Constitutionalism: A Political Thinking of the Center
by Adam Katz (Jan. 2007)
Our political map is defunct, making it urgent that a new political center be forged. Both Democrats and Republicans have revealed their irrelevance to the world created on 9/11, their deafness to the lessons of Flight 93. The eagerness with which some Republicans now rush to declare themselves “Reagan Republicans” would be comforting if not suspicious insofar as such pieties serve to dispel our focus on the inevitability of a coming confrontation with Iran, to start with the most obvious. Can anyone really argue that institutions such as the CIA, the State Department, the UN, and NATO, for starters, give any signs of meaningfully grappling with the terrain of our present reality? And, yet, has anyone anywhere near a position of power seriously proposed, not necessarily a frontal assault on (why waste the energy?) but end runs around them—new forms of intelligence gathering genuinely aimed at getting inside the other and accountable for the usefulness of precisely that information which will never ruffle the surface of public life; new modes of diplomacy which reach out to civil institutions, friendly minorities and groupings, and dissidents for the purpose of targeting public opinion and transforming it (fine, Secretary of State Rice made some sounds about this); new alliances predicated upon what we and others are willing to risk together rather than platitudes, mythical shared histories and inertia; new comprehensive revisions of international law and the laws of war? Etc.
We seem incapable, not of finding “consensus” or arriving at “bi-partisanship,” but of improvising, of trusting those to whom we delegate responsibilities, of responding to events and realities resistant to old formulas. The sclerotic condition of our governing institutions is evidence of the disintegration of the simulacrum of a political center which progressive politics has sustained through the Cold War stand-off, the welfare state, a monopolistic media establishment and elite academy, since World War II. The guiding progressive faith in management of social life by rational experts (supported by the genuine need to not “make any sudden moves” under conditions of MAD) buffered from the irrationality and selfishness of what is from this standpoint little more than a lynch mob straining at the leash by layers of self-credentialing, self-policing specialists with increasingly arcane and empty “ethical codes” could not be more out of place in the 9/11 world in which we find ourselves. In this world, what will be most valued are initiative, a willingness to test out novel forms of cooperation, a willingness to tie security to our own willingness to take risks, and, perhaps, above all, a refusal to be bullied by those who threaten that each and every action uncushioned by layers of precedent and consensus will arouse one or another “street”—a readiness, in short, to reject blackmail and to move forward even if others are paralyzed by it.
Let’s name conservatives those who believe that example provides the only reliable guide for acting in history. Conservatives might follow those examples which have been most successful (first of all successful in surviving as examples); or those which are most “exemplary,” which is to say are the target of the ambitious and idealistic (such examples are likely to be the most fragile). Let’s also say that the strength of conservatism is precisely in the articulation and tension between these poles, as well as between incommensurable, but equally worthy, examples. Conservatism can never be a governing modern philosophy in its own right: it can never be fully compatible with the desires and resentments democracy must allow to circulate or, for that matter, with Christianity, an especially radical creed (an evangelical wave through the Middle East, for example, would depend upon a faith in the possibility of the unprecedented), even while it is capable of reconciling itself with these radicalisms after the fact and revering the traditions they produce.
Progressivism, meanwhile, is the belief that scientific rationality provides the most reliable guide for acting in history. Progressivism is even less capable of governing modern society than conservatism: the defining feature of scientific rationality, the setting and testing of hypotheses, is either irrelevant (and therefore ultimately hostile) to democratic decision making (why should a majority of citizens feel obliged to support legislation just because it has a “scientific” imprimatur; how are citizens to be expected to adjudicate scientific disputes in ways compatible with the tempo of public life?) or useful in a way that paradoxically undermines the possibility of using it as a “guide”: in social life, the scientist is inevitably part of the experiment, while the experiment, insofar as by definition it involves setting something new in motion (say, a voucher system for education in some inner city school district), therefore posits individual freedom as an “invariable,” with the result that the experiment marginalizes the power of the scientists themselves. Since progressive politics must be interested in defending the power of the self-appointed social scientists first of all, it is ultimately the politics of those driven by a visceral hostility toward any public, shared sacrality, religious or secular (“patriotism”), which is to say everything that makes citizens “irrational.” Progressives, therefore, enter those institutions predicated upon some claim to disinterestedness, impartiality, or objectivity (the media, judiciary, academy, and government bureaucracies, especially the “helping” ones) and seek with great tenacity to control them in the name of a circularly defined and self-certifying “expertise” while, by simultaneously “debunking” the very values responsible for the veneration we would like to direct toward such institutions, using them as bases for projecting new modes of aristocratic political domination.
Constitutionalism is on one level the highest form of conservatism: our most certain guide to acting in history is following what is in this case a single example, that set by the founders of the political community, who saved us all from civil strife and foreign domination. But constitutionalism transcends conservatism in its elevation of a single, unique, publicly verifiable event accessible to the history and well as memory of the community, along with its main issue, a written text, subject to the most strenuous secular analysis and daily, contested application. Exemplary figures functioning as the origins of tradition are, meanwhile, embellished in inverse proportion to their accessibility. We could say that in a constitutionalist culture, constitutionalism trends conservative, while in a non (not to say anti) constitutionalist culture, it will be revolutionary, perhaps allied with progressivism or insufficiently distinguished from it. Even in the most established constitutionalist culture, though, constitutionalism never quite sheds its revolutionary character altogether.
In 20th century America, progressivism has displaced constitutionalism and simulated a political center once provided by constitutionalist faith. Central to this transformation was the unsettled issue of our own constitution and cause of our civil war: slavery, and then black semi-servitude and political dispossession. The failure of Reconstruction left us with formally nationalized natural rights alongside the actual expropriation of all rights on the part of those on whose behalf that transformation was effected in the first place—the point is not that Progressives were particularly concerned with black rights (this was obviously not the case for the most famous of progressives, President Woodrow Wilson), but that the federal government’s inability to enforce the rights (except, cynically, for economic corporations) it had pledged to guarantee signified what could easily be taken as a fatal weakness (and the ultimate inadequacy of the Constitution which had established it), and this in a new era when unprecedented technological challenges, social conflicts and international insecurities seemed to require a government which could draw upon less compromised sources of legitimacy—and what better than scientific rationality, with its promise of unending progress and claims to remake the old creaking machinery of government (we don’t still transport ourselves in a horse and buggy, do we?). And, finally, it is not a coincidence that the most recent wave of progressivist political power was initiated by the less intense revival of the issue central to the Civil War—again, signifying the federal government’s inability to address what had by now become an open sore and international shame—which provided an opening for the judiciary to commence its now half-century long usurpation of Constitutional prerogatives, in the name of individual rights, on one level, but really in the interest of a broader project of de-sacralization of all sources of constitutional loyalty and coherence.
Constitutionalism can only be restored by iterations of its founding gesture. In other words, not by simply repeating it (which would be impossible), but instituting the rule that it originally, if implicitly, applied. The founding principles of American constitutionalism, much more so than the British, were certainly quite explicit, and I don’t mean to suggest otherwise; I do mean to suggest, though, that if we want the constitutional founding to provide us with a frame for sustaining a political center, we must drive from it a rule extending beyond that founding act itself, and a rule, furthermore, that act must have been intuiting imperfectly. I will provide an originary analysis of the act of constitutional founding that will provide such a rule, and I want to note from the start that I will argue contrary to the common assumption that the system of balancing powers (often referred to as “checks and balances”) were meant to limit the power of government in some absolute sense, to make government less efficient as opposed to simply ensuring that a fulcrum point of legitimacy remains intact and robust outside of the interrelations of the governing institutions themselves (residing in the people’s right to revolution). My argument will be that the constitution aims at generating more power, but power understood in Hannah Arendt’s terms, as “action in common” or, as I will also call it, our reciprocal interference in each other’s liberty.
So, for example, the founders aimed at the most concentrated, united central government in relation to external powers consistent with maximal internal diversity. We can, of course, formulate this desideratum in precisely the reversed terms: maximal internal diversity consistent with the necessary concentration and centralization of power in relation to external powers. This reversibility is precisely the point: at a certain point, the ability of external powers to intrude upon our political, legal and cultural frameworks would denude those frameworks of their coherence; at another point, the capacities delegated to neutralize such intrusions to the point where they are not an ongoing, incessant concern (a free society must always be “on its guard” in a certain sense, but not in the sense that we can constantly have all potential dangers present to us all the time) will themselves constitute “intrusions.” The institutional design of a good constitution will be such as to compel us to perpetually pose the question of where these points might be at any time, while leaving open the actual judgments to those required to make the decisions and live with them. So far, though, this is still just a “balancing act”; what makes it something more is the “proof” that we have found the right balance, which is that the rest of the world becomes not just a threat to be warded off but a rich source of beneficent influence and spur to our own activities. In other words, the institutional design makes us more powerful, as individuals and as a collective presence in the world.
Similarly with a very different kind of principle concerning the balancing or interplay of powers: that which mandates maximum specialization of the differing functions and duties of government with maximum articulation of those powers: in the case of the U.S Constitution, the very precise boundaries separating the powers (and the specific source of those powers) and responsibilities of the executive, the legislative and the judicial branches along with the multifarious ways in which they are rendered interdependent upon each other. The need for a representative of the nation as a whole to check the profligacy and short-sightedness of more locally chosen representatives (executive veto power); and of a more directly accountable body to resist attempts on the part of that figure with a national base to undermine the Constitution itself (power of impeachment) and much more are, of course, part of the design, but even more important is that the structure of these respective powers is perfected: the executive power represents a certain form of “energy” insofar as its actions are aimed not only at accomplishing certain tasks and policies but at showing what a system of direct orders and hierarchy and the attendant virtues of courage and honor are good for within the strict limits allotted them; while the legislative power perfects the capacity to solve the problem posed to it—translating local and specific needs, interests, demands and pressures into general rules applicable beyond those needful, interested, demanding agents—only on the condition that it is not permitted to direct the actual implementation of the laws it passes. In this case, the government can be not only efficient but, as any necessary institution should be, anthropologically revelatory.
It should be clear that I am assuming a conception of government quite different from the classical liberal, instrumentalist one, which sees government as existing to protect the community from external force, guarantee certain very basic rights and aid in ensuring certain necessities which, if left to private action, could not be ensured. Among other things, as compelling as this vision of government might be from the standpoint of private actors, I have never seen it explained why, if no nobility is attached to public action, anyone would bother engaging in these necessary, often very dangerous jobs which furthermore often involve moral standards which civil institutions are ill-suited to judge, making their practitioners even more vulnerable to legal action and public opinion. Meanwhile, if they do possess some nobility in their own right, they can’t be merely instrumental. And there is a broader, anthropological question at stake here: in accord with what understanding of humanity can one consider essential activities merely instrumental—in other words, if they must be believed to possess some nobility in order to “work,” to be treated with the respect, honor and trust they need, then they must actually possess that nobility. I would, following the same argumentative line, though, reject any accusation that such a view encourages authoritarian or totalitarian government: it is instrumentalist views which encourage such a politics, while the constitutionalist view I am arguing for here safely embeds political activity within the wider network of civil and private activities.
Conservatism and constitutionalism share, in sharp opposition to progressivism, an event-centered anthropology: examples and foundings are most fundamentally events, which is to say, first, they could just as easily have not happened and, second, nothing can be the same once they have happened. An event discloses something new—not an idiosyncratic newness but an imitable one, however unique. Insofar as we adhere to examples and foundings, we shape our actions accordingly, which means that we treat these events as law-giving. (For progressivism, all is process and law-governed in the sense of scientific laws.) For the kind of originary political thinking I am proposing here, the event is the foundation of the first human community on the originary scene as hypothesized by Eric Gans, when within the group is emitted, in some “staggered” form, the gesture of aborted appropriation, effecting a “stand down” on the part of those contagiously grasping for the central object. (for more on Gans’ “Genrative Anthropology, see his Anthropoetics website</a>; for my previous essays elaborating on Gans’ hypothesis, see here) A key element of the originary scene will help us hypothesize regarding the founding political scene, which constitutional foundings iterate: on the originary scene, what makes the sign necessary is that the pre-human hierarchies (the “pecking order”) are overridden by the violence of the mimetic crisis—only a participatory, shared, minimally conscious act can now preserve the group by transforming it into a community.
Similarly, to make sense of politics, which is to say a space of freedom and power, where, as Hannah Arendt put it, everything said and done is seen and heard by everyone, we must imagine the breakdown of a prior restraint under the pressure of some imminent crisis. The prior restraint is what the ancients called “tyranny” and we could see as the logical extension of the “big man” of the advanced tribal community, which was itself a solution to certain problems arising in the primitive egalitarian community. The “big man” concentrates ritual and distributive power in his own person, and we can make sense of the breakdown of this restraint (according to which challenging economic relationships would be equivalent to blasphemy) in either of the following ways: first, two or more contending (with increasing intensity) tribes governed by ambitious “big men” are incapable of conquering each other but are capable of destroying each other in unending conflict; or, two or more tribes contending with an imperial power (whether resisting an invading one, or revolting within an existing imperial structure is irrelevant here). In either case (leaving aside the rich differences between these possibilities in terms of actual historical developments), the communities in question would transcend their enmity through an explicit pact, a pact predicated on the rejection (and scapegoating) of their own big men (now blamed for the conflict, or at least its inadequate execution) and hence “big manness” as such—what is now sacred for the political community is the pact itself and political activity is exclusively concerned with sustaining this sacred center, directing resentment toward anyone who would seek to usurp it as well as anyone who would subvert (by treating them—whether better or worse—in terms of their tribal identities) the equal treatment granted anyone in the political space itself.
In this way the political space iterates the egalitarianism of the originary community in which everyone is equidistant from the object. Even more, it iterates the relationship between mimesis and transcendence constitutive of that community, only this time in the relationship between communities as well. In other words, the political actor represents his or her community in its mimetic relationship with other communities, with these political representations ultimately aimed at deferring the cataclysmic violence which is now (albeit less constantly) recognized as equally dangerous as that haunting the primary community itself. We find a couple of paradoxes here. First, civil peace within the community is now dependent upon the self-representation of the community before other communities, which increases the sources of divisiveness parallel to the enhanced mimetic capacity for successfully “framing” and “staging” those divisions.
Second, the formal equality of communities politics makes possible simultaneously installs the fundamental dividing line constitutive of politics, between free communities and tyrannies. If representation is the deferral of violence, here it seems also to imply a declaration of eternal war. There is no perfect solution to either dilemma, any more than there are perfect solutions to any of the basic dilemmas of the human condition, but the capacities for deferring these new domains of antagonism lie in the fact that politics opens up spaces of mimetic freedom more generally: it is predicated upon some degree of free economic exchange (otherwise the minimal solidarity between communities needed for the original pact would be lacking) and upon the possibility of moving from one ritual community to another (whether this takes places through the revelation of an invisible, universally shared God who can be worshipped anywhere or through pagan tolerance is obviously extremely important historically and morally, but not for this discussion). What this means is that the free community can live with the tyrannical one both by spreading its “germs” within the latter, as well as by internalizing and minimizing (or learning from) some beneficial features from the “big man” social forms, such as the need for hierarchies for various purposes (even what we might call the “tributary politics” of the local political “boss” is a residue of the “big man”). This is why the weakness of free societies in confrontation with tyrannies—our divisions and confusions versus their single-mindedness—is inseparable from our strengths, if only we can recognize them, which lie in “activating” our plurality so as to demonstrate the brittleness of tyranny when faced with the ultimate plurality of its own, as any, order.
Constitutionalism is the highest form of the originary political pact: it is an iteration of that pact at a later period of development at which the need to sharply distinguish the pact from tyrannical forms of social organization and limited tolerance for other modes of sacrality are no longer matters of survival. Constitutionalism, in other words, is a more elaborate form of deferral: the originary pact need only dictate very specific terms of agreement, a very carefully circumscribed space of “isonomy,” and very specific ritual matters which are placed off-limits to the public power, whereas constitutionalism becomes possible once that originary deferral has become generative, which is to say capable of taking on new elements of the compact introduced by analogy with the original ones. In a fully formed constitutional order, I would suggest that we can speak about “universal rights” on two levels, in terms of such an unfolding as preservation: first, on the model of the egalitarian originary scene (from which derives our basic intuition–by no means some Enlightenment contrivance–that we could, with sufficient effort and good will, make ourselves understood by, and understand, any sign users from any other group); and, second, from the evolved modes of activity upon which the order comes to depend. These evolved modes of activity, or spaces of transcendence, where the implications of a particular revelation of the sacred can be allowed to unfold, where a particular line of inquiry can be pursued unfettered, where voluntary exchanges can be carried out in safety, where direct obligations to others in loving relationships can be worked out autonomously, and so on, are all protected by the Constitutional order and, in turn, the public space must be protected from them, precisely so as to allow for beneficial reciprocity. It is in this articulation of originary intuitions and concrete, generative spaces, that the constitutional center is located.
Here we can bring into focus what becomes perhaps the most challenging question for any Constitutional order: how do we distinguish between new modes of activity, news forms of obligation, new experiments in freedom, that are welcome extensions of the existing articulation of sacred spaces, and those which undermine that articulation? Is “gay marriage” a natural development of our application of equal rights to more and more groups excluded from earlier forms of the compact? Or is it setting us on the road toward the destruction of a crucial nexus of the Constitutional order, that between the nuclear family and the self-reliant citizen upon which that order depends? My own view tends strongly toward the latter, but my own view is irrelevant here—the question is, what kinds of political discourse and dialogues best address such questions? In concluding this essay, I would like to propose a way of posing, more than answering, such questions, one which focuses on identifying, defending and extending the reach of the Constitutional center in a world where, paradoxically, the freedom enabled by that center makes its continuation more contingent: the more participatory our order becomes, the more that order depends upon everyone participating freely but nevertheless in the “right” ways. To put it another way, the more material we consider adding to the compact, the more we are compelled to trust and therefore continually reconstruct our originary intuitions as a guide.
The name I will give to this mode of thinking is “diagonal.” I am borrowing the image from, and I hope being faithful to, Hannah Arendt’s answer to the question, where are we when we think? I’ll be taking liberties, though, and eschewing references to her Thinking. Arendt uses the “diagonal” which emerges out of a “parallelogram of forces” as a way of describing thinking as an activity located “between past and future,” which is to say in a present which must be kept perpetually open as a source of freedom and transcendence. The past, we might say, pushes us forward inexorably, converting what was sheer possibility a moment ago into a link in an unbreakable chain, going all the back to the beginning of time. The pressure of this forward motion even tends to swallow up the future, to lead us to represent it as already determined, if only we could discover the explanatory “key.” The future, meanwhile, pushes back at us, like a stiff wind we are walking into, resisting any closure, coming at us from a completely infinite openness. And in between is each and every one of us, allowing the past to propel us forward, meeting the resistance of the future, letting each deflect the other so as to allow us to continually carve out that space of possibility just about to close right in front of us, at arms length, so to speak. Thus, our movement forward is not linear, but diagonal, a result of our own, necessarily improvised, struggle to defer the collision of these contending forces (and thereby prevent our own paralysis and surrender); in the process, we populate the past with signs of our predecessors (who must have solved an equivalent problem) and the future with those for whom we will ourselves be signs (and who will in turn ratify our solutions).
For originary thinking, what pushes us forward, the weight of the past, producing the illusion of its law-like and determined character (while yet teasing us with hope), is the mimetic crisis emerging regarding our strife over possession of the central object, the object of our common attention, toward which everything seems to lead. Mimetic crisis abolishes difference and hence freedom; the infinite future, meanwhile, is the direct product of the act of deferral, the sign which “pre-empts” the imminent cataclysmic violence, which we have a glimpse of in some glimmer of symmetry which might arrest our convergence and which makes everything seem possible on the condition that nothing more is ventured; and the present is us, right now, trying to figure out how that sign might initiate a stream of imitations which cumulatively reverse the contagion, what might figure that possible symmetry as some minimal mode of reciprocity. On the originary scene the emission of the sign is only preliminary: that sign must now guide the newly formed community in dividing and consuming the object, which raises the specter of violence again and is the origin of the withdrawal and pacifism of a certain kind of “beautiful soul” known to us all. The sign must encompass, other words, the consequent moments of distribution and ritual commemoration, while for those captivated by its beauty (the equilibrium it creates) these subsequent moments are corruptions, even abominations.
In politics, such a sign is what the political theorist Frank Ankersmit calls “creative compromise,” the transformation of contending and seemingly incompatible positions into something new—not merely a splitting of differences, but an accord transcending the original demands themselves. We will inevitably be working with examples, rather than abstract procedures capable of producing such compromises, and so I will now go on to propose a few, what I will call “generative thought experiments,” aimed not so much a direct “implementation” but rather as a central object of conversations around a possible sacred center, one we all, or at least enough of us, might be ready to defend, first of all defending the conversation itself:
The U.S. should unilaterally announce our intention to establish a military presence in Iraq until such time as a sovereign Iraqi government, which we find to be in control of its borders, capable of ensuring internal security, accountable to its people and the basic prerequisites of international order, asks us to leave. To what extent we are there as an ally of a nascent, struggling version of such a government, or in bases aimed solely at allowing us to strike quickly at enemies anywhere in the country or region (or any combination of these possibilities) will depend upon conditions on the ground—our presence, though, will not depend upon those conditions.
The power, I hope, of this thought experiment, is that it “places” everyone involved in revelatory ways. The first thing that is does is defer perhaps the most urgent conflict in U.S. policy making circles (reflecting, I would suggest, broader conflicts between “Jacksonian” and “Wilsonian”—I would say “Hamiltonian” but that’s a debate for another time—tendencies in our traditions), that between the neo-conservatives, who believe we need to spread freedom through the region, and those whom Jeb Babbin has recently termed “endgamers,” who want to stay focused on fighting our immediate enemies with the necessary ferocity, rather than attempt to transform the culture of the region. Such an announcement would provide us with the space to experiment with both approaches, trying first those policies which don’t require us to choose, but might lead us in one direction or another. Once that conflict is deferred, the conflict between the realists, who have taken strength from both the dissent of the endgamers and their opportunistic alliance with the left, can also be deferred—or, perhaps, the realists marginalized altogether. The implication here is that those actively involved in defending the center must first defer conflict among themselves, with the faith that that act of deferral will either “trickle down” to less central ones or provide enough force to render those conflicts manageable.
With such a convincing rejection of vacillation, the Left is either forced into silence or into direct opposition: coming out explicitly in favor of de-funding the war, on the part of more radical elements promoting various forms of “disruption” and direct support of the enemy, and so on, all of which would have the same effect as silencing them with the added advantage of discrediting them. At the same time, though, genuine liberals and even the few Leftists out there who really believe in human rights and social change, and genuinely hope to affect events and fend off what they must see as a catastrophe, would have an interest in participating in this new bloc on the side of the neo-conservatives, who will at least be providing a vocabulary they hope will prevail. Our enemies, meanwhile, are placed in a double bind from which they cannot easily extricate themselves: they are reminded that, in military terms, they can’t budge us an inch, and the more they try to subvert the Iraqi government the more we direct our attention toward them and their allies and sponsors. Those who really want us out have the incentive to help the Iraqi government get up and running, and provide the needed cultural supports. Furthermore, not only do we remind our enemies of some of our advantages in this asymmetrical warfare, but we remind ourselves as well, and start inculcating the needed qualities of patience, “creative compromise,” initiative and improvisation: we would be setting the agenda, determining the criteria, and not our enemies or their allies in the media. Finally, the neo-conservative thesis can thus be both tested and given what it has so far been lacking—a “Plan B” that might, in turn, strengthen “Plan A” (those resisting the spread of liberty, no matter who they are, will not prefer the alternative, which is now laid out clearly).
Let’s take a look at a second example, this one composed during this summer’s war between the Israelis and Palestinians (quickly overshadowed by the war with Hezbollah) following the abduction of the Israeli soldier Gilad Shalit by Palestinian forces:
The Israelis should offer protection and immediate Israeli citizenship to any Palestinian (and his/her immediate and perhaps even extended family) who offers reliable information leading to the recovery of Shalit.
The effect here is to foreground the advantages Israel, as an advanced Western society, has regarding the Palestinians, especially given their recent descent into savagery and death-cult depravity: in the end, they want to come here, or at least enough of them would want to so as to siphon off considerable demographic strength. Such an offer would, if accepted, even by a single Palestinian, would break open the wall Islamic terror constructs around the population it holds hostage; it would turn individual liberty into a weapon working behind enemy lines. And, if universally rejected, the Palestinians would be presenting an image of itself—universally committed to the most vicious form of Jihad, even at the expense of rescuing one’s family from dire circumstances—that will not soon be forgotten, not to mention adding far more legitimacy to any military measures Israel considered it necessary to take in rescuing Shalit. Extreme generosity toward any enemy who repents along with unconditional determination to rescue our own and resist blackmail would, furthermore, unite the vast majority of Israelis around what is best in Israeli society and Jewish tradition. And I would furthermore suggest that widening, in what would first of all be very moderate doses, Israel’s conception of possible forms of loyalty and bases of citizenship, would strengthen what is best.
We could use a wide range of such thought-experiments (the blogosphere is teeming with them) regarding our war with totalitarian Islam: to take just one example, one might propose that we take the next bout of manufactured hysteria over some “insult” to Islam as an occasion to make up a list of prominent Islamic leaders (leading Imams, heads of state, whoever, and wherever) who have incited violence and demand apologies from each and every one of them. Either they apologize, and some wind is taken out of the Jihadi sail, or they don’t, and we act in accord with the rules they have set down and we rid the world of a top layer of our enemies. (That we violate “international law” and the sovereignty of some countries harboring terrorist inciters in the name of our right to self-defense is just a bonus.) I’ll conclude this discussion, though, with one which might give us a new way of talking about the question of illegal migration (illegal “immigration” seems to be conceding the point too easily):
First, offer amnesty and American citizenship to any Mexican migrant willing to testify and help us dismantle the “coyote” smuggling systems bringing so many migrants over the border; second, institute a program of accelerated naturalization for those migrants who are able to find American citizens willing to “sponsor” them, which is to say, vouch for them and make some kind of “guarantee” for their good citizenship for a period of, say, ten years; then, third, ensure the removal of the rest, perhaps by giving six months notice to all employers of new, harsh penalties to be enforced.
This thought-experiment seems to me to organize conversation around a constitutionalist center by, first, recognizing our own complicity in the presence here of millions of illegal workers; second, by taking into account the tension between the indubitable wrongness of breaking the law (and centrality to sovereignty of protecting the border) and the real interdependencies and reciprocities that have grown up between individual migrants and their families and their host communities; more simply, the tension between legality and morality (recognizing that legality has a morality of its own). It combines a generous initiative (often necessary in order to break any logjam, and appropriately taken by the stronger party) with an imposition of real accountability upon those who claim to favor open immigration: put, if not your money, your reputation and perhaps more, on the line in defense of your principles (or your interest in cheap labor). We would, furthermore, have a very “republican” method of vetting all these newcomers: you are unlikely to sponsor an employee or neighbor (say, in exchange for a bribe) if public exposure (and perhaps a charge of perjury) follows their being arrested for a violent crime a couple of years down the road, or ending up on welfare. The potentially destructive conflict pitting ethnic lobbies, liberals and leftists, and big business on one side, and an actual, but generally (so far!) passive, majority of Americans on the other (and it’s potentially very destructive precisely because it will simmer until that majority become much more engaged, and when that happens resolution will become far more difficult) would thereby be deferred and our tradition of demanding loyalty and assimilation in exchange for generous immigration policies restored—which, in turn, might make a real consensus around strict enforcement (or changes in the law) possible. And, as with virtually all of these thought experiments, the qualities demanded are the courage, charity and patience which are often marginalized in the modern world but are actually well within the reach of ordinary people.
We could now reduce the process of “diagonalization,” as a mode of formulating the “rule” of constitutional founding, to the following “procedures”:
*creating symmetries out of asymmetries and reciprocity out of symmetries. Originary political thinking and constitutionalism abhore the moral and political vacuum left open by asymmetries that resist assimilation to some formal symmetry, even if it’s only, for starters, the poor and rich being subject to the same law against sleeping under the bridge (or the powerful and powerless equally enjoined against the indiscriminate slaughter of civilians)—such formal symmetries should be constructed whenever such vacuums threaten to open.
*operationalizing conflicting moral intuitions so as to try out various ways of reconciling them. Tension between different modes of sacrality, different spaces of transcendence, are indications of the limitations of existing modes of exchange and the new mode of exchange can be represented by attempts to square the existing circle, which is to say, constructing an “icon” of someone who satisfies both intuitions, whatever they may be.
*”tipping” the spontaneous into the deliberate and the invisible into the publicly visible. The point is not to interfere with the spontaneous or force everything in to the full light of day, but to enhance our present means of giving a bit more order to our activities when that proves necessary or bringing into public view what can no longer be maintained within, what is “spilling over,” so to speak, its local or private boundaries–to see what our modes of ordering and rendering visible are capable of and, in fact, generating new modes of spontaneity and reticence in the process.
*strengthening the articulation of power and accountability: finding some new grant of power that would provide a better “handle” for our need to allocate accountability; finding new forms of accountability to match emerging new modes of power. To draw upon the language of The Federalist, we must learn how to create new “offices” to address new ambitions.
*translate social and cultural conflicts into institutional complementarity: on the model of the establishment of different forms of representation for the two Congressional houses so as to defer the conflict between large and small states various forms of formal and informal vetoes and braking power can be extended to minorities in particular but used to add new layers of deferral more generally. The condition must always be that such powers be formalized so as to apply beyond the conditions under which they were initially formulated—the kind of sectarian quotas for representation that we find in multi-confessional polities like Lebanon are absolutely forbidden. Nor can the imperative to minimize power/accountability disparities be violated—on the contrary, institutional complementarity, like “jointness” in the military (the requirement that the different branches of the military be represented on decision making councils) can lead to more effective forms of adjudication and oversight as well as to refined and productive expressions of rivalry.
More broadly, this all involves the habit (what Charles Sanders Peirce might call a “deliberately formed, self-analyzing habit”) of mentally following our mimetic rivalries to the point at which our desires could no longer co-exist, considering what we would all have to leave “untouched” for those desires to take on some kind of commonly acknowledged limit, giving form to the shared resentment that would protect whatever is now inviolate. This mental habit is installed and shared once we are all proposing ways in which “I” or some “we” to which we belong could go first in protecting the new center. Once such habits are inculcated, the sacrality of no particular institution will be conceded unconditionally, but the veneration of our means of creating and articulating institutions will be fortified considerably.
The ultimate struggles in modernity have thus far concerned the question of which sign will represent the human. The 20th century totalitarian movements answered this question by seeking to abolish that space between past and future, in some combination reducing the future wholly to the past and dissolving the past into a projected completely transformed future (both Nazism and Communism synthesize the inflaming, hardening and directing of ancient hatreds with the promise to thoroughly transform humanity); today’s totalitarian Islam follows the same logic, but only in conjunction with White Guilt, which for its part bizarrely wants not a single crime committed by the powerful to be forgotten or mitigated while proposing a future in which human nature will be so transformed as to make such crimes impossible. Constitutionalism answers this question, meanwhile, by placing at the center of our social and cultural concerns the question of how to construct virtuous circles out of the multifarious ways we interfere with each other’s liberty, out of the eternal (at least for humans) tension between mimesis and transcendence. Our faith resides in the inexhaustibility of the resources of freedom to be found in that space between past and future.
We could think of the political center by analogy with the market “system” (a system actually locatable nowhere in particular), which can work perfectly well even if the vast majority of its participants have only the vaguest notions of its operations or even harbor resentment toward all its “injustices.” Similarly, the constitutionalist center is occupied by no one in particular (we are all “marginal”) and it is enough that most of us are drawn into the various conversations swelling around it with some interest and sincerity. In both cases, though, someone must be willing to defend that amorphous, floating center, and to do so deliberately. Neither guarantees itself—we know that the market can be overridden by collectivist passions, and the constitutionalist center can lose the attention of those absorbed in their own “centers” until it is too late to realize that the empty, untended center has been usurped by barbarians. The mode of thinking laid out here aims at gathering such defenders, and such attendants who will tutor each other and open the channels of discourse with “officers” located at posts throughout our civilization.
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