Dead Rights, Live Futures: A Reply to Habermas's “Constitutional Democracy”

Political Theory

Volumn 29, Issue 6, 2001, Pages 792-805

  Honig, Bonnie ^a  

^a AMERICAN BAR FOUNDATION   (United States)

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EID: 84998185624     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591701029006004     Document Type: Article

References (28)

1. And, as Charles Taylor points out, outrage is an important political passion. See Charles Taylor, “Cross-Purposes: The Liberal-Communitarian Debate,” Liberalism and the Moral Life, ed. Nancy Rosenblum (Cambridge, MA: Harvard University Press, 1989), 174.
2. “From both [liberal and republican] perspectives, human rights and popular sovereignty do not so much mutually complement as compete with each other” (Jürgen Habermas, Between Facts and Norms [hereafter, BFN] [Cambridge, MA: MIT Press, 1996], 99).
3. The claim of social contractual co-originality is belied by the fact that when Habermas turns to elucidate the basic rights of citizens, their private rights come first and their citizenship rights second. Habermas assures us that the first three categories of rights, which “anticipate only that [the parties] will be future users and addressees of the law” (Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory [2001 (this issue)] [hereafter, CD], p. 777), come first just “in mente.” Thus far, the parties have only achieved “clarity regarding the enterprise they have resolved upon with their entrance into a practice of constitution making” (CD, p. 777). They are not yet done. “Because they want to ground an association of citizens who make their own laws, it next occurs to them that they need a fourth category of rights, so they can mutually recognize one another also as the authors of these rights as well as of law in general” (CD, p. 777).
4. Once they have clarified the full list of rights, private and public, all the rights are created simultaneously, “in a single stroke.” Until that moment of simultaneity, Habermas insists, “nothing has actually happened.” Hasn't it? The priority of private rights is repeatedly on display in Between Facts and Norms, where Habermas claims to be working from a position of co-originality but nonetheless repeatedly puts law at the center and participation at the margins of his account. Might not the order of our thinking have implications for our future practice of politics and the operation of our political imagination? As Charles Taylor points out, the starting point of our thinking about politics reflects a set of ontological commitments or assumptions that we ignore at our peril (Taylor, “Cross Purposes,” 164 and passim).
5. Jürgen Habermas, The Inclusion of the Other (Cambridge, MA: MIT Press, 1998 [hereafter, IO]), 259. Here Habermas seems to echo Stephen Holmes: constitutions may be usefully compared to the rules of a game and even to the rules of grammar. While regulative rules (for instance “no smoking”) govern pre-existent activities, constitutive rules (for instance, “bishops move diagonally”) make a practice possible for the first time. … Constitutions do not merely limit power; they can create and organize power as well as give it direction.…When a constituent assembly establishes a decision procedure, rather than restrict a preexistent will, it actually creates a framework in which the nation can, for the first time, have a will— hence: co-originality? (Stephen Holmes, Passions and Constraints, quoted in Jeremy Waldron, “Precommitment and Disagreement,” Constitutionalism: Philosophical Foundations, ed. Larry Alexander [Cambridge, UK: Cambridge University Press, 1998], 290). As Waldron points out, however, the view of constitutional rules as constitutive does not, as such, remove them from the purview of democratic revision and review; that is, it does not secure co-originality as Habermas conceives of it, for it leaves the priority of democracy over constitutionalism intact. Indeed, Waldron points out, democracies often revise the rules of their games, often amid disagreement, as is evidenced by majority but not unanimous decisions in referenda, parliamentary votes, or judicial decisions (pp. 292–94). Constitutive rules require merely that a democracy not change the rules in the very middle of the game's being played. That is, we cannot revise the rules of elections in the middle of the election, “Bush v. Gore notwithstanding,” (as Waldron said in a personal communication)— although if, as Dworkin argues in Law's Empire (Oxford, UK: Hart, 1998), all interpretation involves innovation, even such midstream rule changes are de facto probably unavoidable.
6. Actually, to be more precise, unenforced and unenforceable laws have certain interpellative effects, too. On the impact of seldom enforced antisodomy laws, for example, see Richard Mohr, Gays/Justice: A Study of Ethics, Society and Law (New York: Columbia University Press, 1988), 67 and passim.
7. For a wonderful critique (which I do not take up here) of the conservative effects of Habermas's deployment of the subjunctive as if in his work, see Eric O. Clarke, Virtuous Vice: Homoeroticism and the Public Sphere (Durham, NC: Duke University Press, 2000).
8. Frank I. Michelman, “Constitutional Authorship,” Constitutionalism: Philosophical Foundations, ed. L. Alexander (Cambridge, UK: Cambridge University Press, 1998), 64–98.
9. This is a problem with a history, posed also by Sieyés, Rousseau, Hannah Arendt (On Revolution, [New York: Penguin, 1970 (hereafter, OR)], 183–84) and Jacques Derrida.
10. It is the problem of authorization in the absence of foundational grounds, the problem of how to stop the cycle of revolution and stabilize political order, the problem, as Derrida puts it, of what to put “in the place of the last instance” (Jacques Derrida, “Declarations of Independence,” New Political Science 15 [1987]: 7–15 at 10). Rousseau solved the problem by way of the lawgiver, a good man prior to good law, whose agency enables law's inauguration. But this was no solution, since the lawgiver merely deepens rather than resolves the tension between law and democracy.
11. How can the people be free when they need the guidance of a lawgiver? (See Alan Keenan, Democracy in Question: Rethinking Democratic Openness in a Time of Political Closure [Stanford, CA: Stanford University Press, forthcoming], chap. 1.) Michelman also responds to the law versus democracy problem by turning to a good man prior to good law: Justice Brennan (Frank I. Michelman, Brennan and Democracy, [Princeton, NJ: Princeton University Press, 1999]). Arendt argued that America never really faced the abyss of infinite regress because many local and state constitutions and compacts predated the new federal constitution and were able to funnel power to it and secure it, before being themselves undone by it (OR, chaps. 4 and 6).
12. OR (chap. 5); Judith Butler, “Contingent Foundations,” Feminist Contentions, ed. Seyla Benhabib, Judith Butler, Nancy Fraser, and Drucilla Cornell (New York: Routledge, 1995).
13. Hannah Arendt, “Hannah Arendt: From an Interview” New York Review of Books 25, no. 16 (October 26, 1978): 18.
14. The wording is Sheldon Wolin's (“The Liberal/Democratic Divide: On Rawls' Political Liberalism,” Political Theory 24, no. 1 [1996]: 97–142 at 117). The point is not that Rawls would not object to these inequalities, he would, but he would not ask whether they might be remnants or traces of an earlier practice of slavery supposedly left behind by enlightened constitutionalism (Political Liberalism [New York: Columbia University Press, 1996], xxix).
15. Wolin, “Liberal/Democratic Divide,” 108.
16. Chantal Mouffe, The Democratic Paradox, (London: Verso, 2000), chap. 2.
17. For a reading of Tocqueville's Indians as always already dead, see William Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995), chap. 7
18. Michael Shapiro, “Bowling Blind: Post Liberal Civil Society and the Worlds of Neo-Tocquevillean Social Theory,” Theory & Event [Online] 1, no. 1 (1997). Available from: http://muse.jhu.edu/journals/theory_&_event/.
19. For a compelling analysis of freedom as an-arche, see Miguel Vatter's innovative reading of Machiavelli: Between Form and Event: Machiavelli's Theory of Political Freedom (Dordrecht, the Netherlands: Kluwer, 2000).
20. Sheldon Wolin, “Norm and Form: The Constitutionalising of Democracy,” Athenian Political Thought and the Reconstruction of American Democracy, ed. J. Peter Euben, John R. Wallach, and Josiah Ober (Ithaca, NY: Cornell University Press, 1994).
21. See Richard Flathman, The Practice of Rights (Cambridge, UK: Cambridge University Press, 1976)
22. Michael Warner, The Trouble with Normal (New York: Free Press, 2000). Flathman emphasizes the practiced character of rights; Warner calls attention to (among other things) their normalizing power and the ways in which satisfaction with rights works against the generation of power as action in concert.
23. (Jacques Derrida, “Deconstruction in America: An Interview with Jacques Derrida,” Critical Exchange 17 [1985]: 24–25).
24. See also my discussion of these issues by way of Derrida and Arendt in Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, NY: Cornell University Press, 1993), chap. 4.
25. Building on Cohen and Arato, Habermas uses the term “dual orientation” to describe the democratic actor's coupling of her agitation on behalf of her own agenda with a reflexive concern to “revitalize and enlarge civil society” (BFN, 370). It does not occur to him that the two parts of this orientation might conflict. What if care for the public sphere or the common good requires a commitment to practices of genealogy and critique that demand that we commit ourselves to forms of social upheaval that make it impossible to sustain practices of public reason? What if the rights-centered pressures of public reason get in the way of political efforts at world building? What if care for the world presses us to frame arguments in such a way that our immediate agenda may be lost (as when racial activists, seeking to enter “racism” into liberal lexicons, refuse to translate all of their claims of harm into individual wrongs, even though that translation might be efficacious in the moment)? (I have in mind here Dorothy Roberts's argument against the current foster care system in the United States, that it not only harms individual children but also commits a racial harm, stigmatizing African Americans generally, since the vast majority of children in the system are black. See Dorothy Roberts, Shattered Bonds: The Color of Child Welfare [New York: Basic Books, 2001].)
26. As William Connolly points out, a politics that “suggests that the most recent identities [rights, achievements, constitutional decisions] are also the most true, natural or advanced” is one that “discourages proponents from cultivating that partial, comparative sense of contingency in their own identities from which responsiveness to new claims of difference might proceed” (Why I Am Not a Secularist [Minneapolis: University of Minnesota Press, 1999], 71).
27. Joseph Carens stresses the importance of contextualism to political theory and likes the Canadian “notwithstanding clause” for its apparent sensitivity to context (Culture, Citizenship, and Community: A Contextual Exploration of Justice As Evenhandedness [Oxford, UK: Oxford University Press, 2000]).
28. For a more ambivalent account of the notwithstanding clause than the one presented by me here or by Carens, see my review of Carens in Polity 33, no. 3 (Spring 2001): 479–85.