Undermining the Constitution

THIS paper was conceived, titled, and partly drafted before September 11, 2001. What I am about to say does not, for the most part, deal directly with that awful day and the numerous consequences that have flowed from it, especially the American war in Afghanistan and the American invasion of Iraq. But as I go along, points that I make are relevant to our present situation, and some of them were actually prompted by September 11 and its continuing effects. The fact is that my main concerns are longstanding ones, but I am naturally affected by recent tremendous events and I am mindful of them in this paper. Indeed, the attack on the World Trade Center and subsequent war and warlike actions have reinforced my attention to these concerns. My field is political theory, the study of moral principles in their application to political life. The events of September 11 and after are too recent as well as too radically unfinished to be absorbed properly into political theory. The immediate motives, the opportunistic energies, and the overarching aims of those involved in the action on all sides are still imperfectly understood, and many of the consequences for numerous societies (including our own) cannot even be glimpsed. It is therefore too soon for political theorists as political theorists to think about these events. But the scholarly preoccupations of political theorists are tremendously caught SOCIAL RESEARCH, Vol. 70, No. 2 (Summer 2003) Undermining the Constitution* GEORGE KATEB *This paper is a revised version of the Irving Howe Lecture, delivered November 15, 2001, at the City University of New York. It was a privilege to speak in the lecture series created to honor a man who remains a model of clear-eyed courage. I thank Morris Dickstein and his colleagues for the invitation. For critical remarks and valuable suggestions, I am obliged to Professor Dickstein as well as David Richards, David Bromwich, Corey Brettschneider, and Hanoch Sheinman. up in terrorism and the responses to it, as well as imperialism and its impact on the domestic life of the imperialist society. How could they not be? I want to stay with the question that I was thinking about before September 11. It is now even more topical. That question is: What do American citizens owe their Constitution? After all, the Constitution is the framework of our democracy, or, to switch the metaphor, its bedrock. Or, to switch the metaphor again, the Constitution is what holds us together. My brief answer to the question is that American citizens owe the Constitution attention. That is not the only obligation, of course; it is the first obligation, but one that is rarely urged on citizens. We owe the Constitution attention because if we took it seriously , we would immediately see that it is a social contract or, perhaps in a better phrase, it is an agreement of the people. If any given generation does not abolish the Constitution, acceptance of it means that, by rational imputation to that generation, they have written it. Of course, if we were literally to start over again and devise a new agreement of the people, we would not likely reproduce the exact Constitution we now have. Furthermore, acceptance of it is much of the time tacit. I mean that citizens keep the Constitution in place out of habit, deference, a feeling for lawfulness , and some pride. These attachments are praiseworthy. But I think that the United States Constitution deserves better from its citizens. It deserves to be seen as the charter that people should re-create in more or less the same form, if it were to fall—to suffer defeat or piecemeal erosion or aggravated forgetfulness. What is more, people could perhaps renew their consent to a charter they did not write by saying to themselves that they share its commitments . It would not matter that they perhaps would change it in some ways if they had a free hand and a blank slate. I think that the Constitution merits a perpetual renewal of consent because it stands for something rare and fine. And I will try to indicate what that is as I proceed. 580 SOCIAL RESEARCH I say...