Past and Present in Founding Moments
John Locke’s Second Treatise offers the classic account of a founding moment within the social contract tradition. Emerging from the state of nature, individuals come together to pledge commitment to each other and to the project of creating an ‘umpire on Earth’ to adjudicate disputes between them.
In such a way, they create a civil society and erect a government for it. The mechanics of this archetypal moment of founding have been extensively analysed and it does not need to be retraced here. But what I would like to highlight is the hint that Locke offers of the relationship between the people and the founders in this account. The people make a relatively late appearance in the process of creating a political society in Chapter 8, ‘Of the Beginning of Political Societies’. Locke begins with independent men and individuals, who make a community, then form a majority to act for the whole. It is as he turns to addressing the ahistorical nature of his argument that the people are invoked:Government is every where antecedent to records, and letters seldom come in amongst a people till a long continuation of civil society has, by other necessary arts, provided for their safety, ease, and plenty: then they begin to look after the history of their founders, and search into their original, when they have outlived the memory of it.[365]
What I would like to highlight here is the manner in which the concepts of ‘the people' and ‘the founders’ emerge in Locke’s account only retrospectively (and simultaneously). Both concepts are weighted with authority, but they come into being only once the founding has been forgotten. In contrast to the timeless individuals and community of Locke’s mechanical account of polity-making, the founders and people have a very specific historical location - after a degree of development, after a long continuation of civil society, once the founding is no longer available to memory; in short, once there is a clear ‘Past’ to compare to - and link to - ‘the Present’.
In foregrounding the founding’s ambiguity and distance, Locke’s account points to the manner in which foundings are created not by the founders, but rather by the people’s subsequent recognition of those actors and moments. And, crucially, this means that they can be subject to re-cognition by subsequent generations, which is to say that foundings are subject to recognition by different ‘the peoples’ at different moments in history. Understood this way, rather than being absolutes, foundings are prisms through which contemporary political debates can be exercised.
That the power of recognition lies in the current, not the founding, generation opens up several possibilities for the renewal of constituent power within the present moment. Jason Frank has pointed to the way in which the claim of popular sovereignty gave scope for democratic actors to seek to expand the conception of the people in the early Republic.[366] Creating spaces of ‘insurgent citizenship’, these actors enacted a politics that pushed the rhetorical commitment embodied in ‘We the People’ towards greater democracy. In this instance, the members of the democratic-republican societies of the early Republic reached back to the founding not in order to mobilise it for legitimisation of a facet of contemporary politics, but rather to destabilise the claims that were reliant upon it. Through enacting their democratic citizenship, they highlighted the empty rhetoric of those who were claiming authority to act in the name of ‘We the People’ Rather than tapping
And Then They Begin to Look after the History of Their Founders’ 97 the authority of the founding through invocation of its claim to be a moment of ‘higher politics, they sought to re-present that moment in a more radically democratic mode.
A similar reflexive dynamic can be seen in Ming-Sung Kuo's chapter to this collection. Kuo argues that rather than seeing constitutional development in terms of a unidirectional jurispathic' relationship between founding and present, narration of a founding moment allows us to understand that relationship as genuinely relational and jurisgenerative’[367] Utilising Robert Cover's conception of a constitutional ‘nomos' - a ‘normative world' in which ‘law and narrative are inseparably related'[368] - Kuo suggests that through narrating founding moments, the present generation can constitute the constitutional nomos.[369] Breaking the association of constituent power with beginnings, the process of narration can allow a reincarnated constituent power to sustain and shape the constitutional n omos in the present.
In place of a constitutional order unfolding from the authoritative moment of the founding - or redeeming itself by a return to it - the act of narration ensures a genuinely ‘jurisgenerative' order in which ‘the creation of legal meaning... takes place always through an essentially cultural medium’.[370]Both of these instances of constituent power revolve around an interaction between the present and the founding moment. The eruption of contemporary constituent power is predicated on the re-interpretation or renarration of that founding moment in a manner that, hopefully, works to expand democratic horizons. Nevertheless, it is possible to imagine the power of contemporary recognition utilised to reconfigure not the present, but the past. In such a scenario, the recognition of a founding is not adjudication between competing nomoi in the present - although it may certainly have that effect - but is rather adjudication between distinct candidates for the title of founding moment in the past. As different contemporary peoples engage the founding, they have the capacity to bestow on different moments (or configurations of the same moment) the authoritative claim to be a founding moment. Perhaps more so than the jurisgenerative order or the tapping of the democratic excesses of founding moments, the act of reconfiguring the founding moment has the potential to narrow the democratic space. In place of the former moves to reinvigorate a constituent power, reconfiguration of the past has the potential to frame the (previous) constituent power in newly constrained ways. Rather than expansive, these acts of recognition-as-reconfiguration could be limiting. It is this possibility that the following discussions of moments in American history explore. In each of these temporal moments, the political actors of the present have sought not merely to revisit a founding moment, but to actually reposition the moment itself in terms of
temporal location and participants. After laying out the three periods, the chapter will turn to a reflection upon them.
II.