Court moves ineluctably toward the voice of the people. The appearance the Court creates is seen through, yet it never completely disappears. Reading the opinion moves us toward a transcendence of the very distinction of representative and represented from which all power in a democratic order flows. Were the distinction to be transcended, the Court would become a revolutionary actor: it would claim to be the people. Laws threat to transcend representation is no less real than the threat posed by the charismatic political actor who tries to appear as the embodiment of the people. Representation is always a fragile construction, whether the representative claim is made by the elected official, the court, or the citizen-soldier. The risk is not just that we fail to see the represented in the representation but also that we will see only the represented. The three sections of the opinion move generally from authorization to conduct to identity. Representation is always a kind of identity in difference: it is a presentation of the represented in and through the representative. Section three is not simply an inquiry into this identity in difference; it is the accomplishment of this identification. To represent the people requires the Court to create a perception of itself by which the perceiver can see through the Court to the people. The Court conceals itself in making the people appear. WHOSE OPINION IS IT?

How then does a court of appointed judges, led by an Adams appointee who was himself deeply involved in the political struggle that is the source of the

209

210

Law and Representation

controversy before the Court, create an appearance of itself that can persuade its audience that the Court s voice represents the people? The first striking aspect ofMarbury is a land of word play in the Courts use of the term opinion. There is a subtle identification of the opinion of the Court with the opinion of the people: 'That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected."7 Not coincidentally, both the people and the Court have an opinion. The opinion of the Court is to make appear the opinion of the people. The opinion of the people, as it is represented in the judicial opinion, is an effort to control the future: to limit novelty and thus stabilize the political order. The reaching back of the Court to the founding, therefore, coincides with the reaching forward of the people. This convergence makes possible the realization of the peoples "design," which is that the "principles" they set forth be "permanent."8 The peoples opinion set forth "principles" that are constitutive of the "American fabric." These principles are established for the sake of a "future government." They precede and limit such government. They establish the order of, and thus give shape to, the American polity. They provide a permanent order independent of the subjectivity of transient individuals. In the Courts view, principles refers literally to the Constitution as a legal instrument to be given force and effect in judicial proceedings. Any aspects of the people s opinion apart from what was established in the Constitution have disappeared. Unrecorded opinion is as ephemeral as the individuals who happened to have held those opinions. Within the judicial opinion, then, laws foundation appears as the opinion of the people. The opinion of the people is represented as the foundation of the American political order. This opinion mediates between revolutionary action and the rule of law. If revolution did not end in opinion, the rule of law could not have its origin in popular sovereignty. Opinion stabilizes the people and thereby makes possible their representation in a permanent law. The temporal character of the opinion of the people includes an idea of chronological priority, as well as of permanence. This is captured in the ambiguity of the Courts reference to an "original right" of the people to establish principles in accordance with their opinion. Original refers to a founding moment but also to an inalienable right. The political fabric emerges from an earlier opinion of the people. The inalienability of the right to an opinion, however, gives this earlier opinion a permanence as well. Because the people always have the right to form a new opinion and thus start their political order all over, the stability of the political order is indicative of the stability of the

The Opinion of the People

opinion of the people. From the perspective of the existing legal order, the founding opinion is also the permanent opinion. The opinion of the people is the temporal foundation of the legal order and simultaneously the conceptual ground of the authority of the judicial opinion. The authority of the opinion of the Court rests on its appearance as a representation of the opinion of the people. The opinions of the Court are the appearance of the opinion of the people in the historical progress of the state. Thus, the judicial opinion makes appear an originating opinion that is also a permanent opinion. The Court does not explain why its representation of the people should have authority over competing representations. It does, however, place this contest of representations on a level playing field. The rule of law is no less a representation of the people than is political action by elected officials. Opinion is ordinarily a hidden thing, a private possession. Ordinary opinions are not only private, they are ephemeral. To achieve stability in private life, we often think that we need to move beyond mere opinions. The opinion of the people, however, has the opposite characteristics. In and through law, opinion becomes our most public possession. The opinion of the people appears now as the source of public order and permanence. The opinion of the Court, therefore, represents a prior—in the double sense described above—opinion of the people. Ideally, the opinion of the people and that of the Court would coincide. The opinion of the Court would be wholly transparent to the opinion of the people. This ideal can never be reached. As a representation, the opinion of the Court is always an interpretation; it can never completely shed its interpretive particularity. It is always open to reconsideration. The opinion of the people, on the other hand, always possesses an expanded temporality and locus. It is past and permanent; there and everywhere. Yet it must appear; it is re-presented in the judicial opinion. The claim of the Court to represent the opinion of the people is among the most important developments in the creation of the American political order. The shift of the ground of political authority from institutions of government—such as the monarch—and patterns of customary practice—feudal rights and responsibilities—to popular opinion is characteristic of eighteenthcentury thought. In 1792 Madison wrote: "All power has been traced up to opinion/*9 This shift is the culmination of a number of intellectual developments, including an Enlightenment idea that government should be a product of reason, an emerging norm of equality between those inside and outside of government, and a search for a form of authority that respects individual freedom. The opinion of the people never appears with the irrationality that often characterizes private opinions. Madison continued his comments on

211

212

Law and Representation

opinion by expressing his view that "the public opinion of the United States should be enlightened." Moreover, everyone can have an opinion and thus a voice in the creation of popular opinion. If popular opinion appears to be the product of individual opinions, then authority does not stand apart from individual freedom. Of course, nothing guarantees the actual coincidence of popular opinion with any particular individuals opinion. Opinion appears, then, as the point of intersection of reason, equality, and liberty. These are justifications for turning to opinion as a matter of normative political theory. They are not claims about any particular opinion, actual or potential. That any particular representation of popular opinion satisfies these norms is always debatable. Opinion is not self-validating, nor even self-proclaiming. Every explanation of the state of popular opinion is itself controversial. Shaping the normative authority of opinion into a stable form of government is, therefore, a considerable task. Opinion can fuel revolution as much as it supports law. The political developments of the eighteenth century show that the authority of popular opinion—whatever its theoretical justification—is an extremely dangerous and volatile political force. Whoever claims to speak the people s opinion presents a claim to authority. This is another form of the ubiquitous character of representational claims in a system of popular sovereignty. The people s opinion recognizes no bounds in advance; it can stand opposed to all institutions and all practices of government. Popular opinion can appear at any point and challenge any assertion of authority. The mobilization of popular opinion against the institutionalized representatives of government is a constant possibility, as well as an actual theme of American politics. The fear of such a turn in popular opinion led, for example, to the Adams administrations misstep in the Sedition Act. Here, an effort by government to control popular opinion contributed to the government s own downfall. Popular opinion turned on the would-be censor.10 In the early American polity, the Marbury Court makes an audacious political claim to represent the opinion of the people. This sets the American polity on a course never achieved in France, which contemporaneously experienced the same sort of revolutionary effects of popular opinion.11 In America, the rule of law becomes identified with the peoples opinion. At this moment in Marbury, law claims the revolutionary heritage. The opinion of the people, represented by the Court, can now stand opposed to any other manifestation of popular opinion. Short of successful revolution, no one can make a stronger claim to political authority—although others may make an equal claim. The dual character of opinion, as that of both the Court and the people, not

The Opinion of the People

only links the Court and the people through the law; it is central to the creation of each as they emerge in the American polity. What is the Court? It is not a changing collection of individuals, each with their own subjectivity and private opinions. Nor is it a fortuitous collection of people who have survived a political process of appointment. There is only one Court—a permanent body—even though different individuals are authorized to sit on it. The Court is the institutionalized presence of the dual opinion. The permanent Court exists only in and through its opinions. Those opinions are permanent because the opinion of the people, which they represent, is permanent. Thus, the Court is at every moment responsible for all it has ever said. It can negate a former opinion, but only with difficulty and never on the grounds that the Court has new members who happen now to disagree with the opinions of those who previously served on the Court. "[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided."12 If a mere difference of opinion were enough to change the law, then the rule of law would become the rule of men. Similarly, the opinion of the people allows a transtemporal identification of all citizens. Without this opinion, what would link current citizens to past and future generations? Not blood, not language, not even a common heritage. This is a nation of immigrants, with deep differences in each of these areas. Geography is not enough; we need to know what constitutes the political unity of a given territory. To speak of a common history begs the question. Why is there one history and not many? Why are differences seen as disagreements over the interpretation of a common history, rather than differences in land? Before there can be a single history there must be a single people. History as the narrative of a single people is an achieved end, not a given. The American people find their point of unity in the opinion of the people. Those who hold this opinion about the foundation and organization—the fabric—of the political order form a single, collective subject. It is one people— past, present, and future—because they all have the same opinion.13 Because it is one people, history appears as a single story, rather than a splintering of groups and a diversity of events. This history then lends its unity to geography, creating a land out of mere place. Opinion defines the boundaries of the historical entity that is the state. The state begins and ends with the opinion. The nation s history is the appearance of this opinion in actual time. Before this opinion, there was a different state. Similarly, the people exist only as long as the opinion does. When that opinion changes, a new foundational act will be called for. A new people, defined by the emergence of a new opinion, must create a new state, or the rule of law becomes a form of oppression rather than an undertaking of self-government.

213

214

Law and Representation

The opinion defines not just the temporal but also the geographical reach of the state. The boundaries of the opinion are the boundaries of the state. This opinion defines each institution and citizen as a part of "the people." When law is enforced by violent compulsion, the Court is no longer representative, and the rule of law is not the rule of the people. The opinion of the Court no longer appears as a representation of the opinion of the people—at least, of a people in which the citizen-subject participates. This may not be the end of rule by the Court, but it is the end of a democratic rule of law. The opinion of the people is the foundation of the political order, viewed from the perspective of law. Opinion and law are linked at the origin of the state and at every moment thereafter. The opinion of the people established the permanent law; this is the fabric erected by the people in 1787. The opinion of the Court tells us now what that law is. The Court must declare, in its opinion, the opinion of the people. Opinion is, therefore, simultaneously the object known and the act of knowing by the Court. The temporal unity of the state is law, and the unity of law is located in the dual nature of opinion. Ideally, under the rule of law, opinions product is law and laws foundation is opinion. Thus, when the Court writes that "[i]t is emphatically the province and duty of the judicial department to say what the law is," it is simply stating this identification.14 This understanding of the Courts role seemed so compelling that just a few years later, Justice William Johnson, Jefferson's first appointee to the Court, could write: "Of these laws the courts are the constitutional expositors [L]aws have no legal meaning but what is given them by the courts to whose exposition they are submitted."15 The permanence of law—and without permanence there is no law—depends on the possibility of the Courts opinion. But the possibility of an opinion of the Court, which is not another novel act of politics, depends on the appearance of a permanent opinion of the people. To stand within the law is to stand within this circle of opinion, law, opinion. Opinion and law form, therefore, a single whole. Without the opinion of the Court, law itself would be destabilized. To stabilize law, however, the Court must stabilize the opinion of the people. Law in a democratic polity can have no more permanence than the people themselves. The permanence of the people, like the permanence of law, has no home outside the opinion of the Court. Indeed, in the end they are one and the same: permanence is a function of the Courts exercise of power. It does not exist outside of or apart from the judicial function. More precisely, a political permanence outside the courts and the rule of law would be a different phenomenon: perhaps a Volksgeist or a familial bloodline. To imagine a permanent opinion of the people outside of its appearance in the opinion of the Court is impossible. We

The Opinion of the People

cannot even be sure of the stability of our own opinions, let alone those of an extended, intergenerational subject. The opinion of the people without the Court would become a hidden, transient phenomenon, just like our own opinions. Marbury sees the threat of instability to law coming from the other branches of government. Jefferson may claim to follow law, but his actions implement a politics of novelty and change. To give them effect would be to displace the rule of law by political acts of discretion. This is the conclusion of the first two parts of the opinion, which argue that there must be a legal remedy for the Executives violation of legal rights. Marbury, however, sees the same threat coming from the legislature. Unless the Courts opinion can make the permanent law appear, "the legislature [threatens] a practical and real omnipotence."16 The suggestion that legislative omnipotence is not the rule of law may appear startling to those not already in the grasp of Marbury*s argument. After all, English jurisprudence—the original home of the rule of law—affirms parliamentary supremacy. Arguably, the Framers too connected legislative supremacy to the rule of law. The Constitution puts in the legislature the ultimate power to make law, even in the face of a presidential veto.17 Moreover, Marbury itself recognizes legislative power over the jurisdiction of the federal courts. Together, these seem to give the legislature a "practical" omnipotence. Nevertheless, Marbury claims that the omnipotence of either of the "political" branches is not the rule of law. The Court detaches the rule of law from ordinary, representative politics but not from a politics of representation. Marbury does not suggest that the Executive and the legislature have failed in their representative capacities when they threaten laws stability. Jefferson's threat to Marbury s legal right is a function of the president s representative claim. Indeed, the real threat to the rule of law comes not from these political institutions but from the people themselves. To save law from the people requires a new representation of the people, beyond the boundaries of the ordinary claims of representative politics. Law now represents the opinion of the people, while representative politics represents, at best, only popular opinion. The former is permanent; the latter ephemeral. The success of the rule of law in America can be measured by our feeling that popular opinion is a land of bastard relative of the opinion of the people. The Court, then, responds to the novelty of political action—both the representatives' and the citizens'—by representing a permanent opinion of the people. The existence of a representation, of course, tells us nothing about the existence of the represented.18 The analysis of law is a description of appear-

2IS

216

Law and Representation

ances. The power of the Court ultimately depends upon its ability to make the text it produces appear to be the opinion of the people. The opinion of the Court is the representation of the opinion of the people because and as long as it appears to be. It can have this appearance only as long as we have faith in the foundational act of the popular sovereign. When we lose that faith, all that we see is nine individuals writing texts of varying argumentative quality. When that is what we see, we cannot understand why those nine individuals' opinions should bind the duly authorized political representatives of the people, who regularly stand the test of popular opinion. The opinion of the people is not a fact to be discovered either through current opinion polls or historical research. There is no independent access to the "truth" that makes an appearance in the opinion. The opinion of the people exists nowhere but in the interstices of the "opinion of the Court." The rule of law is an appearance that cannot be pierced. At least, it cannot be pierced without undermining law itself. Neither the presence of the individual Justices, nor the absence of the people—the represented—can be disclosed without undermining the rule of law. Law is not "improved" by moving from the appearance to reality. It is not improved by trying to understand the complex factors that effect, or even determine, each Justice s opinion. It is not improved by looking at historical data concerning popular opinion in 1789 or 1865 or at any other time. This does not mean that no one apart from the Court can voice an opinion about the opinion of the people. Even within legal discourse, diverse interpretations are possible. To argue about the opinion of the people is to engage in an imaginative act of opinion writing. One argues not about a historical fact but about the interpretation of law. One does not participate in this debate by appealing to data on the views held by diverse individuals and groups in the past. Historical data are admitted only in stylized forms. Law has its own canon of valid sources. No matter how convincing a demonstration is made about the historical errors in the Courts representation of popular opinion, those judicial opinions represent the opinion of the people. Similarly, legal argument allows no place for data respecting current popular opinion. Neither historians nor pollsters have the authority to represent the law, no matter how strong their claims to expert knowledge of popular opinion. The Court has successfully made a claim to represent the opinion of the people. Everyone else who claims to represent the people s opinion is talking about something else: mere popular opinion, not the permanent opinion of the people. Apart from its representation in law, the opinion of the people does not exist. If one looks for it, all that will be found is a collection of opinions of individuals, parties, and groups about which we can be better or worse

The Opinion of the People

informed. These opinions have no direct importance to the rule of law. They may serve the historian as explanations for particular actions at particular times. They may even offer historical explanations of judicial conduct. But they do not have the status of law. Actual opinions come at diverse levels of generality, are subject to no formal limits, and are often contradictory or inconsistent. They do not "naturally" aggregate into a single coherent view that would be capable of founding anything, let alone law. Moreover, legal propositions do not follow as a matter of deductive logic from any given set of opinions, unless we formulate the issue for opinion as itself a proposition of law. This is sometimes done in the form of a referendum, but referenda are disfavored mechanisms of law precisely because of their instability. They invite action rather than permanence; they make the form of law only another field for popular action.19 Even if a referendum results in a legal proposition, it must be applied by the courts. This will inevitably re-create the problem of interpretation. A politics of representation is generally skeptical of its own currency— claims to represent the people. Multiple institutions of representation are established in order to contest any single claim to represent the people. For this reason, procedures for political decision making do not require the resolution of competing claims to represent the people. We know the consequences of a vote, for example, even when we don't know the reasons for it. Congress* passage of a bill is effective, even in the absence of any common opinion. So too is the election of a representative. Because a decision has been reached, we can speculate about the opinion that "must have led to that result." In these examples, the decisions precede the appearance of the opinion. But in law, opinion always precedes decision, not just as a fact but as a basis for the authority operating within the appearance created by the judicial opinion.20 Political actors regularly appeal to popular opinion. To claim to represent popular opinion is often an effective rhetorical technique. More than that, it may even be a valid claim, supported by public opinion polls or validated in the next election. But the popular opinion that supports the political actor is not the opinion of the people that founds law. These representational claims may not intersect at all. We cannot measure one against the other, as if they are competing efforts to set forth a common object. To accuse the Court of factual error in its representation of the opinion of the people is to make a category mistake. There is nothing for it to be mistaken about. Only the Court can correct its own errors, because until it identifies a mistake, there is none. Opinions may be bad, even evil, but they are not mistaken.21 In Marbury there is just such a mismatch: Jefferson represents popular

217

218

Law and Representation

opinion, while the Court represents the opinion of the people. Neither claim is wrong. These claims to represent the people can exist side by side because they are doing different things. When assertions of power conflict, we cannot tell in advance which claim will turn out to be stronger. Will we see ourselves in a representation of the opinion of the people or in a representation of popular opinion? In retrospect, we erect monuments to both Jefferson and Marshall. The rule of law, then, is the appearance of the opinion of the people. The sovereign people do not make law as a representation of themselves. Rather, the Court makes the sovereign people it purports to represent through the creation and maintenance of an appearance: the opinion. The people have a permanent opinion because the Court writes an opinion. The writing of the opinion is not a gratuitous addition to the authoritative decision of the Court. It is not there simply to serve as a guide for lower courts or as an explanation to the concerned parties (or potential parties). The Court s function is not first to decide cases by virtue of its authority and then to write opinions. Rather, its function is to write opinions. On that function rides the issue of whether we have a government of law or of men, because only through the judicial opinion can we have a government of law that is also a government of the people.22 The representation in the opinion of the Court of the opinion of the people powerfully challenges the claim of either the legislature or the Executive to be the primary institution of political representation. This is not because the opinion of the Court is in some objective fashion more representative of the people. This would be a nonsensical claim. There is no access to this represented outside of the representation. The power of the Court is, rather, a function of a unique capacity of the judicial opinion to suppress the distinction of represented from representative. In chapter 5,1 described the variety of means by which the rule of law suppresses the appearance of the particular judge. These include the concealment of authorship, the disavowal of knowledge or experience outside the courtroom, and the ritualization of courtroom procedures. Life tenure is another means of concealing subjectivity: judges have life tenure because they are to appear to have no subjectivity at all. If nothing depends on who they are, there is no reason for them to leave. A set term would only make visible the particularity of the individual judge. None of this is true of the claims of representation made by the legislature and the Executive. The accountability of elected representatives to the political process keeps visible the distinction between represented and representative. A representational claim based on electoral authorization is, on its face, a transient claim. Elections emphasize the competitive particularity of

The Opinion of the People

the representative. Political opposition is often strong. Political opponents work to demonstrate the disjunction between representative and represented. Only the Court moves in its representational claim toward a negation of itself. The Court is to be nothing at all. It is to represent purely. Ideally, it is the space within which the people appear. The judicial representative has no presence, no independent subjectivity apart from the represented. This position can never be realized, but it is the position toward which the logic of the rule of law moves the Court. The Court confronts the political representative with the opinion of the people itself. In its systematic pursuit of the negation of its own subjectivity, the Court carries the logic of representation—the making present of an other—to its conclusion. It goes to the border of, but not beyond, a politics of representation. It does not claim to be the people; it does not quite enter a politics of instantiation. THE APPEARANCE OF THE PEOPLE The Courts claim to represent the "opinion of the people" against competing representations is the ultimate strategy of law in a democratic polity. But how does the appearance that the Court presents show itself as the opinion of the people? The Court must do more than suppress its own particularity and the individual Justices* subjectivity. It must affirmatively re-present the opinion of the people. The opinion of the Court is first of all a text. Unlike other texts, however, the judicial opinion appears to be an act of reading. Within the opinion itself there is a replication of the relation between this text and its readers. The text that is the opinion is simultaneously a reading of a previous text. Law never penetrates the written appearance to get to the thing-in-itself, the opinion of the people. Law never escapes the domain of reading. That which "the people" failed to write down has already been "forgotten." This is the reciprocal implication of the proposition put forward in Marbury connecting memory and text: "[T]hat those limits [on government] may not be mistaken, or forgotten, the constitution is written."23 Because the judicial opinion is a reading of a previous text, it is appropriately characterized as commentary. Commentary takes as its object another text, and its authority always derives from that earlier text. This movement backward in search of authority is balanced by a movement forward. Every commentary can itself become the object of yet another text. Indeed, every commentary is written with the expectation that it will be taken up by other

219

220

Law and Representation

commentaries. There is no last word, even though there is a first word. No commentary can be final because authority is always located outside the text of the commentary itself. The judicial opinion fits this pattern. Each opinion resolves a problematic situation by setting forth what the law is. This is itself a reading of an earlier text—a reading that may be aided by earlier commentaries. Each new opinion is only a moment in a continuing stream of commentary. Each opinion will be taken up by future opinions. We are not just a people with a text; we are a textualized people. No opinion can announce itself as the final, authoritative representation. To do so is to forsake commentary; it is to claim instead to be the thing represented in commentary—the authoritative voice.24 A court has no power to entrench its own current opinions. Neither does a legislature have the power to entrench its own legislation, but that is because the legislature cannot privilege present popular opinion over future popular opinion.25 For the Court, entrenchment denies the character of the opinion as commentary. Commentary can pursue progressively refined interpretations. On this view, understanding moves forward in small increments, each of which must hold onto what came before. The piling of commentary upon commentary can appear as erudition: to understand the original text one must devote a lifetime to understanding the commentaries. Opposed to this idea of progress is the countermove of a return to the original text. What appeared as progress can also appear as an ever-increasing distance from the authoritative source. When erudition appears as distance, commentary will eventually take the form of a re-presentation of the authoritative text. Returning to the text itself becomes an alternative to the obfuscation of endless interpretation. Yet when commentary takes this form, it will inevitably be criticized as naive, as failing to appreciate the learning that has built the corpus. Neither view of commentary can control the other. Commentary is an appearance of one text through another. As an appearance, it both reveals and conceals. The double movement in commentary is a repetition of this structure of appearance. The dual nature of commentary has important consequences for the relation between the rule of law and the voice of the Court. The number of volumes of judicial reports increases endlessly. Each new opinion takes its place in the development of judicial commentary. Nevertheless, the proliferation of commentaries is never identical with improvement in the law. Because the judicial opinion is always the representation of an earlier text, the assertion that law improves as commentary increases undermines itself. Progress is always in tension with return. Commentary's aim is to overcome the distance be-

The Opinion of the People

tween itself and its object. It can never be settled whether this distance is closed by accumulation or return. In fact, commentary does not have just two valences; it is multivalent. Because commentary draws its authority from another text, no commentary contains intrinsically more authority than any other. Consequently, the possibility of undermining one opinion by returning to another is always available. The whole spectrum of commentary remains potentially available. Each can be reread; each can appear as a manifestation of the authoritative text. Each can become, therefore, a point from which we may judge the present. Every commentary is simultaneously vulnerable to alternative interpretations and a potential source of an authoritative appearance against which to measure other commentaries. In law, no precedent ever wholly leaves the canon. Each retains its quality as a potential, if not actual, representation of the opinion of the people.26 This is not true of other political events. Old statutes fall into desuetude and are best abandoned.27 It is inconceivable that a legislature would seek to discharge its representative responsibilities by recovering old statutes. Popular opinion, represented by the legislature, is time-bound; the opinion of the people is not. Because it is commentary, a succession of judicial opinions can never wholly displace a new turn to the original text. The Constitution remains a text that can be consulted in its immediacy; it remains an object to be read. In this respect, it is like the Bible: both are texts that can be read again and so read anew. Each new reading becomes another commentary that will itself be taken up by other readers in future commentary. The original text has no power to resolve conflict and debate over its own meaning or to stop the development of further commentary. A text is only one strategic resource, even when the debate is over the meaning of that text. The authority of the text is an authority within an appearance that is commentary. By a different route we have reached the same point that appeared in my analysis of judicial strategies in part III: the Court creates and maintains the permanent Constitution. The Constitution creates neither the Court nor the judicial opinion in which the rule of law appears. A written constitution does not produce a single, unchanging legal order. It begins a tradition of commentary that both sustains and stabilizes conflict. This tension in commentary between progress and return is not a challenge to laws rule but a setting of the boundaries of the enterprise of maintaining law. Wide disagreement becomes possible within a common enterprise. Pluralism is the inevitable result of an authority built around an original text. Each side to a dispute affirms its commitment to a common text. Indeed, each side is

221

222

Law and Representation

committed to maintaining the appearance of laws permanence, despite disagreements and conflicts. The Court is reluctant to identify contradictions that require explicit overruling of earlier cases. In most instances, it is content to allow the pluralism and multidirectional character of commentary to continue. Most Justices move freely between the interpretive methods of progress and return. Often, both methods will support the same result.28 When there is a conflict, one side or the other can be ignored. No test of consistency is applied. There is no measure of authority outside the Court s own performance. The dramatic constitutional changes of the New Deal, for example, teach us that dissident views within law need not splinter the appearance of the permanence of law. Every Court represents the opinion of the people, regardless of how much it rejects the work of its predecessors. Franklin Roosevelt eventually got the Court he wanted. That Court did not claim an authority based upon the novel political events of the 1930s. It did not claim that the people had spoken with a new voice in 1936. It claimed instead to be recovering the authoritative text; it turned away from misplaced erudition.29 What had been sophisticated categories of legal understanding became "metaphor" and "nomenclature/'30 Of course, the opinions that were superseded spoke no less of the appearance of laws permanence.31 The Court created the appearance of return and thus of the permanence of law. The historian can give an alternative account of these changes, focusing on novel circumstances and shifting power within the larger political body.32 None of this, however, appears within the opinion itself. The opinion purports always to be the re-presentation of the permanent opinion of the people.33 THE PEOPLE PERCEIVED

Commentary may be erudite but it should not obscure. The truth it sets forth is the truth of the original text. A perfectly clear commentary would wholly suppress its own appearance as commentary. Nevertheless, by its very nature, commentary stands between the reader and the original text. It can therefore always appear to conceal what it should reveal. Commentary thus creates a dialectic of concealment and disclosure. This dialectic displays itself in the strategies of erudite elaboration and return to origins. The choice of strategies depends upon the character of the surrounding commentary, the nature of opposing claims, and the habits of argument of those who occupy the Bench. As opinions increasingly become commentaries on other opinions, the problem of distance from the original text arises. Critics will assert that instead of representing the opinion of the people, the opinion

The Opinion of the People

of the Court represents nothing beyond the doctrinal complexities created by the Court itself. Doctrinal erudition will eventually call forth its opposite, the return to origins. If we look at the most controversial doctrines of the late twentieth-century Court—the equal protection and the right to privacy cases—we find a pattern of erudite elaboration. The responsive critique deploys a strategy of return.34 Although a strategy of return is today marshaled in favor of a conservative critique of the Court, that same strategy was used by Justice Holmes to critique the Lochner Court s elaboration of sophisticated doctrines of federalism and substantive due process.35 Marbury demonstrates a strategy of return. The original text, the Constitution, is said to appear with an immediacy that requires no commentary at all. In a paradox of power, the Court denies that it is even reading the Constitution. Marbury seeks to create an appearance of "just seeing," even when what it sees is a text. Marbury purports to be the direct appearance of the Constitution. Rhetorically, Marbury asks: "[O]ught the judges to close their eyes on the constitution?" It answers that the "courts are to regard the constitution." Or again, "[T]he constitution must be looked into by the judges."36 One need not learn how to read this law; it need only be sighted. Reading introduces the possibility of error; sight is pure. The knowledge the Court purports to have of the opinion of the people is not esoteric. It is as ordinary as the people themselves. It is simply a matter of perceiving directly what shows itself to all. According to Marbury, once seen, the law speaks of its own accord. The words of the Constitution have a "plain import." The constitutional text has an "obvious meaning." Repeatedly, the Court writes that all that is required to decide the case is open eyes: "Those ... who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law." Even the Courts formulation of the interpretive rule that no passage of the authoritative text can be rendered "mere surplusage" is a variation on this theme of sight. To render a clause surplusage means to remove it from sight, to treat it as if it did not exist. Similarly, the Court writes as if, were we to look directly at the Constitution, we would have to agree with the opinion s conclusion regarding judicial review. That power is "essentially attached to a written constitution [and] is not therefore to be lost sight of in the further consideration of this subject."37 What is essentially attached cannot help but be seen. Marbury cites not a single precedent nor any other source of existing commentary to support its conclusion on judicial review. This is not because Mar-

223

224

Law and Representation

bury is an early opinion, written before there was a substantial body of judicial precedents. Marbury is about the relation of courts to the rule of law and, more broadly, of courts to the political order. There were many precedents that could have been discussed, had the Court been interested in displaying its own erudition. Colonial and state courts had already addressed this problem.38 Moreover, the Court could have turned to nonjudicial sources of commentary: the history of the colonial experience, the expectations and writings of the Framers, or the philosophical discourse on the rule of law. When the discussion turns to the appropriateness of a writ of mandamus, for example, the Court does not hesitate to offer an erudite commentary on the statutory text.39 The Court displays a similar erudition in its explanation of Marbury s right to his commission. It pursues hypotheticals, precedents, and analogies.40 It never suggests that an answer can be found by "just looking." Yet the Court purports just to look at the Constitution and to see directly. What it sees is "too plain to be contested."41 What appears plain and obvious to the Court will appear the same way to the reader. The opinion reveals directly the object seen; it brings the Constitution into the light. Seeing the Constitution, we shall share the opinion of the Court. The opinion of the people coincides with the opinion of the Court because no interpretive distance appears between the object of knowledge—the Constitution—and the knowledge itself—the opinion. The opinion is only the perception. The Court does not refer to a separate, earlier act of seeing that it is now describing for a third party. Rather, it presents what it sees in the very act of seeing it. With respect to the object perceived—the Constitution—each reader stands in exactly the same position as the Justices. To read the opinion is to engage in an act of perception alongside the Court. This convergence of Court and reader is marked in Marbury by the literal transfer of the act of seeing from the Court to the people: "in America, where written constitutions have been viewed with so much reverence." This reverential seeing of the Constitution, shared by Court and people, will defeat the "doctrine" that "declares" judicial review contrary to the Constitution. The false doctrine speaks, while truth is immediately perceived. Speaking is required to make something seem other than it is. This doctrine "would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory."42 The deceptions of doctrine require speech—the domain of interpretive possibility. To defeat false doctrine one needs only clear vision. Thus, the authority of the Constitution is transferred from the original text to the judicial opinion through a claim of immediate perception. The Courts claim to represent the people now approaches a claim of identity. If the Con-

The Opinion of the People

stitution need only be sighted to be understood, all who stand in its presence—drafters, ratifiers, judges, or citizens—share a common opinion. This is true regardless of the chronological moment of perception. Those who see the Constitution today stand in the same relation to that text as those who saw it at the moment of its creation, as well as all those who ever have or ever will see it. The unity of the object creates an identity of perception through time. As long as clear vision can suppress the speech of doctrine, the permanence of law is secure. Speech divides; perception unites. We need only continue to view with reverence. This appeal to vision, of course, comes at the end of a long and complex course of speaking by the Court itself, all in the service of doctrine. No judicial opinion is a richer source of constitutional doctrine than Marbury.4$ Marbury overwhelms us with speech and then, in a final ironic twist, claims it is all as simple as exercising clear vision. The extreme complexity of the opinion slips from perception at the final moment. When the Court actually exercises its authority and intervenes in the conduct of another branch, it shifts from a claim of legal expertise to one of direct sight. Not the complex process of interpreting an obscure written text but the immediacy of sight grounds the authority of the Courts opinion. The Court is in a powerful position to make the meaning of the Constitution appear to coincide with the visibility of the Constitution, for it controls the text of its own opinion. What is seen by the Court appears only in and through the opinion. And it is through the opinion that the reader sees what the Court sees. The Court can suppress alternative readings; it can declare that something that may not be clear at all is perfectly clear; it can claim that the meaning it sees is "the plain import." For example, Marbury has long been criticized for failing to make apparent the text of the exceptions clause of Article III.44 What the opinion fails to sight does not appear at all. In spite of the Courts claim of perception, what is seen is a text. The perception of text is always an act of reading. We know this, even as Marbury suppresses this knowledge. Reading is never as simple as "just seeing." No legal text is so clear that we need only sight it to understand its meaning and application. The judicial opinion is never just a repetition or a re-presentation of the Constitutional text. Not sight but speech appears in the legal opinion. At the end of this speech, we may see the world in a certain way. If the opinion is successful, when we look to the Constitution we shall see what the Court tells us to see. Yet this is hardly a matter of direct perception. According to the Court, however, understanding the Constitution requires no legal expertise.45 Other legal texts and events may require interpretive erudition but not the Constitution. The common-law text, for example, was not

22S

226

Law and Representation

similarly visible. But then England was a government of law long before it was a government by the people. The suppression of interpretation in the perception of constitutional text borrows uneasily from the metaphor of sight. And although the language of sight is used, the hierophantic quality of the text—it is viewed with reverence—overflows into the imagery of grace. Too much reasoning (doctrine) obscures what we must know if we are of pure heart, open mind, and clear vision. The immediacy of the meaning of the Constitution reminds us of the early Protestant claims for the immediacy of the biblical text. In each case, erudition gives way to a reverential seeing that is, in turn, the foundation of all future interpretations. Faith founds interpretation. Marbury's commentary on the Constitution demonstrates the power of a strategy of return, of direct perception of the authoritative text. McCulloch v. Maryland shows us the early Court displaying the opposite strategy.46 It is as fine an example of the strategy of erudite commentary as Marbury is of return. McCulloch even begins with a warning that return may often be a naive approach to constitutional meaning: [I]t is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.47

McCulloch's famous warning that "we must never forget, that it is a constitution we are expounding" is a direct response to the critic who wants merely to look at the Constitution. Not sight but interpretive exposition of doctrine is required. Sight alone is inadequate, for with respect to most questions there is no text to be seen. Were a constitution to try to respond in advance to every question that could arise, it would "partake of the prolixity of a legal code, and could scarcely be embraced by the human mind." What can be seen can never be more than "its great outline." This alone is "marked"—visible—while all the "minor ingredients" must be inferred from "a fair construction of the whole instrument."48 Controversy is likely to lie in the details. In McCulloch, the difficult questions arise only after perception has exhausted itself. Thus, the Court writes: "The principle, that [the federal government] can exercise only the powers granted to it, would seem too apparent to have required . . . arguments." But this appearance is only a starting point.

The Opinion of the People

"[T]he question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise."49 Answering this question requires inquiry into history and elaboration of political principles, as well as deductive arguments. McCulloch returns to this contrast of a legal code and a constitution a little later, rooting the distinction in the inadequacy of vision across time. To understand the text we see—here, the clause giving Congress the power to "make all Laws which shall be necessary and proper"—we must keep in mind the interpretive problems created by the temporal dimension of the state. Authority flows from the text, but every return to the constitutional text creates a risk of jeopardizing the present by binding it to the past. Progress in interpretation of the text is required because the state itself is progressing through time: This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.50

Instead of clear vision resolving constitutional questions, the sight at the center of McCulloch is the obscure vision of the future. McCulloch goes even farther when it suggests that words themselves create a problem of interpretation that will always exceed the bounds of perception: "Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense."51 The "figurative" sense of a word can create a false appearance. If words are used figuratively, then perception alone can never yield the truth of the text. Truth now lies in the interpretation. Once McCulloch raises to the level of self-consciousness the proposition that what is being looked at is a text, the language of sight deployed so successfully in Marbury shifts ground. What is seen in and through the opinion is no longer the text itself. The visible and the invisible change places: "This effect [of a supreme government to remove all obstacles to its action] need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution."52 This same shifting of sight from the visible to the invisible—to that which is produced by the elaboration of commentary—allows the Court in McCulloch to abandon the first principle of a strategy of return articulated in Marbury: that

227

228

Law and Representation

no element of the text can be rendered "mere surplusage/* Thus, McCulloch concludes that the "necessary and proper clause" makes no contribution to the meaning of the Constitution, except "to remove all doubts respecting the right to legislate on that vast mass of incidental powers."53 It does not create powers or restrain a power previously given. It adds nothing to a correct interpretation of other provisions of the text. It is, in Marbury's sense, surplusage. Accordingly, erudite commentary can lose sight of the text without threatening its interpretive project. Text has become the source of false appearances. Contemporary scholarship tends to see all relations to texts, broadly conceived, as interpretive.54 Interpretation is modeled on the hermeneutics of reading. But not every relation to the written word is best understood within a model drawn from the complexity of reading. The Constitution is not simply an object for debate, in which some of the interpreters happen to have the additional characteristic of possessing the authority to compel adherence to their interpretation. The Constitution may also appear with the immediacy of perception. It is the object of a reverential seeing. Judicial authority is a product of this double movement of return and erudition. American constitutional law appears as the rule of the people. The Court creates an appearance of identity between its relation to the Constitution and the relation of every other member of the polity. One of the ways the Court establishes this identity is by showing the Constitution to be clear to sight. Although this sighting appears only in the opinion, the opinion would have us believe that we were capable of it all the time. Is there really an object perceived? Of course not. Do we ever really just see? No. Yet we obey the Court, and we believe that in so doing we give effect to a rule of law that is simultaneously the rule of the people. We live in and by appearances. We can now summarize all the elements that the Court must collapse into one another in order to maintain the appearance of a constitutional law that is also the appearance of the people, and of a judicial voice that is only the voice of the people. First, there can be no distance between the judicial opinion and the law. The opinion must present itself as simply making apparent a law that already exists. Second, there can be no distance between the law and the opinion of the people. Opinion (of the people) produces law and law founds (judicial) opinion. Third, the opinion of the court is the opinion of the people. There is no distance between the two because the Court s opinion is only the space in which the opinion of the people appears. Finally, the opinion of the people is the opinion of each of us. We each hold this opinion because we each stand in the same relation as does the Court to a common object: the Constitution. To read the opinion is, accordingly, to share the opinion, which is to be a part of the people. Each of these points of identity can become a locus of re-

The Opinion of the People

sistance as difference appears. Indeed, the pronouncements of the Court have been subject to endless controversy and critique along each of these lines. In spite of the critical fragility of the judicial opinion, the institution of the Court has been powerful in our history. Courts are attractive decision makers in our polity, even if we cannot entirely explain how or why they are so powerful. We have a habit of compliance with the law and this, above all else, makes the courts powerful. The measure of the Court s success, however, is only in part whether citizens comply with its pronouncements. Courts can be obeyed even in the most repressive regimes. There is no virtue in compliance alone. A better measure would be how well the Court s strategies accomplish their end of establishing and maintaining the rule of law as the appearance of the people. The multiplicity of strategic dimensions in which the judicial opinion works strengthens the Court. It can rely on its expertise or its direct perception; judges can rely on their presidential appointments or their knowledge of law; they can rely on a variety of rhetorical forms. Such flexibility may seem incongruous under the rule of law. Yet ultimately, law is only an appearance made by people. The law is not a single coherent enterprise but an environment that we create and that then surrounds us. The only test for the Court is practical, not theoretical. Do we see political order as the rule of law? We answer this question from within a contest for power. The Court functions on a battlefield in which every observer is also a participant. Theorists go wrong when they try to resolve these conflicts by proving one claim correct and the others wrong. Indeed, as soon as theorists make such assertions, they leave the domain of theory and become participants in appearances. They give up the position of the philosopher standing outside the cave surveying the whole of the political drama. The problem is not that they return to the appearances of our political life. This may be unavoidable. The problem is that they believe that theory has given them access to a truth about the people. To locate the people is to make a claim of power. It means contributing to an appearance, not revealing a fact.

229

Conclusion: Power and Knowledge in the Rule of Law

"The people" have displaced God as the source of political authority. A political claim to represent the people does not relate to a claim to represent God as a true claim to a false claim. Both are foundational beliefs for systems of appearances. Each is a matter of faith. The only truth either conveys is the truth that we live our lives among appearances that structure and give meaning to experience at every level, from the personal to the political. To reject the idea of truth for that of appearance does not imply that all such claims are simply post hoc rationalizations of essentially arbitrary assertions of power. Assertions of power appear arbitrary only from outside the political order. A claim to knowledge of God or of the people expresses the rationality of power within a political order. Each way of seeing supports a political practice. Political obligation does not exist in the abstract. Its shape is a function of how political meaning appears in a particular polity. Appearances are neither the product of free choice nor purposeful deceptions designed to mask the real character of power. They constitute the system of order in which power becomes possible and is maintained. Without that order, power would appear to be nothing more than violence. Indeed, when-

230

Conclusion

ever we do not understand the order of appearances, power appears as mere violence. This lack of understanding may be due to ignorance—for example, when we look at a foreign culture. Something similar happens when the claims of knowledge that had grounded the order of a polity come to appear as false beliefs. When there is such a breakdown in appearances, political and legal structures seem to be a means of entrenching an arbitrary distribution of violent capabilities. When, for example, the belief in the natural inferiority of certain racial groups broke down, slavery appeared as an arbitrary act of violence by some against others. Lincoln never tired of arguing that if whites could now enslave blacks, there was nothing to stop an inversion of this relationship in the future or, for that matter, the enslavement of some whites by other whites.1 To maintain slavery under these conditions of belief is only to systematize the fortuity that some people have the violent means to enslave others. The more recent reevaluation of the legal order from the perspective of changing beliefs about women's equality represents the same kind of phenomenon. Gender roles no longer appear as a representation of an underlying truth. They appear instead to be an arbitrary entrenchment of the violent capabilities of men. Violence may impose order upon a polity, but violence without the legitimacy of power can rarely maintain itself for long. The victims of violence will eventually resist. Their combined strength and capabilities for bringing the social order to a halt are likely to overwhelm the strength of those who rule through force alone. In the twentieth century, this has been the story of the dissolution of colonial powers and of the Soviet empire. Power becomes violence when the appearances that sustain it are recognized as false representations. Violence becomes power when a new system of appearances displaces the old. The appearances that are the object of knowledge operate equally on those who wield power and those who are subject to it. The distributional effects are not equal: some are slaves, some masters.2 But even slave and master can share a perception of order. This was Hegel's insight about the master-slave relationship. If there were no shared perception, the underclasses would be a perpetual source of revolution. Revolutions are rare because the underclass often shares in the same world of appearances as the upper. Similarity of belief can support wide separation in status and advantage. This, after all, remains true with respect to our own beliefs about private property and the government s obligation to protect it. An order of power begins to fail once those at different levels of society stop believing the same thing. When a society must coerce some of its members to defend or support others, it is already threatened from within. This in-

231

232

Conclusion

sight is as old as Plato's claim that the worst evil that can befall a city is disagreement about good and bad among its classes.3 Not everyone must believe exactly the same thing, but enough people must share the beliefs that support the basic political structures. Within those structures, there is room for disagreement but only about how to realize the meanings that the citizens already understand the political order to represent. The measure of knowledge in a political order is not truth but the willingness of citizens to order their own lives in accordance with its appearance. It makes no sense, for example, to say that Plessy (which upheld racial segregation) was false and Brown true. Plessy became false when neither the Court nor a substantial portion of the citizenry were willing to order their lives in accordance with the opinion of the people set forth there. To explain why such changes occur requires more than an examination of the development of legal doctrine. Law always stands within a larger context of belief—here, for example, beliefs about race, education, the role of government, and the integrity of the individual.4 Plessy may always have been evil, but the fact that it was morally wrong did not make it any less the rule of law. Of course, to many of its victims, Plessy may never have appeared as the rule of law. To them, Plessy may always have seemed an institutionalized form of the violence committed by the powerful on the weak. To these people, Plessy was always the rule of men, not law. This is another way of saying that blacks under Jim Crow were not part of "the people." The rule of law did not represent them; it was not their law.5 Convincing laws victims to believe in their own inferiority would not represent a moral achievement, even if it stabilized law. This kind of shared knowledge is all that separates power from violence. Sacrifice is not an act of violence against an unwilling victim. It can become that, but it begins as a willing giving of the self to maintain the whole.6 Power rests on shared belief; it is always the product of a discourse. That discourse is historically fixed. In politics, the possible is itself a product of the actual. The distinction between power and violence is not a moral one. At its best, the relation of power to knowledge creates the possibility of discourse, of argument about the appropriate uses of power. But the value of talk depends upon what we are arguing about, just as the value of violence depends upon the ends for which it is deployed. A polity that spends its time debating how to carry out an act of genocide may show us the relation between knowledge and power, but it does not deserve our respect. A polity that deploys violence to restrain genocide within another state may deserve praise even if its actions are outside the law. Knowledge is the internalized form in which power is experienced as le-

Conclusion

gitimate rule. Power, truth, knowledge are an inseparable triad in any political order, democratic or otherwise. None is the cause of the others. They are three ways of experiencing the same phenomenon of political meaning. There is no truth apart from the power that establishes it as the truth of a particular community; no power apart from the knowledge held by citizens about themselves and others; and no knowledge apart from the truths of a particular political order. When power, truth, and knowledge no longer appear as a single whole, the political order has been destabilized, and radical change becomes possible. Even then, the community is not simply thrown back to some prepolitical state, out of which individuals are free to construct a new truth. No community ever rewrites the social contract from scratch. Revolution is itself an appearance, with its own logic and its own structure. Law and revolution are both ways of apprehending political experience. Neither is more real or more natural than the other. Indeed, I have argued throughout this book that each is deeply embedded in the other. The rule of law is one configuration of these elements of power, truth, and knowledge. A democratic rule of law is a system of belief in which 1) the fundamental truth is that the people are a self-constituting sovereign; 2) all relevant knowledge concerns the opinion of the people; and 3) the only legitimate political power belongs to the representatives of the people. The rule of law elaborates an entire structure from these basic elements. This structure includes an institutional role for courts, a system of legal argument, a view of history, an understanding of citizen identity, and a theory of interpretation. Competing conceptions of democratic politics can alter one or more of the basic propositions. One may, for example, accept the claim about representation but reject the one about the opinion of the people. The Court deploys knowledge of a world of appearances that is largely of its own making; but that world is not therefore wholly under its own control. The equation of power and knowledge does not convert the judge into a free agent able to wield power however he or she pleases. Action is the domain of novelty, law the domain of permanence. The Court s function is to maintain the appearances of law. It must continue to see the political order as it has already been seen. This does not mean that there is no room for change within the judicial opinion. The limits on change are the limits within which the Court can perceive the permanence of the rule of law. These limits may be quite broad. Permanence does not attach to a law that is independent of the opinion. Judges do not relish the freedom to decide. Certainly, the Justices do not wish any such freedom to appear in the "opinion of the Court/* If a correct answer fails to appear in a particular controversy, courts will characterize the is-

233

234

Conclusion

sue as one of policy, not law. Law will then attach to the issue at a higher level of generality—that is, by law the issue is assigned to the discretion of another government agent.7 The judicial search for a correct answer cannot be measured against an absolute norm of free choice. If we try to invoke such a norm, we place ourselves outside the order of law. We can imagine a politics of free action, but from this perspective, the entire discourse of law appears arbitrary. The real argument between freedom and compulsion within the judicial decision is an argument about the appropriate sources of interpretation under the rule of law. Only those standing within laws appearance can take a position in this debate. The correct answer in law is one that maintains the appearance of a permanent law that is also the opinion of the people. The only measure of correctness is internal to the ongoing enterprise of the law itself.8 Laws answer is only effective—true—for those who maintain the necessary commitments to law, including a faith in the popular sovereign, a belief in the opinion of the people, and an interpretive approach characterized as commentary. This is the lesson that the actual performance of the judicial role in Planned Parenthood v. Casey taught Justices O'Connor, Kennedy, and Souter.9 Together they acknowledge that whatever they may have thought about popular opinion and the judicial role before they got on the Bench, the Court is bound by the appearances it has already created. As Justices, they are bound by Roe v. Wade and the subsequent right-to-privacy cases,10 whatever their personal disagreements with those judicial appearances.11 Those appearances connect both the Court and the citizenry to the opinion of the people. The Justices offer a concise expression of the identities that operate in the rule of law: "[The people s] belief in themselves as such a people [who live under the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Courts legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals."12 This captures the representative role of both the Court and the judicial opinion. When the Court speaks for the people s constitutional ideals, it represents the permanent opinion of the people. The Court is reaffirming here the understanding of the rule of law that Marbury first set forth. Between the people as a collection of individuals and the people as sovereign stands the Court. What is at stake in the speech of the Court is an appearance of the people to themselves. To undermine the judicial role would be to undermine the connection between people and Constitution. Outside the representative role of the Court, the people may not be able to see themselves in the Constitution

Conclusion

at all. The Court, accordingly, mediates between the people in their sacred and profane form. Because the Court voices the opinion of the people, it cannot simply confess error. There is no measure of the opinion of the people divorced from the opinions of the Court. There is, therefore, no error to confess. Accordingly, error disappears as a ground for overruling a decision: "[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided."13 From the perspective of law, error cannot be distinguished from difference. And difference is the problem that the rule of law seeks to resolve. To admit error is to risk the introduction of the judge as an individual subject, and this would undermine the rule of law: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve."14 The Court is certainly correct in its perception that such a belief would do lasting injury to the system of law. But when it claims that the identification of the Court with the political branches is a misconception it shows its stake in the appearance of laws rule. The belief may be a misconception from the perspective of law, but law is itself only a contestable system of appearances. The Court does occasionally "confess error." But when the error goes to a significant aspect of the political order, this confession always has about it an appearance of "lawlessness."15 When the Court does overrule itself, it does so by assigning the error to the past. The lawless behavior precedes the current opinion, which is itself the recovery of the "true" opinion of the people. The current Court claims now "to perceive significant facts or to understand principles of law that eluded their predecessors."16 The moment of error is always seen as an earlier deviation from the permanence of law, which the Court now recovers. This assertion of a recovery of laws truth is common to both instances that the Casey opinion cites in its comparison of Roe with previous "crises" of constitutional law: the overruling ofAdkins (which held unconstitutional a minimum wage law for women) by West Coast Hotel and the displacement of Plessy by Brown. In West Coast Hotel the Court declared that Adkins was "a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed."17 In Brown, the Court noted that Plessy was a late appearance, which was at odds with "the first cases . . . construing the Fourteenth Amendment... as proscribing all state-imposed discrimination against the Negro race."18 The appearance of a present

23$

236

Conclusion

disagreement is avoided by surrounding a past moment of error with the permanence of law. Error can only show itself within a myth of recovery. Every appearance, including those held up by the Court, has an audience. The judicial opinion is dependent upon perception, even as it seeks to structure that perception. The Supreme Court, to use BickeFs phrase, "labors under the obligation to succeed."19 Whether it will do so is always an open question. In a governmental system with multiple courts, both federal and state, the Supreme Court faces potential challenges not just from political representatives of the people but also from other courts' representations of the opinion of the people.20 Even the Supreme Court must satisfy an audience in the long run. If it fails, it will be turned against by forces of law that it cannot control and by forces of political action with which it always competes. A significant failure in the reception of judicial opinions is likely to affect the Courts perception of its own precedents. In that case, the failed appearance will be excised from the rule of law as a mistaken appearance: it was not the rule of law or the appearance of the people but only a mistake by a collection of individual judges. The rule of law is a changing appearance of permanence, not an objective structure. The test for Justices O'Connor, Kennedy, and Souter in Casey was not whether a legal argument could be provided—an opinion written—that would overrule Roe by offering a myth of recovery. It could: Roe could be seen as a moment of deviance from the permanent opinion of the people. This was just the position of the dissents. The test for the plurality was more practical: Which appearance would have seemed to the Court s audience to be an intrusion of the personal opinions of the Justices into the place of the permanent opinion of the people? Could the Court locate the moment of deviance in Roe? Or would that effort have made the Casey Court itself appear to be the source of deviance from laws permanence? We cannot answer this question in the abstract. The Court suggests a practical answer under the circumstances of the case when it notes that "for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion/'21 To say the answer is practical is not to agree with Justice Scalia that the Court abandoned law for Realpolitik.22 Practice and principle coincide in laws rule once we understand that law is not theory, but appearances; not abstract principle, but a structure of the imagination. The Justices are not confessing that they have had to abandon law because of insurmountable public pressure. They are working out the perception of laws permanence. The rule of law would have survived either choice in Casey. Our commit-

Conclusion

ment to seeing the world through law is stronger than any particular choice likely to confront the Court. Yet this does not relieve the individual Justice of the burden of setting forth a perception of laws permanence. The rule of law appears as the continuation into and through ordinary time of the legitimating source of political meaning. For the citizen who experiences the rule of law as a claim of meaning, law is not imposed from without. Nor is it simply a means for coordinating private interests. The citizen s relation to law is neither one of being used nor one of using others. To read ones behavior as an expression of the rule of law is to understand the self as a representation—a point of disclosure—of the popular sovereign. This is the selfunderstanding of the Justices that appears in their struggle for self-expression in Casey. In their open struggle to sacrifice personal belief and to become transparent to the rule of law, they are a vivid symbol of the experience and meaning of citizenship under the rule of law. Justice Scalia responds that this is not law; it is political action—subjectivity and novelty—in place of law. The majority makes the same charge against him. That each can charge the other with a failure of laws rule does not mean that either is doing less than struggling to achieve a vision of law. Every political event—including a legal decision—creates multiple appearances. It will appear as law or action, depending on what we see. Yet while each accuses the other of displacing law by action, no one affirmatively claims the voice of action. The virtue of action simply does not appear to those on the Bench. If the Justice struggling with the suppression of the self is one image of our modern rule of law, the penitentiary is another. The Justice s problem of legitimacy has its analogue, for many citizens, in the problem of crime. The criminal, like the political actor, may pursue a display of the self as the source of his or her own meaning. He or she has little regard for the past. The criminal act rejects law s claim to express a truth of the self. That the criminal may proclaim a kind of freedom is an idea we can barely grasp today. Nevertheless, with close to 1.5 million individuals in our cells, we can deny the political implications of crime only with difficulty. Modern law suppresses the political implications of crime by privatizing it. Crime is not seen as an expression of political action but as a consequence of personal deviance. It is easier for the law to describe the offender as sick than to recognize him as rejecting the public meaning of law. Outside the law, there is only the realm of the private, which must be politically insignificant.23 Nevertheless, a society that incarcerates as large a proportion of its population as we do is either very "sick" or rife with political discontent. For many in our society, the public order of law appears as an imposition of

237

238

Conclusion

an alien order. The politics of the street is not the politics of the rule of law. Laws rule there is not the rule of the people, although it may be rule of "the man." Laws response to the criminal today is to deny him or her any public appearance at all. The modern prison is a space designed to deny the possibility of political action by the individual. In prison, nothing happens. It is time without novelty. Instead of injury to the body, punishment is now a seizure of the body as a means of action. The penitentiary is the expression of the law, not because of what it produces but because it denies all meaning except law. It has the anonymity and subjectlessness typical of modern law. It is all-embracing within, but impenetrable from without. We do not see the individuals within. We do not know them, except as signifiers of laws rule. The penitentiary is the expression of law s rule in a privative mode as the power to deny all that is not law. Thus, every nonregulated movement in the prison is a matter of indifference. The domain of action is reduced to the trivial. It has no political significance at all. Punishment shows us a world perfectly ordered by law. Between the Justices and the criminal there is not as large a gap as we might have thought. Both are, in Plato s terms, prisoners of the cave. They are seated on a common bench. Court and penitentiary are united in this idea of laws rule as the suppression of the acting subject. There is a third image of laws rule in the modern age: the citizen army. The old fear of a threat posed to the rule of law by a standing army has disappeared. The army no longer appears as a potential source of political action; it is wholly subordinate to the rule of law. The citizen army expresses the ubiquitous character of representation of the popular sovereign. Anyone can be the soldier. As in the penitentiary, the citizen army makes a complete claim upon the subject. Again, the space left for the unique, acting subject is reduced to the politically trivial. The convict in the penitentiary and the soldier in the military represent the diminution of control over a public space in which we can take up the task of political self-construction.24 We find that space already filled by the rule of law. Both soldier and convict are doing time for the state under the rule of law. So are we all. The final image of the modern rule of law is that of an entire society held hostage to a policy of mutual assured destruction. The symbolism of laws claim upon the subject becomes simultaneously less dramatic but more pervasive. The unique spectacle of instantiation is displaced by the ubiquity of representation. The drama of the scaffold disappears as the threat of annihilation of the private body for the idea of the state becomes the lived background of all our lives. When we are all representatives of the state, there is no need to make

Conclusion

a display of the criminal. There is a direct movement in political logic from the scaffold to the penitentiary to the mass conscription armies of the first half of the twentieth century and then to the disappearance of any relevant distinction between combatant and noncombatant within the citizen population. The spectacular execution of a criminal has been displaced by the icons of Hiroshima, Dresden, and London. Everyone is a potential victim of modern warfare, and everyone contributes to the war effort. Since the end of the Second World War, we have lived with the understanding that we are potential objects of political sacrifice at every moment and at every place. This sacrifice represents not an extraordinary action but the ordinary operation of the modern legal order. The rule of law is not to be blamed for the violence of the twentieth century. Neither, however, has it stood against that violence. There is nothing within our experience of politics as the rule of law that leads us to object to these developments. Sacrifice to the state is consistent with the idea of the citizen that law presents. The modern state holds its population hostage to its idea of its own necessary historical realization. This is the end of the rule of law, which knows no end. A constitution is permanent; the end of the constitution is the end of the people. Modern technology has made the limits of our concept of a political order under the rule of law identical to the limits of our lived experience. This is where law and the technology of violence intersect in the modern age. Without law, we would still have technology. But would we have the beliefs that led us to accept technology's threat as our lot? To anyone who believes that the point of the state and its legal order is the preservation of the private body and individual autonomy, the insistence of the modern state on investing the body with a representative, public meaning must appear to be a paradoxical failure of the political order. But neither the criminal nor the war victim is an aberration, a failure of the state to meet the ends of law. Both are expressions of the historical force and reality—the being—of the state, which is the rule of law. The popular sovereign must show itself as the meaning of real subjects. Law promises the security of the subject, but it demands sacrifice. Appearances both disclose and conceal. Sacrifice is the secret that law conceals. Power flows from knowledge of God; power flows from knowledge of the people. Courts, no less than monarchs, believe these claims of knowledge. Each believes that a permanent source of political authority legitimates its own rule. In this, they are at one with those who observe the appearances that flow from the institutions of power. All are prisoners of the Bench. All live in a common world.

239

240

Conclusion

We may have reasons outside of the particular political order to prefer one form of politics to another, but it is a mistake to measure any political order by the truth that founds another. We cannot judge God by the people any more than we can judge the people by God. If either is to be judged, it must be by a conception of good that is independent of the order of power and knowledge that characterizes any particular polity. On the possibility of such a conception rides the possibility of human freedom. That there must be such a conception is the necessary conclusion of this inquiry. We are both within the political community and outside it. I have tried in this book to grasp the rule of law whole: to see how it works by reflecting on its structures, its aspirations, and its assumptions. To take law as an object of study requires an ability to perceive the forces of law within the self but equally an ability to stand apart from those forces. Philosophy is the response to law that can imaginatively stand with the revolutionary, the criminal, and even the lover. For one thing has become entirely clear: the rule of law—like all forms of politics—draws on our erotic nature as much as on our reason.25 We cannot stand apart from laws rule, even as spectators, without displaying in the inquiry itself the possibility of freedom. Seeing the law whole, we take on a responsibility for the self. The choices we make are our choices. We may find ourselves thrown into a particular community at a particular moment in history. But having climbed out of the cave and seen the shape of our political beliefs, we cannot avoid the moment of choice. We cannot choose never to reenter the cave. No one lives without a community. But every community allows diverse opportunities to achieve the good. We need not believe in the rule of law to seek the good, as we understand the good, even within the rule of law. If law fails completely, there remains revolution. Abraham Lincoln, who began his public career speaking of the need for a profound reverence for law in the post-Founders generation, came at the end of his life to a perspective on politics—both action and law—that stands beyond politics: "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on... to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."26 In place of law, he appeals to charity; in place of a politics of friends and enemies, he appeals to a single community extending to all nations; and in place of laws substantive values, he appeals to a universal "right" that we each see as best we can. As in most things, Lincoln got the order of values just right. In a life that spanned the bounds of law and action, he came to see all politics as a play of appearances.

Appendix: William Marbury v. James Madison, Secretary of State of the United States

Supreme Court of the United States, 5 U.S. (1 Cranch) 137 (1803) [153] Opinion of the court. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a man.amus [ 154] should not issue, directing him to deliver to William Marbury his commission as a justice of the peace of the county of Washington, in the district of Columbia. No cause has been shewn, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the court has viewed this subject, the following questions have been considered and decided. 1st Has the applicant a right to the commission he demands?

241

242

Appendix

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of enquiry is, 1st. Has the applicant a right to the commission he demands? His right originates in an act of congress passed in February, 1801, concerning the district of Columbia. After dividing the district into two counties, the llth section of this law, enacts, "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years. [155] It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The 2d section of the 2d article of the constitution, declares, that "the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for." The third section declares, that "he shall commission all the officers of the United States." An act of congress directs the secretary of state to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States." These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1st, The nomination. This is the sole act of the President, and is completely voluntary. 2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. [156] 3d. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. "He shall," says that instrument, "commission all the officers of the United States." The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which author-

Appendix

izes congress "to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments;" thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. Although that clause of the constitution which requires the President to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer, who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. [157] This is an appointment by the President, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shewn that he has done every thing to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the executive over an officer, not removeable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised

243

244

Appendix

when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed, converting the department [158] of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, "and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President;" "Provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the President of the United States; nor to any other instrument or act, without the special warrant of the President therefor." The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It asserts, by an act supposed to be of public notoriety, the verity of the Presidential signature. It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary7 of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and [159] the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the cooperation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which, delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle, claimed for its support, is established.

Appendix

The appointment being, under the constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should be made personally to the grantee of the office: It never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences [160] of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President, and the seal of the United States, are those solemnities. This objection therefore does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission, is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point, to enquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but, not that the original had been transmitted. If indeed it should appear that [161] the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labor of inserting it in a book kept for that purpose may not have been performed.

24S

246

Appendix

In the case of commissions, the law orders the secretary of state to record them. When therefore they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees, to be paid by a person requiring a copy, are ascertained by law. Can a keeper of a public record, erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accep: but neither the one, nor the other, is capable of rendering the appointment a non-entity. That this is the understanding of the government, is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, a.pointed to any office, refuses to accept the office, the successor is nominated in the place of the person who [162] has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy. It is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removeable at the will of the executive, the circumstancewhich completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removeable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removeable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second enquiry; which is, 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

Appendix

[ 163] The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. "In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." And afterwards, p. 109, of the same vol. he says, "I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress." The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behoves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this enquiry the first question which presents itself, is, whether this can be arranged [164] with that class of cases which comes under the description of damnum absque injuria—a loss without an injury. This description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, he injured individual has no remedy. That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case is not to be admitted. By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at

247

248

Appendix

war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. [165] No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, vol. 3. p. 255, says, "but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice." By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (vol. 3d. p. 299) the purchaser, on paying his purchase money, becomes completely entitled to the property purchased; and on producing to the secretary of state, the receipt of the treasurer upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. By the constitution of the United States, the President is invested with certain important political powers, in the [166] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the

Appendix

act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. If this be the rule, let us enquire how it applies to the case under the consideration of the court. [167] The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the President; the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right, either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission. It is then the opinion of the court, 1st. That by signing the commission of Mr. Marbury, the president of the United

249

2SO

Appendix

States appointed him a justice [168] of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years. 2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be enquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on, 1st. The nature of the writ applied for, and, 2dly. The power of this court. 1st. The nature of the writ. Blackstone, in the 3d volume of his commentaries, page 110, defines a mandamus to be, "a command issued in the kings name from the court of kings bench, and directed to any person, corporation, or inferior court of judicature within the kings dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of kings bench has previously determined, or at least supposed, to be consonant to right and justice." Lord Mansfield, in 3d Burrows 1266, in the case of the King v. Baker, et al. states with much precision and explicitness the cases in which this writ may be used. "Whenever," says that very able judge, "there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern, or attended with profit) and a person is kept out of the possession, or dispossessed of such right, and [169] has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government." In the same case he says, "this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, "to do a particular thing therein specified, which appertains to his office and duty and which the court has previously determined, or at least supposes, to be consonant to right and justice." Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. 1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of de-

Appendix

partments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of that court to attend; should at first view be considered [170] by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment often cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law? If one of the heads of departments commits any illegal act, under the color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is [171] again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. This opinion seems not now, for the first time, to be taken up in this country.

2SI

2S2

Appendix

It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character. This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but this question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, congress passed an act in February, 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an adjudication of the supreme court of the United [172] States on the validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges. There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case—the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. The doctrine, therefore, now advanced, is by no means a novel one. It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute. It is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so [173] appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person.

Appendix

It was at first doubted whether the action of detinue was not a specified legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record. This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, maybe exercised over the present [174] case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction." It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it to the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial powers, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those

253

2S4

Appendix

affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. [175] If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. To enable this court then to issue a mandamus, it must be shewn to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to [176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the

Appendix

basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited [177] and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [178] So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conform-

2SS

2S6

Appendix

ably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. [179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature

Appendix

should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent, that the framers of the constitution [180] contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.

2S7

This page intentionally left blank

Notes

INTRODUCTION "In America the Law Is King": from T. Paine, Common Sense (1776), in Political Writings 28 (B. Kuklich ed. 1989). 1 A. de Tocqueville, Democracy in America 288-90 (P. Bradley ed. 1945); R. Ferguson, Law and Letters in American Culture (1984). 2 See, e.g., J. Rawls, A Theory of Justice 235-39 (1971) (articulating necessary conditions of a legal order as "a system of public rules addressed to rational persons"). Lon Fuller offers an extensive elaboration of such an "internal morality of law." See L. Fuller, The Morality of Law 33-94 (1969). CHAPTER 1: MARBUKY AND THE HISTORICAL ORIGINS OF THE AMERICAN LEGAL IMAGINATION 1 Marbury v. Madison, 5 U.S. (1 Cranch) 137,163 (1803). 2 See F. Michelman, Laws Republic, 97 Yale L.J. 1493,1501 (1988) ("[I]f we are sincerely and consistently committed both to ruling ourselves and to being ruled by laws, there must be some sense in which we think of self-rule and law-rule (if not exactly of'people' and laws') as amounting to the same thing.").

2S9

260

Notes to Pages 10-13

3 See R. Matthews, The Radical Politics of Thomas Jefferson: A Revisionist View 125 (1984) ("With regard to radical democracy, Jefferson was Americas first and foremost advocate of permanent revolution."). 4 T. Jefferson, Letter to William S. Smith (November 13,1787), in 12 The Papers of Thomas Jefferson 355-57 (J. Boyd ed. 1955); T. Jefferson, Letter to James Madison (September 6,1789), in The Portable Thomas Jefferson 444-51 (M. Peterson ed. 1975). 5 Almost thirty years earlier, John Adams had written of "a government of laws, and not of men" Novanglus, No. 7,1774, in 4 Works of John Adams 106 (C. Adams ed. 1851). Adams used the phrase again in the Massachusetts Constitution ofl 780, pt. 1, art. 30, in 3 Federal and State Constitutions, at 1893 (F. Thorpe ed. 1909). Adams, in turn, was probably drawing on Harrington: "[T]hese I conceive to be the principles upon which Aristotle and Livy... have grounded their assertion that a commonwealth is an empire of laws and not of men." J. Harrington, The Commonwealth of Oceana (1656), in The Political Works of James Harrington 170 (J. Pococked. 1977). 6 Along with the creation of new circuit courts, the reforms included termination of the Justices' duty of riding circuit. "The Judiciary Act of 1801 also contained provisions which made it easier to remove litigation from state to federal courts and sharply increased the original jurisdiction of the circuit courts, especially in cases involving land titles. This latter change was of great consequence to foreigners and other absentee landowners who were involved in land disputes and who were being harshly treated by state courts more responsive to local interests than to the technicalities of the law." R. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 15 (1971). See also K. Turner, Federalist Policy and the Judiciary Act of 1801,22 Wm. & Mary Q. 3 (1965). 7 Quoted in I S . Morison, H. Commager and W. Leuchtenburg, The Growth of the American Republic 346 (1969). 8 The composition of federal juries by persons sympathetic to the Federalist agenda was the primary reason Jefferson was so quick to fire all federal attorneys and marshals. See T. Jefferson, Letter to Elbridge Gerry (March 29,1801) in 8 Writings of Thomas Jefferson 40-43 (P. Ford ed. 1899) and Letter to Postmaster General Gideon Granger (March 29,1801), in id., at 43-46. See also 4 D. Malone, Jefferson and His Time: Jefferson the President; First Term, 1801-1805, at 117 (1970). 9 Quoted in 4 D. Malone, supra note 8, at 116. 10 T. Jefferson, Letter to Archibald Stuart (April 8,1801), in 7 P. Ford supra note 8, at 46-47. In the letter, Jefferson suggests that he will consider as nullities all of Adams' midnight appointments but will have to wait until Congress repeals the Judiciary Act of 1801 to relieve the judges of their appointments. 11 Between July 1798 and February 1801, the federal government prosecuted twenty-five writers, editors, and printers, of whom ten were convicted and imprisoned. W. Randall, Thomas Jefferson: A Life 537 (1993). Within four days of his inauguration, Jefferson stopped all prosecutions under the act and ordered all fines refunded. Id. at 549. See also G. Haskins & H. Johnson, History of the Supreme

Notes to Pages 13-15

Court of the United States, 2: Foundations of Power: John Marshall, 1801-15, at 148-49 (1981). Most of those convicted of violating the Sedition Act had already finished serving their sentences. Jefferson pardoned David Brown, who had been convicted of erecting a liberty pole at Dedham, Massachusetts, and seditiously libeling the Adams administration. Unable to pay his fine, Brown was still in jail, even though he had completed his eighteen-month sentence. See 4 D. Malone supra note 8, at 35. 12 For example, in the sedition trial of James Thompson Callender, Justice Samuel Chase reinstated a juror who had announced his displeasure with the defendants writings, excluded important defense evidence, abused defense counsel to the point where the attorneys all quit in disgust, and delivered instructions to the jury that virtually demanded a conviction. 3 A. Beveridge, The Life of John Marshall 36-41 (1919). For a more charitable view of Chases behavior during the sedition trials see J. Goebel, Jr., History of the Supreme Court of the United States, 1: Antecedents and Beginnings to 1801, at 640-51 (1971). 13 Marbury s attorney, Charles Lee, had been Attorney General in the Adams' administration. 14 Federalists charged that the Republicans feared that the Court would declare the Repeal Act unconstitutional. By delaying the Courts term, the Republicans could prevent the Court from acting until the Repeal Act had gone into effect. The Republicans were also interested in postponing the Courts decision in Marbury, which was likely to be decided during the June term. See G. Raskins & H. Johnson, supra note 11, at 167-68. 15 Impeachment proceedings began on February 3,1803, when Jefferson sent documents detailing Pickerings judicial bungling. Pickerings trial did not take place until the first two weeks of 1804. Although the impeachment fight was highly partisan, strong evidence suggests that Pickering had become insane. See R. Ellis, supra note 6, at 69-75. 16 Quoted in P. Smith, The Shaping of America 496-97 (1980). 17 T. Jefferson, Letter to Elbridge Gerry (August 28,1802), in 8 P. Ford, supra note 8, at 170. 18 In a letter to Judge Spencer Roane, Jefferson wrote that the election of 1800 "was as real a revolution in the principles of our government as that of 1776 was in its form." Letter to Spencer Roane (September 6,1819), in M. Peterson, supra note 4, at 562. On Jefferson's belief that everyday politics should "maintain the revolutionary spirit of 1776" see R. Matthews, supra note 3, at 83-87. 19 John Jay, the first Chief Justice, provided a precedent. He, too, held the office of secretary of state in 1789, while waiting for Jefferson to return from France. Additionally, Jay was appointed minister to Britain in April 1794, but he did not resign his position as Chief Justice until a year later. He was chastised for this apparent violation of separation of powers by the opposition, Republican-Party press. See J. Goebel, supra note 12, at 747; L. Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology 224 (1978).

261

262

Notes to Pages 16-20

20 See R. Ferguson, The American Enlightenment, 1750-1820, in 1 Cambridge History of American Literature, at 494 (S. Bercovitch ed. 1994) ("Opinions like Marbury v. Madison... are essentially celebrations of the achievement of the Framers. 'Expounding' the Constitution is every citizen's link to that achievement."). 21 "The decision [in Marbury] is a masterwork of indirection, a brilliant example of Marshall s capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another." R. McCloskey, The American Supreme Court 40 (1960). See also G. Haskins & H. Johnson, supra note 11, at 185 ("From a political standpoint, Marshall's opinion has been considered as both expedient and tendentious, in that the ultimate refusal to grant Marbury's petition avoided a head-on collision with Jefferson."). 22 Alexander Bickel gave expression to this view in the subtitle of his own work on Marbury and judicial review. A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986). 23 T. Jefferson, Letter to W. Torrance (June 11, 1815), in 9 P. Ford, supra note 8, at 518. 24 In re Anastaplo, 366 U.S. 82, 87 (1961) (quoting the decision below); see also A. Bickel, supra note 22, at 28 ("Have not the people the right of peaceable revolution, as assuredly, over time, they possess the capacity for a bloody one?").

CHAPTER 2: AN ARCHAEOLOGICAL APPROACH TO LAW 1 Marbury v. Madison, 5 U.S. (1 Cranch) 137,176 (1803). 2 The Constitution did contain one sunset provision: Congress was not allowed to interfere with the importation of slaves until after 1808. U.S. Const, art. I, § 9, cl. 1. This provision was, even at the time, acknowledged to be a necessary political compromise, in tension with the Constitution s founding of the rule of law. See The Federalist No. 42, at 266 (Madison) (C. Rossitered. 1961). 3 Ronald Dworkin takes the same position when he rejects pragmatism as an interpretation of laws rule. R. Dworkin, Law's Empire 151-64 (1986). 4 See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 769 (1982) (White, J., dissentin ("[Tjhe Court now abandons basic principles that have been powerful guides to decision [T]he judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice."); Griswold v. Connecticut, 381 U.S. 479, 520 (1965) (Black, J., dissenting) (accusing majority of adopting substantive due process standard that makes "Court's members a day-to-day constitutional convention"); Roe v. Wade, 410 U.S. 113, 174 (1973) (Rehnquist, J., dissenting) ("The decision here . . . partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment."). 5 L. Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology 89 (1978). 6 For a sustained critique of the idea that the enactment of a statute "settles" a political battle, see W. Eskridge, Jr., Dynamic Statutory Interpretation 48-80 (1994). 7 See R. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,

Notes to Pages 21-25

97 Harv. L. Rev. 4 (1983). Nonlegal historical narratives of the community can fuel nationalist political movements. For example, Ernest Renan, in a famous nineteenth-century lecture, claimed that "Getting its history wrong is part of being a nation." Quoted in E. J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality 12 (1992); see also id. at 76 (modern nationalist movements often "reach far back beyond the real memory of their people in the search for a suitable (and suitably impressive) national state."). For an example of a narrative of political novelty, i.e., one that looks to the future of the community, see the discussion of Arendt below, chapter 3. 8 5 U.S. at 163 (emphasis added). 9 C. Sunstein, Naked Preference and the Constitution, 84 Colum. L. Rev. 1689 (1984). 10 For an interesting application of these ideas to American labor law, see M. Barenberg, Democracy and Domination in the Law ofWorkplace Cooperation: From Bureaucratic to Flexible Production, 94 Colum. L. Rev. 753,808-14 (1994). 11 5 U.S. at 176. 12 T. Jefferson, First Inaugural Address, in 1 Documents of American History 187 (H.Commagered.1973). 13 My description of the basic elements of the American belief in the rule of law can be usefully compared with a similar summary by Harold Berman. H. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983). Berman s project is much larger, encompassing the development of an entire Western legal tradition, of which the American rule of law is but one manifestation. He identifies four factors that have always been, and remain today, basic characteristics of the Western legal tradition. These include the autonomy of legal institutions from other forms of social order (e.g., religious institutions), the role of legal specialists, the existence of legal training centers, and the presence of an academic meta-law "by which the legal institutions and rules are evaluated and explained." Id. at 37. All these characteristics elaborate what I have described as the independence of the rule of law from the rule of men. Independence requires law to appear as a kind of expert knowledge. Law cannot turn on the subjective beliefs and values of particular individuals who happen to hold office at a particular moment. A structure of expert knowledge, furthermore, requires its own institutional structure. Berman usefully emphasizes these structures. Berman lists three additional characteristics of the Western legal tradition, all of which emphasize what he calls the historicity of law. These characteristics include the idea of law as "an integrated system . . . developing in time," the intergenerational character of legal growth, and the idea that the development of law is a "reinterpretation of the past to meet present and future needs." Id. at 9. These characteristics elaborate what I have described as the temporal permanence of law. Finally, Berman notes the intimate relation of law and revolution in the West: "[L]aw is wholly subordinate to revolution." Id. at 39. Laws relation to revolution,

263

264

Notes to Pages 26-29

however, cannot be understood apart from an inquiry into laws temporality—revolution is the originating moment of law—and into laws representative character: revolution appears as the direct action by the sovereign people. Berman captures the first aspect when he writes that "the system o f . . . law of every nation of the West goes back to... revolution." Id. at 20. He suggests the second point when he writes that "law—in all societies—derives its authority from something outside of itself." Id. at 16. Berman s summary fails to capture the most problematic element of the rule of law: laws violence and its relation to an idea of sacrifice. This is somewhat surprising, given his conclusion: "Without the fear of purgatory and the hope of the Last Judgment, the Western legal tradition could not have come into being." Id. at 558. The complex relation of law and death, and of both to the state of one s soul, has never disappeared. Law may not offer immortality to a personal soul, but it offers participation in a transgenerational historical project that promises endurance through time. 14 This dynamic is captured in the debate between originalist and nonoriginalist approaches to the Constitution. See, e.g., R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); P. Brest, The Misconceived Quest for the Original Understanding, 60 B.U L. Rev. 204 (1980); F. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 Harv. J. L. & Pub. Pol. 87 (1984); H. Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985). 15 See C. Beard, An Economic Interpretation of the Constitution of the United States (1913). 16 B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2ded. 1991). 17 A. Lincoln, The Perpetuation of Our Political Institutions: Address before the Young Men's Lyceum of Springfield, Illinois, January 27, 1838, in Abraham Lincoln: His Speeches and Writings 76,82 (R. Easier ed. 1946). 18 A modern example of this view of political meaning is presented in President Nixon s resignation speech. He praises "the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs and comes short again and again ... [and] if he fails, at least fails while daring greatly." Laws response was presented in Gerald Fords remarks on assuming the presidency: "[O]ur long national nightmare is over. Our Constitution works. Our great Republic is a government of laws and not of men. Here, the people rule." Quoted in J. Germond & J. Witcover, Blame Todays Cynicism on Watergate, Nat'l. J., August 13,1994, at 1937. 19 See below, chapter 7. 20 The classic exploration of this concept is E. Kantorowicz, The Kings Two Bodies: A Study in Mediaeval Political Theology (1957). 21 If the king's body was the locus of political meaning, the geography of the state could be experienced as the geography of the king's court. Consider, in this regard,

Notes to Pages 30-33

the rise of court politics in prerevolutionary Europe. "When the state is represented by the kings person, political activity is restricted to his immediate vicinity." Regicide and Revolution: Speeches at the Trial of Louis XVI27 (M. Walzer ed. & M. Rothstein trans. 1974). 22 See R. Otto, The Idea of the Holy (J. Harvey trans. 1958). 23 Perhaps the single most important mechanism supporting the constitutional revolution were the frequent conventions of the people, first used by the colonists to address their grievances against England and later used to contend with the political and social problems within their respective states. In the 1780s, Americans latched on to this mechanism of the people out of doors and transformed it into a regular and central part of state government. These frequent appeals to the people became a major impetus for the development of the Federal Constitution of 1787, which limited appeals to the people to an infrequent amendment process. See G. Wood, The Creation of the American Republic 306-43 (1969). 24 T. Jefferson, Letter to James Madison (September 6, 1789), in The Portable Thomas Jefferson 449 (M. Peterson ed. 1975). 25 The pursuit of these forms of political meaning in Weimar Germany was central to the rise of National Socialism. See M. Eksteins, Rites of Spring: The Great War and the Birth of the Modern Age (1989). 26 Oliver Wendell Holmes suggested that the pain of warfare is necessary and, indeed, laudable—as an alternative to the rootless individualism and hedonism of his age. "We need [war] in this time of individualist negations, with its literature of French and American humor, revolting at discipline, loving flesh-pots, and denying that anything is worthy of reverence." O. W. Holmes, The Soldiers Faith, in The Occasional Speeches of Justice Oliver Wendell Holmes 73,80 (M. Howe ed. 1962). See also O. W. Holmes, The Fraternity of Arms, in id. at 100-101; J. Gray, The Warriors: Reflections on Men in Battle 44-51 (1970) (war expresses the fullest range of human potential through self-sacrifice). 27 The legalization of war is the most significant development in twentieth-century international law. See P. Kahn, From Nuremberg to the Hague: The United States Position in Nicaragua v. United States and the Development of International Law, 12 Yale J. Int'l L. 1,36-40 (1987). 28 The failure of the Vietnam War in the dimensions of both law and action are captured by the remarkable memorial to the war in Washington, D.C. It insists on naming the fallen. But in placing the stark list of names on a wall below ground it refuses to celebrate individual action. The dead are depoliticized as the war itself is reduced to nothing more than the aggregate tragedies of these individuals. 29 The chivalric code of the Middle Ages served to distinguish and preserve the knightly class. The concept of the virtuous enemy allowed knights simultaneously to gain status and to maintain their numbers by treating each other with magnanimity in combat. See generally J. Johnson, Just War Tradition and the Restraint of War 121-71 (1981). 30 For this reason, as twentieth-century international law has pursued the distinction

265

266

Notes to Pages 33-36

of legal from illegal grounds of war (jus ad bello), the companion conception of a law of warfare (jus in bello) has diminished in power. When the consequences of one side's winning are unacceptable—victory for the law violator—it may be better for the other side to abandon laws limits on warfare, if doing so would meaningfully improve its chances of victory. See M. Walzer, Just and Unjust Wars 228-32,25168, (1977); War, Morality, and the Military Profession (M. Wakin ed. 1986); J. Johnson, Can Modern War Be Just? 174-90 (1984); W. O'Brien, The Conduct of Just and Limited War 71-87,341-59 (1981). 31 Holmes seemed to grasp this ambiguity when he connected his own occupation in the law with his experience of battle: "My work is supposed to be dry. It certainly calls for the least impassioned judgments that a man can form. The very temperament of a judge is abstract. And yet even one of that temperament, one who has been through the long years of silent toil by which he was prepared for his task, and one who holds his opinions as coldly as mathematics... even such a one may yet remember and may say as he looks in your faces: It was with you that I learned the hardest and the noblest lessons of duty. It was by your side that kindled in my heart a fire that will not go out." O. W. Holmes, Remarks at a Meeting of the Second Army Corps Association, in M. Howe, supra note 26, at 158,159. 32 Freud expresses tliis idea repeatedly and at length. For example: "An infant at the breast does not as yet distinguish his ego from the external world as the source of the sensations flowing in upon him. He gradually learns to do so [Tjhere is for the first time set over against the ego an 'object,' in the form of something which exists 'outside' and which is only forced to appear by a special action [O]riginally the ego includes everything, later it separates off an external world from itself." S. Freud, Civilization and Its Discontents 13-15 (J. Strachey trans. & ed. 1961); see also E. Erikson, Identity: Youth and Crisis 96-114 (1968); E. Erikson, Toys and Reasons 89-90 (1977). 33 See M. Foucault, What Is Enlightenment? in The Foucault Reader 32-50 (P. Rabinow ed. & C. Porter trans. 1985). 34 See P. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory 13-17 (1992) (discussing place of choice in argument of The Federalist). 35 D. Tracy, Plurality and Ambiguity: Hermeneutics, Religion, Hope 50 (1987). 36 The elements of language can be characterized and approached in a variety of ways: e.g., words, signifiers, propositions, or tropes. Language is a system of signs as well as a system of rhetorical techniques. 37 "Esperanto is like socialism in seeking to remedy an evil through a radical change in the system: Let society as a whole accept a certain plan, based upon a set of principles that stand to reason, and it will achieve a great improvement over the irrational ways that unprogressive people have been clinging to." Aspects of Internationalism: Language and Culture 3-4 (I. Richmond ed. 1993). The Esperanto movement, though diminished, persists. A number of instructional books have appeared since 1982. See, e.g., D. Jordan, Being Colloquial in Esperanto: A Reference Guide for Americans (1992); W. Downes, Esperanto: The International Language (1982).

Notes to Pages 37-43

38 "All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts." C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 36 (G. Schawb trans. 1985); see also C. Schmitt, The Concept of the Political 42 (G. Schwab trans. 1976). 39 D.Tracy,supranote35,at61. 40 Aristotle expresses this idea when he describes the end of political science as that which gives order to everything that occurs within the polis. Nicomachean Ethics 1094a-b. 41 Recognition of the political character of the distinction of the private from the public is central to much of modern feminist theory. See, e.g., C. MacKinnon, Toward a Feminist Theory of the State 168-69 (1989). 42 See R. Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561,581-83 (1983). 43 Whether it similarly achieves a freedom of practice is more doubtful. See J. Miller, The Passion of Michel Foucault (1993). 44 See M. Foucault, The Archaeology of Knowledge (A. Sheridan Smith trans. 1972). 45 In utilitarian thought, the rule of law could be justified only as an attempt to maximize happiness according to an independent felicity calculus. Jeremy Bentham reflects this view in his attack on Blackstone s support of the common law, as well as in his attempt to develop a comprehensive alternative: codification. J. Bentham, Constitutional Code (F. Rosen & J. Burns eds. 1983) (1830); J. Bentham, A Fragment on Government (J. Burns & H. L. A. Hart eds. 1988) (1776); see also J. Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (1832). Those utilitarians who used human happiness instead of that of the citizenry as the basis of felicity calculus made demands for the radical reform of law. See generally W. Thomas, The Philosophic Radical: Nine Studies in Theory and Practice, 1817-41 (1979). 46 M. McDougal, Fuller v. The American Legal Realists: An Intervention, 50 Yale L.J. 827,834-35(1941). 47 7d.at836. 48 See H. Lasswell and M. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203 (1943). 49 See J. White, Justice as Translation: An Essay in Cultural and Legal Criticism 95 (1990) ("The idea of all of [the legal realists] is that we can 'see through' the opinion ... to the reality that lies behind it, which can best be talked about not in legal but in social, psychological, or economic terms ... to declare that there is, or ought to be, no discourse that is distinctively legal All is reduced to the level of policy or politics."). 50 See M. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of

267

268

Notes to Pages 43-51

51 52 53 54 55

56 57

Legal Orthodoxy 269-272 (1992); A. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 168 (1993); O. Fiss, The Death of the Law, 72 Cornell L. Rev. 1 (1988). A third movement in contemporary legal scholarship—feminism— shares the belief that the reality of the legal order, patriarchy, lies hidden beneath the legal appearance. Feminism too would accomplish the reform of law by looking to values and norms outside law's order. See, e.g., C. MacKinnon, Roe v. Wade: A Study in Male Ideology, in Abortion: Moral and Legal Perspectives 45-54 (J. Garfield&P. Hennessey eds. 1984). See R. Unger, supra note 42, at 571-73. See W. Eskridge, Jr., & P. Frickey, The Making of The Legal Process, 107 Harv. L. Rev. 2031,2052-55 (1994). H. Hart, Jr., and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 4 (W. Eskridge, Jr., & P. Frickey eds. 1994). See }. Ely, Democracy and Distrust (1980). See, e.g., C. Sunstein, supra note 9; F. Michelman, The Supreme Court, 1985 Term—Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986); B. Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453 (1989). See R. Dworkin, supra note 3.1 have discussed Dworkin s views in detail in P. Kahn, Community in Contemporary Constitutional Theory, 99 Yale L.J. 1,64-81 (1989). See H. L. A. Hart, The Concept of Law 132 (1961).

CHAPTERS: POLITICAL TIME 1 T. Jefferson, First Inaugural Address, in 1 Documents of American History 187 (H. Commager ed. 1973). 2 T. Jefferson, Letter to Charles Pinckney (October 29, 1799), in 7 Writings of Thomas Jefferson 398 (P. Ford ed. 1899). See L. Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (1978). 3 T. Jefferson, Letter to Spencer Roane (September 6,1819), in 10 Ford, supra note 2, at 140. See D. Sisson, The American Revolution of 1800 (1974). 4 The Republican view of both issues was set forth in the Virginia and Kentucky Resolutions. See A. Koch and H. Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 Wm. & Mary Q. 145 (1948). 5 For an analysis of similar problems in the context of the French Revolution see K. Baker, Fixing the French Constitution, in Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century 253-35 (1990) (discussing the "conceptual space between revolution and constitution"). 6 T. Jefferson, Letterto Samuel Kercheval (July 12,1816), in 10 P. Ford, supra note 2, at 44. 7 3 A. Beveridge, The Life of John Marshall 61 (1919) (quoting Sen. Gouverneur Morris, Annals 7th Cong. 1st Sess. 40-41). 8 Rep. James Bayard, Annals, 7th Cong. 1st Sess. 605 (February 19,1802).

Notes to Pages 51-60

9 Rep. John Rutledge, id., at 755 (February25,1802). 10 T. Jefferson, Letter to], Breckenridge (January 29,1800), 7 P. Ford, supra note 2, at 418. 11 In spite of Federalist campaign perceptions, the Republicans were not wholly united in their subordination of the rule of law to popular majorities. Jefferson's close political ally, James Madison, criticized Jefferson's views on the benefits of frequent appeals to the people. Madison defended the cumbersome character of the proposed amendment process on the grounds of a need for a "reverence for the laws." See The Federalist No. 49, at 315 (J. Madison) (C. Rossiter ed. 1961). 12 See T. Jefferson, Letter to Samuel Kercheval, supra note 6 at 289. 13 H. Arendt, On Revolution 235-38 (1965). 14 See H. Arendt, The Human Condition 25-28 (1958) (explaining Aristotle's concept of the bios politikos). 15 At the end of his life, Jefferson came to a similar view of the Revolution s failure, with the capture of politics by private, commercial interests. See G. Wood, The Radicalism of the American Revolution 367-68 (1991). 16 H. Arendt,supra note 13, at 65. 17 Id. at 54-55. 18 Garry Wills places just such an approach to time at the center of Macbeth s character in his innovative reading of the play. G. Wills, Witches and Jesuits: Shakespeare s Macbeth 127-29(1995). 19 H. Arendt,supra note 13, at 139-41. 20 Id. at 253-59. 21 For a contemporary response to Arendt s claim that ordinary politics represents a failure of the revolutionary project, see 1 B. Ackerman, We the People: Foundations, 295-322 (1991) (justifying postrevolutionary, ordinary politics on grounds that such periods allow the pursuit of private ideals). 22 See H. Arendt,supra note 14, at 28-37. 23 Arendt s skepticism about the role of Kant's idea of practical reason in the modern state is suggested in her book on Adolf Eichmann, when she notes that Eichmann believed that in following the laws of Nazi Germany he was acting as a good Kantian. H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 135-37 (1965). 24 See id. at 265-66 (discussing trials of Shalom Schwartzbed and the Armenian Tehlirian, charged with the murder of people responsible for, respectively, the Ukrainian and the Armenian pogroms). 25 See G. Wood, supra note 15, at 169 ("By the late 1760s and early 1770s .. . [f]or most white Americans there was greater prosperity than anywhere else in the world."). 26 I take the term from R. Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (1987). 27 The Mecklenburg County Resolutions (May 20,1775), in 1 Documents of American History 98 (H. Commagered. 1973).

269

270

Notes to Pages 61-64

28 For a psychoanalytic perspective on regicide, see L. Hunt, The Family Romance of the French Revolution (1992). 29 Quoted above, text at note 6. 30 See R. Ferguson, The American Enlightenment, 1750-1820, in 1 Cambridge History of American Literature at 429-31 (S. Bercovitch ed. 1994). 31 See G. Wood, supra note 15 at 169-89. 32 Ronald Dworkin captures this idea when he includes the reform of a practice within the process of interpreting what the practice "really" is. See R. Dworkin, Laws Empire 66 (1986). 33 See A. Amar, The Consent of the Governed: Constitutional Amendment Outside Artick V, 94 Colum. L. Rev. 457, 504-05 (1994); J. Rosen, Note, Was the Flag Burning Amendment Unconstitutional? 100 Yale L. J. 1073 (1991); D. Linder, What in the Constitution Cannot be Amended? 23 Ariz. L. Rev. 717 (1981); W. Murphy, An Ordering of Constitutional Values, 53 S. Gal. L. Rev. 703, 754-57 (1980). 34 See A. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988). 35 Jean-Jacques Rousseau, for example, argues for periodic assemblies of the people at which the first question begins, "If it pleases the Sovereign to maintain the present form of Government/' J.-J. Rousseau, The Social Contract, or Principles of Political Right 171 (C. Sherover trans. 1974) (1762). 36 See C. Brickfield, Problems Relating to a Federal Constitutional Convention, Committee Print, Committee on the Judiciary House of Representatives, 85th Cong., 1st Sess. (July 1, 1957) at 16-21. A constitutional amendment has yet to be proposed by an Article V convention. Similarly, every amendment, except for the twenty-first, has been ratified by state legislatures. See L. Tribe, American Constitutional Law 64n (1988). 37 For example, see the debate on the Bill of Rights in the Virginia Ratifying Convention discussed in L. Banning, 1787 and 1776: Patrick Henry, James Madison, the Constitution, and the Revolution, in Toward a More Perfect Union: Six Essays on the Constitution 59-89 (N. York ed. 1988). 38 The Eleventh Amendment, for example, was a direct response to the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). See Hans v, Louisiana, 134 U.S. 1, 11 (1890); A. Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425,1473 (1987). See also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986) (arguing that the Fourteenth Amendment was understood by many of its supporters to be a recovery of the Founders' original intention). 39 The coordinate strategy, when the limits of reform fail, is cooptation: willfully ignoring the breaches of the limits of reform and accepting revolutionary change as if it satisfied those limits. This is the account that Bruce Ackerman offers of the adoption of the Thirteenth and Fourteenth Amendments. B. Ackerman, supra note 21, at 44-47. 40 See id. at 266-94.

Notes to Pages 65-72

41 See K. Baker, supra note 5, at 304-05. 42 In the French Revolution, Robespierre was known as "the virtuous." For a discussion of the role of the American clergy in translating revolutionary politics, both in 1776 and 1800, into the language of religious morality, see N. Hatch, The Sacred Cause of Liberty: Republican Thought and the Millennium in Revolutionary New England (1977). 43 On the Jacobin accusation, see W. Cobbett, Peter Porcupine in America: Pamphlets on Republicanism and Revolution (D. Wilson ed. 1994). On the Federalist fear that Jefferson would "pull down eveiything they had built," see S. Elkins & E. McKitrick, The Age of Federalism 750 (1993). 44 T. Jefferson, Letter to W. Smith (November 13,1787), in 4 P. Ford, supra note 2, at 467. Jefferson also wrote: "Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century and a half. No country should be so long without one." T. Jefferson, Letter to James Madison (December 20,1787), id. at 479. 45 The home of such an unrelenting negation may be fiction. See A. Malraux, Mans Fate (H. Chevalier trans. 1934). 46 For an example of such a false prophet, see In re Anastaplo, 366 U.S. 82 (1961). 47 See P. Fitzpatrick, The Mythology of Modern Law 182 (1992). 48 It is doubtful whether any modern polity believes its public law to be a product of common-law development, wholly independent of revolution. Revolution is built too deeply into the modern conception of political freedom not to be projected back into the origins of the rule of law. See H. Herman, Law and Revolution: The Formation of the Western Legal Tradition 20 (1983). 49 This is the point of Kant's acknowledged debt to Rousseau. See E. Cassirer, Rousseau, Kant, Goethe 32-35 (J. Gutmann et al. trans. 1945). 50 See above, text at note 8 (quoting Bayard). 51 See J.-J. Rousseau, supra note 35, at 45. 52 Romans 10:4 (all biblical quotations are from the Revised Standard Version). 53 Romans 7:4. 54 The alternative claim is well expressed in the presidential inaugural address of Jefferson Davis. See 1 Documents of American History, supra note 27, at 407-10. 55 See P. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory 53-58 (1992). 56 See C. O'Brien, Nationalism and the French Revolution, in The Permanent Revolution: The French Revolution and Its Legacy 1789-1989, at 36-40 (G. Best ed. 1988). See also The Federalist No. 1, at 33 (A. Hamilton) (referring to the "fate of an empire in many respects the most interesting in the world"). 57 See M. Eliade, The Sacred and the Profane: The Nature of Religion 88-89 (W. Trask trans. 1959) ("Religious man feels the need to plunge periodically into this sacred and indestructible time. For him it is sacred time that makes possible the other time, ordinary time, the profane duration in which every human life takes its course.").

271

272

Notes to Pages 72-79

58 J.-J. Rousseau, supra note 35, at 63. He does not mean this literally. Rather, he is arguing that the conditions for successfully originating a new legal order are so rare that they require the appearance of an extraordinary person. 59 T. Hobbes, Leviathan 81-82 (C. Macpherson ed. 1968) (1651). 60 Marbury v. Madison, 5 U.S. (1 Cranch) 137,176 (1803). 61 On the morality of responsibility, see below, chapter 4. 62 See above, text at chapter 2, note 24. Madison's well-known response highlights one of the great disagreements between the two. J. Madison, Letter to Thomas Jefferson (February 4,1790), in Mind of the Founder: Sources of the Political Thought of James Madison 175-79 (M. Meyer ed. 1981).

CHAPTER 4: LOCATING THE SELF IN POLITICAL TIME 1 T. Jefferson, Letter to John Cartwright (June 5,1824), in The Complete Jefferson 294-96 (S. Padover ed. 1943). 2 See E. Burke, Reflections on the Revolution in France 39 (1955) ("All your sophisters cannot produce anything better adapted to preserve a rational and manly freedom than the course that we have pursued, who have chosen our nature rather than our speculations, our breasts rather than our inventions, for the great conservatories and magazines of our rights and privileges."). 3 See G. Fletcher, Loyalty: An Essay on the Morality of Relationships 41 (1993) ("The worst epithets are reserved for the sin of betrayal."). 4 Plato, Crito 50c-51c. 5 This shift in moral perspective from responsibility to loyalty is the reason that the two dialogues have always presented a puzzle of reconciliation. The Socrates of the Apology would not accept the arguments of the Crito: the former measures obligations from the perspective of responsibility, action, and justice, rather than loyalty and law. The philosopher of the Apology nevertheless remains the citizen of the Crito. His body belongs to the state—to the domain of loyalty—while the philosophers concern with justice becomes a practice of "dying." See Plato, Phaedo 67e (H. Tredennick trans.), in the Collected Dialogues of Plato (E. Hamilton & H. Cairns eds. 1961) ("[Tjrue philosophers make dying their profession.")6 T. Jefferson, LettertoJ. Cartwright, supra note 1, at 294. 7 The Federalist No. 1, at 33 (A. Hamilton) (C. Rossiter ed. 1961). The French, too, thought of their revolution as "a world historical event, a phenomenon of universal significance. The French were carrying out a universal historical mission: To punish the guilty in a terrifying manner is an act of severity that the Revolution owes to itself and to all the nations which have not yet broken the chains of despotism/ " K. Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century 220 (1990). 8 See F. Dolan, Home Rebels and House-Traitors: Murderous Wives in Early Modern England, 4 Yale J.L. & Human. 1,4 (1992) ("[I]f any servant kill his master, any

Notes to Pages 79-83

woman kill her husband, or any secular or religious person kill his Prelate.., this is treason.") (Quoting 25 Ed. Ill, St. 5, cap. 2). 9 See, e.g., ]. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761,826-30 (1992); R. Nisbet, The Quest for Community: A Study in the Ethics of Order and Freedom (1953). 10 See, e.g., A. Guttman, Democratic Education 19-47 (1987). 11 Hegel s classic analysis of Antigone captures one version of this tragedy of moral conflict. G. W. F. Hegel, The Phenomenology of Mind 494 (J. Baillie trans. 1967). Gray provides a moving description of the conflict in the soldiers experience in a chapter entitled "The Ache of Guilt" in J. Gray, The Warriors: Reflection on Men in Battle 171 (1959). See in particular his description of the time consciousness of the soldier. "In serene moments the soldier may be very clear that he is partly free, in projecting himself into the future and striving for an ideal; partly determined, in being limited by what he has done and been [T]he two sides are not opposed at all, but in a mysterious way two sides of the same coin." Id. at 209. 12 For a debate over the relative place of these intergenerational obligations, see A. Kronman, Precedent and Tradition, 99 Yale L.J. 1029 (1990) and D. Luban, Legal Traditionalism, 43 Stan. L. Rev. 1035 (1991). 13 See above, chapter 3. 14 The Federalist No. 49, at 315 (J. Madison) (C. Rossiter ed. 1961). 15 Mat314. 16 Id. 17 See Plato, Apology 31b. 18 The same tension between responsibility and loyalty can be found in the dynamics of family: yet another space for a private freedom under liberalism. See R. Dworkin, Laws Empire 204-05 (1986). We have no better idea of how to measure responsibility against loyalty in the private domain—religious or familial—than in politics. The failure of this tension to arise in the private domain of the market again shows the apolitical nature of markets. Defined by present interests, the market has no place for the tension of past and future. See above, chapter 2. 19 See Griswold v. Connecticut, 381 U.S. 479 (1965) (right to use contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (right to abortion); Cruzan v. Director, Mo. Dep't. of Health, 497 U.S. 261 (1990) (right of terminally ill to refuse treatment). 20 See J. Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737,784-91 (1989). 21 For a modern effort to overcome even these limits, see J. Butler, Bodies That Matter: On the Discursive Limits of "Sex" (1993). 22 See R. Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993). 23 See C. MacKinnon, Toward a Feminist Theory of the State 168 (1989) ("Men's realm of private freedom is women's realm of collective subordination."). 24 Jack Balkin draws the analogy in Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375,380. 25 See below, chapter 6.

273

274

Notes to Pages 83-69

26 See above, chapter 3. Cf. B. Yack, The Longing for Total Revolution: Philosophic Sources of Social Discontent from Rousseau to Marx and Nietzsche (1992). 27 See H. Jaffa, Crises of the House Divided 227 (1959) (commenting on difference between Declaration of Independence and Gettysburg Address). 28 A. Lincoln, The Perpetuation of Our Political Institutions: Address Before the Young Men's Lyceum of Springfield, Illinois, January 27, 1838, in Abraham Lincoln: His Speeches and Writings 76,84 (R. Easier ed. 1946). 29 Rene Girard offers an alternative "political" reading of sacrifice. He sees it as a means of displacing the tensions and violence of the community onto a victim. See R. Girard, Violence and the Sacred (P. Gregory trans. 1977). Sacrifice, particularly in the modem democratic state, is a far more general phenomenon than Girards definition suggests. 30 One could speculate that there is a third form of sacrificial violence operative in the legal order as well: the "war against crime." Crime and punishment may represent a socially internalized form of projection of law onto the body. See below, conclusion. 31 The body marked and thus becoming a text is the link between the ritual of circumcision and the sacrifice of Isaac in the Old Testament. Sacrifice of the son and circumcision both suggest castration—itself a symbol of subordination of the body to the idea. See S. Freud, Moses and Monotheism 156 (K. Jones trans. 1939). 32 On faith, see below, chapter 7. 33 See S. Freud, Totem and Taboo 141-46 (J. Strachey trans. 1950). 34 See E. Pagels, The Gnostic Gospels 78-101 (1989). 35 A. Lincoln, Lyceum Speech, supra note 28, at 84-85. 36 See R. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4,44-52 (1983). 37 Lincoln again gives the best rhetorical explanation of how the naturalized citizen takes up a relation of blood with his or her new community. See A. Lincoln, Speech in Reply to Douglas at Chicago, Illinois,. July 10, 1858, in Abraham Lincoln: His Speeches and Writings, supra note 28, at 385,401-02 (common "moral sentiment" allows immigrants "to claim . . . they were blood of the blood, and flesh of the flesh, of the men who wrote the Declaration, and so they are"). 38 This structure of meaning is much broader than the rule of law within our polity. It is exemplified in the Christian idea of the Trinity. Gods word—the logos—is the source of all meaning: the ideal content read in the phenomena. Christ's sacrifice makes the historical body a symbol of the idea and creates the Church as a politicalhistorical entity. The Holy Spirit fills each member of the Church and thus binds them to one another as well as to God. Thus, Augustine, in On the Trinity, book 9, identifies the Holy Spirit with love. Loyalty is a political form of love. The Holy Spirit has traditionally been linked to the interpretive function as well. See C. MacKenzie, The Trinity and Culture 95-115 (1987). 39 Dworkin captures this double source of law in his idea of "fit." See R. Dworkin, supra note 18, at 66-67,164.

Notes to Pages 89-104

40 See E. Scany, The Body in Pain: The Making and Unmaking of the World (1985) (describing torture as a reinscription of meaning upon the body). 41 See supra note 5 (quoting from Phaedo: "[T]rue philosophers make dying their profession."). 42 See J. Crossan, The Historical Jesus: The Life of a Mediterranean Jewish Peasant 74-88 (1992) (on connection of historical Christ to tradition of Cynics). 43 Marbury v. Madison, 5 U.S. (1 Cranch) 137,177 (1803). 44 Id. 45 Judge Posner has, for example, stated that judges cannot easily incorporate their academic views into their judicial decisions. R. Posner, Wealth Maximization and Judicial Decision-Making, 4 Int'l Rev. L. & Econ. 131,131-32 (1984). 46 Schechter Poultry Corp. v. United States, 295 U.S. 495,528 (1935). 47 R. Dworkin, supra note 18, at 228-38. 48 See id. at 78-83. 49 See below, chapter 6. 50 5 U.S. at 176. 51 Zd.atl63. 52 Quoted in Regicide and Revolution: Speeches at the Trial of Louis XVI, at 64 (M. Walzered., M. Rothstein trans. 1974). 53 See A. Camus, The Rebel: An Essay on Man in Revolt 118 n.8 (A. Bower trans. 1956) (commenting on the ironic application of the line to Saint-Just himself). 54 J.-J. Rousseau, The Social Contract, or Principles of Political Right 59-61 (C. Sherover trans. 1974) (1762). 55 See, e.g., T. Jefferson, Letter to Abigail Adams (September 11,1804) ("[T]he opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch."). Quoted in 4 D. Malone, Jefferson and His Time: Jefferson the President; First Term, 1801-1805, at 155 (1970). 56 5 U.S. at 167. 57 7d.atl71. 58 See above, text at note 1. 59 T. Roosevelt, An Autobiography 389 (1913). See also id. at 394-97 (rejecting "narrowly legalistic view" of the president). 60 See above, chapter 3. 61 From without, the unity of history might be attributed to any number of factors: e.g., disease, geography, the means of production. CHAPTER 5: THE RULE OF LAW AND THE SUPPRESSION OF THE SUBJECT 1 Marbury v. Madison, 5 U.S. (1 Cranch) 137,153-54 (1803) (emphasis added). 2 See J. O'Fallon, Marbury, 44 Stan. L. Rev. 219,242 (1992) ("Jefferson had let it be

275

276

Notes to Pages 104-06

known that he considered all Adams appointments made after Adams knew the outcome of the presidential elections on December 12,1800 to be an 'outrage on decency/"). On the pardons, see above, chapter 1. 3 The Federalist No. 78, at 465-66 (footnote omitted) (A. Hamilton) (C. Rossiter e.. 1961). 4 Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). In January 1801, John Laird brought a suit for breach of contract against Hugh Stuart in the court of the Middle Circuit of Virginia (as constituted under the Judiciary Act of 1789). In December 1801 (after the enactment of the Judiciary Act of 1801), the matter was transferred to the newly created Fourth Circuit, which found for Laird and issued a writ of execution. In December 1802 Laird went before the court of the Fifth Circuit (the successor to the Fourth Circuit under the Judiciary Act of 1802) to have the judgment executed. Before the Fifth Circuit (including Justice Marshall), Stuart argued that the writ could be returned only to the court that issued it; because the Fourth Circuit court had ceased to exist, the writ could not be enforced. The Fifth Circuit ruled for Laird, and Stuart appealed to the Supreme Court. There, Stuarts attorney, Charles Lee, admitted that Congress had the power to transfer cases between federal courts but argued that the repeal was still unconstitutional because it dissolved the Fourth Circuit, effectively removing "judges who have been guilty of no misbehavior in their offices." The Court avoided the constitutional issue, holding as a matter of statutory interpretation that Congress intended to transfer cases from the Fourth to the Fifth Circuit. 5 Marbury, 5 U.S. at 169-70. 6 Consider the dilemma of Levi Lincoln, Jefferson's attorney general and previously the acting secretary of state, who was called to appear in Court. "On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and he hoped the court would give him time to consider the subject." He resolved his dilemma by opportunely forgetting everything of importance. Id. at 143-45. 7 Well into the nineteenth century, court reporters exercised a great deal of control over what was published and how. Justice Story noted in 1836 that the duty of the reporters was to "abridge arguments, to state facts, [and] to give the opinions of the Court substantially as they [were] delivered." Life and Letters of Joseph Story 23132 (W. Story ed. 1851). The first Supreme Court reporters, William Cranch and Alexander Dallas, also decided which cases to report. Indeed, there is some suspicion that these reporters, Dallas in particular, failed to report a significant number of the cases before the Court. C. Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendanaj, 83 Mich. L. Rev. 1291,1303, 1309 (1985). Not until 1803 did the Court adopt the practice of "reducing their opinion to writing, in all cases of difficulty or importance." 5 U.S. (1 Cranch) iv-v (1803).

Notes to Pages 106-08

8 In fact, Marshall's authorship of the Marbury opinion is arguable. The Marbury. opinion reflects much that was already put forth in another (supposedly) anonymous text: Federalist No. 78. In addition, OTallon points out the substantial influence of Justice Chase on the opinion. J. OTallon, supra note 2, at 253-55. 9 See ]. Goebel, Jr., History of the Supreme Court of the United States, 1: Antecedents and Beginnings to 1801, at 777-78 (1971). During the period 1791-1795, eight of the twenty-two recorded Supreme Court opinions were delivered seriatim. By contrast, in the first two terms of the Marshall Court (1801 and 1803), there were no seriatim opinions among the twenty-two recorded decisions. The movement toward an "opinion of the court" began under Chief Justice Ellsworth (17961800). During his tenure, seriatim opinions became less frequent (only six of thirty-nine recorded decisions), and brief percuriam opinions became more common. Like the later "opinions of the court," these per curiam opinions "provided unitary statements of the Courts reasoning, to be announced not as an individual judges position but rather as the collegiate view of the entire Court. Unlike the later 'opinions of the court/ however, they were never utilized in matters of complexity or of major substantive concern." G. Haskins & H. Johnson, History of the Supreme Court of the United States, 2: Foundations of Power: John Marshall 1801-15, at 383 (1981). 10 E.g., Plessy v. Ferguson, 163 U.S. 537,552 (1896) (Harlan, J., dissenting); Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting); Abrams v. United States, 250 U.S. 616,624 (1919) (Holmes, J., dissenting). 11 See M. Foucault, What Is an Author? in Language, Counter-Memory, Practice: Selected Essays and Interviews 101 (D. Bouchard ed. and D. Bouchard & S. Simon trans. 1977). 12 Indeed, there has been a further removal of the author function from the authority of the opinion in the increasing recognition that the Justices themselves are often not the writers of the opinions. See A. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 347-48 (1993); R. Posner, The Federal Courts: Crisis and Reform 102-19(1985). 13 This practice starts with volume 400 of United States Reports, the beginning of the October 1970 Term. 14 Until the emergence of computerized research tools, there was no easy way to gain access to a particular Justice s opinions. 15 See, e.g., R. Ferguson, Holmes and the Judicial Figure, 55 U. Chi. L. Rev. 506 (1988). 16 See, for example, Justice Blackmun s failed efforts to explain what Roe means in Bowers v. Hardwick, 478 U.S. 186,199 (1986) (Blackmun, J., dissenting), and Webster v. Reproductive Health Servs. 492 U.S. 490,537 (1989) (Blackmun, J., dissenting). 17 See, for instance, Justice Powells reevaluation of his vote in Bowers. J. Jeffries, Jr., Justice Lewis F. Powell, Jr., and the Era of Judicial Balance 530 (1994). 18 See E. Levi, An Introduction to Legal Reasoning (1949).

277

278

Notes to Pages 109-13

19 The classic example of this critique is the description of Justice Roberts' vote in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), as "the switch in time that saved nine." Felix Frankfurters initial reaction is typical: "And now, with the shift by Roberts, even a blind man ought to see that the Court is in politics, and understand how the Constitution is 'judicially' construed. It is a deep object lesson—a lurid demonstration—of the relation of men to the 'meaning' of the Constitution." Letterfrom Frankfurter to Roosevelt (March 30,1937), in Roosevelt and Frankfurter: Their Correspondence, 1928-45, at 392 (M. Freedman ed. 1967). 20 Locating the preferences of the majority can be problematic in light of the Arrow/Condorcet paradox, which shows outcomes to be a function of voting procedures. See K. Arrow, Social Choice and Individual Values 3,93-96 (1963). 21 See P. Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell 97 Yale LJ. 1, 35-37 (1987) (identifying "representative balancing" as a judicial approach that balances the winners in one case against the losers in a subsequent case). 22 See J. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century 30-55 (1987). 23 T. Jefferson, Letter to William Johnson (October 27,1822), in 10 The Writings of Thomas Jefferson 223-24 (P. Ford ed. 1899). 24 See E. Coke, Coke on Littleton, Book 2,138, p. 97-b (3d ed., 1633): "And therefore if all the reason that is dispersed into so many several heads were united into one, yet could he not make such a Law as the Law of England is, because by many succession of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection, for the government of this Realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his owne private reason) ought to be wiser than the Law, which is the perfection of reason." 25 See P. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory 109-10 (1992) (discussing common-law constitutionalism in Lochnerera). 26 See G. White, The Marshall Court and Cultural Change 1815-1835, at 186-95 (1988); G. Haskins & H. Johnson, supra note 9, at 382-^83. 27 5 U.S. at 163. 28 3 US. (3 DaH.) 386 (1798). 29 Id. at 388-89 (emphasis added). 30 Id. at 399. 31 Id. at 397. 32 T. Jefferson, Letter to William Johnson (October 27,1822), supra note 23, at 225. 33 Id. 34 See, e.g.,}. Frank, Law and the Modern Mind 114-15 (1930): "[The] ultimately important ... decisions of any judge are the most obscure, and are the least easily discoverable—by any one but the judge himself. They are tied up with intimate experiences which no biographer, however sedulous, is likely to ferret out, and the

Notes to Pages 114-15

emotional significance of which no one but the judge, or a psychologist in the closest contact with him, could comprehend. What we may hope some day to get from our judges are detailed autobiographies containing the sort of material that is recounted in the autobiographical novel; or opinions annotated, by the judge who writes them, with elaborate explorations of the background factors in his personal experience which swayed him in reaching his conclusions. For in the last push, a judge's decisions are the outcome of his entire life-history." 35 For an example of this critique, see J. Goldstein, The Intelligible Constitution 17 (1992) ("Even the professional interpreters to whom We [the people] turn may not be able to unravel what the Court has to say, often at great length in heavily footnoted multiple opinions reaching not only opposite but even the same results."); see also D. O'Brien, Storm Center: The Supreme Court in American Politics 26275 (1986) (noting recent proliferation of separate dissenting and concurring opinions); J. Davis & W. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 Duke L.J. 59, 63-66 (arguing that plurality opinions adversely affect the Court s leadership function). Between 1801 and 1955, the Supreme Court issued only forty-five plurality decisions; between 1956 and 1969, it issued forty-two; between 1970 and 1980, it issued eighty-eight such decisions. Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127,1127 n.l (1981). Between 1981 and 1991, it issued an average of 10.3 per term. 36 See, e.g., Nixon v. Fitzgerald, 457 U.S. 731,764 (1982) (White, J., dissenting) (identifying majority position with dissent in Butz v. Economou, 438 U.S. 478 (1978)); Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097,2127 (1995) (Stevens, J., dissenting) (attacking majority's overruling of Metro Broadcasting v. FCC, 497 U.S. 547(1990)). 37 R. Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211,219 (1957). This is particularly true in cases of statutory interpretation. See J. Ely, The Supreme Court, 1977 Term—Foreword: On Discovering Fundamental Values, 92 Harv. L. Rev. 5,10 n.33 (1978). See generally M. Kelman, The Forked Path of Dissent, 1985 Sup. Ct. Rev. 227. 38 See R. Burt, The Constitution in Conflict (1992). Burt believes that "if we aspire to democracy, then unforced unanimity must be our guiding ideal in all social relations and in all institutions." Id. at 374. He suggests that enhanced debate is the only way to move toward an ideal unanimity. See also P. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147,1168 (1993) (arguing for a conception of state constitutionalism as process of "giving voice to the... values and principles of the national community"). 39 Planned Parenthood v, Casey, 112 S. Ct. 2791, 2854 (1992) (opinion of Blackmun,J.). 40 This may, however, have been the idea behind Cooper v. Aaron, 358 U.S. 1 (1958), where the unanimous opinion by the Court, affirming the requirement of school desegregation, was explicitly signed by each Justice. This was clearly a public indi-

279

280

Notes to Pages 116-19

cation that there was no space for political division within the Court. It was a response to divisive politics on its own terms. 41 On roles generally, see M. Dan-Cohen, Between Selves and Collectivities: Toward a Jurisprudence of Identity, 61 U. Chi. L. Rev. 1213 (1994). Dan-Cohen understands the judge to occupy a position that both requires and disavows what he calls role-distance. M. Dan-Cohen, Law, Community, and Communication," 1989 Duke L.J. 1654,1671-75. 42 See F. Michelman, The Supreme Court, 1985 Term—Foreword: Traces of SelfGovernment, 100 Harv. L. Rev. 4,74 (1986). 43 Justice Thomas confused his pre- and post-appointment identities when he claimed never to have formed an opinion on Roe. He was pretending already to have that lack of subjecthood that characterizes the Justice. For an ordinary person to make the claim is just foolish. To be a judge is not a character trait, but a role—an appearance. 44 The same contradiction appears in the Court s jury-selection jurisprudence. First the Court argued that women could not be excluded from jury panels because of their different voice: "the two sexes are not fungible." Ballard v. United States, 329 U.S. 187,193-94 (1946). Having achieved this presence, the Court had to suppress the very fact of gender difference. Thus, it held that gender could not be the basis of a preemptory challenge because the voice of law could not be gendered. JEB v. Alabama, 114 S. Ct. 1419,1427 (1994). 45 For a different view of what is at stake in the confirmation process, see S. Carter, The Confirmation Mess (1994). 46 All this contrasts sharply with the origins of the jury in medieval England, where jurors were expected to be familiar with the participants and the case: "[T]he bench was dependent upon the jury for information regarding the circumstances of the presented offense and the credibility of persons presented." T. Green, A Retrospective on the Criminal Trial Jury, 1200-1800, in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 at 359 (J. Cockburn, T. Green eds. 1988). See also Jackson's Machinery of Justice 21 (J. Spencer, ed., 1989) ("The jury was traditionally the neighbors, and they were supposed to know the facts."). 47 A good example of this exclusion of actual knowledge from the courtroom is Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994), in which the court upheld the exclusion of jurors because of their knowledge of a foreign language in which testimony was to be given. There has been a tendency to extend the rule of law into other forums of political decision making by extending the protections of judicial procedure— inter alia, requirements of notice, disclosure, presence (ex parte restrictions), and reasoned decision. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring quasi-judicial hearing before termination of welfare benefits). For a discussion of problems with modeling administrative decision making on judicial processes, see J. Mashaw, Bureaucratic Justice (1983). 48 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952) (Jackson, J., concurring).

Notes to Pages 120-29

49 See A. Kronman, supra note 12, at 113-15 (noting that case method pedagogy works to strengthen students' critical detachment). 50 As with all generalities, there are exceptions. See Fed. R. Evid. 803 (22) (evidence of previous conviction is admissible). 51 See A. Kronman, supra note 12, at 210-25 (discussing Karl Llewellyns unsuccessful effort to create a "prudential realism"). 52 The controversy over the judicial balancing of conflicting values as a model of adjudication is rooted in differing views of the role of judicial personality in the decision. See P. Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, supra note 21; T. Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987); L. Frantz, Is the First Amendment323 Law? A Reply to Professor Mendelson, 51 Cal. L. Rev. 729 (1963). 53 See above, text at note 33. 54 See L. Hand, The Bill of Rights 73 (1958) (distinguishing the Supreme Court from "a bevy of Platonic Guardians"). 55 See Fed. R. Evid. 201 (b) ("A judicially noticed fact must be one not subject to reasonable dispute."). 56 See 28 U.S.C. "455(b)(l) (1988) ("personal knowledge of disputed evidentiary facts" is a ground for recusal). 57 See O. Fiss, The Bureaucratization of the Judiciary, 92 Yale L.J. 1442, 1465-66 (1983). 58 Distinguishing evidentiary strategies, for which parties should be held responsible, from evidentiary failings, for which they should not be, has been a persistent problem in assessing jurisdiction in federal habeas actions seeking review of state criminal proceedings. See, e.g., Henry v. Mississippi, 379 U.S. 443 (1965 59 See R. Cover, Justice Accused: Antislavery and the Judicial Process (1975). 60 I owe this insight to Eugene Carver. 61 For an example of this land of work, see R. Siegel, Reasoningfrom the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992); see also T. Laqueur, Making Sex: Body and Gender from the Greeks to Freud (1990). 62 See Cruzan v. Director, Mo. Dep't. of Health, 497 U.S. 261 (1990) (terminally ill patients have a constitutionally protected liberty interest in refusing treatment); see also R. Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993). 63 See D. Luban, Lawyers and Justice: An Ethical Study 92-103 (1988). 64 See, e.g., D. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835,49 U. Chi. L. Rev. 646,655-56 (1982); S. Snowiss, Judicial Review and the Law of the Constitution 13-44 (1990); J. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893). 65 Plato, The Republic 517a. 66 See Q. Skinner, Meaning and Understanding in the History of Ideas, 8 Hist, and Theory 3,49 (1969).

281

282

Notes to Pages 131-39

67 68 69 70 71 72

McCleskeyv. Kemp, 481 U.S. 279,344 (1987) (Brennan, J., dissenting). Lochnerv. New York, 198 U.S. 45,59 (1905). Richmond v. J. A. Croson Co., 488 U.S. 469,558 (1989) (Marshall, J., dissenting.). NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,41 (1937). See below, chapter 8. Even student notes, which for years were anonymous, have come to be authored at most law schools. Anonymity was appropriate when the note was thought of as nothing more than the explanation of a judicial opinion. Now that every interpretation is thought of as creative, claiming authorship seems appropriate.

CHAPTER 6: THE STRATEGIES OF LAW 1 See J. White, Justice as Translation: An Essay in Cultural and Legal Criticism 95 (1990) ("[W]hat is distinctive about legal judgments [is that] they are... made by actors with limited authority, an authority that is governed by texts external to themselves to which they must look."); O. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739,746-47 (1982) (legal interpretations are constrained by rules deriving authority from preexisting interpretive community). 2 Early on, the Court rejected President Washington's request for an advisory opinion. Letter of Chief Justice Jay and the Associate Justices (August 8,1793), in Hart & Wechsler's the Federal Courts and the Federal System 93 (R. Fallen et al. ed. 1996). 3 Lochnerv. New York, 198 U.S. 45,76 (1905) (Holmes, J., dissenting). 4 See E. Levi, An Introduction to Legal Reasoning 2 (1949) ("The finding of similarity or difference is the key step in the legal process/'). 5 Marbury actually uses both forms of reasoning. It is at the boundary between maintenance of law and the making of law. See P. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory 24-31 (1992). 6 See H. White, Tropics of Discourse: Essays in Cultural Criticism 13 (1978) ("The move from the major premise [all men are mortal] to the choice of the datum to serve as the minor [Socrates is a man] is itself a tropological move . . . which logic cannot preside over/'). 7 See P. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147,1163-67 (1993). 8 See J. Pocock, Time, Institutions, and Action: An Essay on Traditions and Their Understanding, in Politics, Language, and Time: Essays on Political Thought and History 233 (1989). 9 James Marshall's affidavit stated that "riotous proceedings" on March 4, 1801, forced him to return to the State Department without delivering some of the commissions for justice of the peace that his brother John, then secretary of state, had given him. Marburyv. Madison, 5 U.S. (1 Cranch) 137,146(1803). 10 The classic work on the place of fortune in politics is Machiavelli's The Prince. See also J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975).

Notes to Pages 140-44

11 See H. White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (1973); Tropics of Discourse, supra note 6. 12 H. White, Metahistory, supra note 11, at 35.

13 Id. 14 K. Burke, AGrammar of Motives 508(1969). 15 H. White, Metahistory, supra note 11, at 37. 16 Id.

17 See above, chapter 3. 18 5 U.S. at 155 19 Id. at 157. 20 7d.atl62. 21 Id. at 157 (emphasis added). 22 On the religious/magical origins of the oath, see H. Silving, The Oath: I, 68 Yale L.J. 1329 (1959). On the multiple origins, secular and religious, of the seal in medieval practice, see 7 Wigmore, Evidence §2161 (Chadbourn rev. 1978). 23 5 U.S. at 157. 24 Jc/.atl66. 25 One chronicler of the Eisenhower administration reports that "the President rebuked Vice President Nixon for referring to Earl Warren as the 'Republican Chief Justice' and firmly denied in his diary any administration responsibility for the Supreme Courts judgments." Eisenhower feared any association between himself and Warren because it would be seen as "taking sides" on the desegregation issue. R. Burk, The Eisenhower Administration and Black Civil Rights 162 (1984). 26 In response to the deteriorating relation between the United States and France, President Adams sent envoys to pursue secret negotiations. After eight months of getting no official response from the French Foreign Minister, three French agents (referred to in American dispatches as ministers X, Y, and Z) demanded bribes, a loan to the French Republic, and a public apology by the president. Infuriated by these demands, Adams called for a quasi-state of war. Because he did not make the details of the negotiations public, the Republican opposition considered Adams' demands excessive. When they pressed him to make the documents public, Adams gladly relented. On publication, public sentiment—much to the Republicans' chagrin—turned against the French. See L. Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology 251-55 (1978). From 1806 to 1807 Aaron Burr plotted secretly with the commanding general of the United States Navy, James Wilkinson, to bring on a war with Spain by attacking Mexico, and perhaps even to lead the western states in a revolt against the United States. Burr was indicted for conspiracy on the basis of coded letters provided by Wilkinson. He was eventually acquitted for lack of evidence. On the trial and its convoluted history see G. Haskins & H. Johnson, History of the Supreme Court of the United States, 2: Foundations of Power: John Marshall, 1801-15, at 246-91(1981). 27 Recent accusations of presidential lawlessness have regularly focused on secret

283

284

Notes to Pages 144-53

presidential actions. The pattern begins with Nixon's secret war in Laos and Cambodia. See J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 68-104 (1993). Consider also the secret war in Nicaragua, as well as the debacle of the Iran-Contra affair. 28 James Madison himself confronted this problem late in life when he was prodded by friends and former colleagues to bring his intimate knowledge of the founding to bear on the great political questions of the 1820s and 1830s—e.g., the Missouri Compromise, the nullification crisis, and slavery. "Whatever might have been the opinions entertained in forming the Constitution, [it became] the duty of all to support it in its true meaning as understood by the nation at the time of its ratification." J. Madison, Letter to John Jackson (December 27,1821), quoted in D. McCoy, The Last of the Fathers: James Madison and the Republican Legacy 88 (1989). See also H. Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 935-41(1985). 29 5 U.S. at 158. 30 Id. 31 Id. at 170. See generally S. Winter, The Meaning of "Under Color of Law, 91 Mich. L. Rev. 323 (1992). 32 5 U.S. at 161. 33 Mat 162. 34 Id. 35 Compare Myers v. United States, 272 U.S. 52 (1926) (presidents power to remove executive officials appointed by him cannot be limited by Congress) with Humphreys Executor v. United States, 295 U.S. 602 (1935) (Congress has power to limit president s power to remove members of Federal Trade Commission). 36 On federal judges who do not meet the requirements of Article III, see J. Resnik, The Mythic Meaning of Article III Courts, 56 U. Colo. L. Rev. 581 (1985). 37 5 U.S. at 163. 38 Id. 39 Id. 40 On the repeated attempts to petition the king to redress colonial grievances see G. Wills, Inventing America: Jefferson s Declaration of Independence 54-64 (1978). See also P. Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776, at 198-19 (1991). 41 See G. Haskins & H. Johnson, supra note 26 at 139 ("[I]t had been the general position of the federal judges that the common law—as embodied in English decisions and usages—was as much a part of the federal jurisprudence as it was of the law of the several States/'); R. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 206 (1971). 42 "Of all the doctrines which have ever been broached by the federal government," Jefferson wrote Edmund Randolph in 1799, "the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable." For Jefferson, "the common law did not become, ipso facto, law on the

Notes to Pages 154-58

new association; it could only become so by a positive adoption, and so far only as they [the national legislature] were authorized to adopt." T. Jefferson, Letter to Edmund Randolph (August 18,1799), in 7 Writings of Thomas Jefferson 383-87 (P. Forded. 1899). 43 But see R. Cover, Justice Accused: Antislavery and the Judicial Process (1975), on the unique problems that the constitutional protection of slavery presented to the antebellum courts. 44 5 U.S. at 164 (emphasis added). 45 Id. at 164. 46 Id. at 165-66. 47 Baker v. Carr, 369 U.S. 186, 211 (1962); see also United States v. Nixon, 418 U.S. 683,703-05(1974). 48 5 U.S. at 165. 49 Id. at 164. 50 See above, chapter 3 (revolution is procedurally self-legitimating). 51 Even when it was said that the kings will was the law, a king who literally did whatever he wanted was called a tyrant. A tyrant abused the public law-making authority of the king. He failed to identify his private will with the public order, making the public order into a representation of his private desires instead. See, e.g., J. Bodin, Six Books of the Commonwealth 56-57 (M. Tooley trans. 1967) ("Royal, or legitimate, monarchy is one in which the subject obeys the laws of the prince, the prince in his turn obeys the laws of God Tyrannical monarchy is one in which the laws of nature are set at naught, free subjects oppressed as if they were slaves."). 52 5 U.S. at 166. 53 Id. at 165-66. The opinion is actually tantalizingly unclear on whether the president can ever be treated as a mere instrument of the law and thus fall within the Court s jurisdiction. Is he, like the king, subject only to "the respectful form of a petition," or may he be sued directly in a court of law? Marbury s attorney conceded at argument that "the president is not amenable to any court of judicature for the exercise of his high functions." Id. at 149. 54 "Prior to the litigation explosion commencing with this Courts 1971 Bivens decision, fewer than a handful of damages actions ever were filed against the President." Nixon v. Fitzgerald 457 U.S. 731, 752 n.31 (1982). Nixon barred civil damages against the president. Lawsuits naming the president have been more common since the 1970s. President Carter, for example, was sued more than thirty times. See L. Krugman Ray, From Prerogative to Accountability: The Amenability of the President to Suit, 80 Ky. L.J. 739,790 (1992). 55 T. Jefferson, Letter to George Hay (June 20,1807), in The Portable Thomas Jefferson 508 (M. Peterson ed. 1975). 56 5 U.S. at 166. 57 See above, chapter 1. 58 5 U.S. at 166.

28S

286

Notes to Pages 158-44

59 See, e.g., P. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984); G. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41. 60 5 U.S. at 165. 61 Id. at 166. 62 Id. at 172. 63 Id. at 166. Q4Butcf.L. Henkin, Is There a Political Question Doctrine? 85 Yale LJ. 597 (1976) (judicial deference to the other branches under political question doctrine can be explained by determinate legal rules, rather than by the distribution of political power). 65 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,637 (1952) (Jackson, ]., concurring) (footnote omitted). 66 5 U.S. at 177. 67 Justice Jackson expressed this well: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). 68 5 U.S. at 166 (emphasis added). 69 See S. Fish, Dennis Martinez and the Uses of Theory, 96 Yale L.J. 1773 (1987). 70 See M. Foucault, quoted in Film and Popular Memory: An Interview with Michel Foucault, 11 Radical Phil. 24,25-26 (1975) ("[M]emory is actually a very important factor in struggle... . [I]f one controls peoples memory, one controls their dynamism It s vital to have possession of this memory, to control it, administer it, tell it what it must contain."); M. Halbwachs, The Collective Memory 78-87 (F. J. Ditter, Jr. & V. Y. Ditter trans. 1980); J. Pocock, Time, Institutions and Action; An Essay on Traditions and Their Understanding, in Politics, Language, and Time 233 (1989). On actions reading of history, see E. Carver, Machiavelli and the History of Prudence (1987). 71 5 U.S. at 169. 72 Mat 171. 73 Id. at 170. 74 Id. at 171. 75 For a modern version of the problem of making public "the secrets of the cabinet," see E. Sedgwick, Epistemology of the Closet (1990). 76 5 U.S. at 170. 77 Id. at 172. 78 7d.atl68. 79 Id. at 163. 80 See G. Gunther, The Subtle Vices of the "Passive Virtues"—A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964) (arguing that such exercises of discretion by the Court have pernicious "law-debasing effects"). 81 See above, chapter 5.

Notes to Pages 166-71

82 See K. Baker, Fixing the French Constitution, in Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century 252-305 (1990) (discussing conflicting views over recovering and creating a constitution in the midst of the French Revolution.). 83 See G. Calabresi, A Common Law for the Age of Statutes 172-73 (1982); G. Calabresi and P. Bobbitt, Tragic Choices 78-79 (1978); cf., P. Gewirtz, Remedies and Resistance, 92 Yale L.J. 585,666-74 (1983) (noting that judicial candor in race discrimination cases might harm effectiveness of prescribed remedies). 84 On the problematic foundations of constitutional claims of legitimacy, see P. Kahn, supra note 5, passim. 85 A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986). This reading of Marshall as a political actor arguably begins with Jefferson's reading of the case. See 3 A. Beveridge, The Life of John Marshall 143-44 (1919). 86 (tooted w 5 U.S. at 173. 87 Id. at 170. 88 Cohens v. Virginia, 19 U.S. 264, 404 (1821). For this reason, arguments for a prudential standing doctrine—allowing the Court to bring factors outside of law to bear on questions of justiciability—are always met by counterarguments that such prudentialism is inconsistent with the rule of law. See G. Gunther, Constitutional Law 1639-41 (1991). 89 See below, chapters. 90 5 U.S. at 176-77. 91 See J. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. Rev. 547 (1993). 92 See, e.g., T. Grey, Do We Have an Unwritten Constitution? 27 Stan. L. Rev. 703 (1975); M. Perry, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary 100-102 (1982). 93 See P. Kahn, supra note 5, at 65-96. 94 Consider not just the right to privacy—e.g., abortion and contraception—but also the Court s reapportionment jurisprudence, beginning with Reynolds v. Simms, 377 U.S. 533 (1964), its work in criminal procedure, including Miranda v. Arizona, 384 U.S. 436 (1966), and its tremendous expansion of the scope of equal protection, beginning with Brown v. Board of Education, 347 U.S. 483 (1954). 95 The Court s reading of the "exceptions clause" of Article III, section 2, together with congressional control over the jurisdiction of the lower federal courts, allows for the possibility of "jurisdiction stripping" by Congress. On the controversy this issue has spawned, see H. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953); H. Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001 (1965); A. Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985).

287

288

Notes to Pages 171-82

96 Once the Court split Law from law, it had available numerous possible arguments by which it could claim support for its failure to act. It could, for example, have found a presidential right to terminate this kind of appointment or it could have found the office itself unconstitutional because the justice of the peace did not have life tenure. 97 5 U.S. at 177. 98 Id. at 174. 99 There is a tendency in some legal theory to see a difference in kind between the Constitution as law and the political quality of the statutory. Process-based theories, for example, understand the Constitution as primarily establishing the conditions for a kind of market of political bargaining among representatives of diverse interest groups. See, e.g., J. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); J. Buchanan, Good Economics—Bad Law, 60 Va. L. Rev. 483, 491 (1974). 100 The real issue here is new law, not just new legislation. If the president, through executive rule making, or the courts, through common-law authority, purport to have law-making powers, then the same strategies will be deployed with respect to their power to make law. See P. Kahn, Gramm-Rudman and the Capacity of Congress to Control the Future, 13 Hastings Const. L.Q. 185,211-28 (1986). 101 See above, chapter 3. 102 5 U.S. at 177-78. 103 Id. at 178. 104 Id. at 163. 105 Id. at 174. CHAPTER 7: THE REPRESENTATIVE CHARACTER OF LAWS APPEARANCE 1 Plato, The Republic, Book III 414b-15d. 2 This myth of natural political inequality contrasts with the modern myth of natural equality. Inequality and equality are both appearances, not "self-evident" truths. Equality is no more self-evident than difference. 3 See The Federalist No. 49, at314-15 (J. Madison) (C. Rossitered. 1961). 4 Plato's symbol of the emergence of novelty is birth itself. Plato, supra note 1 at Book VII, 545d-47a. Birth is the ultimate mystery of novelty. See H. Arendt, The Human Condition 9 (1958). 5 See H. L. A. Hart, Positivism and the Separation of Law and Morals, in Essays in Jurisprudence and Philosophy 49 (1983) (distinguishing command of a robber from command of law). 6 Saint Paul, Galatians 5:18. 7 See above, chapters.

Notes to Pages 182-86

8 For an opposing view, see R. Posner, Overcoming Law (1995). For a critique of Posner's work along the lines suggested here, see J. Rosen, Overcoming Posner 105 Yale LJ. 581 (1995) (book review). 9 C. Beard, An Economic Interpretation of the Constitution of the United States (1913). 10 See, e.g., J. Bodin, Six Books of the Commonwealth 62 (M. Tooley trans. 1967) ("The most notable distinction between the king and the tyrant is that the king conforms to the laws of nature and the tyrant tramples them underfoot."). 11 On the general emergence of a representational worldview in the seventeenth century, see M. Foucault, The Order of Things: An Archaeology of the Human Sciences (1970). The transformation of the body of the monarch from embodying the state to representing the state parallels a similar transformation in the experience of the eucharist in its relation to the body of Christ. 12 E. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 55 (1988); see also E. Kantorowicz, The Kings Two Bodies: A Study in Mediaeval Political Theology 23 (1957); C. Russell, The Causes of the English Civil War 134-35 (1990); R. Ferguson, The American Enlightenment 1750-1820, in 1 Cambridge History of American Literature 428-29 (S. Bercovitch ed. 1994). 13 Marbury v. Madison, 5 U.S. (1 Cranch) 137,163 (1803). 14 For example, in connection with the First Continental Congress of 1774, Jefferson wrote: "Can his majesty thus put down all law under his feet?' T. Jefferson, A Summon/ View of the Rights of British America (1774), in Words That Made American History 127 (R. Current, J. Garraty, J. Weinberg eds. 1978). See also C. Hill, The Century of Revolution 1603-1714, at 50-57 (1980) (discussing Parliaments claim to stand on law against monarchical authority in the period before the English Civil War). 15 In Common Sense, Thomas Paine performs the equivalent act of reducing the British monarch to a mere man: "Of more worth is one honest man to society, and in the sight of God, than all the crowned ruffians that ever lived." Thomas Paine: Political Writings 15 (B. Kuklich ed. 1989). 16 This is the epistemic dynamic metaphorically represented in Plato's divided line and the ascent out of the cave. Plato, supra note 1 at Books VI-VII, 509d-17a. 17 See D. Hume, Of Miracles, in 2 Essays: Moral, Political and Literary 88 (T. Green & T.Grose eds. 1875). 18 See R. Barthes, The Death of the Author, in Image, Music, Text 143-48 (S. Heath trans. 1977). 19 For an exploration of the role of faith in constitutional interpretation, see S. Levinson, Constitutional Faith (1988). 20 The connection of faith to love is evident here: faith is another way of describing an erotic attachment that cannot itself be explained but that presents itself as the source of meaningful appearances. Plato too connects interpretation and eros. See Symposium 210c-12a. Love is not the ground of faith but another way of speaking

289

290

Notes to Pages 187-91

of the attachment of the subject to a fecund source of meaning. The political can be described as easily as an erotic domain as one founded on faith. The virtue of loyalty—and the vice of betrayal—expose this erotic foundation. See above, chapter 4. 21 See 1J. Pelikan, The Christian Tradition: The Emergence of the Catholic Tradition (100-600), at 186-90 (1971). 22 See J. Rubenfeld, Reading the Constitution as Spoken, 104 Yale L.J. 1119 (1995) (the sovereign people write, they do not speak). 23 Nietzsche makes a similar point when he argues that the structure of Christian thought informs both the historical phenomenon of belief in God and the emerging belief in the death of God. F. Nietzsche, The Gay Science 283 (W. Kaufmann trans. 1974) ("[E]ven we seekers after knowledge today, we godless anti-metaphysicians still take our fire, too, from the flame lit by a faith that is thousands of years old, that Christian faith."). 24 Will can be experienced as a lack, an emptiness beyond the reach of human reason—as in "weakness of the will." Reason s failure to offer a complete source of meaning creates the need for an other outside of the self. Will appears then as the felt need for grace. See generally H. Cassirer, Grace and Law: St. Paul, Kant and the Hebrew Prophets (1988). 25 Nietzsche, for example, identifies the will to power and interpretation. F. Nietzsche, The Will to Power 342 (W. Kaufmann ed. and W. Kaufmann & R. Hollingdale trans. 1967). 26 M. Foster, The Political Philosophies of Plato and Hegel 131-32 (1935). 27 On the linkage of confession, psychoanalysis, disclosure of the self, and the will to knowledge, see 1 M. Foucault, The History of Sexuality: An Introduction 58-73 (R. Hurley trans. 1980). 28 Freud s myth of the origin of society and morality in the killing of the father by the primal band of brothers is a psychoanalytic exploration of this phenomenon. S. Freud, Totem and Taboo 140-46 (J. Strachey trans. 1950). 29 See 1 A. de Tocqueville, Democracy in America 5-6 (P. Bradley ed. 1945); de Tocqueville, The Old Regime and the French Revolution 19-21 (S. Gilbert trans. 1955). 30 See J.-J. Rousseau, The Social Contract, or Principles of Political Right 39-41,16163 (C. Sherover trans. 1974) (1762). 31 Id. at 163-65. 32 See K. Baker, Representation Redefined, in Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century 238 (1990) (revolutionary politics in France abandoned Rousseau and turned toward theories of representation). 33 Similarly, the sacraments were the body and blood of Christ. See 1 Corinthians 10-11. 34 The early Church continued the Hebraic prohibition on representations of the divine. See J. Pelikan, Jesus Through the Centuries: His Place in the History of Culture 83-94 (1985).

Notes to Pages 192-94

35 See id. at 57-70; K. Armstrong, A History of God: The 4000-Year Quest of Judaism, Christianity and Islam 107-31 (1993). 36 See G. Steiner, Real Presences (1989). 37 See M. Eliade, The Sacred and the Profane: The Nature of Religion (W. Trask trans. 1957); R. Otto, The Idea of the Holy: An Inquiry into the Non-Rational Factor in the Idea of the Divine and Its Relation to the Rational (J. Harvey trans. 1958). 38 Similarly, a part of the object—e.g., a clipping of hair—could be the thing that we would understand it to represent. See S. Freud, supra note 28, at 81-85. 39 See above, chapter 4. 40 See I. Clendinnen, Aztecs: An Interpretation 105-07 (1991). 41 See E. Sagan, Cannibalism: Human Aggression and Cultural Form 52 (1974) ("It is reasonable to assume that the institution of sacrifice has its origins in cannibalism— that sacrifice is a sublimated form of cannibal behavior."). 42 A similar idea informs the early ritual of coronation, which was itself a sacrament. In the Middle Ages, the archbishop of Mainz would tell the German king: "The grace of God hath this day changed thee into another man, and by the holy rite of unction hath made thee partaker in its divinity." Quoted in F. Kern, Kingship and Law in the Middle Ages 37 (S. Chrimes trans. 1939); see also E. Kantorowicz, supra note 12, at 317-23 (on decline of coronation symbolism). 43 Cf. R. Girard, Violence and the Sacred (P. Gregory trans. 1977). 44 M. Foucault, Discipline and Punish: The Birth of the Prison 3-69 (A. Sheridan trans. 1979). 45 On uses of confession in modern forms of torture, see E. Scarry, The Body in Pain: The Making and Unmaking of the World 54 (1985). 46 The French and English monarchs were, despite the changing character of political theory, "stubbornly loyal to royalist ideology." M. Walzer, Introduction, in Regicide and Revolution: Speeches at the Trial of Louis XVI, at 11 (M. Walzer ed., M. Rothstein trans. 1974). King James I, for example, "made it clear that the right of levying subsidies rested with the king alone, and insisted that the privileges of the House of Commons were derived from the grace of the monarch." Charles and James both believed that "their powers were derived from God alone and that they were not accountable for the exercise of these powers to any human institution." J. Sommerville, Ideology, Property and the Constitution, in Conflict in Early Stuart England: Studies in Religion and Politics 1603-1642, at 51-52 (R. Gust & A. Hughes eds. 1989). 47 See M. Foucault, The Order of Things, supra note 11, at 78-124. 48 For an exploration of the transformation in political thought represented by regicide, see M. Walzer, supra note 46, at 1-89. 49 "Individual correction m u s t . . . assure the process of redefining the individual as subject of law, through the reinforcement of the system of signs and representations that they circulate." M. Foucault, supra note 44, at 128; see also G. Fisher, The Birth of the Prison Retold, 104 Yale L.J. 1235,1271-76 (1995) (describ-

291

292

Notes to Pages 195-201

ing transformation of penal strategy from one of incapacitation to one focused on "correction" of "irregular people"). 50 For a discussion of Lincoln's rhetoric, see P. Kahn, Legitimacy and History: SelfGovernment in American Constitutional Theory 53-58 (1992); G. Wills, Lincoln at Gettysburg: The Words That Remade America (1992). 51 See above, chapter 4; see also A. Norton, Transubstantiation: The Dialectic of Constitutional Authority, 55 U. Chi. L. Rev. 458,460 (1988). 52 See, e.g., L. Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994) (examining fluidity among representational claims with respect to minority groups). 53 See H. Pitkin, The Concept of Representation 168-89 (1967); G. Wood, The Creation of the American Republic 1776-1787, at 173-81 (1969). 54 Authorization ordinarily attaches before a representational act but may attach afterward, as when one acquiesces in certain acts of another or accepts responsibility for the action of another. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,683-700 (1952) (Vinson, C.J., dissenting) (reviewing history of presidential actions subsequently approved by Congress and arguing that such approvals sustain and legitimate the earlier executive action). 55 See 1B. Ackerman, We the People: Foundations 184-86 (1991). 56 See K. Hall, Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Justices, 1850-1920,1984 Am. B. Found. Res. J. 345; G. Winters, Selection of Judges—An Historical Introduction, 44 Tex. L. Rev. 1081 (1966). 57 See, e.g., C. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689 (1984) (arguing that the Constitution forbids distribution of resources or opportunities based solely on "raw political power"); B. Barber, Strong Democracy: Participatory Politics for a New Age (1984). Even in the sweeping 1994 Republican congressional victory, "91 percent of House incumbents who sought reelection ... were reelected. In the Senate, it was 92 percent." E. Black, Both Sides of an Argument; Imposing Congressional Term Limits: Political Salvation or Mindless MeatAx? Star Tribune, November 28,1994, at 4. 58 See P. Kahn, supra note 50, at 135; O. Fiss, History of the Supreme Court of the United States, 8: Troubled Beginnings of the Modern State, 1888-1910, at 105 (1993). 59 See, e.g., C. Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law (1890). 60 The theme of an "evolving unwritten constitution" has a constant presence in American constitutionalism. Nevertheless, it usually appears as a counterpoint to the main theme of constitutionalism that locates law's origin in revolution. For example, Christopher Tiedeman begins his work with an attack on the originalist tendency in constitutional thought. Id. A modern version of this argument can be found in a comparison of H. Wellington, Common Law Rules and Constitutional

Notes to Pages 204-11

Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221 (1973), with. B. Ackerman, supra note 55. 61 See P. Kahn, Independence and Responsibility in the Judicial Role, in Transition to Democracy in Latin America: The Role of the Judiciary 73,77 (I. Stotzky ed. 1993) ("By opening the jurisdiction of the Court, the state allows every private party to become an agent of the public order."); O. Fiss, The Supreme Court, 1978 Term— Foreword: The Forms of Justice, 93 Harv. L. Rev. 1 (1978) (modern-day "structural reform" litigation is the means by which citizen-litigants are able to seek vindication of constitutional values).

CHAPTER 8: REPRESENTING THE OPINION OF THE PEOPLE 1 "If he has been appointed, the law continues him in office for five years." Marbury v. Madison, 5 U.S. (1 Cranch) 137,155-56 (1803). 2 See above, chapter 1. For a concise history of the Chase impeachment see R. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 76-107 (1971). 3 Sen. Robert Wright, Annals, 7th Cong., 1st Sess. 36 (January 8,1802). 4 5 U.S. at 165-66. 5 In Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982), the Court canvassed the broader scope of these mechanisms of accountability outside the judicial process: "There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature." Marbury's reference to the President's "own conscience" makes the point that representational relationships among subjects always work in both directions: the president must also ask himself whether his conduct continues to be representative. 6 5 U.S. at 167. 7 Id. at 176 (emphasis added). 8 Id. 9 J. Madison, National Gazette (January 19,1792), in The American Enlightenment: The Shaping of the American Experiment and a Free Society 508 (A. Koch ed. 1965). The authority of opinion is seen as well in the Declaration of Independence, which acknowledges "a decent respect to the opinions of mankind." See also J. Fliegelman, Declaring Independence: Jefferson, Natural Language and the Culture of Performance 27 (1993). On the place of the concept of public opinion in French revolutionary thought, see K. Baker, Enlightenment and Revolution in France: Old Problems, Renewed Approaches, 53 J. of Mod. Hist. 281,285 (1981).

293

294

Notes to Pages 212-20

10 See S. Elkins and E. McKitrick, The Age of Federalism 700-711 (1983). 11 See A. Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective 8 (1992) ("No court since the Revolution has ever invalidated or otherwise refused to apply a statute on the grounds that it was unconstitutional"). 12 Planned Parenthood v. Casey, 112 S. Ct. 2797,2814 (1992). 13 Lincoln captures this idea when he says that new immigrants become linked to the Founders when they read the Declaration of Independence: "[T]hey feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them." A. Lincoln, Speech in Reply to Douglas, at Chicago, Illinois. July 10, 1858 in Abraham Lincoln: His Speeches and Writings 385,401 (R. Easier ed. 1946). 14 5 U.S. at 177. 15 Gilchrist v. Collector of Charleston, 10 F. Cas. 355,364 (Cir. Ct. S.C. 1808). 16 5 U.S. at 178. 17 Of course, the Framers were deeply concerned about the abuse of legislative power and strengthened the other branches as a check on the legislature. See Federalist No. 48, at 308-13 (J. Madison) (C. Rossiter ed. 1961); G. Wood, The Creation of the American Republic 1776-1787, at 550-51 (1969). For an interesting discussion of the Framers' views on legislative supremacy, see G. Wills, Explaining America: The Federalist 117-36 (1981). 18 See above, chapter 7. 19 See, e.g., Hunter v. Erickson, 393 U.S. 385, 392 (1969) ("The sovereignty of the people [expressed through a referendum] is itself subject to those constitutional limitations which have been duly adopted."). 20 The contrast here is with the jury, which announces its decision without formulating an opinion. After the decision, we can speculate about the opinion the jurors must have held in order to reach the outcome. This suggests that a jury has a complex relation to the rule of law. It may have representative functions that operate differently from those that appear in the opinion of the Court. On the political functions of the jury, see A. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131,1182-99(1991). 21 Compare 1 B. Ackerman, We the People: Foundations 283-90 (1991) (offering a theory of judicial resistance to change that justifies opinions that come to be seen as "mistaken"). 22 See F. Michelman, Laws Republic, 97 Yale L.J. 1493 (1988). 23 5 U.S. at 176. On writing and memory generally, see E. Havelock, Preface to Plato (1967); J. Derrida, Of Grammatology (G. Chakravorty Spivak trans. 1976). 24 Decisions unbound by the discipline of commentary, i.e., that are not checked by their own function as a future precedent, are problematic instances of the rule of law. This is the problem created by the circuit courts' increasing use of unpublished opinions. See J. Gardner, Ninth Circuits Unpublished Opinions: Denial of Equal Justice? 61 A.B.A. J. 1224 (1975); W. Reynolds & W. Richman, An Evaluation of

Notes to Pages 220-23

Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U Chi. L. Rev. 573 (1981); R. Posner, The Federal Courts: Crisis and Reform 12029(1985). 25 Arguably, it is also because no legislature can privilege its interpretation of its constitutional responsibilities over interpretations by future legislative bodies. See P. Kahn, Gramm-Rudman and the Capacity of Congress to Control the Future, 13 Hastings Const. L.Q. 185 (1986). 26 For examples of this phenomenon consider the Courts reliance on the once-repudiated Commerce Clause cases in United States v. Lopez, 115 S. Ct. 1624 (1995) and the resurgence of scholarly interest in Lochner. See R. Epstein, Takings: Private Property and the Power of Eminent Domain (1985). 27 See A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 148-56 (1986); G. Calabresi, A Common Law for the Age of Statutes (1982). 28 See R. Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987). 29 See United States v. Darby, 312 U.S. 100,116-17 (1941) ("Hammer... was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision."). Ackerman contends that the Supreme Court should instead have claimed that the people spoke with a new voice in the New Deal. "According to the modern myth of rediscovery," Ackerman asserts, "the New Dealers did not even contribute new substantive principles to our higher law, let alone rework the very process of higher lawmaking. Instead, their redefinition of American government involved little more than the recollection of some forgotten bits of Founding Wisdom." B. Ackerman, supra note 21, at 47. 30 See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,36 (1937); Wickard v. Filburn,317U.S. Ill, 120(1942). 31 See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. at 76 (Van Devanter, J., dissenting). 32 See, e.g., M. Aliens, A Thrice-Told Tale, or Felix the Cat, 107 Harv. L. Rev. 620 (1994). 33 This is why problems of retroactivity are always difficult and why some Justices, for example, Justice Harlan, consider the idea of nonretroactivity an expression of lawlessness. See, e.g., Desist v. United States, 394 U.S. 244,256-69 (1969) (Harlan, J., dissenting); see also L. Meyer, "Nothing We Say Matters": Teaque and New Rules, 61 U. Chi. L. Rev. 423,427-38 (1994). 34 See, e.g., Justice Scalias attack on the Courts complex abortion jurisprudence, Planned Parenthood v. Casey, 112 S. Ct. 2791,2874 (1992) (Scalia, J., dissenting in part) ("the Constitution says absolutely nothing about it"); the turn away from the Lemon test in Establishment Clause jurisprudence, Rosenberger v. Rector and Visitors of the Univ. of Virginia, 115 S. Ct. 2510 (1995); and the abandonment of the complexities of affirmative action jurisprudence in favor of a single standard, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

29$

296

Notes to Pages 223-32

35 See Justice Holiness classic dissents in Lochner v. New York, 198 U.S. 45, 74 (1905), and Hammer v. Dagenhart, 247 U.S. 251,277 (1918). 36 5 U.S. at 178-79. 37 Id. at 175-78; see also id. at 179 ("close their eyes"); id. at 180 ("inspected"). 38 See W. Wiecek, Liberty Under Law: The Supreme Court in American Life 5-31 (1988) (discussing English and colonial sources). 39 5 U.S. at 169-72. 40 Id. at 159-61. 41 Id. at 177. 42 Zd.atl78. 43 See A. Amar, Marbury: Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443 (1989). 44 See, e.g., W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1,31-33. 45 For a modern version of this approach to constitutional law, see J. Goldstein, The Intelligible Constitution: The Supreme Court s Obligation to Maintain the Constitution as Something We the People Can Understand (1992). 46 McCullochv. Maryland, 17 U.S. (4Wheat.) 316 (1819). 47 Id. at 401. 48 Id. at 406-07. 49 Id. at 405. 50 Id. at 415. 51 Mat 414. 52 Id. at 427 (emphasis added). 53 17 U.S. at 420-21. 54 See, e.g., C. Taylor, Interpretation and the Sciences of Man, 25 Rev. of Metaphysics 3 (1971); C. Geertz, The Interpretation of Cultures (1973). CONCLUSION 1 "If A. can prove, however, conclusively, that he may, of right, enslave B.—why may not B. snatch the same argument, and prove equally, that he may enslave A?— "You say A. is white, and B. is black. It is color, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own." Fragment on Slavery, in Abraham Lincoln: His Speeches and Writings 278 (R. Easier ed. 1946). 2 See M. Sahlins, Islands of History 150 (1985) ("[T]he symbolic object represents a differential interest to various subjects according to its place in their life schemes."). 3 See Plato, The Republic, Book V462a-b. 4 See L. Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165,1242-47 (1993); 1 B. Ackerman, We the People: Foundations 142-30 (1991).

Notes to Pages 232-37

5 For a similar rejection of the claim of homophobic ordinances to be law, see W. Eskridge, Gaylegal Narratives, 46 Stan. L. Rev. 607,639 (1994). 6 See B. Lincoln, Death, War, and Sacrifice: Studies in Ideology and Practice 140 (1991). 7 See above, chapter 6. 8 Ronald Dworkin, the contemporary figure most associated with the correct-answer thesis, invents the figure of Hercules to convey his understanding of how the correct answer operates under law. Hercules stands completely within the law but knows all law. R. Dworkin, Taking Rights Seriously 105-30 (1977). 9 Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) (joint opinion of Justices O'Connor, Kennedy, and Souter). 10 Roe v. Wade, 410 U.S. 113 (1973); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Webster v. Reproductive Health Services, 492 U.S. 490 (1989). 11 112 S. Ct. at 2815 ("An extra price will be paid by those who themselves disapprove of the decision s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law."). 12 Mat2816. 13 Id. at 2814. Compare Justice Scalia, dissenting, id. at 2875 (criticizing plurality for ignoring "plain error" in Roe). 14 Mitchell v. W. T. Grant Co., 416 U.S. 600, 636 (1974) (Stewart, J., dissenting), quotedin Casey, 112 S. Ct. at 2814. 15 See, e.g., H. Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1,32-34 (1959) (objecting to the "lawless" character of Brown's overruling ofPlessy). 16 Casey, 112 S.Ct. at 2814. 17 West Coast Hotel Co. v. Parrish, 300 U.S. 379,397 (1937). For even more vivid language of recovery, see United States v. Darby, 312 U.S. 100,116-17(1941). 18 Brown v. Board of Education, 347 U.S. 483,490 (1954). 19 A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 239 (1986); see also M. Sahlins, supra note 2, at 149 ("Mans symbolic hubris becomes a great gamble played with the empirical realities."). 20 See P. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147,1166 (1993). 21 112 S.Ct. at 2809. 22 Id. at 2883 (Scalia, J., dissenting) ("The only principle the Court 'adheres' to ... is not a principle of law... but a principle of Realpolitik—and a wrong one at that."). 23 This privatization of crime is paralleled by a privatization of religion. Religion appears as a matter of private belief, not public action. Thus, despite the fact that religious conviction may offer many the most intense experience of community, religion remains a private matter. Religious belief cannot appear directly in the

297

298

Notes to Pages 238-40

public space. See S. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993). 24 The populations of the two institutions are approaching each other in numbers. Military personnel is shrinking below the two million mark, while the population of prisoners is now well over a million. See U.S. Bureau of the Census, Statistical Abstract of the United States: 1995, at 217-18,364. 25 In a forthcoming work on Shakespeare's King Lear, I explore the relation of love to political order. 26 A. Lincoln, Second Inaugural Address, in 1 Documents of American History 44243(H.Commagered. 1973).

Index

Abraham, 72, 86, 184, 185, 186 Ackerman, Bruce, 64 Adams, John, 13, 96, 209; versus Jefferson, 9, 95, 96, 138, 139, 163; and William Marbury, 11-12,95, 146 Adkins v. Children's Hospital, 235 Alien and Sedition Acts, 13, 14, 104, 212 American Revolution, 1, 3, 6, 50, 78; meaning of, 4, 10, 62; as origin of law, 25, 31, 60-61, 150-51, 153; and representation, 31, 183, 202 Anderson, Benedict, 27 Appearance, 125, 128, 186, 196; and interpretation, 128, 184, 227, 239; and law, 121, 129, 179, 180, 181, 182, 196, 229, 235, 236; of the people, 219-22; and truth, 227, 230, 232; and will, 188

Arendt, Hannah, 65, 81, 98, 182; On Revolution, 52-59 Aristotle, 53 Army, citizen, 238 Athens, 54, 77, 78 Authorization, 205-8; and conduct, 200-205,206 Authorship: and authority, 105-15 Beard, Charles: on Founding Fathers, 26, 182 Belief, 2, 18, 129; and law, 2, 5, 18, 27, 38, 45, 71, 112, 124, 155, 231-33 Bickel, Alexander, 167, 236 Bill of Rights, 88 Blackmun, Justice Harry, 144; and Planned Parenthood v. Casey, 115; and Roe v. Wade, 1 15

299

300

Index

Brennan, Justice William H., Jr., 131 Brown v. Board of Education, 115,232 Burr, Aaron, 12, 144 Calderv. Bull 111-12 Charity: versus law, 240 Chase, Justice Samuel, 111; attempt to impeach, 14, 207 Christ, 3, 70, 72, 191-94 Citizens, 68-69, 99; perception of law of, 123; and protection of law, 149-50, 164; sacrifice of, 24 Citizenship, 35, 116, 205; as an ideal, 88, 195; as self-identity, 177, 233 Civil injury, 149-50, 152; and judicial remedy, 158, 168, 171 Civil liberty, 149, 154, 174; versus civil injury, 151, 154, 164 Civil War: American, 3, 70; English, 183-84 Commentary, 219-23, 227; dual nature of, 220 Committees of Correspondence, 202 Conduct: and authorization, 198-205, 206; representative, 209 Congress, 13-14,90, 163, 174; versus executive branch, 117, 172-73; and legal rights, 173; representation in, 198, 207, 208, 209; and Supreme Court, 14, 104, 147, 159, 171 Constitution, U.S., 11, 50, 86, 87, 173; act of reading the, 87, 225; act of seeing the, 224-25, 226, 228; amendments to, 63-64, 235; appearance as law, 94, 124, 135; Article V of, 63; Framers of, 11, 182, 215, 224; interpretation of, 156, 185, 226, 227; and the people, 234-35; permanence of, 19, 76, 168-70, 171, 239; and politics versus law, 154, 155; president and, 155, 159; and revolution, 87, 168, 225; versus statutes, 167, 171; and Supreme

Court, 221; voice of the people and, 31,36,228 Constitutionalism: American, 40, 70; and permanence of law, 154, 172, 222; and rule of law, 181 Constitutional law, 44; and common law, 1 10; permanence of, 169; as product of revolution, 20; versus rule of men, 26 Constitutions, 66, 95, 137; ratification of, 1; written, 219, 221, 224 Continental Congress, 202 Counterrevolution, 66, 73 Courtrooms, 174; rituals of, 116, 119, 218 Courts, 5, 11, 93, 220; common-law, 111, 128; English, 109, 111; federal, 11, 12, 13, 14, 50, 104, 153; and knowledge, 124, 125, 126, 127; and political action, 90, 104; power of, 128, 129, 137, 229; and referenda, 217; and representation, 201, 203, 204; and rule of law, 44, 128, 179, 205,223,224 Crime: and punishment, 238 Critical legal studies movement, 43, 44 Gushing, Justice William, 12 Death penalty: and racial discrimination, 131 Declaration of Independence, 31, 60, 66,67,70,150-52 Declaration of the Rights of Man, 88 Democracy, 205; constitutional, 23; deliberative, 44, 201; participatory, 58 Depression: economic reality of, 131 Discipline and Punish (Foucault), 193 Dissent, 106, 114, 131 Dworkin, Ronald, 4, 45, 92 Economics, 4, 21, 24, 43, 53, 56, 131 Eisenhower, Dwight D., 144 Election of 1800, 9, 10, 12, 50, 126; consequences of, 94-95, 103, 158; and Marbury opinion, 13, 94; as

Index

Second American Revolution, 4, 10, 15, 103, 104, 126, 163, 165 Elections: versus appointment, 200-201; and mob rule, 201; and representation, 208, 218-19; authorization, 199-200 Ely, John, 44 England, 109, 111, 183, 202, 215, 226 Enlightenment, 36, 78 Equality, 22, 195, 231 Evidence: and deception, 145; versus facts, 118, 122; versus memory, 118; and procedure, 134 Executive: and appointments, 144; and lawsuits, 157, 159; power of, 165; and Supreme Court, 208 Faith: and interpretation, 181-89, 194, 226, 230; leap of, 185, 189 Federalism, 223 Federalist Papers, 78, 81, 180 Federalists, 4, 9, 12, 13, 50, 51, 52, 65; and Marbury v. Madison, 104; versus Republicans, 17, 50, 65, 95, 138, 157 Feminism, 82-83, 130 Foucault, Michel, 40, 193 Founders, 3, 9, 10, 26, 52, 240 Freedom, 80-84, 91; of individuals, 94, 240; and justice, 153; and loyalty, 90; and permanence of law, 66, 71; and revolution, 64-69, 70 French Revolution, 6, 10, 53, 55, 59-60, 78, 190; and law, 73, 183-84 Freud, Sigmund, 87 Giles, Senator William, 14 Government: as a burden, 56; executive branch of, 163; of law, 2, 3, 4, 9, 94, 136, 154^55, 164; of the people, 208-9; political branches of, 235; as product of reason, 211; Republican, 111. See also Law: rule of, versus rule of men

Hamilton, Alexander, 78 Hart, Henry L. A., 44, 45 Hegel, Georg Wilhelm Friedrich, 231 History: and the atemporal, 3; common, 213; and law, 3, 87, 216, 233; of law, 39; and opinion, 213; and political order, 89-90, 99, 139, 227, 239 Hobbes, Thomas, 3, 24, 72 Holmes, Justice Oliver Wendell, 136, 223 Imagination, 18, 135, 197; legal, 5, 6, 20, 37, 39, 177, 178; political, 3, 5, 10, 25, 27, 37, 41, 61, 62, 64, 67, 140, 178, 189 Instantiation, 29-31; and incarnation, 192; and political power, 30; and popular sovereignty, 30, 31; and representation, 183, 193-95, 238-39; and sacrifice, 192-93 Interpretation: and faith, 181-89, 194, 226, 230; of law, 87-89, 91-92, 137, 182, 216, 234; of legal text, 108, 227; and sovereignty, 187; and truth, 227 Iredell, Justice James, 111-12 Isaac, 86, 184 Jackson, Justice Robert H., 119, 160 Jacobins, 65 Jefferson, Thomas, 4, 55, 112, 157, 174, 214, 215, 218; attitude toward judiciary of, 15, 16, 17, 120; and authorization, 207, 208; and Chief Justice Marshall, 15, 16, 18, 97, 110, 117, 123, 126, 157; on common law, 50, 153; and Constitution, 50, 75, 98, 157; election of, 12, 139; on elections versus revolutions, 49, 50; First Inaugural Address of, 10, 25, 49, 51; and John Adams, 95, 104, 138, 139, 158; and Judiciary Act oflSOI, 13, 207; on liberty, 65; and majority rule, 10, 15, 50-51, 52; and Marbury v.

301

302

Index

Jefferson, Thomas (continued) Madison, 103-4, 146, 157-58, 160, 207; and permanent revolution, 10, 52, 73; and political action, 18, 76, 95-97, 104, 115, 140, 154, 163; and presidential power, 159, 207; and Republicans, 9, 10, 13, 17, 50, 65; on revolution, 61, 78; and rule of law, 25, 32, 52, 157; and self-government, 25, 75; and seriatim practice, 112-13; and Supreme Court, 126, 140, 162; and William Marbury, 11, 95-97, 124, 142, 146-47, 148, 154, 159, 208, 215. See also Election of 1800 Johnson, Justice William, 214 Judges, 22, 87, 91, 92, 110, 116, 136, 207; confirmation of, 117-18, 129; freedom of, 233; function of, 203; as generalists, 121; impeachment of, 14, 113, 207; as individual subjects, 119, 209; and knowledge, 122, 130, 131, 132; life terms of, 218; as representatives, 203-5, 209; and rule of law, 26, 45, 1 16, 120, 126, 161,164,179,201 Judicial authority, 202, 208 Judicial review, 4, 11, 16, 17, 26, 90, 97, 141, 172; and Marbury v. Madison, 19, 90, 128, 168-69, 171, 174, 223-24 Judiciary Act (1789), 159, 167-68, 170-71; mandamus provision of, 173 Judiciary Act (1801), 12, 13, 104; repeal of, 13-14, 207 Justice: and law, 88, 150-51, 153, 170-71; natural, 11 1,1 12 Kant, Immanuel, 34, 56, 125 Kennedy, Justice Anthony, 234, 236 Kent, Chancellor, 169 Kierkegaard, S0ren, 185 Knowledge, 200; common, 120-21; distribution of, 39; of law, 1 19-20, 122, 123, 179, 203; medical, 126-27;

versus opinion, 130; and power, 125, 166, 232-33, 239; and rule of law, 120, 123, 131 Langdell, Christopher, 42, 108 Language, 35-38, 42 Law, 2, 17, 22, 33, 41, 44, 81, 160, 174, 229; as abstraction, 135-36; abuse of, 144; analogical reasoning in, 136-37, 148; an archaeological approach to, 18-46, 140; arguments of, 160, 233; authority of, 203; common, 1, 67, 109,110,153,169,225-26; deductive reasoning in, 137; as distribution of power, 42, 43; impartiality of, 22; international, 182; natural, 1, 124, 169; origin of, 110, 152; perception of, 137, 160, 166; permanence of, 19-21, 25, 26, 34, 60, 67, 68, 71, 83, 99, 118, 130-31, 139, 140, 141, 143, 146, 153, 166-70, 172-74, 179, 189, 207, 210, 214, 215, 222, 233, 236; and philosophy, 240; possible versus actual in, 91-93; reform of, 41, 62-64, 132; reverence for, 81, 87, 180, 240; rhetoric of, 140-41; rule of, versus rule of men, 9, 19, 21-24, 26, 83, 94, 105, 116, 117, 148, 150, 155, 164, 172, 174, 181; scholarly critiques of, 132-33; and statutes, 147-48, 159; universality of, 22; violation of, 146. See also Constitutional law Law and economics, 43, 44 Lawyers, 1,2, 41, 120 Least Dangerous Branch, The (Bickel), 167 Legal order, 82, 109, 172, 181, 231, 239; public versus private domain in, 81-83 Legislators, 144, 221; and rule of law, 26 Legitimacy and History (Kahn), 40 Lincoln, Abraham, 71, 85, 88, 231, 240;

Index

Gettysburg Address of, 70, 195; Lyceum Speech of, 28-29 Lochnerv. New York, 131, 136, 223 Louis XVI, 184 Loyalty: morality of, 79, 90; and responsibility, 78, 79-81, 82, 83, 84, 88, 90, 99, 179; and rule of law, 81; and sacrifice, 89; as subordination of self, 76-78 Madison, James, 146, 158, 174; failure to appear in Court, 16, 103-5, 145, 155, 163-66, 171; and Jefferson, 81, 95, 146; and Marbury v. Madison, 104, 123, 139, 145; and Marshall, 123; on popular opinion, 211; and separation of powers, 152 Majority rule, 9, 14, 44, 50, 201 Mandamus, writs of, 14, 168, 173, 224 Marbury, James, 119 Marbury, William: and Chief Justice Marshall, 15, 118-19, 124; denial of commission, 95-97, 146-47, 158; as justice of the peace, 11, 95, 143; and legal remedy, 163-64, 170-71, 174; and legal rights versus political action, 124, 142, 143, 148, 159, 162, 164, 173-74, 208; right to commission of, 139, 140, 142-49, 163, 172, 224; and Supreme Court, 105, 145, 173; and violation of legal right, 128, 146; and writ of mandamus, 14, 168, 173, 224 Marbury v. Madison, 9-17, 18, 40-41, 76,119,140,151,208,215; archaeological approach to, 40-41; authorization versus conduct in, 206; and conflict of power, 16, 97, 104, 145, 167; and Constitution, 19, 91, 95, 170, 174, 219, 223, 225, 226, 227, 228, 234; evidence in, 143; and Jefferson, 157; judicial review and, 16, 19, 90, 128, 168-69, 171, 174,

223-24; and opinion of the Court, 107, 128-29, 134, 143, 145, 147, 160, 162, 167, 173, 206, 210; and opinion of the people, 210, 212, 215, 217-18, 223; and political order, 15, 52, 103, 145, 154, 169; precedents for, 223-24; and revolution versus law, 10, 93-94, 150; rhetorical tropes in, 140-41; and rule of law, 4, 9, 11, 16, 17, 19-27, 110-11, 117, 138, 152, 155-56, 174, 181, 224, 234; and rule of law versus political action, 73, 94-96, 138-39, 142, 155-56, 160, 171-74, 215; and Second American Revolution, 104; and Supreme Court, 121-22, 123, 148; as text, 105-9,223,225 Marshall, Chief Justice John, 106, 107, 111, 122, 128, 168, 174, 218; as adversary of Jefferson, 15, 18, 117, 123; and judicial review, 97, 167; and Marbury v. Madison, 123^-24, 167; nomination to Supreme Court, 12-13; as political actor, 16, 1 18-19; and unanimity within Court, 110, 115 Marshall, Justice Thurgood, 131 McCulfaugh v. Maryland, 226-28 McDougal, Myres, 42 Memory, political, 84, 85 Monarchy, 94, 211; British, 110-11; and courts, 150, 152; and law, 155; and petition, 149; political tradition of, 5; power of, 151 Morality: and law, 45, 203; political, and temporality, 76-84; of responsibility, 82 Moses, 3, 23, 124, 181 Myth, 2, 3, 86, 153-54, 163, 185 National Labor Relations Board v. Jones and Laughlin Steel Corp., 131 Nixon, Richard M., 144 Novelty, 233; and law, 26, 93-94, 95, 172, 180; and politics, 96, 98

303

304

Index

O'Connor, Justice Sandra Day, 234, 236 Opinion: of the court, 109-10, 113, 115, 209, 228; dual character of, 212-13; of the people, 210-13, 215-16, 221, 228; permanent, 218; personal, 109; persuasiveness of, 165; popular, 211-12, 217-18, 221; and revolution, 212; of Supreme Court, 135, 137, 182,214 Opinion of the people: in Marbury v. Madison, 210, 212, 215, 217-18, 223; and opinion of the Court, 214, 228; and permanent law, 214, 234; and rule of law, 233; and Supreme Court, 210-11, 214-16, 219, 221, 222-24 Organic Act for the District of Columbia, 12 Paterson, Justice William, 112 People, the, 72, 94, 174, 181, 232; action by, 73, 95; as assertion of power, 206; and the Constitution, 234-35; freedom of, 94; government of, 208-9; original rights of, 210; perception of, 222-29; and political authority, 230; and rule of law, 27, 68, 69, 111; voice of, 31, 36, 228. See also Opinion; Opinion of the people; Representation Perception: versus argument, 161; direct versus opinions of Court, 225; versus reason, 148; and speech, 224, 225 Pickering, District Judge John: impeachment of, 14 Planned Parenthood v. Casey, 234, 235, 236,237 Plato, 64-65, 90, 232; Apology, 78; Crito, 77, 78; and legal order, 180; prisoners-in-cave analogy of, 122, 124-25, 129, 131-32, 179, 180-81 , 238; and self-knowledge, 188 Plessy v. Ferguson, 232, 235 Political action, 27-34, 44, 54, 164, 177,

215; and authenticity, 145; and Greek experience, 57-58; and law, 11, 15, 20, 23, 32, 41, 71, 76, 81, 83, 96-100, 133, 138, 142, 143, 145, 149, 151-53, 158, 160-63, 165-68, 172-74, 177-80, 182, 233, 237, 240; as performance, 53, 57; and popular opinion, 217; and power, 143; and responsibility, 93, 99; and rule of law, 105, 109, 112, 113, 117, 140, 146, 147, 158, 162-63, 237. See also Jefferson, Thomas: and political action; Revolution Political order, 240; action in, 111, 178-79; conflict in, versus legal order, 109, 138; historical unity of, 189; and history, 99, 169; legalism in, 169; novelty in, 109, 111, 178, 180; origins of, 86; and power, 230, 240; and rule of law, 182, 229, 239; and sovereignty, 196 Political parties, 9, 10 Political terror, 65, 66, 71 Politics, 4, 27, 30, 37, 38, 104, 120, 195, 240; versus economics, 21, 56; and history, 89-90; knowledge and power in, 38, 240; versus law, 21, 97, 143-44, 158, 238; and novelty, 96, 98; and personal sacrifice, 37; and religion, 81; sources of meaning in, 90-100; through representation, 195, 217 Power: in democracy, 206; distribution of, 39; of executive, 165; goal of, 125; judicial, 123, 125, 171; and knowledge, 125, 126, 232-33, 239, 240; and law, 5, 42, 43, 143, 167; political, 94, 151, 158, 196, 200-201, 205, 230; and truth, 233; and violence, 230-32 Precedents, legal, 135, 223-24 President. See Executive Private versus public domain, 81-83, 144

Index

Realism, legal, 43, 12&-31, 160 Reform: of law and rule of law, 62-63, 64, 132; versus revolution, 59-64 Reformation, 82, 193 Regicide, 86-87, 184 Religion, 72, 187-89, 191-94, 197, 226; and law, 70, 180-81, 184-87; and politics, 81-82; private versus public, 82 Remedy, legal, 148-62, 165, 215. See also Marbury v. Madison Representation, 31, 182, 183, 197-99, 202, 209; and appearance, 196; in Congress, 198, 207, 208, 209; and courts, 201, 203, 204; and elections, 218-19; and instantiation, 183, 193-95, 238-39; of judges, 203-5, 209; of the people, 200, 207; political, 31, 191, 195, 196-201, 217; politics of, 215, 219; and popular sovereignty, 23, 29, 189-96, 202, 204-6, 208, 210, 216, 218, 228; and rule of law, 29, 34, 201-5; through authorization, 199, 202 Republicans: versus Federalist judges, 14; versus Federalists, 17, 50, 65, 95, 138, 157; and Supreme Court, 14 Responsibility: versus loyalty, 79-81, 82, 83, 84, 88, 90, 99, 179; morality of, 82; and revolution, 78 Revelation: and revolution, 3, 58, 72, 73, 84, 141, 189 Revolution, 5-6, 83, 86; as action, 68, 98, 141; and appearance, 231, 233; and boundaries of law, 69-74; characteristics of, 201-2; and constitution, 168; and freedom, 62, 64-69, 70; and law, 4, 10, 20, 30, 49-74, 75, 76, 79, 82, 83, 88, 91, 92, 93, 94, 97, 98, 156, 178, 181, 183-84, 233; modern, 3, 58; and opinion, 212; by the people, 31, 68; permanent, 73, 84, 90, 94; and political order, 60, 98, 184; and politics, 73, 84, 98-99; and

reform, 59-64; and responsibility, 78, 89; and revelation, 3, 58, 72, 73, 84, 141, 189; and rule of law, 67, 68, 86, 139, 150, 202, 210; transition to law from, 84-90, 93-94; and violence, 85; and war, 86 Rights, legal, 134, 138-39, 146-47, 152, 172; of Englishmen, 61 Right to privacy, 82-83, 223, 234 R0euWacfe,234,235,236 Roosevelt, Franklin D., 222 Roosevelt, Theodore, 98 Rousseau, Jean-Jacques, 69, 72, 94, 190-91 Rule of law, characteristics of, 19-27. See also Law; Representation; Violence Russian Revolution, 55 Sacks, Albert, 44 Sacrifice, 24, 85-86, 232; double nature of, 30, 87-88; and instantiation, 192-93; and interpretation, 89; and politics, 37; and power of law, 24-25, 88-89; to the state, 239 Saint Paul, 70 Scalia, Justice Antonin, 236, 237 Second American Revolution. See Election of 1800 Self-government, 25, 40, 75, 213 Self-knowledge, 35, 38, 188-89 Shays' rebellion, 65 Social contract, 24,62, 149, 151, 233 Social scientists, 41-43 Socrates, 34, 35, 81, 180; and loyalty, 77-78 Souter, Justice David, 234, 236 Sovereignty, 189-90; and interpretation, 187; law and, 3, 4, 23, 39, 156, 181, 182-85; medieval, 3; of the people, 3, 5, 69, 94; popular, 19, 23, 29, 190, 233-34, 237-39; religious roots of, 5; and the sacred, 3. See also Representation Stuart v. Laird, 104

BOS

306

Index

Sunstein,Cass,22 Supreme Court: and amendments to Constitution, 63-64; on appearances and opinions, 137, 161, 163, 206, 209, 234; confession of error in, 235-36; and the Constitution, 90-91, 94, 154, 170-71, 179, 221; controversial doctrines of, 223; and creation of appearances, 125, 127; critics of, 182; dissents of, 106, 114, 131; and English courts, 111; and Executive, 119, 208; and Jefferson, 10,96, 104-5, 126, 140, 162, 165, 208; and John Marshall, 124; Justices of, 12, 103, 106-12, 114, 129, 164, 182, 207, 216, 237-38; linkage of speech and perception of, 134-36, 138, 164; Madison's attitude to, 103; andMarbury v. Madison, 9, 10, 11, 12,96-97, 105, 118, 121-22, 134, 138, 142, 145, 152, 154, 173,212; New Deal, 222; permanence of, 213; and political action, 140; and political order, 15, 150; power of, 162-74; privacy cases of, 82; remedial failure of, 16, 164-65, 167; and rule of law, 15-16, 123, 152, 161, 179; terms canceled by Congress, 14, 104; test of power of, 16, 172. See also individual Justices —opinions of, 112-15, 126, 128, 134-35, 159, 233-34; and action,

165; and authorization, 207, 209; as commentary, 220; and Constitution, 224; and opinion of the people, 210-11, 214-16, 219, 221, 222-24; as text, 105-7, 219, 225, 227; writing of, 218 Toqueville, Alexis de, 1, 190 Tracy, David, 35 Transubstantiation: and representation, 3; and sacrifice, 193-94, 196 Treason, 76, 79 Truman, Harry S, 160 Truth: and appearance, 227, 230, 232; political, 16-17; and power, 233 United States v. Burr, 157 Violence: and law, 24-27, 214; and slavery, 231 War: legality of, 33; modern, 239; and personal sacrifice, 33; and political meaning, 32-33; and revolution, 86, 196 Warren, Chief Justice Earl, 144, 164; and school desegregation, 164 War trials, 33 West Coast Hotel v. Parrish, 235 White, Hayden, 140, 141 Wood, GordonS., 62