Freedom and Time: A Theory of Constitutional Self-Government
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.
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afﬁrmative action agent American anti-totalitarian argument beneﬁts black codes Bork citizens claim commitment commitmentarian conception of self-government Condorcet paradoxes conﬂicts constitutional law constitutional rights constitutionalism as democracy contrary cost-beneﬁt Court decision deﬁne deﬁnitive democracy democratic difﬁculty equal protection equal protection clause example existence ﬁnd ﬁrst foundational paradigm Fourteenth Amendment freedom future harm principle ideal identity individual autonomy interpretation intransitive intransitive preferences Jacques Derrida Jed Rubenfeld Jefferson judicial review justice justiﬁed legitimate liberal liberty living logic majoritarian majority means ment Mill Mill’s modern moral never normative obliged one’s original originalist paradigm case method Parﬁt past people’s person political present-tense principle problem question racial rational reason reﬂects requires right of privacy Robert Bork Rousseau rule self-government sense sex discrimination signiﬁcance speech-modeled speech-modeled conception speech-modeled self-government strict scrutiny supra Chapter supra note temporally extended theory thing thought tion unconstitutional violate voice written constitutionalism