Ghost ship Constitution

7/30/2019 Ghost ship Constitution

1/37

THE GHOST SHIP CONSTITUTION

Falsehood, says Aristotle, comes in two varieties:

what does not exist at all, and those actual existenceswhich appear as non-existent. It is in this secondsense that Larry ribe plumbs the truth o an in-visible Constitution while Robert Bork decries the

cultural and moral alsity o the Constitution wesee. Tese perceptions o invisible truth and appar-ent alsehood do not so much reect the Constitutionitsel as the constitutional judgments o a Supreme

Court. Here Aristotles rst iteration o alsehoodsuraces or, as Alexander Bickel plainly states theauthority to determine the meaning and applica-

tion o a written constitution is nowhere dened oreven mentioned in the document itsel. I this non-existent judicial review is a allacy who can truly saywhat the Constitution is? How are we to know it asit is? and to recognize ourselves there? Te Framers,

ex ante, could do little more than position them-selves beore a picture o justice as the end o govern-ment already imagined at the beginning, and then

set o in hot pursuit through the looking glass o lib-erty; but they had no illusions about the process orthe result. Citing David Hume they maintain that

chance not reason will be determinative; that thetrue Constitution is not yet at hand but will rather,in the ullness o time, emerge rom mistakes,ailed trials, and the FEELING o inconve-niences. Te Constitution they thus behold in

extending the sphere o action and counteractingambition with ambition is negation itsel: therepublican remedy or the diseases most incidentto republican government. Tis essay, ex post, as-

pires only to restate the Framers inversion in theidiom o philosophy as Aristotle introduces it when

he observes that we say even o non-being that it isnon-being.

Le aux, selon Aristote, est de deux sortes : ce qui

nexiste pas du tout et ce qui existe mais nest pasobservable. Cest grce ce second sens que Larryribe sonde la vrit d une Constitution amricainedite invisible tandis que Robert Bork dcrie la

ausset culturelle et morale de la Constitutionactuelle. Ces images de la vrit invisible et de laausset apparente retent moins la Constitutionmme que les dcisions constitutionnelles dune cour

suprme. Nous observons ici la premire itration deausset dAristote car, comme lafrme clairementAlexander Bickel , lautorit pour dterminer le

sens et l application dune constitution crite nest pasdnie, ni mme mentionne dans le document. Sice contrle judiciaire inexistant est donc une erreuraristotlicienne, qui peut vritablement afrmer cequest la Constitution? Comment aire pour bien

la comprendre? Pour sy reconnatre? Les artisansde la Constitution amricaine ne pouvaient que seplacer devant un tableau de la justice reprsentant

la n de leur gouvernement dj imagin au dbutpuis se lancer dans une course erne pour russirla traverse du miroir nomm libert. Cependant,

ils navaient point dillusions quant au processus etau rsultat. Ils citent David Hume et soutiennentque ce nest pas la raison mais la chance qui estdterminante; que la vraie Constitution nest pasl mais plutt, quavec le temps, elle apparatra

grce aux erreurs , aux rats et l impres- limpres- limpres-sion de dsagrment . La Constitution quils ontdevant eux en largissant la action pour que lesambitions sannulent est donc une ngation pur

et simple quils reconnaissent comme tel : Le re-mde rpublicain pour les maladies rpublicaine .

Moi, je naspire qu rafrmer cette inversion dansla langue philosophique telle quAristote lenseignalorsquil constata quon dit mme du non-tre quil

Michael Halley*


2/37

Te Ghost Ship Constitution

I. INTRODUCTION

Tis essay about the American Constitution as being and as a being endeavours to steer a course clear o the Kantian a priori(the singularly in-tractable rame o being that precedes and strictly delimits all manner o sub-sequent beings) and around Heideggers Dasein (the more organic, atemporalrame obeing-thereexistentially concerned to sustain any lie orm). Tesenow all-too-amiliar ideations do little but rehearse on the stage o philosophythe irresolvable and intemperate legal debate raging between those who insistthat the portrait o being ramed at Americas inception is the only trueconstitutional likeness, and those who claim this to be a alse perception that

leaves todays Americans with a dusty and antiquated picture, which we nolonger want because it no longer represents what is. I there is a way throughor around the impasse, Americas constitutional Framers ollowing theSocratic prescription or nding the republic in the man and the man in therepublic point the way in evoking government in general, and theirs inparticular, as the greatest o all reections o human nature.

Everyone seriously practicing constitutional law in America today must, it would seem, ascribe to

the practice o grounding the actual rights or duties he seeks to vindicate or enorce on behal o a

party on precedents contained in the constitutional text. Constitutional theorists, relieved o the

real time burden o so proving their claims by matching the actual they seek to establish with what

is constitutionally possible are no less constrained to remain within the constitutional a priori. Teconstitutional resalready antecedently lies at the ground and is encountered, earlier in time, be-ore any determination about being reeor being equaltoday or in the uture can be hazarded. I thejurists and scholars can see what constitutional being is at present it is only because, even Heidegger

concedes, ollowing Socrates, it is precedent, which is to say something already previously seen.

See Martin Heidegger, Te Basic Problems o Phenomenology (Bloomington: Indiana UniversityPress, ) at , , and [Heidegger].

Te Federalist Papers, No. . All citations to Te Federalist Papers are accessible at the AvalonProject, online: Yale Law School [FederalistNo. ].I am indebted to my editor Greg Clarke or suggesting a more exacting iteration, one that explains

- in keeping with the basic tenets o phenomenology how the ghost ship Constitution can still

be in active service while its real world counterpart is a relic, a museum piece in dry-dock at the

Boston Navy Yard, where Americas citizens come not so much to pay their respects to the past as

to imagine themselves present at the Republics origin. Te Constitution, as distinguished rom the

sailing ship that bares its name and once deended it, is the likeness o being unto beings. As such, it

charts its own course rom the many to the one (e pluribus unum), and back again. Tis essay can dono more than mark some o the more salient points o call in this round-trip passage. Dr. Clarkes

urther perception and constructive criticism that I have anthropomorphized the Constitution

underscores the act that people simply do not believe in ghosts any more, and anticipates the ob-

jections readers are sure to raise on that score. Unortunately phenomenology the recognition

o presence as the living reality o a ghost inhabiting the dead shell o a past that is orever gone

and the empty promise o a uture orever coming to be is inevitably and invariably conated

h h l h d b l h d h h h


3/37

Michael Halley

Tis preliminary remark about that reection would be superuous butor the raming with which it cannot but have to contend, a raming that hasthoroughly conounded the scholarly lawyers and locked down the state o

American constitutional law in a sterile epistemological debate about the rameand its determinative consequences or what it contains. Te Constitution asan ordination o sel-governance the synchronically reected likeness omy being unto an assembly o representative beings is not compatible withthis kind o diachronic treatment o orm and substance. While the perceivednecessity to distinguish identity rom itsel is as old as Socrates asserting thatthe orm [o a bed] is our term or the being o a bed, the Framers madeone thing, not two, and all at the same time. Tere is no visible or otherwise

discernable dierence between the rame and the Constitution. I what theymade was one whole constitution, why do they reer to themselves, and weto them, not as creators but as Framers, and to it as the merest rame even as

climes as the rain orests o South America. Te incapacity to appreciate ontologyother than as ananthropologyshould not, however, be laid solely at the eet o the social sciences and the empiricalmethodologies they embrace alone. Te French poet Arthur Rimbauds protest: Cest aut de direje pense. On devrait dire: On me pense, in similarly inrm, or the on and the je both remain

in the register o what is human, no matter how insistently the poet would wish to separate them.

Rimbauds conclusion that je est un autre is no conclusion at all but the redacted version o an-thropologys trap: je est un autre je. See Arthur Rimbaud, Lettre Georges Izambar May in Oeuvres(Paris: Edition Garnier Freres, ) at . When Andre Breton comes a century later

to revisit Rimbauds declarations and to ask Qui suis-je ?, his answer, tout ne reviendrait-it pasa savoir qui je hante, does nothing so much as conrm that the passage o time can do nothing toloosen anthropologys strangle-hold on being. Te hauntingIand the haunted him linger inperso-

nam and endure unscathed as the subject and the object o anthropology. See Andr Breton, Nadja

(Paris: Editions Gallimard, ) at . I, ollowing Martin Heidegger, [a]nthropology means the

science o man and embraces all that is knowable relative to the nature o man, then Heidegger

is surely correct to blame the conation o anthropology and ontology on Immanuel Kants hasty

determination to reduce the problems o metaphysics to the single inquiry what is man. Martin

Heidegger, Kant and the Problem o Metaphysics, th ed. (Bloomington, Indiana University Press,) at and [Problem o Metaphysics]. I this is the question, the answer, man is man, likerecognized by like, belongs exclusively to anthropology. Tis species-specic line o inquiry, how-

ever interesting in the particular, leads nowhere at all. Successul perhaps in delimiting, over time,

the being o man, it orecloses, ab initio, any investigation concerning beings in general, (ibid. at) and more to the point or us does not acknowledge, and cannot ever hope to account or, the

core o the constitutional premise and consequence: that there can be and that there is, in America

at least, such a thing as the being o beings, irrespective o man. Is Socrates reminiscence o the

time when to listen to an oak or to a stone was enough so long as it was telling the truth, any

dierent rom the Israelites deerence to rock slabs? I, as he insists the rst prophecies were the

words o an oak, do not ours words on parchment paper simply ollow suit? Plato, Phaedrus

in John Cooper, ed., Plato: Complete Works(Indianapolis: Hackett Publishing Company, )at [Cooper]. Such is the extant precedent, and i the rule o law is our creed we are obliged to

ollow it, however improbable or implausible it may appear to the reason o man which is to say the

d d h l h l


4/37


it is identically one with what is said to be ramed undamental, supremelaw substantively empowered to trump and to nulliy whatever presumes tocontradict it? Tis is no Frame but, in the candid assessment o Americas rst

chie justice, the awesome and unprecedented power o man, not as a Mosesbut like God himsel, to be and to say what is. I anything is corrosive to JohnMarshalls still controlling theory o a unitary written constitution (againstwhich everything can be compared and adjudged like or unlike) it is the ideao internal schism. So why does the duality o Frame and Constitution per-sist? Perhaps more to the point, does it or does it not control? Do we haveone Constitution or two? o what or to whom does it pay allegiance? o theobjective voice o beings majority? o the subjective being that I am and that

everyone else is as well? Or purporting to secure the Blessings o Liberty

to nothing at all?

As it is virtually impossible to speak about the Constitution without atonce reerring to the Framers and their rame, so this opening statement seeksto rame the nature o that entrapment: how can a rame unction both as ormand substance, as a structure merely intended to regulate the general politicalinterests o the nation, and an essence that penetrates and inorms every spe-cies o personal and private concerns? Te question is orever asked and goes

orever unanswered. Like the giants waging perpetual war over existentiaandessentiain Platos Sophist, Americas constitutional judges and scholars debatebut cannot resolve the enigma o orm and substance. Every assertion thatprocedural due process (the opportunity to appear and to be heard) is all theConstitution aords is immediately and bluntly countered by an equally in-transigent declaration o substantive right transcendent in its dimensions.

Only an ontological being can think to assert in theory and to maniest in act the power to say

what the law is.Marbury v. Madison, U.S. ( Cranch) at () [Marbury]. Tis remark-able statement, at once sel-evident and entirely obscure, stirs the entire drink o constitutional

law in America, yet it has never been ully appreciated because it has never been understood as an

ontologicaldeclaration. U.S. Const., supranote . FederalistNo. .

Lawrence v. exas, U.S. at () [Lawrence]. Te incendiary history o substantivedue process lls at least three chapters o American law. Chie Justice aney wrote the rst one in

arming that a master has a constitutionally protected property right in his slave no matter how

ar they may have wandered into the Northwest erritories that Congress, through the Missouri

Compromise, had determined to be ree. Dred Scott v. Sanord, U.S. () [Dred Scott].Next come the Lochner-era decisions privileging the property rights o business over public healthsaeguards mandated by the peoples representatives. See, Lochner v. New York, U.S. ()

[Lochner]. odays abortion and sodomy decisions mark the third episode. See, Planned Parenthood


5/37

Michael Halley

Each o these claims entirely preempts the others eld. Whether or not we canget past this tiresome either/or it behooves us to do more than perpetuate it.We should rather be curious and endeavour to comprehend. It is in this vein

that I propose to approach the American Constitution, not as a science opolitics but as an ontology, and thus squarely situate it within the philosophi-cal question o being.

o address Americas colonial heritage by repairing to continental stylephilosophy may appear at rst blush to be a total disconnect. Certainly thatis the thought behind Alexis de ocquevilles initial observation that in allthe civilized world there is no country that occupies itsel less with philoso-phy than the United States. A closer association with the country and itscitizens, however, revealed something dierent. While Americans may notread philosophy, de ocqueville goes on, they all ollow a distinct philosophi-cal method. In America each person seeks the reason o things by himseland inside himsel. In America everything comes rom [the people] andreturns to them. Tey are the cause and the end o all things. Whence heconcludes that America is one o the countries in the world where one leaststudies and most ollows the precepts o Descartes. As the ounder o mod-ern philosophy established certainty in himsel as a thinking subject, so every

American closes himsel tightly around himsel and rom there presumesto judge the world. In urther asserting that Americas Union is an idealnation which only exists in the individual spirits o the citizens whose intelli-gence alone marks the metes and bounds, de ocqueville extends the sphereo ideation rom individual being to beings collectivity where personality andproperty inextricably combine ater the ashion o eudal Englands Sergeanto the Law, about whom Chaucer perspicaciously armed that [a]l was eesymple to hym in eect.

that Dred Scott was the proximate cause o the Civil War, the abortion wars o today conrm that

the tinder box rame o due process is excessively brittle and highly ammable. See, Casey, ibid.at - (Scalia, J. dissenting); Plato, Te Republic and Other Works(New York: Anchor Books,) at [Republic].

Alexis de ocqueville, De la dmocratie en Amrique, vol. (Paris: Garnier-Flammarion, ) at

[ocqueville]. Ibid., vol. at . Ibid., vol. at . Ibid. at .

Ibid., vol. at . Georey Chaucer, Te Canterbury ales, General Prologue in Selections rom the ales o Canterbury

and Short Poems (Boston: Houghton, Mifin, ) at . Given a) Americas election to adopt

l h l h h h d b h


6/37


Beore dismissing de ocquevilles understanding as an apocryphal vi-sion attributable to French enthusiasm we should recall that the Constitutionwas conceived and written in America to transorm the nature o government

(by conounding it with sel-governance) at the same time the German ideal-ists were transorming the nature o philosophy in Europe on the very sameground o subjectivity: an absolute sel posited as wholly unconditioned.Tere seems nothing substantive to distinguish Georg Hegels unassailablysovereign subject apodictically determined by the act that every person isrst and oremost an Iwhose will gives the law to itsel rom the Framersprototypical man dened by sel-interest and consumed with sel-love. Teirappreciation o the act that any program to curtail this selshness would

run against the grain o human nature and be atal to reedom, and theirconcomitant resolve to extend the sphere o action is akin to FriedrichSchellings: to devise a system o law compatible with the subjective volitiono every person. Teir conception o government and human nature as mir-ror images o the same otherwise ragmentary being is akin to his principlethat what has reality merely in our intuition, must be reected to us as pres-ent outside us, that [s]peculation and empiricism should not be permittedto contradict one another, but must remain in harmony. Johann Fichtesclaim, that at least so ar as the idea is concerned, the will o any singleperson is actually universal law or all persons will the same thing is consis-tent with our individual and collective constitutional resolve to be ree. Moststriking is how transparently the Framers and the German idealists connectreedom and justice through the constitutional mirror o being. Justice, orHegel (as the mind striving or sel-realization), is the experience o reedom.However, as Plato rst had the genius to see, only in a state where the consti-tution o the one individual and o the many citizens (the People) reect oneanother can this justice appear. odays appreciation that to perorm its high

unction in the best way, justice must satisy the appearance o justice,

the Crown, in England parliament may do (or authorize to be done) what the King o England

cannot. In America, the Constitution ties the hands o both Congress and the Presidents men.

Miller. v. United States, U.S. at () (citation omitted); supranote , amendment IV. Johann C. Fichte, Science o Knowledge(New York: Cambridge University Press, ) at . FederalistNo. . See, Michael Halley, Breaking the Law in America () : Law and Literature at .

Michael Halley, Schellings Empiricism: A ranscendentalists Conversion () : Idealistic

Studies at [Schellings Empiricism].

Johann C. Fichte, System o Ethics(New York: Cambridge University Press, ) at -. oshow that this conception o the universal in the particular and the particular in the universal is not

h b l d l l h h h h


7/37

Michael Halley

acknowledges this necessity. A judgment must not only be impartial. It mustbe seen and be recognized as such.Te Framers assertion that justice is theend o government and that it ever has been and ever will be pursued until

it be obtained or until liberty be lost in the pursuit comprehends this phe-nomenon. Freedom and justice are alike, but or this likeness to appear theymust be made to look the same as one another across the perectly polishedsurace o a constitution, the very mirror Hamilton proers to the people oAmerica, inviting and exhorting them to deliberate on a new Constitutionor the United States o America, to look into it and recognize themselvesthere as indivisibly and perpetually one.

Hegel expressly repaired to the terra rmao the Cogito to ground this re-exivity. Te Framers reached back urther still, to Socrates who ater muchtossing nally reached land with the discovery that the same principleswhich exist in the State exist also in the individual. In each o us, Socratesmaintains, there are the same principles and habits which there are in theState, and they pass rom one to the other. As the government is, suchwill be the man. Far rom doubting the great eyed Plato and distrustingthe Constitutions double door as an unortunate, misleading, and equivocalconsequence o imperect language and inapt analogy, the Framers walked

FederalistNo. . FederalistNo. . Republic, supranote at . Where else could they have come rom, Socrates incredulously inquires? Republic, ibid. at -

. Once established, this hermeneutically closed circle o thought accounts or everything: the

business o administering a state and o ordering an individual lie are the same. Te virtues

o the one are the same, are alike in the state and in the individual. See Plato, B. Jowett, ed.,

Dialogues, Vol. 5 Laws, Index to the Writings o Plato, d ed. (Oxord University Press, ) at [Laws]. Working the principle o non-contradiction to the limit, Socrates goes on to assert i thisis right, every other is wrong. So the evil which disorders the State is the same which destroys

the individual soul. Republic, ibid. at . As the imitative poet implants an evil constitution in

the man, so do bad men destroy the state. Ibid. at -. He who is devoid o reason is the de-stroyer o his house and the very opposite o a saviour o the state.Laws, ibid. at . As in the state,so in the individual there are two parts, [t]he better and superior which rules, and the worse and

inerior, which serves. Accordingly, [e]xcess is apt to be a source o hatred and divisions among

states and individuals. Republic, supranote at and . Nor is this theme o identity limitedto moral or ethical qualities. It applies to sensation itsel: Te principle which eels pleasure or pain

in the individual is like the mass or populace in a state. Laws, ibid. at . As or love, which im-plants honor, i there were only some way o contriving that a state, or an army should be made up

o lovers and their loves, they would be the very best governors o their own city, abstaining rom all

dishonor, and emulating one another in honor. Plato, Symposium in Republic, ibid. at -.On this point Plato equivocates. In the Lawshe asserts that the lover is blind about the beloved, so

h h d l h h d d h h bl d h k h h h l


8/37


though it to embrace the constitution o man and the state as alike, the onegrounding the other and vice versa. Crediting the Socratic conception othe city which is within the man, the Framers approached and appreciated

government and human nature indierently. [B]odies o men, Hamiltonasserts, act with no more or less rectitude, no more or less disinterested-ness than individuals. In the same way a man comports himsel, so will astate o men. As Ralph Waldo Emerson later termed Plato the most represen-tative man, marveling at a double consciousness capable o simultaneouslyseeing the state in the citizen and the citizen in the state, the Framers rstbridged the gap in conceiving a constitution or the state like that o manhimsel, the most interesting in the world. So sheer was the likeness Plato

drew that Emerson could not but wonder whether the Republicwas not ratheran allegory on the education o the private soul. In the same way, whenJohn Jay admonishes every good citizen that whenever the dissolution o theUnion arrives, America will have reason to exclaim, in the words o the poet:FAREWELL! A LONG FAREWELL O ALL MY GREANESS, it isimpossible to discern whether the greatness to which he is reerring inures

Tis doctrine o identity, that like is recognized by like, is very ancient. Friedrich W.J. Schelling,

Philosophical Investigations into the Essence o Human Freedom (Albany: State University o New YorkPress, ) at . As the ground o logic and the essence o apodictic certitude (A=A) it still holds

sway as the undamental principle o common law and constitutional justice that like cases should

be decided alike, and all cases like to the Constitution.Martin v. Franklin Capital Corp., U.S. at (); Ebay v. Mercexchange, U.S. at () (Roberts, C.J. concurring).Following this chain the next question is to ask: what is like unto the Constitution? I apodicticity

what discloses itsel, to a critical reection, as having the singular peculiarity [ausgezeichneteEigenheit] o being at the same time the absolute unimaginableness [Unausdenkbarkeit] o itsnon-being is the only just measure , the Constitution, what the law is, can only be justly l ikened

to being itsel because being is the only sel-likeness. Edmund Husserl,Cartesian Meditations, trans.

by Dorion Cairns (Te Hague: Nijho, ) at -. Tis is the import o Aristotles assertion

that we say even o non-being that it is non-being. Aristotle, Metaphysics in Te Basic Works oAristotle(New York: Modern Library, ) at [Metaphysics]. Only this being o what is not canexplain how a nal judgment o the United States Supreme Court can be the law even where dis-

senting justices express ly say it is not the law, that it cannot be the law. What the people who make

these judgments dispute about is not the principle o justice like recognized by like or what

is and what is not the law both are. Te judges are merely unable to agree, in particular cases, on

the correct way to apply the principle. See Immanuel Kant, Critique o Judgment, trans. by Werner

S. Pluhar (Indianapolis: Hackett Publishing Company, ) at - [Judgment]. Georg W.F. Hegel, Te Encyclopedia Logic, trans. by .F. Geraets, W.A. Suchting, & H.S. Harris

(Indianapolis: Hackett Publishing Company, ) at .

Republic, supranote at , and .

FederalistNo. . Ibid. No. . Ralph Waldo Emerson, Plato: New Readings in Representative Men (), online: Ralph Waldo

l h d


9/37

Michael Halley

to the place or belongs to the person. Hamilton makes this unlikely like-ness explicit in connecting as equivalent the interests o the man and theconstitutional rights o the place. Tese constitutional likenesses and others

conrm that what Emerson asserted with respect to the man and the state inPlatos Republicapplies with equal orce in America: being rom one, thingscorrespond. While this origination appears ineable and has undoubtedlybeen obscured by the blinders which space and time impose, it remainsoperable. Tis essay purports rst to track this beginning backwards romperiodic sightings o invisibility by three o Americas most inuential con-stitution scholars: Larry ribe in , Robert Bork in , and AlexanderBickel in . Te essay then proceeds to sound this unseen and unseeable

Constitution as sheerly invisible as being itsel.

FederalistNo. [caps in original]. FederalistNo. .

Ralph Waldo Emerson, Plato; or the Philosopher in Representative Men () online: RalphWaldo Emerson exts [Philosopher].

Space does not represent any property o things in themselves. It is nothing but the orm o

all appearances o outer sense. Immanuel Kant, Critique o Pure Reason (New York: Palgrave

Macmillan, ) at [Reason]. ime as the a prioriorm o our inner sense is similarly constraining. Its so-called presence can only

be intuited through limitation, the past that always was and the uture that is orever coming to

be. Ibid. at .

My election to proceed in inverse order, to work backwards in time, proceeds rom a belie that the

command o being is to proceed rom where one is. Te historica l approach, to begin with Bickel,

pass through Bork and arrive at ribe would undoubtedly provide the reader with a clearer under-

standing at the outset: that the invisible constitution embraced by ribe as a vehicle o transcen-

dence and despised by Bork as the path that sends us slouching to our new home not Bethlehem

but Gomorrah, emanates rom the empirical act, articulated by Bickel, that while the power o

constitutional review o actions o the other branches o government, state and ederal by the

United States Supreme Court can be placed in the Constitution it cannot be ound there [em-phasis added]. See Robert H. Bork, Slouching owards Gomorrah: Modern Liberalism and AmericanDecline (New York: Regan Books, ) [Bork]; Alexander Bickel, Te Least Dangerous Branch: Te

Supreme Court at the Bar o Politics(New Haven: Yale University Press, ) at [Bickel]. Tis his-

tory lesson, however reassuring to begin with, would in the end, not only tell us nothing or nothing

we did not already know, but elide the centra l question. How can this judicial review which has

made the United States Supreme Court the most extraordinarily powerul court o law the world

has ever known bei it cannot be ound? Bickel, ibid.Everyone should come to realize sooner

or later eats o prestidigitation notwithstanding that to pull a rabbit out o a hat the rabbit

must rst have been placed inside the hat. Bickels acknowledgment o an empty Constitutionwhich a magician has privately lled with stu he can then publicly pull out to amaze the people

ld ll d d l h k h h d d


10/37


II. BEING

Over two hundred years ago Hegel raised the red warning ag aboutpreatory remarks on the subject o being. Being, by its nature, broaches nointroduction. Its not something you ease into or prepare or. Being isnt de-rived rom something else. Resistant to demonstration, being doesnt evenrequire language. As Gottried Leibniz observed, remote tribal peoples withno word corresponding to it know what being is every bit as well as we do.Blaise Pascal points out that as soon as we attempt to dene being we lapseinto comical absurdities. Aristotle, master o the denite, was reduced to bab-bling that even o nonbeing we say that it is. Socrates, wisest o all, declined

the invitation to speak upon being directly. He reerred inquiring minds tothe great Parmenides, who, having been too much and too long, tried to bego on account o old age. Tose nevertheless inclined to preview being bare ananity to the eighteenth-century English gentleman seizing the occasion o adinner party to declaim on his integrity. As Doctor Johnson (hardly a partisano being but a keen observer o beings) admonished that the hostess would dowell to count the spoons beore her guests departure, so readers should ques-tion any presentation o being in advance o what is.

III. A DECLARATION OF INDEPENDENT BEING

For Friedrich Nietzsche, Immanuel Kant is the worst oender. His apriorisynthetic judgment, a preace so ubiquitous, so entirely determinativebeore the act as to dispense entirely with the possibility o being as a thingin itsel, is amongst the worst o oences. Equally oending (at the time) wasAmericas Declaration o Independence, a constitutional preace purporting

to express sel-evident truths about being. Why, one is tempted to ask, i it isapodictically the case that every being is created equal and endowed with theinalienable right o liberty, is it necessary to say so? Congress response, that tosecure these rights, Governments are instituted among Men is no answer.Te Declaration did not create a government but threw one o, leaving equal-ity and liberty to end or themselves and, incredibly, to end o the British.

o Socrates question can a man attain truth who ails to attain o be-ing? Congress answered no, and on that ontological ground its Declaration

provides a momentary and necessarily eeting glimpse o what it is to be be-ore the time comes or government to intercede and rame a constitution not


11/37

Michael Halley

o that unettered singularity but o multiple beings, ree in and or them-selves and equal to one another. Te Framers naively assumed this passagerom being to beings would be unproblematic. On that basis they ormed a

loose consensual ederation. Looking back on that ingenuousness, Hamiltonmused: Tere was a time when we were told that breaches, by the States, othe regulations o the ederal authority were not to be expected; that a sense ocommon interest would preside over the conduct o the respective members,and would beget a ull compliance with all the constitutional requisitions othe Union. However, experience proved that language to be wild.Te truth o equality and the rights o lie, liberty, and happiness how-ever sel-evident and inalienable did not suce to bind disparate beings

together as one. Hence the Constitution, but it too proved inadequate to theprerogative o being. While Hamilton successully argued, beore the act,that a bill o rights was unnecessary and might by implication provedangerous, as soon as Congress assembled pursuant to the Constitution,the peoples representatives amended it to ormalize the substantive rights theDeclaration did not so much establish as preace. Tat substance remains aselusive today as it was then. Whether, or to what extent, Hamilton was cor-rect in his judgment that the Declarations intimation o being as truth in-distinguishable rom right cannot be instituted, and that every attempt to doso rests merely on verbal and nominal distinctions entirely oreign rom thesubstance o the thing, is the open question today or both constitutionallaw and the constitution o being otherwise known as ontology.

IV. THE ONTOLOGY OF LAWRENCE TRIBE

When, in his recent book, Lawrence ribe makes out an invisible con-stitution whose provisions are written not in ink but in blood, he drawsthe connection and highlights the immeasurable distance between visceraland constitutional beings. When he goes on to avow that the text o theConstitution resides only in much that one cannot perceive rom readingit, his seems ar more aligned with Martin Heideggers conception thatthought works to construct the house o being than the actual building

FederalistNo. .

For why declare that things shall not be done which there is no power to do? FederalistNo. . Ibid. Laurence. H. ribe, Te Invisible Constitution (New York, Oxord, ) at , note [ribe].

b d


12/37


project to which the Constitutions opponents analogized the proposed ram-ing, and criticized as either so lacking in human accommodations and ame-nities as to be entirely unsuitable or habitation, or, worse still, so aultily

designed as to be structurally unsae. When ribe says his interest is less inwhats invisible around the Constitution than in what is invisible within it,he mirrors Heideggers insistence that [t]he discourse on the house o beingis not a metaphor transporting the image o the house toward being, but animperative: that it is rom the essence o being suitably pondered that wewill one day be able to know what house and to inhabit are. When ribesays [e]verything that we see is a shadow cast by that which we do not see,he reaches into the very core o ontology and suggests that we, like Platos

indentured cave dwellers, misapprehend what James Madison variously char-acterized as the principle, the great mechanical power, and the schemeo representation acilitating the passage o my being through the mediumo a chosen body o citizens. A constitution that may appear to some as anarithmetic lesson devoted to perecting the prosaic mechanisms o demo-cratic choice what the Framers calls the dierent modes o election may, ribe seems to suggest, veil a truer reckoning o our undamental law,the distribution o mind which Plato proposed. Is it through this ontologi-cal lens that Madison behold[s] with approbation the ontic divisiveness onerce display in the all too raucous peoples house as the republican remedyor the diseases most incident to republican government? In exhorting usto extend the sphere o action, Madison is surely promoting an ontologi-cal union, not resigning himsel and condemning America to the empiricalpropagation o a notoriously ontic race o devils where selsh inclinationrules supreme, each destroy[ing] the ruinous eect o the other58 in a holo-caust o negativity.

John DeWitt, o the Free Citizens o Massachusetts( October ). Ibid., o the Citizens o the State o New-York( November ).

ribe, supranote at . PAS, supranote at . ribe, supranote at . FederalistNo. .

FederalistNo. . Robert H. Bork, radition and Morality in Constitutional Law, American Enterprise Institute or

Public Policy Research (Te Francis Boyer Lectures on Public Policy, ) at - [radition].

FederalistNo. .

Laws, supranote at -. FederalistNo. . Immanuel Kant, First Supplement o the Guarantee or Perpetual Peace (), online:


13/37

Michael Halley

In urther aligning himsel with modern theoretical physics and assert-ing that dark matter structures the visible constitution, ribe ventures arbeyond anything we can understand, given our current state o knowledge.

While everyone relates to the idea that the separation o powers was an eortto split the atom o sovereignty, ew can athom the origin o the trinity atthe core o Christianity and the Framers science o politics alike: la distri-bution des trois pouvoirs dans le gouvernement dun seul. Is Madison conced-ing just such complete mystication in asserting that no skill in the science ogovernment has yet been able to discriminate and dene, with sucient cer-tainty, [the] three great provinces the legislative, executive and judiciary?More bafing still is that each o these imperectly drawn beings is perectly

coordinate by the terms o their common commission such that none othem can pretend to an exclusive or superior right o settling the boundariesbetween their respective powers. While it would seem strictly consonant tothe republican theory to recur to the people themselves as the only legiti-mate ountain o power to balance the equation just as we must recur to themwhenever it may be necessary to enlarge, diminish, or new-model the pow-ers o the government, Madison raises insuperable objections, leaving

angels, no government would be necessary, and that [i] angels were to govern men, neither exter-

nal nor internal controls on government would be necessary yet at the same time perceiving justice

as the end o government and liberty its avatar they anticipate and answer the question Heidegger

cannot: what transcendence means or nite beings. FederalistNo. . ribe, supranote at -. Cynthia Cates, Splitting the Atom o Sovereignty, erm Limits, Inc.s Conicting Views o

Popular Autonomy in A Federal Republic () Publius at -.

FederalistNo. . Charles de Secondat Montesquieu, De lEsprit des Lois, vol. (Paris: Editions Gallimard, )

at [Montesquieu]. Te structural identity between a) the division into three discrete quanti-

ties o the monarchs ontic being, and b) the holy trinity o Gods one ontological being is patent,

and enough to have alerted the Framers to the very real possibility o conusion and grave danger,

whence the necessity o denitively separating the existence o man and o men in constitutiona l

statehood and the essence o God exiled to the Church. Te record o human history attests to the

act that the border which men and God jointly occupy as beings and as being is the most volatile

o all.

FederalistNo. . FederalistNo. .

Popular resolution o power struggles arising within the government must be oreclosed, not just

because the logistics o such reerenda are unmanageable, but because even i the practical details

could be worked out, plebiscites aimed to keep the several departments o power within their

constitutional limits could never be expected to turn on the true merits o the question. Te

PASSIONSnot the REASON, o the public, would sit in judgment. Ibid. [caps in original]Te peoples representatives elected to the convention called to resolve a constitutional conict

between the three departments o their government would all be pre-committed to and overtly

b k h h h l d l T d ld


14/37


the departments o constitutional being as Tomas Jeersons Declarationlet being itsel to end or themselves, sauve qui peut. I each o the threedepartments standing trial must recuse itsel because its interest in the out-

come biases its judgment, and i the public is likewise unable to sit injudgment, then exactly who or what is competent to preside? Here we ndthe true invisibility o justice: a law case that will be decided by no one, a causeentirely ree to pursue its own justice indierently rom reedom itsel. ribesanalogous endorsement o an ungrounded constitution, one that necessarilyoats in a vast and deep and, crucially, invisible ocean again returnsus to Heidegger whose ontological dierence states that a being is alwayscharacterized by a specic constitution o being. Such being is not itsel a be-

ing . . . [W]hat it is that belongs to the being o a being remains obscure

V. THE EMPIRICISM OF ROBERT BORK

Just here, on the high seas, where one would have supposed ribe to haveirreparably parted ways with the strict constructionists, they meet as ellowtravelers. Long beore ribes Invisible Constitution came along, Robert Borkglimpsed it as ghost ship. He criticized the emptiness within the constitu-

tional rame, likening it to a body without a core.

Despite the act thatit is a very old eld, intensely cultivated by men and women o rst-rate

branch o government most closely aligned with the people, and drawn rom the people, would

be able to plead their cause most successully with the people. Indeed, [t]hey would probably

be constituted themselves the judges, as [t]he same inuence which had gained them an election

into the legislature, would gain them a seat in the convention Te convention, in short, would be

composed chiey o men who had been, who actually were, or who expected to be, members o the

department whose conduct was arraigned. Tey would consequently be parties to the very question

to be decided by them. Ibid. Even in cases where [t]he usurpations o the legislature might be so

agrant and sudden as to admit o no specious coloring and the executive power might be in the

hands o a particular avorite o the people, such that the President and his minions controlled the

convention, still the matter would adjudicated by one o the parties, contrary to the rst rule o

impartial justice. Ibid. Madison does not even entertain the notion, extant today, that the judiciary

should decide. As unelected ocials with no connection to the people judges surely cannot be t to

represent the people and to decide in their stead.o vest the power o decision in any o the threedepartments is to acilitate a party with no better claim in principle to rise above its peers and to

control and dominate them in right and privilege.

FederalistNo. . Ibid., No. . Te ranchise, intended to protect and saeguard the constitutional being would

by empowering and endorsing acoup detateither by Congress or the President destroy it.

b


15/37

Michael Halley

intelligence, and apart rom a ew scattered insights here or there, ourlaw persists, in Borks estimation, as a haunting enigma, a singularly rudder-less vessel, adrit. For Bork, the constitutional rame has long since come to

resembles the ship Argo, each piece o which the Argonauts gradually re-placed so that they ended up with an entirely new ship without having to altereither its name or its orm. Te Argo, like the Constitution, exemplies theeminently structural object because it has no other cause than its name, noother identity than its orm. Like a river that never holds the same water,such a vessel lacks any discernibly uniying principle. One consequence o thisempty rame and skeletal body is, Bork says, that the Constitution is oreverborrowing rom the social sciences, and continually catching colds rom

the intellectual evers o the general society. In the same way that Aristotlesays i each thing is to be relative to that which thinks, that which thinkswill be relative to an innity o specically dierent things, the winds ointellectual or moral ashion blow through the empty window pane o theConstitution to endow our most basic compact with only chilling cold.

VI. INVISIBILITY AFFIRMED AND REVERSED

ribe and Bork are perceiving the same invisibility. Almost ty years agonow, Alexander Bickel plainly and correctly asserted that the authority todetermine the meaning and application o a written constitution is nowheredened or even mentioned in the document itsel. In the ace o this emptyletter, ribe and Bork cast their lots dierently. What Kant says about a purejudgment o taste applies equally to them: ribe and Bork not only knowwhat they like but require . . . the same liking rom others. Tey cannot butclaim their judgment to be valid or everyone. Teir assessments, howevercontrary, are inormed by a certitude no argument to the contrary can shake.However diverse, their views rest on the same compelling basis which de-mands that they hold true or everyone. Commanding strictly equal dignity,their determinations bear the identical brand o exemplary validity. Tisalone is noteworthy. Why is it that such accomplished scholars, acknowledg-

Ibid. Ibid. at . Roland Barthes, Roland Barthes (New York: Hill and Wang, ) at . See Michael Halley,

Argo Sum () : Diacritics .

Metaphysics, supranote at . radition, supranote at -.

k l


16/37


ing the same gaping emptiness, contradict one another with impunity, imper-tinence, and absolute certainty about how to proceed?

Where ribe is eager to promote the obscurity and penetrate the darkness,Bork no less categorically recoils in horror to summon the exorcist o originalintent. Is the invisibility a boon, as ribe suggests, or a lie threatening dis-ease, as Bork augurs? Is Bork correct to insist that whatever being may or maynot be, it adds nothing to existence; that whatever is constitutionally possiblemust arise out o what is actually contained in the document; that the ram-ers intentions with respect to reedoms are the sole legitimate premise romwhich constitutional analysis may proceed? IsJustice Scalia, ollowing inBorks train, correct to erect a rewall between the belie that women likeeveryone else have liberty in the absolute sense, and the juridical assertiono such reedom simpliciteras a constitutional right? Kant surely thought so.Should we seek to rame quite new concepts, he cautioned, without experi-ence itsel yielding the example o their connection, we should be occupyingourselves with mere ancies or which there is no criterion. Kant reservesthe problem o what may lie beyond the eld o possible experience, that is,outside the world or what he calls ideal reason.

ribe is not convinced. Crediting Hegels insight that there is intrinsictruth in what a constitution expresses as the truth, and recognizing in the vis-ible alone a limit so obdurate and irreragable as to bring reedom, equality,justice, and truth itsel into utter disrepute as a standstill and backwater ohistoricism, he proers a virtual constitution or which Heideggers Germanlanguage provides the model a rame (Fassung) o being (Sein) whose sheeridentity renders a constitution o being (Seinsverassung) transparently presentand ready-at-hand to welcome being simpliciter, however unseen. Tis invis-ible constitution and Borks all too visibly ramed portrait o the unchang-ing and unchangeable mores o late-eighteenth century gentlemen and theirbrides seem irreconcilably at odds. Yet they coexist. Tis remains to be ex-plained. I, as Eric Segal suggests, there is something dreadully wrong withthe state o constitutional law and constitutional scholarship, it is neitherBorks empiricism nor ribes idealism, but a ailure to explore their com-mon root the pervasive invisibility or emptiness which Bickel identied

Bork, supranote at . Casey, supranote at (Scalia, J. dissenting). Reason, supranote at .

b d


17/37

Michael Halley

and the inevitable consequence, that the vacuum, as intolerably inscru-table as being itsel, demands to be lled.Justice Antonin Scalia acknowl-edges this phenomenon that the empty eld o being cannot hold when,

observing that something other than the Constitution itsel is now rmly incontrol, he reports that I you go into a constitutional law class, or study aconstitutional case law book, or read a brie led in a constitutional law case,you will rarely nd the discussion addressed to the text o the constitutionalprovision that is at issue. Why is it, Justice Scalia goes on to ask, that thestarting point o the analysis will be Supreme Court cases, and that the newissue will presumptively be decided according to the logic that those casesexpressed, with no regard or how ar that logic, has extended us rom the

original text and understanding?

Madison again demonstrating his pastmastery o what Heidegger came to call the ontological dierence betweenwhat is and what is seen provides the too evident answer: All new laws,he says, though penned with the greatest technical skill, and passed on theullest and most mature deliberation, are considered as more or less obscureand equivocal until their meaning be liquidated and ascertained by a serieso particular discussions and adjudications. So great is the chasm separatingobjects and their denition that even when the Almighty himsel con-descends to address mankind in their own language, his meaning, luminousas it must be, is rendered dim and doubtul by the cloudy medium throughwhich it is communicated. I God cant convey a clear message, how can aconstitution?

Alternatively, to embrace or to bemoan the discrepancy is hardly worth-while. While Hegel may or may not have been right to equate what is actualwith what is rational in every instance, surely reasoning minds should aspireto grasp what is beore presuming to pass judgment. Rather than choose be-

tween ribes undisclosed secret o the Constitution as ontological being andthe well worn and proven means o Borks ontic beings, we should cred-iting the ancient jurists insight that whatever is honestly said about justicemust always remain perectly the same by dint o the same spirit or soul thataccounts or the I in those who think reect on the very real possibilitythat ribe and Bork may be holding (or attempting to hold) an identity incommon rather than isolating and exacerbating irresolvable dierences. Teireither/or is dialectic. As the reverse or downward acing side o a coin always

Antonin Scalia,A Matter o Interpretation, ed. by Amy Gutmann (New Jersey: Princeton UniversityPress, ) at .

d l


18/37


lies concealed, so the one (Bork) bring[s] orth realism out o idealism, andthe other (ribe) brings orth idealism out o realism. I only the scholarscould imagine the coin in the air ying o its own will, not theirs, they

would capture the identical source o this divergence.

VII. THE IMAGE-GIVING IMAGINATION

Alexander Hamilton points the way. His extraordinary reverence or themodest state courthouse as the immediate and visible guardian o lie andproperty and the great cement o society ever present beore the publiceye could not be more prosaic, more concrete, more denitive. No less vis-

ibly apparent are the strict rules and precedents, which bind down the judgeand serve to dene and point out his duty in every particular case. Butbeore this side o justice alls irremediably to the ground, Hamilton glimpsesthe other, what ribe ascribes to dark matter. Justice, Hamilton says, has noorce, no will, but only judgment, which is next to nothing. From

ell us, Master whether it is lawul to pay taxes to Cesar? In response Jesus called or the Pharisees

to produce a coin whereupon he asked them to identiy its likeness and its inscription: O Cesar,

they replied. In reliance on the unseen side, which they could not but acknowledge and credit, Jesus

acquitted himsel: Give to Cesar what is Cesars and to God what is Gods. Matthew :. Friedrich W.J. Schelling, System o ranscendental Idealism (Charlottesville: University Press o

Virginia, ) at . See Schellings Empiricism, supranote at -. Arthur Schopenhauer, Te World as Will and Representation, vol. (New York: Dover Publications,

) at .

FederalistNo. .

FederalistNo. . Ibid. at note . In characterizing the judiciary as next to nothing, Hamilton cites Montesquieu.

Hamiltons meaning however, that judgment, as nothing, can never endanger liberty, is precisely

the opposite o Montequieus. Montesquieu eared human judgment as something terrible, and

what he said was that to avoid the terror it must be made to lookinvisible and nul. o achievethis end Montesquieu did not praise the courthouse but expressly advised that xed or permanent

tribunals should be eliminated altogether. Courts should convene rom time to time and move rom

place to place, and then adjourn, vanish rom the scene as i they had never been. Teir judgments

should not be made and handed down by proessional judges ollowing strict precedents and rules,

but by lay jurors selected rom amongst the anonymous body o the people or the momentary

task, ater which they should sink back unrecognized and unmarked into the great undi-

erentiated mass rom which they were temporarily spirited away to do terrors business. Like the

hooded hangman the amously anonymous Bourreau de Parisdetailed to carry out the capitalsentence too gruesome and arbitrary to be attributed to and associated with any identiable human

personality or agency judgment must be veiled in invisibility. In this way the people can be led

to believe that majesty and not the magistrate is the source o the law. Montesquieu, supranote at . Removal o the bar o justice and the all too identiable black robed jurist presiding over it

will, Montesquieu hypothesized, hide the subjectivity inherent in the act o judgment and interpose

h ll d b b h l d d d h d


19/37

Michael Halley

this nothingness it ollows that the general liberty o the people can neverbe endangered. What, then, do the citizens appear to see with such per-spicacity in this nullity? What is this mere judgment which does everything

with nothing? Why does Hamilton reer to these marvelous courts as visibleguardians when their sole quality judgment is so decidedly invisible?Hamilton does not say, but he does articulate some o the eelings the vi-sion o invisibility provokes: benets and terrors, aection, esteem andreverence. Gazing outward at who know what, we project whats inside ribes sel-made representations and concepts which Bork, reezingthem into time and place, then anoints as our empirical bulwark and saviour.Tis law, the rule o law in America, is strictly speaking an ens imaginarium,

which, as image giving, renders what appears to be a prosaic compendiumo all the possible orms o the invisible.

VIII. GROUND AND TRANSCENDENCE

Tese orms the hall o justice, the dead hand o the law are notempirical determinations separate and distinct rom a transcendent imagina-tion. Tey are rather the transcendent product o a aculty o mind more un-

damental than reason itsel. Were this not the case Hamilton would not haveupended our common sense understanding in characterizing the stick-and-stone materiality o buildings as transcendent. What he saw, in plain view,were visible images transcending the invisible ground o imagination. Whatwe now call empirical, he saw as transcendent and vice versa. His unequivocalassertion that liberty can never be endangered by the courts o justice, thatthe people hold the scales in their own hands, rests on an a prioribedrocko certitude more empirical than anything an empiricist could ever hope tond or classiy. What else can explain Hamiltons absolute disdain or MagnaCarta wrested sword in hand, rom King John? Such contrivances are un-t or ree people who surrender nothing; and as they retain everything theyhave no need o particular reservations laid out in nicely recorded metes

prescribing thus: Let he who has never sinned cast the rst stone. John :.

Ibid. Ibid. Supranote at .

Ibid. at . FederalistNo. . Ibid.

d l


20/37


and bounds. I that be empiricism, this is a higher empiricism: an impenetra-bly ortied teleological system o impeccable symmetry and exact propor-tion whose sel-evident certainty speaks or itsel. Why, Hamilton inquires,

should it be said that the liberty o the press shall not be restrained, whenno power is given by which restrictions may be imposed? Words, howeverwell crated, would only compromise the only solid basis o all our rights,the invisible, wordless spirit o the people and o the government. Suchjudgment is more certain by ar than anything a court, even a supreme court,could ever hold. Sel-certainty controls, and stands clear and distinct as theone irreutably knowable thing, precedent to and or everything else.

In arming, as positive law, the liberty o the person in its transcendentdimensions, our jurisprudence places the cart beore the horse. Tis certi-tude, indistinguishable rom reedom, o sel-determination is not transcen-dent, but the pre-existent image-giving ground out o which the visible ruleso law arise transcendent. Tose who dissent because they cannot nd tran-scendence either in the Constitution or the Declaration o Independenceonly compound the problem. ranscendence is staring them in the ace, butthe image they see o beings coming together to transcend the only thingeach o them knows rst and most certainly that I am cannot but ap-

pear to be the opposite. Tis material transcendence o ground inorms deocquevilles image o America as one o the countries in the world where oneleast studies and most ollows the precepts o Descartes.

Madisons assertion that never beore in the course o recorded historyhad the task o raming been committed, not to some individual citizen opreeminent wisdom and approved integrity, but to an assembly o men, andhis admonition as a great imprudence o unnecessarily multiplyingthe unprecedented attempt, stands testament to a constitutional ramingby imperect beings dynamically transcending the static perection o being.In recognizing the nished document as imperect, and recommending it onthat basis, Madison distinguishes his rom Platos vision o the ramer whomust be allowed to perect his design. With the embrace o imperect menas constitutionally just, Madison leads us to the true meaning o transcen-

Ibid. Lawrence, supranote at .

Ibid. at - (Tomas J. dissenting). ocqueville, supranote , vol. at . For a discussion o Descartes empiricism, see Friedrich W. J.

Schelling, On the History o Modern Philosophy(Cambridge: Cambridge University Press, ) at

d h ll


21/37

Michael Halley

dence or nite beings: not a platonic Republicnever proceeding past the stageo ideation, but a ully unctioning government committed, not in personamto a race o philosopher kings, but to an all too human posterity, in res,

and, like any other creditable conveyance, in writing.

IX. THE CONSTITUTION AS IMAGE

What the Framers leave somewhat unexplained, and us stumbling to dis-cover, is the nature o this writing. Tey say government in general andtheirs in particular is the greatest o all reections o human nature, andthey endeavour to capture that reection in a written constitution. Yet when

we think o reection we think o mirror images, o exact reproductions cap-tured instantaneously, not texts which are rst and oremost voluminous,and which convey meaning sequentially in the time consuming, compendiousprocess o turning pages, themselves subdivided into articles and sections. Tecontrary idea o the constitutional text as an image, which has been ramedor immediate and accessible viewing, is consistent with ribe and Borkscommon perception o an underlying ground o invisibility (the blank canvas,screen or lm on which the image is painted, projected, or transcribed), and,

more undamentally, inorms John Marshalls imagistic theory o the writtenConstitution. I the Constitution were not a picture that has been ramed orall to see, Marshalls still controlling understanding o constitutional law as anelementary match game would not be possible. I the text o the Constitutionwere not, rst and oremost, an image, his method o simple visual compari-son o setting the Constitution side by side with mere acts to see i theyappear alike or repugnant would not be conceivable. Te reason verbaldeclarations however ne cannot do justice to the Constitution is that itis not a text which is written, but a picture which, as everyone seems to agree,has beenramedby a rame maker.

Te aithul constitutionalist must bring back, retrieve unaltered andintact what the constitutional text, as ramed portraiture, brings orth in therst instance. Tis is textually impossible. I the judges opinion is an exact,

See Gianranco Maglio, LIdea Costituzionale Nel Medioevo (Verona: Gabrielli Editori, ) at . FederalistNo. .

FederalistNo. . See Jacques Derrida, Force et Signication in lEcriture et la Dierence(Paris: Seul, ) at

[Derrida].

b


22/37


verbatim transcription o the constitutional text, there is no communicationjust the vacuous echo o repetition. Some mechanism must allow the oneto reect the other. Hegel captures it in theory when he says Reexion

Gegensatz . . . auhebt. Reection brings and brings back dierence all atonce. Only by reection, in the sense o visual mirroring, can the dier-ent texts o the judge and the Constitution be deemed the same. While thewords may appear diverse, the picture they make is identical. Like the consti-tutional jurist ex post, the constitutional ramer ex ante, is on the look-out tocapture this mirror image. As Socrates carpenter does not make the ideaswhence his bedrame derives but proceeds in accordance with the idea,the Framers o the American Constitution could only position themselves be-

ore the picture o justice as the end o government already imagined at thebeginning, and then set o in hot pursuit through the looking glass o liberty.

X. REPUBLIC TO REPUBLIC

As Hegel reminds us, Platos Republicbegins with a search or justice akinto ours. Ater much tossing and turning Socrates happens upon the best wayto discern it. Suppose, he says, lacking keen eyesight, we were told to read small

letters rom a distance and then noticed that the same letters existed elsewherein a larger size on a larger surace. Wed consider it a godsend, and, Socratescontinues, the state provides it.Te characters o justice written there are the

Tis is the ip side to Madisons observation that language is inherently imperect, imprecise. o

communicate anything at all a text must be subjected to interpretation which is to say altered,

rewritten. Henri Beyle Stendhals celebrated characterization o the novel as a miroir qui se promene sur une

grade route captures the aspiration. Le Rouge et le Noir, vol. (Paris: A. Levavasseur, ) atchapter . Whether the reection that ensures is o realityor only an appearanceis the questionthat remains unresolved. Stendhal maintains (in deense o reality) that the novelist whose mirror

reects the mud at his eat will be alsely blamed; that the ault lies not in the mirror but the road

or those charged with maintaining it.Socrates, to the contrary, says that nothing is easier than tocarry a mirror. By turning it round and round one can make anything and everything appear

but not the things themselves as they truly are. Republic, supranote at . G.W.F. Hegel, Phaenomenolgie des Geistes(Hamburg: Felix Meiner Ferlag, ) at [Phaenomenologie].

In his rst encounter with the word, Jean Hyppolite, the legendary French translator o Hegels

Phenomenology, nearly threw up his hands in despair: Te translation o the Hegelian termsAuheben, Auhebung is particularly delicate in French. In common usage the meanings

are diverse, even contradictory: to suppress, to conserve, to raise, to raise up, to revolt. See LaPhenonenologie de lEsprit, trans. by Jean Hyppolite, vol. (Paris: Aubier, ) at , ootnote .

Republic, supranote at . Justice, the Framers declare, is the end o government. It is the end o civil society. It ever has

b d ll b d l b b d l l b b l h d l


23/37

Michael Halley

same as those inscribed in man himsel only larger, easier to make out.

Were we to have proceeded on this basis o scriptural identity, text to

indierent text, the rule o law, distinguishable rom the rule o man, couldnot be. Were the constitution o the judge identical to the document beorehis eyes, he or she could decide by simply turning inward with a magniyingglass to scrutinize the lettering o his own constitution, scripturally indier-ent rom that o the state, now a superuous repetition. Absent the ormationo an object, an image dierent in kind rom this internal writing and tran-scending it, objectivity would be oreclosed. Without a theory o the writtenconstitution as external image transcending internal writing, Marshall couldnever have spoken anything but his own mind, his presumptive ability tosay what the law is separate and apart rom his own particular way othinking, notwithstanding.Calculating the devastating eects o Platos con-trary proposition, Madison admonishes: Had every Athenian citizen beena Socrates, every Athenian assembly would still have been a mob. WhilePlato, applying the law o identity, exactingly proportioned the lights andshades o the state ater the genius o theinternal being each o us is, the Framers, conceding the act o dierence, projected this singularly subjec-tive sel-certainty outward to appear as the collective genius o the people o

America, where every citizen recognizes himsel as ree and equal not onlyto himsel but also to everyone else.

Republic, supranote at -.

Marbury, supranote . FederalistNo. . Philosopher, supranote . Socrates imagines the rst incarnation o the state in perhaps some

loty soul born in a mean city, the politics o which he contemns or neglects, or peradventure, in

someone whose ill health kept him away rom politics. Tis state incarnate in the man will have

seen enough o the madness o the multitude [to] know that no politician is honest Having

concluding that he would be o no use to the [existing] State he holds his peace and goes his own

way... he is content i only he can live his own lie and be pure rom evil or unrighteousness, and

depart in peace and good-will with bright hopes. When Glaucon responds that by so conducting

his aairs he will have done a great work, Socrates responds: A great work yes; but not the

greatest, unless he nd a State suitable to him; or in a State which is suitable to him, he will have a

larger growth and be the savior o his country as well as himsel. Republic, supranote at -.Te Framers, anticipating the disastrous externalcost to the nation o Socrates uncompromisingpursuit o internality, airly taunted the people o America not only to reject the Constitution, but

to recall all the powers they have heretoore parted with and to divide themselves into as many

h d h h b bl h


24/37


XI. ARISING OUT OF AND ARISING UNDER

Heidegger reminds us that i the unknown were simply that o whichwe know nothing, it would attract no notice. Te unknown, rather, is whatpushes against us as disquieting in what is known. Te theoretical expres-sion o this disquiet by ribe and by Bork is symptomatic o something armore palpable: the shaking we experience whenever we endeavour to stand onrm constitutional ground. Cases, we are expressly apprised, do not arise out othe constitution, but underit. Tis is strange. Ordinarily things emerge romthe ground on which they then are said to stand upon. What does it meanor each o us to have to establish his or her standing under the Constitution;

and i that is the canopy above our heads, what, i anything, are we stand-ing on? Is the arising under jurisdiction prescribed by article III o the U.S.Constitution a candid acknowledgment o the invisibility that grounds thevisible Constitution? Do cases arise under this umbrella in the same way vol-canoes appear to arise under the visible sea, while in act they arise out o theinvisible ground underneath?

Tat the ground out o which the Constitution rst arose, and the exis-tence o a Constitution under which cases and controversies now arise, aredierent would seem incontrovertible. Tere was a convention and a docu-ment was drated. It was circulated, debated, and ratied. Tose charged withthe work reerred to themselves as Framers and we today still see them in thislight: as having built a structure arising out o the ground. So pervasive is thisvisible rame that no one can distinguish it as Hamilton once urged rom what it borders and contains. Frame and Constitution, now as then, areinterchangeable, inextricably intertwined. Te scholarship recognizes no vis-ible or cognitively credible dierence. Nor is there any. Tere is no rame other

than the Constitution, no Constitution distinct rom the rame. A rame oconstitutional being that once in historical time arose out o the empiricalground now hovers in a transcendent space under which Americans do not somuch take shelter as arise in their own right.

While Hamiltons colonial beings may have enjoyed the transcendentadvantage o seeing justice done under English common law in courts o gen-eral jurisdiction, Americans, as constitutional beings, nd this transcendencein a limit o their own construction, on maniest display in the textually

bl h


25/37

Michael Halley

explicit restrictions on the judicial power o the United States, recited in ar-ticle III o the Constitution. What we dont see written there, however, is anylanguage armatively commanding Congress to authorize the establishment

o inerior courts o original jurisdiction, absent which the expressly estab-lished appellate jurisdiction o the Supreme Court would urther underscorethe Constitutions perceived invisibility. Te prospect o a ederal court o lastresort with no ederal cases to review has attracted the attention o a greatmany prominent constitutional scholars. Te open question they cannotbut entertain is whether Congress could have elected not to create ederalcourts o original jurisdiction without at once shattering the constitutionalrame and eclipsing the constitutional image o justice it encloses.

Tis apocalyptic line o inquiry does little to acclimatize our senses to theinvisible constitution. All the theoretical insistence in the world that the texto the Constitution invisibly requires (by implication o one kind or another)the establishment o inerior ederal tribunals cannot change the act that itdoes not say so. What cannot be debated is that there is no longer any real

the law.

While article III declines to establish any ederal courts o original jurisdiction, it does not preclude

and indeed authorizes the United States Supreme Court to review nal judgments arising out o

the state courts i the ground o decision is the Constitution or a ederal statute. Tis jurisdictional

grant, Hamilton and Marshall argue in unison, is compelled by the axiom that the propriety o

the judicial power o a government [must be] coextensive with its legislative power. FederalistNo.. I any proposition may be considered as a political axiom, this, we think, may be so consid-

ered. Cohens v. Virginia, U.S. at () [Cohens]. Te mere necessity o uniormity inthe interpretation o the national laws, decides the question.Tirteen independent courts o nal

jurisdiction over the same causes, arising upon the same laws, is a hydra in government, rom which

nothing but contradiction and conusion can proceed. FederalistNo. .Marshall persuasivelyrebuts the claim that the states can be entrusted to uphold the Constitution and the laws as well as

him with the observation, which history has proven correct, that We have no assurance that we

shall be less divided than we have been. Cohens, ibid. at . Paul Bator, Congressional Power over the Jurisdiction o Federal Courts () : Villanova

Law Rev. ; Akhil Amar, A Neo-Federalist View o Article III: Separating the wo iers o

Federal Jurisdiction () Boston Univ. Law Rev. ; Robert L. Clinton, A Mandatory

View o Federal Court Jurisdiction: A Guided Quest or the Original Understanding ()

Univ. Pennsylvania Law Rev. ; Teodore Eisenberg, Congressional Authority to Restrict Lower

Federal Court Jurisdiction () Yale Law J. ; Gerald Gunther, Congressional Power to

Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate ()

Stanord Law Rev. ; Henry M. Hart, Jr., Te Power o Congress to Limit the Jurisdiction o

Federal Courts: An Exercise in Dialectic () Harvard Law Rev. ; Martin H. Redish

& Curtis E. Woods, Congressional Power to Control the Jurisdiction o Lower Federal Courts: A

Critical Review and a New Synthesis () Univ. Pennsylvania Law Rev. ; Lawrence G.

Sager, Foreword: Constitutional Limitations on Congress Authority to Regulate the Jurisdiction

o the Federal Courts () Harvard Law Rev. ; Laurence H. ribe, Jurisdictional

d d h h d l d l


26/37


danger that the appellate jurisdiction o the Supreme Court will be eec-tively stripped or lack o ederal cases to entertain. Congress has chosen bya ree accounting o the yeas and nays, not by prescription, to create inerior

ederal courts. Teir original jurisdiction and the Supreme Courts appellatejurisdiction owing rom it are now rmly established, a ew sel-containedjurisdiction-stripping skirmishes and brushres notwithstanding. So theimaginary end o justice to be pursued until it be obtained, or until liberty belost, conjured at the raming is now aorded an entirely concrete and dis-cernable starting place. Tis empirical placement o our own devising marksthe essence o transcendence in constitutional America. An original jurisdic-tion that might never have been, and whose necessity is ar rom obvious, is

now as ubiquitous as it is obligatory, while the appellate jurisdiction whenceit arose as end demands beginning has become a matter o virtually ab-solute discretion. Policy may presume to explain the why and the whereoreo this reversal but only ontology can ever hope to discern how the beginningand the end have proven so interchangeable, the one presupposing the otherwhich enguls it. Tis circle, having its end also at its beginning, is therame that constitutes ex antethe Constitution ex post.

XII. JURISDICTION AND JUDICIAL REVIEW

Recent eorts to get to the bottom o jurisdictions changeable ront brushup against then shy away rom the sel-restoringsameness, the reec-tion o otherness within itsel o rame and Constitution. Frederic Bloomsteers in the right direction when he analogizes what he terms jurisdictionsnoble lie to the preposterously audacious alsehood Socrates wanted to per-petrate on rst the guardians, then the soldiers, and lastly the people o the

Congressional eorts to withhold or withdraw jurisdiction have a long and checkered history. See

Ex Parte Yeager, Wall. at - (). Te latest episode in the jurisdiction stripping saga

centres on the ate o alleged terrorists held at Guantanamo Bay, and whether Congress can strip

the courts o jurisdiction to hear their habeas actions. See Boumediene v. Bush, U.S. ()[Boumediene].

FederalistNo. .

Article IIIs limited arising under jurisdiction does not supplant or displace, but exists together

with the pre-established ground o the state courts unlimited or general jurisdiction. Absent a ew

congressionally mandated exceptions, where the requirements o Article III are satised a litigant

can elect, in the rst instance, to pursue a constitutional or ederal law claim in either state or ed-

eral court.

In , the United States Congress oreclosed appeals as o right to the Supreme Court rom

nal state court judgments. See Act o June , Pub. L. No. -, Stat. .

l h l d d h l


27/37

Michael Halley

Republicby telling them all their youth was a dream and the education theyremember an illusion; that in reality their constitution is not dierent romthat o their mother the Earth who delivered all o them up into the world as

brothers and sisters. Tis one royal lie necessary to establish the ontologi-cal rule o beings like unto being is, Socrates assures us, nothing new. Ithas, rather, happened in many places where, handed down over the courseo generations, the alsehoods visibility ades to black where it appears asvisible truth. Against this inscrutable backdrop o beings appearance inthe invisible ground o being, the one all too discernable exception to theotherwise inviolable rule that a true alsehood is hated by all gods andhumans, Bloom concedes that jurisdictions lie, its rigid ront betrayed

by rampant exibility, serves broader social and, in this case, adjudicativeinterests. Yet, unlike Socrates, who endorses the one true alsehood o anontological constitution (beings bound to one another through the heritagethey share, the being o ground) without cavil or equivocation, Bloom insiststhat he does not mean to excuse the inexcusable. Jurisdiction, Bloom says,tells a troubling lie, which invites moral condemnation. He gures that wepay heavy costs or jurisdictions lie at the expense o judicial candor.But he also says something else which he deems important, but on whichhe does not elaborate: that jurisdictions lies are not incompatible with theConstitution which leaves ample room or the pragmatic justications thatinvariably accompany a lie. Nor does the Constitution prohibit the mad-deningly innovative logic characteristic o lying. With this acknowledg-

Republic, supranote at -.

Famously attacking the philosophy o identity extant in his times Hegel likens thinking

which demands that diverse things be deemed identica l, to the night . . . in which all cows are

black. Phenomenology, supranote at .See, Michael Halley, Toughts on the Churn LawNorthwestern Univ. Law Rev., Colloquy [orthcoming]. It may appear to be absolutely true and

visibly so that all these cows are indeed black, but only in the dark. Or does Schell ing in a rejoin-

der that brings us back around to ribes invisibility in se demonstrate a better understanding

o beings truth and the truth o being when he asserts that Darkness which was seen would notbe darkness anymore. See History, supranote at [emphasis in original]. See, Schellings

Empiricism, supranote at . Republic, supranote at . As we have seen Socrates is generally keen to separate appearance

rom reality. See supranote at . It is only in the matter o the guardians education he is will-ing, indeed eager, to conate them.

Frederic Bloom A Noble Lie () Stanord Law Rev. at , , and note [Bloom].

Ibid. at . Ibid. at -.

T l d l b d l b l


28/37


ment that jurisdictional lying is constitutional and perectly legal; that soar as jurisdiction the authority by which courts and judicial ocers takecognizance o and decide cases is concerned, judges may (in the name o

what may well appear to them as the truth) lie with impunity, Bloom endorsessotto voceSocrates judgment that to lie about the singularity o being andbeings, about their constitution in common and in common with the earthitsel, the ground as being, is the truth.

Te constitutional lying in America begins, as we have seen, with thecelebrated Montesquieu (to whom the Framers reverentially repaired as to anoracle) orthrightly advising that, because in truth the judgment o manover men is a horric prospect, the people must be deliberately deceived intobelieving that legal judgments do not come rom or inure to the magistratebut to majesty itsel. Hamilton ups the ante by lying twice. He says rst that alegal judgment contrary to what we all know to be true is nothing tobe araid o; and then he attributes this alse palliative to Montesquieu who,in act, said just the opposite. Only with Madison do we arrive at the truth:that there is no such thing as a constitutional essence called jurisdiction, thatno-one and nothing has the juridical authority to take cognizance o anddecide a dispute amongst the three co-equal departments o constitutional

governance. Yet this truth, like Montesquieus, is impossible to bear and mustbe made invisible, replaced by the visible practice o judicial review to keepthe departments in constitutional order. Tis is the most remarkable lie o all:or while the Constitution is express in aording some protection or bothindividual and states rights, and so provides at least an arguably saeharbour or the Supreme Court to review alleged inringements pursuant tothe American Constitutions express grant o appellate jurisdiction in articleIII, the Framers were deliberate in their rm decision notto write a separa-

tion o powers provision into the Constitution. While they acknowledged theemphatic and, in some instances, the unqualied terms in which this axiom

Nothing in the Full Faith and Credit [clause], Due Process, or the whole o Article III prohibits

lying. Ibid. at . Jurisdictional lying, Bloom goes on to say, is not plainly inconsistent with pertinent statutory law.

Ibid. Blacks Law Dictionary, th ed. (St. Paul: West Publishing, ) at . FederalistNo. . As Bickel asserts, what Hamilton disingenuously characterized as the least dangerous branch o

the American government is the most extraordinarily powerul court o law the world has ever

known. Bickel, supranote at . See U.S. Const., supranote , Amendments I through VIII.

b d d


29/37

Michael Halley

has been laid down, in some o the state constitutions, they considered it adead letter because they could not nd a single instance in which the severaldepartments o power have been kept absolutely separate and distinct.

When the Justices o the United States Supreme Court most committedto visibility, to the words o the Constitution, and to their original unchang-ing intent come to criticize their brethren or taking jurisdiction over sepa-ration-o-power disputes, and presuming to decide them on principles de-rived rom some judicially imagined matrix, they truly see the nothing thatsthere. When they go on to say that they themselves can take jurisdictionand decide these disputes by reckoning rom the sum total o the individ-ual separation-o-powers provisions that the Constitution sets orth, theyalsely perceive and propagate something thats not. Tis is the true story ojurisdictions lie and the invisible Constitution that compels its promulgation.

Tat story begins and this essay ends with Nietzsches assertion that ev-ery powerul man lies when he speaks and lies all the more when he writes.Tis is no Machiavellian doctrine oreal politikbut an ontological premise,no dierent rom Madisons. In asserting that [n]o man is allowed to be ajudge in his own cause because his interest would certainly bias his judgment,

and, not improbably, corrupt his integrity,

the Framers acknowledge theendemic nature o lying. Teir urther assertion that justice, as the end ogovernment, and liberty, its avatar, cannot abide a lie is itsel belied byMarshalls still controlling assertion o his own jurisdiction, not just to saywhat the law is but to survey and superintend the structure o the entire gov-ernment. I the truth is that the judicial branch, as one o the parties, maynot decide a boundary dispute between itsel and the other branches, what

FederalistNo. . Wallace Stevens, Te Snow Man in Holly Stevens, ed., Te Palm at the End o the Mind(New

York: Vintage, ) at .

Boumediene, supranote at (Scalia J. dissenting). Friedrich Nietzsche, Te Will to Power(New York: Vintage, ) at , note [Will to Power]. Federalist No. . Lest anyone doubt their intention or their resolve, or attempt to misconstrue

them, they makes the point several times in several ways. People, they insist, may not be parties to

the very question to be decided by them. Ibid. No. . Emphasizing that this undamental condi-tion o justice applies both to individuals and collectivities, they go on to say [w]ith equal, nay with

greater reason, a body o men are unt to be both judges and parties at the same time. Ibid. No. . Ibid.

Marbury, supranote at -. Te jurisdictional quandary is not limited to policing the boundaries o the American Constitution.

I a juridical act is, in essence and structure, a controversy between A and B to be resolved by a

d d d l d h h d d l d d


30/37


is Marshalls declaration other than the lie o an all powerul person? Doesthis visible alsehood, handed down rom generation to generation or overtwo hundred years, now stand as the unassailably and indispensably visible

truth absent which constitutional being could not be? Is it, as Socrates main-tains, the one true alsehood we must, as constitutional beings, not only allowbut embrace? Or, as a bad cause seldom ails to betray itsel, and as everyusurpation o constitutional power provides precedent or and carries thegerm o multiplied repetitions, is the institutionalization o this originallie by successive generations o jurists increasingly proigate in its exercise oan unconscionable deception (the truth which consequence is that neitherthe synthesized REASON o the public, which should control, nor the

sel-canceling competition between the departments, but the sel-interestedlies o judges and jurisdictions untruth determine and re-determine,at pleasure, the constitutional ramework)? Rather than condoning or con-demning this status quo and adding it to the long list o invective argumentsor or against judicial review, we should attend to Blooms observation that

Droit(Paris: Editions Gallimard, ) at [Kojeve]; FederalistNo. ; One European way to lieabout the apparent truth that in such cases the state is both party and judge to

Ghost ship Constitution

Documents

Transcript of Ghost ship Constitution