It is important, I think, to ask whether there are other completely differentways to write constitutional history. The question arises from whatseems to me the essential complacency of American constitutional history:constitutional history assumes the Constitution. Hence one is always withinthe sphere of its possibility. From within, the Constitution appears as aprotean, amoeba-like phenomenon, really an ideology, constitutionalism,not a text “in the National Archives” (for the text is usually an afterthought—interpretation is what counts). So here we encounter no argumentover the Constitution, such as “wheather it is good or not,” butrather over how the assumed promise of the Constitution is properly to berealized, or extended. Noticeably, exit is not an option. So here the questionis whether realization should occur through one ideology (popular constitutionalism)as opposed to another (call it elite juridical constitutionalism).The trope invoked is that of a “world we have lost” that can be ours again.The people have surrendered their constitution to juridical supremacy.They/we must take it back. History legitimates the quest.The genre or mode of constitutional history is romance. In fact,Kramer’s is an interesting variation on the genre, for although the implicationis that a resurgence of popular constitutionalism will make things better,Kramer actually professes no blithe confidence in a positive outcome. Itis up to “us.” This verges on what my colleague Bonnie Honig has dubbed“gothic” romance. One might add that in full gothic mode Kramershould also demonstrate a certain ambivalence, even fear, toward that towhich he is attached. After all, what are “we” going to do with the Constitutiononce we have recovered it? Might we not abuse it? Aren’t “we” infact deeply crosscut by all those persisting socioeconomic antagonisms andcleavages that fragment the possibility that there indeed exists somethingthat we can call “the people” at all? Class, gender, and race are not simplyconveniently imagined categories of scholarly analysis; they are real socialphenomena. How do you construct a “we” out of us and them? How canone know that popular constitutionalism, once it has taken back the Constitution,will not devour its professors? Kramer does not think that thought,or if he does it is only to deny its possibility. His romance of “the people”is almost pre-political in its faith.
Tuesday, January 26, 2010
best paragraph i have read in a while
...In fact, probably the best paragraph I've read since the last time I posted an excerpt from this guy! This is taken from Tomlins, "Politics, Police, Past and Present." I would really like any of my law student friends out there reading this to give their thoughts on this: