Generative Constitutions
Laws and Laws
A long time ago as the Jacobins were burning down aristocratic France a deeply conservative guy named Joseph looked on with ire. Like all reactionary conservatives there was something he admired in the progressives—their faith in their cause and willingness to use violence as a strategy. And yet, he thought they were too smart for their own good.
See, the revolutionaries thought that they could reason their way into some kind of constitution that could be written down. To the contrary, Joesph believed that this was foolish, but rather “that that which is most fundamental, and most essentially constitutional, in the laws of a nation, is precisely what cannot be written.” In other words, people are a way regardless of what is written down, and thus here we find divergent meanings of law where, on the one hand, it is the way our world works (the law of gravity, superfluidity, or hunger), and on the other hand, it is constraints on how our world works (speed limits, the Endangered Species Act, or Title 9). It is the relationship between these two senses of the term law that characterize the thing we call politics.
This distinction between the constitution-as-nature and constitution as a document of ideals was drawn out by Thomas Paine too when he wrote that “A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government.” Another way of saying this same thing is that people have a constitution, have a nature to them in the first sense above of the term law.
As these two senses of law or constitution diverge over time often more laws, in the second sense, are written down. To this, Joseph wrote that “the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles.” This has been a common sentiment throughout history, whether with Tacitus' remark, "Pessimae Reipublicae plurimae leges" (the worst state has the most laws) or Lao Tzu’s quips in the Tao Te Ching that “the more restrictions and prohibitions in the world, the poorer people get” and that “the disordered family is full of loyal patriots.”
From this perspective, laws and regulations become a symptom of serious material insecurity around the constitution-as-nature. And this makes sense. For instance, we have a bloated environmental regulatory state in the United States because the nature of the American people is to destroy their environment for profit. We need these regulations because that nature of the American people is, for all intents and purposes, stupid and degenerate.
On the other hand, there is also the more mysterious space where regulation rarely comes to the fore. For instance, as Christopher Lasch points out, that by the end of the 20th century the left and right in American politics had “come to share so many of the same underlying convictions, including a belief in the desirability and inevitability of technical and economic development, that the conflict between them, shrill and acrimonious as it is, no longer speaks to the central issues of American politics.” That is, by the end of the twentieth century the dominant figures in American politics had all become uncritical believers in, and proponents of, the idea of progress, or the faith that we humans can continually improve our lot and standards of living, that we should seek to satisfy all our increasing desires without any consideration of natural limits or moral restraints.
For me, material progress is the American constitution. The constitution of American politics is uniquely right-wing and progressive, subtly written in the hearts of all Americans, the green light, the orgastic future that year by year recedes before us as much needed regulations to our nature accumulate. But that’s no matter—tomorrow we will run faster, stretch out our arms farther…and one fine morning we might begin to take more pleasure in what’s permanent, like family and good friends, good food, and well made clothes.