Dear readers: Mary Dudziak's review of Age of Fracture is the fourth installment in our roundtable. For the first, see my review here. For the second, see Jim Livingston's review here. For the third, see Lisa Szefel's review here. Expect Dan Rodgers's response in the next day or two.------------------
My Age of Fracture, and reflections on Time in the History of Constitutional Theory
Mary L. Dudziak, University of Southern California Law School
I. My Age of Fracture
In the halls of the Yale Law School in the fall of 1980, the spirit of Alexander Bickel – the great constitutional theorist who died in 1974 at the age of 49, still hung in the air. Forever caught in time, Bickel’s portrait of too young a man to occupy those picture frames, graced the walls of the school’s most important lecture hall. Bickel was not simply a revered former colleague. He had become a hegemon, so that the rest of his generation’s intellectual leaders thought and wrote in his wake – his legacy generating an understanding of the world so that others had to respond to his terms. [1] He had the sort of structuring impact on legal thought that Dan Rodgers so beautifully describes as the way that ideas have a structuring impact on history at the beginning of his book.
Bickel appears as minor figure in Age of Fracture, but was so important to legal thought that for one of the next great constitutional theorists, Bruce Ackerman, his greatest legacy – a legacy no longer seen because he was so effective – was to finally change the conversation away from Bickel, shifting the terrain of constitutional discourse, and in essence, putting Bickel to rest for a second time. [2] (I will return to Bickel and Ackerman when I take up the role of time in Age of Fracture.)
Alongside Bickel’s visage, the walls of the Yale Law School were covered with portraits of aging white men, so that for women, upon entering the building, it was hard not to think that you’d entered a men’s club. But the idea of this and other American law schools as men’s clubs was not simply metaphoric, as the philosopher Judith Jarvis Thompson found when she taught at Yale law school as a visiting professor in the early 80s. Settling in, she sought out a restroom. On her hallway was a door that said “Faculty.” Being a member of the faculty, she of course went in the door – only to find that she had entered a men’s bathroom. [3]
In September of 1980, there was more on the walls than Bickel and other greats from the history of the Yale Law School. The Age of Fracture was, thankfully, on display. There was an underground feminist organization at the law school – an organization that, sadly, I was never invited to join (I liked law school too much, so I was not to be trusted). These women had come in secretly in the night, in an age before security systems and surveillance cameras. Alongside the venerable portraits was a poster of Susan B. Anthony and Elizabeth Cady Stanton. Over the faces of men on some of the portraits, they had hung paper plates on which they had drawn women’s faces. [4]
These were heady days at Yale for the Age of Fracture. In Rodgers’ narrative, the Federalist Society plays a role in the fracturing of legal thought. (Rodgers mentions the Federalist Society only briefly in his discussion of the conservative turn in legal thought, but he notes its success as part of the rise of a broader conservative legal intelligentsia.) [5] But from the way it looked from within the law school those days, I wonder whether the Federalist Society was part of the fracture. To us they looked like part of the furniture.
My classmates founded the Federalist Society. Well-funded from the start, they organized a conference – their first – held at Yale in 1982. The conference is remembered warmly in their celebratory organizational histories. George W. Hicks, Jr. writes: “At a time when the nation’s law schools are staffed largely by professors who dream of regulating from their cloistered offices every minute detail of our lives . . . the Federalists met—and proclaimed the virtues of individual freedom and of limited government.” [6]
I attended this meeting – as a picket. We did not picket their existence, or the idea of individual freedom. Instead we supported freedom: we supported abortion rights, and one of their speakers was a key supporter of the Human Life Amendment to the U.S. Constitution, which wouldn’t limit government, but would criminalize abortion across the nation, undermining the very federalism that the Federalist Society sought to promote. If you support federalism, then you should support federalism, we argued.
The picketers are not written into the celebratory histories of the Federalist Society, though in debates at their meeting, some conservatives raised our point that their own principles would seem to support the ability of states to maintain their own rules, unimpeded by a nationalizing constitutional amendment.
For Rodgers, the Federalist Society and their colleagues helped to fracture a preexisting greater unity of ideas, which is certainly part of their own sense of origins. But there were multiple fracturings underway at the same time. We sought to shatter what to us seemed to be a hegemony furthered by our own classmates. For women on the margins, we sought to fracture a world that seemed to deny our experience. Our mere presence was a fracture. Perhaps this helps us to think about how we might write the next layer of the age of fracture – bringing the social and political history into the story, and layering the different narratives of fracture within each other, in a way that was simply not the project of Rodgers’ more sweeping narrative.
And I wonder if the periodization of fracture needs more nuance. There is an overlap at the beginning. We were still trying to break in in the early 80s, before Joan Scott and others shattered gender as a construct, as Rodgers takes up in chapter 5. Among ourselves, we were problematizing the collective “we” of earlier feminist writing, but we also needed that idea of gender solidarity in order to exist in an environment that seemed permeated with the unacknowledged gender solidarity of our male professors and students, and of the walls of the buildings themselves.
II. Time in the History of Constitutional Theory
What work is Time doing in the chapter “A Wrinkle in Time”? Sometimes “time” seems to be a stand-in for “history,” but the basic conceptualization of time, needed for there to be a “wrinkle in time” is the idea of time’s linearity. We might think of time’s linearity – its movement from a point in the past to (we hope) a distant point in the future is often assumed to a natural phenomenon. But our ideas about time come not from nature but from social life, Durkheim argued long ago. And even the idea of time’s linearity, anthropologist Carol Greenhouse has argued, itself comes from culture not from nature. [7]
William Sewell points to historians’ “implicit or working theories about social temporality.” Historians “believe that time is fateful,” he writes. “Time is irreversible,” as an event is lodged in the memory of those whom it affects and therefore irrevocably alters the situation in which it occurs.” Further, historians believe that
every act is part of a sequence of actions and that its effects are profoundly dependent upon its place in the sequence . . . . Historians assume that the outcome of any action, event, or trend is likely to be contingent, that its effects will depend upon the particular complex temporal sequence of which it is a part.
Rodgers’ understanding of the path of ideas in time is consistent with Sewell’s depiction of historians’ temporality. But within this framework, there is, for Sewell, a “diversity of temporalities” as well as an assumption that time is heterogeneous. He suggests that “Temporal heterogeneity implies causal heterogeneity. It implies that the consequences of a given act are not intrinsic in the act but rather will depend on the nature of the social world within which it takes place.” [8]
The contemporary history of time literature also stresses temporal heterogeneity. Thomas Allen writes: “the homogeneity of time that supposedly results from the centrality of such instruments as clocks, watches, and calendars to modern life is
only possible if technologies produce time by themselves.” Heterogeneous temporalities do not drive people apart, Allen argues, – so arguably are not the source of fractures – but instead “are themselves the threads out of which the fabric of national belonging has long been woven.” [9]
Age of Fracture seems to present its thinkers in a common temporality. The differences do not come from their experience of time, but instead from what they do with it. The constitutional originalists attempt to wrinkle time, he argues – to fold it back upon itself, so that present and past occupy the same moment.
In some ways, legal thought always involves this wrinkling. The past is always present in legal analysis because precedent – past cases – is an essential part of the lawyer’s tool kit. So I think the battle over constitutional theory in the 80s and after was not about whether to wrinkle time, but what sort of wrinkling was in order.
The 80s originalists, and the rest of constitutional theory, were working within the terms of Bickel’s critique of judicial review. Bickel was the most important voice in a series of works on the nature and role of judicial review in the aftermath of Brown, and also with the memory of the New Deal-era crisis over the court.
Bickel’s seminal contribution was the idea of the counter-majoritarian difficulty. In The Least Dangerous Branch, he argued that judicial review (the power of courts to strike down statutes) is inherently problematic in a democracy because courts overturn majoritarian will. Because of this, he argued for a restrained approach to judging.
1980s originalism was one answer to the counter-majoritarian difficulty. For Bickel, judges have a constitutional role, but that role must be constrained due to the counter-majoritarian difficulty. For other conservative legal thinkers, one way to constrain judicial review was originalism – so that judges would not be a band of platonic guardians displacing the majority’s will, but would play the more limited role warranted in a democracy. [10] Others, like liberal constitutional theorist John Hart Ely, also worked within the counter-majoritarian framework, carving out arguments for a more expansive role for courts within the terms of the counter-majoritarian difficulty. [11]
Putting Bickel in the center of the narrative might help us to see the originalists not as fracturing a conceptual order put in place by constitutional liberalism and the Warren Court. Instead, originalism was one methodology for responding to a critique that came earlier than the 80s, and was positioned not on the left but somewhere right of center.
Bruce Ackerman’s innovation was to argue that time mattered in a different way in constitutional theory, thereby pushing Bickel to the sidelines. “The people” – the nation’s constitutional sovereign – speak at different times in different ways, he argued, and it was in extraordinary “constitutional moments” (distinguished from everyday regular politics) that they articulate their foundational values which are then imbedded in the constitution’s meaning, whether or not the text of the constitution itself is amended. So for Ackerman, constitutional history simply had more wrinkles to it. There were more past moments that had to be brought forward to the present – most importantly the New Deal crisis over constitutional meaning, which, for Ackerman resulted not only in an extraordinary political moment, but the actual amendment of the constitution. [12]
In some ways, Ackerman’s work embodies Greenhouse’s argument that ideas of time come not from nature but from social life. The constitution’s times, for Ackerman, could not be determined from looking to formal signs, like the actual use of Article V to formally amend the constitution. Instead a constitution’s extraordinary times can be found in the life of the people, and the moments in which they take it upon themselves to infuse their age’s meaning into the constitution’s sparse words.
So in Age of Fracture, time works as an argument in legal thought, but not as an experience. I wonder whether future ages – for example an age in which electronic communications are immediate and fleeting – yet also enduring – with be thought to turn more fundamentally on an idea that the experience of time itself is fractured.
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1. Alexander Bickel’s most influential book is The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Bobbs-Merrill, 1962).
2. Bruce Ackerman’s turn away from Bickel’s critique of judicial review appears in a body of work including We the People, Volume 1: Foundations (Cambridge, MA: Belknap/Harvard University Press, 1991).
3. Judith Jarvis Thomson told this story to members of the Yale Law Association, myself included, when we had lunch while she was visiting at Yale.
4. I was a first year student at Yale Law School in the fall of 1980.
5. Rogers, Age of Fracture, 8. For a more detailed treatment of the Federalist Society, see Stephen M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2008).
6. George W. Hicks, Jr., “The Conservative Influence of the Federalist Society on the Harvard Law School Student Body,” Harvard Journal of Law & Public Policy 29 (Spring, 2006): 623-718.
7. Carol Greenhouse, A Moment’s Notice: Time Politics across Cultures (Ithaca, NY: Cornell University Press, 1996).
8. William Sewell, Logics of History: Social Theory and Social Transformation (Chicago: University of Chicago Press, 2005), 6–7, 9–10.
9. Thomas M. Allen, A Republic in Time: Temporality and Social Imagination in Nineteenth-Century America (Chapel Hill, University of North Carolina Press, 2007), 10-11.
10. A particularly influential critique of originalism is H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review 98 (March 1984): 885-948.
11. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).
12. Bruce Ackerman, We the People, Volume 2: Transformations (Cambridge, MA: Belknap/Harvard University Press, 1998).
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