Freedom and Time

Freedom and Time: A Theory of Constitutional Self-Government

JED RUBENFELD
Copyright Date: 2001
Published by: Yale University Press
Pages: 272
https://www.jstor.org/stable/j.ctt1npqs8
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  • Book Info
    Freedom and Time
    Book Description:

    Should we try to "live in the present"? Such is the imperative of modernity, Jed Rubenfeld writes in this important and original work of political theory. Since Jefferson proclaimed that "the earth belongs to the living"-since Freud announced that mental health requires people to "get free of their past"-since Nietzsche declared that the happy man is the man who "leaps" into "the moment-modernity has directed its inhabitants to live in the present, as if there alone could they find happiness, authenticity, and above all freedom.But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedom-human being itself--necessarily extends into both past and future; self-government consists of giving our lives meaning and purpose over time. From this conception of self-government, Rubenfeld derives a new theory of constitutional law's place in democracy. Democracy, he writes, is not a matter of governance by the present "will of the people"; it is a matter of a nation's laying down and living up to enduring political and legal commitments. Constitutionalism is not counter to democracy, as many believe, or a pre-condition of democracy; it is or should be democracy itself--over time. On this basis, Rubenfeld offers a new understanding of constitutional interpretation and of the fundamental right of privacy.

    eISBN: 978-0-300-12942-7
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-iii)
  2. Table of Contents
    (pp. 1-1)
  3. Part I: LIVING IN THE PRESENT
    • One THE MOMENT AND THE MILLENNIUM
      (pp. 3-16)

      On the first page of one of his novels, the author ofThe Book of Laughter and Forgettinghas a wife ask her husband a question. How can it be that Western Europeans, generally so anxious for their safety, drive at breakneck speed on the highway? The husband’s answer:

      What could I say? Maybe this: the man hunched over his motorcycle can focus only on the present instant of his flight; he is caught in a fragment of time cut off from both the past and the future; he is wrenched from the continuity of time; he is outside time;...

    • Two THE AGE OF THE NEW
      (pp. 17-44)

      One day we woke up to find that the defining event of our millennium had turned into—a bug. A computer bug. Naturally, the predictions of global darkness proved to be the usual millenarian fantasies, but the bug itself was real enough. How much did we spend to exterminate it? According to one estimate, about $600,000,000,000—and that for the United States alone.

      This is a book about freedom: more specifically, about democratic freedom under a written constitution. Hard to believe, but there is a connection between this subject and the so-called Year 2000 problem. In this chiliastic coding fiasco...

    • Three CONSTITUTIONAL SELF-GOVERNMENT ON THE MODEL OF SPEECH
      (pp. 45-73)

      No metaphor is more common in contemporary political theory than the one that figures democracy or self-government in the language of speech, voice, conversation, dialogue, discussion, or some other speech-cognate. “The will of the community, in a democracy, is always created through a running discussion between majority and minority. . . .”¹ “Democracy is government by public discussion. . . .”² Self-government is that “state of grace in which . . . the voice of authority is nothing other than the voice of the self.”³ “[M]odern democracy invites us to replace the notion . . . of a legitimate power,...

    • Four THE ANTINOMIES OF SPEECH-MODELED SELF-GOVERNMENT
      (pp. 74-89)

      I have tried to show: (1) the existence of a predominant conception of selfgovernment, which I call speech-modeled, of which the organizing term is government by the present will or voice of the governed; (2) the distinctively modern temporality for which this conception of self-government speaks; (3) the fundamental problem it confronts when faced with a constitutional text laying down fundamental rights; (4) the limited matrix of solutions it makes available to address that problem; and (5) the considerable extent to which modern political and constitutional thought has played itself out within this matrix.

      I have not claimed that every...

  4. Part II: BEING OVER TIME
    • Five COMMITMENT
      (pp. 91-102)

      If we think candidly about how we live, how we modern Western men and women exercise the tremendous degree of autonomy so many of us undeservedly possess, we will find that we do not “live in the present” at all. Much of our time we spend working out the possibilities and requirements of projects and attachments—to persons, places, purposes—to which we engaged ourselves some time in the past. We decide what to dogiventhese temporally extended projects and attachments. In other words, we constantly act now on the basis of decisions, relations, and intentions formed in the...

    • Six REASON OVER TIME
      (pp. 103-130)

      The first time Arrow’s name appeared in this book, the subject was the reappearance, within contemporary economic thought, of Jefferson’s proposition that the earth belongs to the living. (Rational economic policy, Arrow suggests, would take into account the interests of future citizens only to the extent that there is a present preference among living individuals to do so.)¹ A similar observation applies to Arrow’s famous Impossibility Theorem. It relies on an understanding of rationality that, while characteristic of modern economic thought and much analytic philosophy, is untenably compressed in its temporality—compressed into the present.

      This conclusion, which may seem...

    • Seven BEING OVER TIME
      (pp. 131-144)

      The ontological objection against popular commitments, it will be recalled, maintains that there is no such thing as a “People,” understood as a collective subject persisting across generations. This chapter, like the last one, will attempt to show: (1) that contrary to what is usually thought, the objection applies to persons as well as to peoples; and (2) that the way we answer the objection in the case of persons further explains the place of time and of commitments in an adequate account of human self-government. In addition, the answer to the ontological objection in the case of persons furnishes...

    • Eight POPULARITY
      (pp. 145-160)

      We don’t believe in ourselves. Who speaks of the people, the national people, as a real subject, a “we”? Politicians. Ethnic cleansers. We know better. We know that the “one People” conjured up by the Declaration of Independence, the “We the People” in whose name the Constitution speaks, is and always was a mystical reification, a rhetorical trope, more brutal than it ever was beautiful.

      A certain gap in our language is telling.Individualityrefers to the status of being an individual,personhood(or, archaically,personality) to that of being a person. But there is no word designating the status...

  5. Part III: CONSTITUTIONALISM AS DEMOCRACY
    • Nine CONSTITUTIONALISM AS DEMOCRACY
      (pp. 163-177)

      Democratic self-government cannot be achieved, even in principle, by way of a politics of popular voice. It requires an inscriptive politics, through which a people struggles to memorialize, interpret, and hold itself to its own foundational commitments over time. I will call this idea: constitutionalism as democracy. The purpose of this and the final three chapters is to lay out the basic terms of constitutionalism as democracy: its theory of judicial review, its interpretive method, its fundamental rights.

      Constitutionalism as democracy undoes all the theoretical perplexities that have so confounded contemporary constitutional thought. To begin with, it alone captures the...

    • Ten READING THE CONSTITUTION AS WRITTEN: PARADIGM CASE INTERPRETATION
      (pp. 178-195)

      This chapter is about reading the Constitution aswritten—as a project in temporally extended, commitmentarian self-government. When the Constitution is read this way, a distinctive interpretive method comes into view. I will call this methodparadigm caseinterpretation.

      A strange fact about contemporary constitutional law: it has no account of how to interpret the Constitution.

      Just considerBrown v. Board of Education.No case this century is more respected, none more exemplary. You would think that scholars or at least judges must by now have some well-settled account of why, as a matter of interpretation, the case was rightly...

    • Eleven SEX DISCRIMINATION AND RACE PREFERENCES
      (pp. 196-220)

      This chapter applies paradigm case reasoning to two more topics in equal protection law. A brief discussion of sex discrimination will illustrate how the paradigm case method deals with extensions of equal protection law beyond the paradigmatic category of race. For a second and more detailed illustration, I will consider a topic much more controversial in constitutional law: minority race preferences.

      The previous chapter raised but did not discuss the question of how judges should decide the constitutionality of laws discriminating against women. As noted, the “original understanding” on this point is almost diametrically opposed to the law that we...

    • Twelve THE RIGHT OF PRIVACY
      (pp. 221-255)

      The last two chapters dealt with interpreting a written constitution. A different question concernsunwrittenconstitutional rights. Such rights are well established in American law. The most prominent example is the subject of this chapter: the “right of privacy.”

      Roe v. Wade¹ is the most famous of privacy cases, but the reach of this unwritten right is not limited to abortion. American courts also consider the right of privacy to protect, among other things, contraception,² marriage,³ interracial marriage,⁴ divorce,⁵ the refusal of life-sustaining medical treatment,⁶ and the right to send a child to private school.7But there is no accepted...

  6. INDEX
    (pp. 256-266)