Reply to Lowndes

At the end of his many generous comments about Eloquence and Reason, Professor Lowndes poses four incisive questions meant to test the book's theoretical implications. First, Joe wonders whether there are certain unalterable baselines or preconditions for the model of constitutionalism to work, such as a liberal commitment to property rights. He correctly observes that the book's theory of constitutional change as linguistic transformation is intended to be supple and descriptively accurate without giving up on the possibility of constraints. The answer about minimal conditions is an important and unfinished part of the project.

I focus on structural constraints such as institutional consensus and cultural practices (e.g., ways of talking about constitutional rights and political beliefs). To the extent that facility with language is important, one's ability to acquire the basic tools necessary to participate meaningfully in deliberation (and thereby sustain a constitutional culture) ought to be made a system-wide priority. I wouldn't exclude the possibility that some minimal rights could be part of every citizen's toolkit, such as those fostering autonomy and the capacity to deliberate, but my inclination is to see property rights regimes more as particular manifestations of liberalism (of which there are many) rather than as necessary to democratic constitutionalism itself.

Joe astutely notes that much constitutional law is driven or constrained by the preferences of political elites. This is true. Any model that hopes to have explanatory power while resembling the American system must account for: (1) an original design decision to make it difficult to alter the system in a profound manner; and (2) our particular history, which is littered with those who failed in their efforts at political transformation. There must be some convergence of political beliefs and instrumental reasons for acting before lasting change can occur. The challenges faced by those interested in regime change prove to be a source of endless frustration, but essential to test the claims of the many who would stake a claim to govern based on the Constitution. It's not easy to re-write the Constitution, nor should it be.

Second, Joe wonders whether repeated invocations of an imaginary "people" obscures divisions based on race, culture, and income. My answer is yes, though to some extent this must happen. Obscuring or suppressing differences is important to the project of creating community over time, and it is especially necessary if one is interested in pursuing a transformative agenda. This is true whether a president is attempting to rally the public or an activist is seeking to promote racial equality. At the same time, I want to stress that democracy can only work if citizens are capable of nurturing a dream that departs, sometimes painfully, from their daily existence. A critical faculty, therefore, is essential to what I have called "rhetorical autonomy": each citizen's sovereign authority to challenge, contest, or reject official interpretations of the Constitution. In reality, I think most Americans understand the difference between an imagined America based on mutual aspirations and one that is rife with inequality and difference.

Third, Joe notes that the model of linguistic transformation depends on boundaries between lawful popular action to interpret the Constitution on the one hand, and mob activity or violent revolution on the other. He worries (and rightly so) that judicially-sanctioned boundaries may be too constraining in the face of severe deprivation. My efforts on this point are a partial answer to popular constitutionalists, a number of whose work suggest that all out-of-court actions to make sense of the Constitution are equal. A distinction between legitimate and illegitimate ways of constructing the constitution through popular means is predicated on an existing written Constitution as well as acceptance of certain rule-of-law values, two of which are reason and necessity. As I suggest in Chapter Four when I discuss how the Justices reshaped First Amendment law to accommodate peaceful civil rights protest, even rule-of-law boundaries are contestable by those in dire straits, though I think they cannot be ignored—unless we find ourselves in a truly revolutionary break, in which case institutions no longer constrain and the most settled founding ideals are up for grabs.

Fourth, Joe urges investigation of other democratic actors beyond individuals and social movements. I shall take up his invitation. One of the things illustrated by Joe's work is the darker side of popular culture sustaining our democratic discourses. It's undeniable that the same mobilized war discourse that fostered incremental gains on race and religion in the 1940s and 50s also was harnessed to ostracize dissidents such as communists, certain sectors of the labor movement, and other perceived foreigners. These events, too, are part of our constitutional culture. The challenge going forward is to integrate the darker aspects of a linguistic regime with its official and aspirational features. Which beliefs and actions are unfortunate but unavoidable, and which aspects of a governing regime can participants reasonably resist? The answers are not purely of academic interest, for they are likely to guide everyday decisionmaking.