Imagine two written constitutions. One sets out a standard series of political structures and governmental empowerments and limitations; it concludes with a clause saying: “Anything in this constitution can be changed by the passage of ordinary legislation as spelled out in this constitution.” Were this “parliamentary sovereignty” model – found, for example, in the Austrian Constitution – present in the United States Constitution, then constitutional amendments could come about by agreement of majorities in both houses of Congress and assent by the president or by two-thirds vote in each house overriding a presidential veto. Our second constitution comes to a radically different conclusion: “And the Articles of this confederation shall be inviolably observed by every state …; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” Not only does the second constitution require assent by a different institutional layer from that of the national political assembly, in this case, the constituent states of the union; it also requires that this latter act of assent be unanimous. By definition, as with Poland's (in)famous liberum veto, this allows one holdout state to countermand the desire of every other state (and, presumably, the national legislature) for constitutional change. Both of these examples are taken from real political life, even though the latter constitution, the U.S. Articles of Confederation, lasted only six years.

Theories of constitutional change try to see the U.S. Constitution whole. They attempt to understand how all three branches of government have contributed to the course of constitutional development in the United States. Among recent theorists of constitutional change, Bruce Ackerman deserves great credit for highlighting the importance of this issue and stressing the need to consider the relationships among all the branches of government during three great constitutional moments: Founding, Reconstruction, and the New Deal (1991; 1998).

Whereas Ackerman is primarily interested in exploring the implications of constitutional change for constitutional law, I am interested in what this means for constitutional theory (Griffin 1996). Using the New Deal as my focus, I argue in this chapter that the new concern with constitutional change has the potential to transform American constitutional theory. In particular, I wish to press two related ideas: that because theories of constitutional change are historicist, they are not necessarily interpretive. Indeed, there is an important sense in which theories of constitutional change are prior to theories of constitutional interpretation.

This perspective on constitutional change is inspired in part by the methodology of “historical institutionalism” in political science. Historical institutionalism is often called a “state-centered” approach because it takes the concept of the state seriously and focuses on its halting evolution through American history. Perhaps the most important contribution of historical institutionalism has been its emphasis on the autonomy of the state.

INTRODUCTION: WHO SHOULD CONTROL CONSTITUTIONAL INTERPRETATION?

Madison, in a letter sent to John Brown during October 1788 discussing Jefferson's 1783 draft of a constitution for Virginia, pointed to a flaw in the U.S. Constitution, which has never been remedied by formal amendment: “In the State Constitutions & indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them” (Meyers 1981, 42). Writing as Publius in The Federalist some eight months earlier, he had noted that the legislature is supposed to be supreme in a constitutional democracy: “In republican government the legislative authority, necessarily, predominates” (Federalist 51, 350). But the flawed design of American constitutions allowed the judiciary to claim supremacy over the legislature: “[A]s the Courts are generally the last in making the decision it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper” (Meyers 1981, 42–3). Madison thus seems opposed in principle to one of the most salient features of American constitutionalism as it has evolved, namely, the doctrine of judicial supremacy, which (whatever its origins) was enunciated by the federal Supreme Court as early as 1803.

This is not to say that Madison regarded federal judicial supremacy in matters of constitutional interpretation as a catastrophic development, unacceptable in comparison to, for example, a state legislature claiming final say over the meaning of the national constitution. He may well have grown more receptive to the doctrine with experience.

In his reflections on the nineteenth-century British Constitution, Walter Bagehot remarks: “It is often said that men are ruled by their imaginations; but it would be truer to say that they are governed by the weakness of their imaginations” ([1867] 1963, 82). In this chapter I take the politics of post-Communist Eastern Europe as a point of departure from which to explore Bagehot's suspicion. More specifically, I hope to show that, contrary to what Bagehot insinuates, popular political imagination is not so much constrained by inherent deficiencies as it is differentially sustained by political possibilities that occupy the intersection of symbol and strategy.

What I offer is an exploration of political possibility occasioned by historical events, rather than a detailed report on those events. I am especially concerned to examine the rapidity with which assessments of Eastern European politics shifted, in the aftermath of the revolutionary events of 1989, from a sense of enlarged, perhaps limitless, possibility to more or less rampant fatalism. The primary focus for my argument is the impact of such fatalism on assessments of the prospect of establishing enduring constitutional democracy in post-Communist Eastern Europe. I thus am more concerned with the politics of constitution making than with the substantive features of the resulting constitutions. However, compared with those who view the politics of constitution making primarily in terms of the fairly narrow compass of bargaining over institutional arrangements and legal provisions, I focus on what is an analytically separate and, for political purposes, arguably prior question.

When a constituent assembly or other constitution-making body convenes in order to draft a constitution, the members of that assembly face a complex task. Their main goal is to agree on a constitution that will serve as the basis for a government for the present and, presumably, future generations. The constitution must establish a framework for the administration of government as well as enumerate the principles that will govern the relationship between the government and the citizenry. This is essentially a process of creating political institutions that will structure the behavior of the members of that society, a set of rules that will guide them toward a particular set of substantive political and economic goals.

In order to accomplish this task the members of such a body must come to the negotiations with some sense of which rules will best achieve their substantive goals. Because the rules will affect future outcomes, constitution makers want to create constitutional provisions that will produce the future outcomes they prefer given their expectations about the future conditions relevant to those outcomes. Thus, their preferences over constitutional provisions will be a function of their substantive preferences over future outcomes. But constitution making is a political process and these initial preferences must be modified by two primary concerns. First, they want to propose provisions that will achieve the assent of a sufficient number of additional constituent members to enact their proposals. In this politics of constitution making, they must take account of the compromises that must be made in order to garner the support of those who do not share their basic interests.

THE BIRTH OF THE CONSTITUTION

The birth of the U.S. Constitution was marked by two prominent and connected features. First, the process by which the Constitution was proposed and ratified differed radically from the means for constitutional change specified in the extant legal order that preceded the Constitution. At the national level, the Articles of Confederation announced themselves to be perpetual and required for amendment the vote of the Continental Congress followed by confirmation in the state legislature of each of the compacting states. In contrast, Article VII of the Constitution provided for ratification by special state conventions and required the ratification of only nine of the states to launch the Constitution as the highest law (binding only in the ratifying states but fully destructive of the confederated regime nonetheless). At the state level, each of the thirteen state constitutions specified a procedure for amendment. Included were requirements that the state legislature initiate an amendment, that a supermajority of the electorate approve, and that the amendment take place after a certain year or in a specified cycle of years. Article VII's ratification procedure depended on special state conventions rather than legislatures, contained no intrastate supermajority requirement, and paid no homage to temporal requirements in the extant state constitutions. Thus, the Articles of Confederation were annulled and replaced, and the constitutions of the states were subordinated to a national government, all by a careful and elaborate process that ignored the specified channels for foundational change.

Second, the process by which the Constitution was ratified was selfconsciously democratic and driven – at least in part – by a common democratic mechanism, simple majority rule.

There is not much in ethical theory which is not widely disputed. One view which enjoys wide support is that values are universal. Nevertheless, it appeared to me that there are uncertainties regarding the meaning and scope of that view which could benefit from further reflection. When invited to give the Seeley lectures of 2000 I decided to use the occasion for yet another, partial and incomplete, reflection on some of the contours of the view that values are universal. I wanted to understand better the significance of this view, and its limits. In particular, I wanted to improve my understanding of how it is compatible with the thought, controverted by many, but compelling to me, that evaluative properties, that is, properties which in themselves make their possessors better or worse, are historically or socially dependent. Social practices are contingent, and changes in them are contingent. If the evaluative depends on the contingent can it be universal? This seemed an appropriate theme for a series of lectures dedicated to the memory of a historian interested in theory and in philosophy, who brought theory to the study of politics and history at Cambridge.

I am aware more of what I did not manage to discuss, or discussed all too briefly and dogmatically, than of what the following pages accomplish. They are very one-sided and partial. Their focus is the tension between partiality and impartiality. Universality seems to imply impartiality.

Introduction

One thing is clear. If people's continued life is not intrinsically and unconditionally good for them then the value of continued life to the people whose life it is cannot underpin the requirement to respect the life of others. The fact that life is a precondition of the value which the content of that life may have is neither here nor there. The requirement to respect the life of others is not subject to the variations which affect the value of the contents of the life of people. Our duty to respect people's life does not vary in scope or strength with variations in the value of the content of the life of those people. Possibly, it is somewhat sensitive to the value of those people's lives. We may not owe the same respect to the life of murderers as to the life of others. Our duty to respect the life of others, however, does not vary in tune with every fluctuation in the value of the contents of the life of those others.

This conclusion is not as worrying as it may appear, if only because it is inevitable for independent reasons anyway. For example, the value of survival to the survivors could at most contribute to an explanation of why we should respect their life. However, when thinking of duties of respect for people the objects of respect are people, not their life.

Having left the morally worst century of human history we may on occasion seek solace by reflecting on aspects of the recent past which can count as moral advances, as pointers to a more decent future for our species. When my mind turns to such thoughts perhaps one feature stands out. I will call it the legitimation of difference. I have in mind a change in sensibility, a change in what people find obvious and what appears to them to require justification and explanation. Such changes are never universal. This one may not have gone very far yet. But I think, and hope, that there has been such a shift in the moral sensibility of many people in the West, a shift towards taking difference – in culture and religion, in gender, sexual orientation or in race – for granted, acknowledging its unquestioned legitimacy, and seeking justification only when hostility to difference is manifested, or where advantage is given to one side of such divides.

Is it evidence of that shift, or is it proof of the vitality of the Seeley lectures, that all previous lecturers devoted so much attention to diversity and disagreement and the proper response to them? For surely such shifts in sensibility breed, as well as being nourished by, shifts in theoretical reflection.

In the last chapter I examined one source of doubt about the universality of value. To put it crudely, among what matters to us most, many believe, are attachments which are unique because of the uniqueness of their objects. The value of those attachments is also unique. They have the value they have because they have the objects they have. Since their objects are unique so is their value. But the universality of value is incompatible with the thought that value is unique. Or so the challenge goes.

I acknowledged the importance of uniqueness in our lives, especially in our relations to people dear to us, and to some other objects. But I dismissed the thought that it is incompatible with any sensible view about the universality of values. I relied on the distinction between the value of things, and their value to us, which I also called their ‘personal meaning’. Personal meanings can depend on the uniqueness to us of the object of our attachments. But that is consistent with the fact that the value of these attachments, as distinct from their value to us, is universal. Their value to us lies in properties of the attachments, including properties of their objects and their relations to us, which make them unique in our life, sometimes unique de facto, and sometimes necessarily unique. This is not to say that what is important or meaningful for us is to have a unique relationship or object.

Framing the question

To anticipate: I will endorse Epicurus' view that ‘death is nothing to us’, or rather a version of it. My reasons are not his, and do not depend on endorsing the view that only sensations are good or bad. Human life, I will argue, is not intrinsically and unconditionally valuable at all. The ancient doubts about people's life being good for them were many, and my argument will be no more than a variant on some of them. I will use it to argue for the view that life is a precondition of good, and normally a conditional good, but that it is not unconditionally and intrinsically good. I will call this the thesis.

The approach underlying the thesis can be described thus: people's life can be of value (or good, or valuable – I will use various expressions as designating roughly the same idea) or without value. It can also be bad with negative value only (as well as, of course, bad on balance, i.e. with good and bad, but with the bad predominating). The value of one's life is determined by the value of one's activities, relationships, and experiences, in short, by the value of its content. The value of continuing alive depends upon the value of the content of one's life if one were to remain alive longer. Alternatively, perhaps, it depends on what it is reasonable to expect the content of one's future life to be.

INVOCATIONS

It may at times help to be as certain as we can be about our uncertainty. The previous chapter opened with an unremarked dissonance. Zizek dramatically advanced the Freud of Totem and Taboo as putting our position in question, yet the myth of the primal parricide recounted there was something ‘that should be a presupposed … if one is to account for the existing social order’ (Zizek 1991a: 208). The Freudian myth was likewise torn between its accounting for the social order as determinant position and its unresolved, restless questioning going ever beyond position. What, hopefully, started to emerge from this engagement with the myth, from the way in which the terms of that unresolved questioning became so insistent, was that these terms may themselves be accounting in some way for the social order. And these were terms which involved law. Yet any foundational assurance this juridical outcome offered was undermined by its constituent reliance on a transgressive savagery which surpassed it.

All of which may not be of extensive interest if it were not for the multitude of claims to the effect that Freud and his story of the anthropophagous parricide provide the mythos of ‘our’ age. If those claims have some cogency, then we would expect that the positioning, if unresolved, terms of the story – terms associated with our origin and identity, with community and the constitution of the social, with transgression and savagery – would be matters of recurrent existential and intellectual concern. That they are so, and how they are, will be the preoccupation of this chapter. More pointedly, since the positioning terms in Freud's seemingly paradigm myth invoke law in their very irresolution, we may expect that, when seen in more abstracted settings outside of the myth, such terms would invoke law there also. And such, mirabile dictu, proves to be the case. At least, that is the purport of this chapter.

ENDINGS

There are aptly persistent academic conversations which would have it that all our doings have been done and that globalization specifically is not to do with a new-created world but, rather, with a continuing imperialism writ somewhat large, even if now an ‘imperialism without colonies’ (cf. Magdoff 1972). This last chapter recasts that assessment in a way which accommodates globalization as a ‘globalized nationalism’ (Douzinas 2000: 212). In so doing, the chapter follows a muted trajectory in globalization theory itself. Such theory, in blunt outline, would distinguish itself from plain universalism because it emphasizes the ‘local’ in a way which does not reduce it to being an instance of the global but, rather, accords it some distinctness (Robertson 1987: 22). Also globalization theory would want not just to differentiate but to integrate the ‘global’ and the local. All of which may suggest a recognition of the fruitful divide which has run throughout this book, the separation and the linking of particular determination and a universally inclined responsiveness beyond determination. Globalization theory resiles from any such perilous opening out, however, and would neutralize it in varieties of essentialist assertion. Although such assertion in the setting of globalization theory may not explicitly trumpet imperial and nationalist arrogations, it does rely upon, refine and give a universalist voice to them.

INTRODUCTION

If then we find in law the triumph of a departed world, that world nonetheless departs with its empyrean leaving law bereft of any originating reference exterior to it. Coming from within itself, as it were, modern law was revealed in the Freudian myth as absorbing the dimensions of the origin, as linking that which is determinantly originated with what lies ever beyond the origin. True, as we saw, modernity does purport through such telling instances as society to combine these dimensions, but it was unable to encompass them in this way and account for law. Instead these instances relied on law as a cohering of those dichotomous dimensions.

That pattern of analysis does not account for law in itself, for law as self-grounding. It evokes a necessary law in different instances and, although these are significant and related, they do not cohere into some encompassing milieu producing law. How then may law be presented in itself when that ‘itself’ is so divided between determination and responsiveness? The strategy used here is to see law as taking place with-in the seeming imperatives of action, time and space. What more or less immediately emerges from that exercise is somewhat tautologous in that the movement in and between determination and responsiveness which in-forms law is what also gives us action, time and space – gives us, at least, the experiential conceptions of them explored here.