Living in Constitutional Moments

I met Richard Sherwin through a mutual friend, Danielle Celermajer, during the same week as I met Eva Meijer, from last month’s post. Richard and I hit it off over a sprawling Chinese take-out dinner in Chelsea. In talking with him, I felt that he has a philosophical approach to the political moment which grips the United States of America, an approach that goes to foundational issues in the law. I wanted to see how Richard lives with that approach.

December 16th, 2024:

Constituent power

every expressive form acts as a constraint upon meaning’s uncontainable abundance. In fact, it’s that very excess by which forms of meaning take flight.

In law, which is my original field of study, you often find judges struggling to interpret legal meanings in the face of changing conditions in society. Sometimes, a law has to be interpreted differently to preserve its original meaning. For instance, does using heat sensors outside a home violate constitutional safeguards to protect against unduly invasive searches and seizures by state officials?  It’s not always clear where to draw the line between interpreting a legal principle and creating it. Even Supreme Court justices lack the power to rewrite the Constitution, and conservative judges sometimes accuse liberal ones of crossing that line.

That’s a debate I won’t pursue here. But it highlights the different ways people respond to uncertainty. Do we cling to whatever signs of stability we can find? Perhaps we think that it’s enough simply to identify a text maker’s “original intent” even though no formula for doing so exists. Or do we accept the creative challenge of construing a “living” constitution – ceaselessly adapting old forms of meaning to changing conditions?

The disquiet uncertainty brings is understandable. But what if what makes us uncertain is the sheer excess out of which particular historical meanings arise?  On this reckoning, every expressive form acts as a constraint upon meaning’s uncontainable abundance. In fact, it’s that very excess by which forms of meaning take flight. For example, consider the way Christians in medieval times could experience an icon as a space for prayer – an infinity filled (by the grace of kenosis) with the uncontainable presence of Christ. That feeling of presence produces an ineffable sense of meaning by default – provided that you let yourself go in the void between expressive form and inexpressible abundance. In that liminal space, somehow, strangely, absence and abundance are intimately entangled.

There’s a term to describe the foundational, extra-legal source of abundance from which nation-states and legal systems arise – “constituent power.”  Constituent power is a generative force operating in a mythic now-time (jetzheit) – before sovereign states have been founded or during states of exception when political forms undergo radical transformation or renewal. Worldmaking is what constituent power is for. In law and politics, new ways of being together rise on the wings of inexhaustible meaning – like the world of liberal democracy, which arises from the epiphany that each of us is of infinite worth; hence, we are all equally entitled to dignity and respect.

Against this background, I use the term “constitutional over-belief” to describe the conjunction of ideas, beliefs, memories, and associated feeling-states through which nation-states are born and made to cohere.  What do we regard as sacred – as worthy perhaps of an ultimate sacrifice – particularly in times of transformation (during “constitutional moments” or “states of exception”) when one nomos (or world of legal and political meaning) is replaced by another?  On what over-beliefs will a community stake everything?  “Live free or die” – as the state motto of New Hampshire puts it.  Or as the signers of the Declaration of Independence wrote: “We mutually pledge to each other our lives, our fortunes, and our sacred honor” in support of the central over-belief of America’s democracy, namely: belief in equal rights to “life, liberty, and the pursuit of happiness.”

But minds change. Different over-beliefs emerge, transforming the political and legal climate. Maybe democracy isn’t worth the sacrifice. (What has it done for me lately?) Maybe a strong man, without liberal democracy’s checks on executive power and without the perceived inefficiencies of checks and balances among different branches of government generally, will lead to a better life. Different emotions gain ascendance as others decline. Fear and retribution, for example, can become more fashionable under certain historical conditions than, say, tolerance and mercy.

I want to be able to study law and politics as encompassing these larger forces of belief and feeling.  What kinds of emotions are associated with what kinds of political ideas – as well as collective memories (or collective fantasies or myths) in the formation of individual and collective identity, and how does this give rise to particular forms of governance? Modern political and legal theory resists speaking about such irrational, unpredictable forces – the way conventional psychology resisted Freud’s ideas about the unconscious.  But I join company with those who say we cannot afford not to pay attention to such forces as they erupt into history, emotionally as well as intellectually binding us to law’s authority.

Constituent power acquires meaning by virtue of the expressive form that it assumes in history. Constitutional over-beliefs provide the form that constituent power needs for a normative order to be constituted. A constituted power bears the mark of (though it can never fully contain) constituent power’s illimitable excess. The legitimation of law’s exercise of power draws its affective intensity from the inexpressible gap between meaning’s excess and its formal containment. But it is after the latter that legitimation is named. Constituent power, in its collision with the particular conditions of a given time and place, assumes and animates different expressive forms. Along the way, it gives rise to particular emotional climates – a kind of political weather.

I’m wondering if it’s possible – with the analytical tools of constituent power and constitutional over-belief in hand – to articulate in our time a new way of making freedom among equals a potent shared meaning, something that’s held sacred in political life. What makes it so precious?

December 18th, 2024:

The spirit of the beginning

 The world of liberal democracy arises from the epiphany that each of us is of infinite worth, hence we are all equally entitled to respect and dignity.

Demagogues are always ready to seize upon, amplify, and manipulate for their own advantage the fear and uncertainty that many people feel.  “Give me your power [which means your freedom], and I’ll not only fix everything!  But along the way I’ll ensure that enemy-others pay the price for the pain you feel.”  That’s where we are now.  Fear and retribution.

We are living in a time when something fundamental has given way.  As a lover of contronyms – words that simultaneously bear opposite meanings (like “cleave,” “give out,” or “hold up”) – I wonder if we might pause a moment to reflect on this business of “giving way” – an expression that simultaneously conveys a kind of breakage, a yielding, as well as an opening, a surging forth.

What’s given way is confidence in existing structures of governance. Liberal democracy, for many people around the world and at home, no longer seems able to sustain its promise of a hopeful future.  There are many reasons for this: unsustainable inequality, loss of identity, a sense of powerlessness (because, as populists like to say, “it’s all rigged”), which induces a fear of “obsolescence” or “uselessness” – because “others” are threatening to take one’s place on the ladder to success.

One could say, with some justification, that adverse economic conditions have contributed to this kind of political desperation.  But I think the sense of loss cuts deeper. It’s a matter of our collective alienation from a larger source of meaning, a sense of abundance – and the feelings of wonder and gratitude that accompany it.  I’ve said that nation-states rise on the wings of such a sense of abundance: that’s what constitutional over-beliefs – animated by constituent power’s uncontainable excess – are for. They bring worlds of meaning into being. Without that, things implode.

When something fundamental gives way, it creates a vacuum, an opening.  As the tension between these two words suggests, there are no guarantees here. Will things spiral further into degeneration, culminating in even greater storms of rage and violence? Or will new, more affirmative forms of life come into view?  A politics of wonder, or a philosophy of wonder in everyday life, aspires to counter that downward spiral.  It signals a return to the beginning – where original meanings arise. 

We U.S. citizens could conceivably find ourselves in the coming days negotiating fundamental reform in the context of a constitutional convention.  A consensus exists among progressives and conservatives alike that there is much work to be done to bring our 235-year-old Constitution into the 21st century.  We could make the nation more democratic by abolishing the Electoral College or by revoking the Supreme Court decision that granted corporations the same freedom of expression as people – ensuring that exorbitant concentrations of wealth would be available to finance elections.  But an open convention can run with the spirit of the time. That means it could federalize prohibitions against abortion. It could force drastic reductions in spending on social welfare by mandating a balanced budget. It could even revoke naturalized citizenship or dismantle the wall that separates religion and state. It matters in what spirit we return to the beginning.

That’s why I think the most crucial challenge before us is how to reclaim wonder.  We need to re-experience in our gut what philosophy is for.  Philosophy begins in wonder at the inexpressible abundance of what is before us.  I link this experience to something noble, something worthy beyond all measure, in all humans, something we experience in our encounters with others nearby (our neighbors), as well as in our encounters with nature herself – the source of all life as we know it.  Merleau-Ponty’s sense of phenomenology was getting at this:  teaching us how to get out of our own way in order to experience the primacy of who and what exists around us as an endless source of meaning.  

What I am after is like the experience of wonder and gratitude that Wittgenstein associates with the origin of the ethical.  It’s a matter of dis-habituating perception, which is what various spiritual disciplines, cultural practices and rituals, as well as great works of art teach: the alchemy of turning uncertainty before difference (or “otherness”) into wonder.  This practice requires a modicum of inner strength – the strength to welcome novelty, which includes the possibility of changing one’s mind, perhaps even one’s way of life. It also takes a culture, a coherent and dedicated paideia, to effectively cultivate the strength manifest in a natural attitude of openness.  Whether our current communication technology – particularly social media in its present corporate configuration – works against such a culture is a question worthy of continued debate.  

The crucial thing is that every experience of wonder brings a sense of responsibility – to care for and protect that which is of infinite worth.  Rights begin in the feeling of obligation that infinite worth inspires.  It might well be that the more people are able to experience wonder in their everyday lives, the more likely it is that freedom among equals – perhaps along with the right of nature to flourish – will prevail within the pantheon of over-beliefs regarded as self-evident.

December 20th, 2024

December 21st, 2024

It’s a matter of our collective alienation from a larger source of meaning, a sense of abundance.

Orbital

The sense of scarcity and deprivation and resentment that burns like a fever at the heart of neoliberal capitalism is no friend of wonder. It relies, instead, on the highly unstable currency of quick endorphin highs – the fuel that drives the attention economy online based on algorithms designed to nudge behavior toward whatever generates more attention, more likes. It’s an economy steeped in the kind of addiction that causes people to recklessly borrow from the future – theirs and others. Social media, in this respect, is symptomatic of an anti-life drive.

When an entrepreneur or public institution draws enough backing to provide an alternative model for social media, one that grows a community on the basis of mutual flourishing rather than zero-sum rivalry, perhaps its cumulative power will drive out or at least diminish toxic narcissism.  Eventually, a younger generation seeking to build a more hospitable world in which their own children can flourish, along with other forms of life, will throw off the virtual chains that bind people to isolation, resentment, and the deepening pathologies (both physical and emotional) that inevitably follow.

At what price remains to be seen. How many more species need to be lost? How many roundups and deportations of displaced persons and families suffering severe deprivation will we tolerate? How much violence is generated by megalomaniacal leaders whose isolation and resentment compel them to destroy what they cannot enjoy? (Nietzsche’s terrifying line comes to mind: “Man would rather will nothingness than not will at all.”)

Can we manage to reduce the gross inequalities that breed resentment and despair and design political and economic systems that ensure meaningful opportunities for people to pursue individual and collective experimentation and collaboration? Can we honor our obligations to protect and nurture whatever inspires within us a sense of infinite worth, the feeling that accompanies wonder in the face of others nearby and before nature herself? Liberal democracy may yet prevail if enough people realize that the core over-belief of freedom among equals can propel us toward a sustainable future of mutual flourishing.

In the meantime, Americans who love freedom and are unwilling to abandon democracy without a fight can act. They can participate in public campaigns urging Senators not to abandon their constitutional role to ensure government appointees are competent. They can work with civil organizations at the national, state, and local levels to ensure that vulnerable populations are protected. Efforts to repeal the Affordable Health Care Act can be resisted. Lawyers can volunteer time in defense of immigrants at risk of arbitrary roundups and family separations. They can join workshops to teach community members about their rights and how the institutions of democracy work to protect their interests.

Citizens can attend local school board meetings to help ensure that book banning and curricula skewed by ideological or religious partisanship are avoided. Educators can help others learn from history about the ramifications of authoritarian policies and practices. Mental health experts can share insights regarding how to deal with anxiety, depression, and isolation and how to foster emotional wellbeing.

Midterm elections are not far off. Strategic efforts on behalf of political candidates and elected officials who support the rule of law can be coordinated in local political clubs as well as online. New political organizations can be founded. Ideas about reforming current political parties can be shared beginning at the local level. In short, for democracy to work people must work at it – in their communities, with their neighbors, as well as intersecting with parties, institutions, and elected or appointed officials.  There are no guarantees, and the activity involved often seems like “strong and slow boring of hard boards” – to quote Max Weber’s memorable description of politics.

But this work also can be likened to that of a meticulous jeweler seeking to perfect light in stone. Like Wallace Stevens’ “necessary angel of earth,” the poet who out of “grappling with rocks” makes “a dwelling… in which being there together is enough.” Like channeling constituent power through over-beliefs breathing in the wonder of freedom among equals.

I’d like to close with a line from Samantha Harvey’s beautiful recent novel, Orbital:

Maybe the whole nature of things is one of precariousness, of wobbling on a pinhead of being, of decentering ourselves inch by inch as we do in life, as we come to understand that the staggering extent of our own non-extent is a tumultuous and wave-tossed offering of peace.