U.S. Intellectual History Blog

Dudziak on Rodgers (Part IV of AGE OF FRACTURE roundtable)

Dear readers: Mary Dudziak‘s review of Age of Fracture is the fourth installment in our roundtable. For the first, see my review here. For the second, see Jim Livingston’s review here. For the third, see Lisa Szefel’s review here. Expect Dan Rodgers’s response in the next day or two.

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My Age of Fracture, and reflections on Time in the History of Constitutional Theory
Mary L. Dudziak, University of Southern California Law School

I. My Age of Fracture

In the halls of the Yale Law School in the fall of 1980, the spirit of Alexander Bickel – the great constitutional theorist who died in 1974 at the age of 49, still hung in the air. Forever caught in time, Bickel’s portrait of too young a man to occupy those picture frames, graced the walls of the school’s most important lecture hall. Bickel was not simply a revered former colleague. He had become a hegemon, so that the rest of his generation’s intellectual leaders thought and wrote in his wake – his legacy generating an understanding of the world so that others had to respond to his terms. [1] He had the sort of structuring impact on legal thought that Dan Rodgers so beautifully describes as the way that ideas have a structuring impact on history at the beginning of his book.

Bickel appears as minor figure in Age of Fracture, but was so important to legal thought that for one of the next great constitutional theorists, Bruce Ackerman, his greatest legacy – a legacy no longer seen because he was so effective – was to finally change the conversation away from Bickel, shifting the terrain of constitutional discourse, and in essence, putting Bickel to rest for a second time. [2] (I will return to Bickel and Ackerman when I take up the role of time in Age of Fracture.)

Alongside Bickel’s visage, the walls of the Yale Law School were covered with portraits of aging white men, so that for women, upon entering the building, it was hard not to think that you’d entered a men’s club. But the idea of this and other American law schools as men’s clubs was not simply metaphoric, as the philosopher Judith Jarvis Thompson found when she taught at Yale law school as a visiting professor in the early 80s. Settling in, she sought out a restroom. On her hallway was a door that said “Faculty.” Being a member of the faculty, she of course went in the door – only to find that she had entered a men’s bathroom. [3]

In September of 1980, there was more on the walls than Bickel and other greats from the history of the Yale Law School. The Age of Fracture was, thankfully, on display. There was an underground feminist organization at the law school – an organization that, sadly, I was never invited to join (I liked law school too much, so I was not to be trusted). These women had come in secretly in the night, in an age before security systems and surveillance cameras. Alongside the venerable portraits was a poster of Susan B. Anthony and Elizabeth Cady Stanton. Over the faces of men on some of the portraits, they had hung paper plates on which they had drawn women’s faces. [4]

These were heady days at Yale for the Age of Fracture. In Rodgers’ narrative, the Federalist Society plays a role in the fracturing of legal thought. (Rodgers mentions the Federalist Society only briefly in his discussion of the conservative turn in legal thought, but he notes its success as part of the rise of a broader conservative legal intelligentsia.) [5] But from the way it looked from within the law school those days, I wonder whether the Federalist Society was part of the fracture. To us they looked like part of the furniture.

My classmates founded the Federalist Society. Well-funded from the start, they organized a conference – their first – held at Yale in 1982. The conference is remembered warmly in their celebratory organizational histories. George W. Hicks, Jr. writes: “At a time when the nation’s law schools are staffed largely by professors who dream of regulating from their cloistered offices every minute detail of our lives . . . the Federalists met—and proclaimed the virtues of individual freedom and of limited government.” [6]

I attended this meeting – as a picket. We did not picket their existence, or the idea of individual freedom. Instead we supported freedom: we supported abortion rights, and one of their speakers was a key supporter of the Human Life Amendment to the U.S. Constitution, which wouldn’t limit government, but would criminalize abortion across the nation, undermining the very federalism that the Federalist Society sought to promote. If you support federalism, then you should support federalism, we argued.

The picketers are not written into the celebratory histories of the Federalist Society, though in debates at their meeting, some conservatives raised our point that their own principles would seem to support the ability of states to maintain their own rules, unimpeded by a nationalizing constitutional amendment.

For Rodgers, the Federalist Society and their colleagues helped to fracture a preexisting greater unity of ideas, which is certainly part of their own sense of origins. But there were multiple fracturings underway at the same time. We sought to shatter what to us seemed to be a hegemony furthered by our own classmates. For women on the margins, we sought to fracture a world that seemed to deny our experience. Our mere presence was a fracture. Perhaps this helps us to think about how we might write the next layer of the age of fracture – bringing the social and political history into the story, and layering the different narratives of fracture within each other, in a way that was simply not the project of Rodgers’ more sweeping narrative.

And I wonder if the periodization of fracture needs more nuance. There is an overlap at the beginning. We were still trying to break in in the early 80s, before Joan Scott and others shattered gender as a construct, as Rodgers takes up in chapter 5. Among ourselves, we were problematizing the collective “we” of earlier feminist writing, but we also needed that idea of gender solidarity in order to exist in an environment that seemed permeated with the unacknowledged gender solidarity of our male professors and students, and of the walls of the buildings themselves.

II. Time in the History of Constitutional Theory

What work is Time doing in the chapter “A Wrinkle in Time”? Sometimes “time” seems to be a stand-in for “history,” but the basic conceptualization of time, needed for there to be a “wrinkle in time” is the idea of time’s linearity. We might think of time’s linearity – its movement from a point in the past to (we hope) a distant point in the future is often assumed to a natural phenomenon. But our ideas about time come not from nature but from social life, Durkheim argued long ago. And even the idea of time’s linearity, anthropologist Carol Greenhouse has argued, itself comes from culture not from nature. [7]

William Sewell points to historians’ “implicit or working theories about social temporality.” Historians “believe that time is fateful,” he writes. “Time is irreversible,” as an event is lodged in the memory of those whom it affects and therefore irrevocably alters the situation in which it occurs.” Further, historians believe that

every act is part of a sequence of actions and that its effects are profoundly dependent upon its place in the sequence . . . . Historians assume that the outcome of any action, event, or trend is likely to be contingent, that its effects will depend upon the particular complex temporal sequence of which it is a part.

Rodgers’ understanding of the path of ideas in time is consistent with Sewell’s depiction of historians’ temporality. But within this framework, there is, for Sewell, a “diversity of temporalities” as well as an assumption that time is heterogeneous. He suggests that “Temporal heterogeneity implies causal heterogeneity. It implies that the consequences of a given act are not intrinsic in the act but rather will depend on the nature of the social world within which it takes place.” [8]

The contemporary history of time literature also stresses temporal heterogeneity. Thomas Allen writes: “the homogeneity of time that supposedly results from the centrality of such instruments as clocks, watches, and calendars to modern life is
only possible if technologies produce time by themselves.” Heterogeneous temporalities do not drive people apart, Allen argues, – so arguably are not the source of fractures – but instead “are themselves the threads out of which the fabric of national belonging has long been woven.” [9]

Age of Fracture seems to present its thinkers in a common temporality. The differences do not come from their experience of time, but instead from what they do with it. The constitutional originalists attempt to wrinkle time, he argues – to fold it back upon itself, so that present and past occupy the same moment.

In some ways, legal thought always involves this wrinkling. The past is always present in legal analysis because precedent – past cases – is an essential part of the lawyer’s tool kit. So I think the battle over constitutional theory in the 80s and after was not about whether to wrinkle time, but what sort of wrinkling was in order.

The 80s originalists, and the rest of constitutional theory, were working within the terms of Bickel’s critique of judicial review. Bickel was the most important voice in a series of works on the nature and role of judicial review in the aftermath of Brown, and also with the memory of the New Deal-era crisis over the court.

Bickel’s seminal contribution was the idea of the counter-majoritarian difficulty. In The Least Dangerous Branch, he argued that judicial review (the power of courts to strike down statutes) is inherently problematic in a democracy because courts overturn majoritarian will. Because of this, he argued for a restrained approach to judging.

1980s originalism was one answer to the counter-majoritarian difficulty. For Bickel, judges have a constitutional role, but that role must be constrained due to the counter-majoritarian difficulty. For other conservative legal thinkers, one way to constrain judicial review was originalism – so that judges would not be a band of platonic guardians displacing the majority’s will, but would play the more limited role warranted in a democracy. [10] Others, like liberal constitutional theorist John Hart Ely, also worked within the counter-majoritarian framework, carving out arguments for a more expansive role for courts within the terms of the counter-majoritarian difficulty. [11]

Putting Bickel in the center of the narrative might help us to see the originalists not as fracturing a conceptual order put in place by constitutional liberalism and the Warren Court. Instead, originalism was one methodology for responding to a critique that came earlier than the 80s, and was positioned not on the left but somewhere right of center.

Bruce Ackerman’s innovation was to argue that time mattered in a different way in constitutional theory, thereby pushing Bickel to the sidelines. “The people” – the nation’s constitutional sovereign – speak at different times in different ways, he argued, and it was in extraordinary “constitutional moments” (distinguished from everyday regular politics) that they articulate their foundational values which are then imbedded in the constitution’s meaning, whether or not the text of the constitution itself is amended. So for Ackerman, constitutional history simply had more wrinkles to it. There were more past moments that had to be brought forward to the present – most importantly the New Deal crisis over constitutional meaning, which, for Ackerman resulted not only in an extraordinary political moment, but the actual amendment of the constitution. [12]

In some ways, Ackerman’s work embodies Greenhouse’s argument that ideas of time come not from nature but from social life. The constitution’s times, for Ackerman, could not be determined from looking to formal signs, like the actual use of Article V to formally amend the constitution. Instead a constitution’s extraordinary times can be found in the life of the people, and the moments in which they take it upon themselves to infuse their age’s meaning into the constitution’s sparse words.

So in Age of Fracture, time works as an argument in legal thought, but not as an experience. I wonder whether future ages – for example an age in which electronic communications are immediate and fleeting – yet also enduring – with be thought to turn more fundamentally on an idea that the experience of time itself is fractured.

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1. Alexander Bickel’s most influential book is The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Bobbs-Merrill, 1962).

2. Bruce Ackerman’s turn away from Bickel’s critique of judicial review appears in a body of work including We the People, Volume 1: Foundations (Cambridge, MA: Belknap/Harvard University Press, 1991).

3. Judith Jarvis Thomson told this story to members of the Yale Law Association, myself included, when we had lunch while she was visiting at Yale.

4. I was a first year student at Yale Law School in the fall of 1980.

5. Rogers, Age of Fracture, 8. For a more detailed treatment of the Federalist Society, see Stephen M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2008).

6. George W. Hicks, Jr., “The Conservative Influence of the Federalist Society on the Harvard Law School Student Body,” Harvard Journal of Law & Public Policy 29 (Spring, 2006): 623-718.

7. Carol Greenhouse, A Moment’s Notice: Time Politics across Cultures (Ithaca, NY: Cornell University Press, 1996).

8. William Sewell, Logics of History: Social Theory and Social Transformation (Chicago: University of Chicago Press, 2005), 6–7, 9–10.

9. Thomas M. Allen, A Republic in Time: Temporality and Social Imagination in Nineteenth-Century America (Chapel Hill, University of North Carolina Press, 2007), 10-11.

10. A particularly influential critique of originalism is H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review 98 (March 1984): 885-948.

11. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).

12. Bruce Ackerman, We the People, Volume 2: Transformations (Cambridge, MA: Belknap/Harvard University Press, 1998).

17 Thoughts on this Post

  1. 1) Could someone bracket the numbers for the citations? In a couple of places they’re plopped right in the middle of paragraphs and it’s distracting.

    2) “We might think of time’s linearity – its movement from a point in the past to (we hope) a distant point in the future is often assumed to [be] a natural phenomenon. But our ideas about time come not from nature but from social life, Durkheim argued long ago. And even the idea of time’s linearity, anthropologist Carol Greenhouse has argued, itself comes from culture not from nature.”

    As T-symmetry exists exactly nowhere in the observable universe, I think we are safe in assuming that time’s linearity is in fact a natural phenomenon, the efforts of sociologists and anthropologists, not to mention physicists and philosophers, to prove otherwise notwithstanding.

    That said, it’s important that Rodgers – and Prof. Dudziak – is thinking about time, as it is something historians do not pay enough attention to. Not nearly enough.

  2. Thanks, Andrew. You have provided a boon to us lazy readers everywhere. As for me being in charge of formatting, the blog is great without me mucking around with it. More than I already do, I mean!

  3. Andrew — thanks for posting this and for putting the panel together.

    For anyone who has wandered from the web to this post, the place to start is Andrew’s great comment on Dan Rodgers’ book, which lays out the his central arguments.

    Varad — thanks for your comment. There’s more to come on time, especially “wartime” as a form of time: http://www.amazon.com/War-Time-Idea-History-Consequences/dp/0199775230/ref=sr_1_3?s=books&ie=UTF8&qid=1309761575&sr=1-3

  4. The problem of time is one of the things that makes history — and life — both interesting and difficult. This whole mortality thing is a real pain in the rear, and it seems to me that many ways of reckoning time are in some sense an attempt to reckon existentially with that problem.

    The linearity of time certainly makes sense to a modern Western bourgeois self like me, but as a historian of ideas/sensibilities, I can’t help but think that it’s precisely the ideas which seem the most self-evident that would most reward scrutiny.

    I’m working on a seminar paper that I hope will turn into an extended discussion of time and history, and the vexed relationship between the past and the present. I’m still developing the vocabulary and conceptual frame I need to think productively about this problem. But here’s one iteration of my ruminations:

    Something New

    I have to say, of the four responses to Rodgers, this one stood out for me — it hit some epistemic registers in the basso profundo range. Very intriguing, and in places tough to follow. But worth the effort — like Rodgers’ riddling book.

  5. “‘Continuity and change’ is the punchline trope for the jest of history.”

    LD, I keep reading “gist” there where you have “jest,” and I can’t decide if I’m right to do so. “Jest” works with your notion of a punchline, but “continuity and change” sort of is the gist of history, too. Maybe it’s a clever pun.

    “Fair warning: I am not a philosopher. Don’t have the chops for it.”

    Sorry, but that’s no excuse. If you are actually going to think about these things, you first must know what it is you are thinking about. That means delving into philosophy. So you need to read about presentism and eternalism. You need to acquaint yourself with the concept of personal identity, particularly the persistence of identity.

    “It seems almost absurd to talk of change along some arc from past to present.”

    Hello, Parmenides.

    Beyond that, it’s impossible not to get yourself tangled in the brambles and thickets of philosophy itself. Metaphysics is involved: What is the past? How is it? Where is it? What is time?

    Epistemology is involved: How do we know the past? How do we know the past is past? Why do we know the past?

    I suppose even the philosophy of language is implicated. To wit: What does it mean to say “Julius Caesar crossed the Rubicon?”

    There’s no shortcut. You have to read and think about these things to read and think about them. Read philosophy. Read philosophy of history. Then read and think some more. That way you will be able to participate in that great “extended discussion of time and history, and the vexed relationship between the past and the present” that we all partake in.

    The kind of history I was doing led me inexorably to these questions. Or, rather, I was always asking these questions, I just didn’t know it until I wound up doing the kind of history I do.

  6. Prof. Dudziak –

    I will definitely keep an eye out for your book, which I am glad you were immodest enough to plug here, since I don’t think I’d have known about it otherwise.

    I suspect I’m like most people who never thought about “time” in “wartime” and regarded that term as a shallow metaphor, the kind of boilerplate language we use in everyday speech reflexively. There is all kinds of history piled up in words if one looks for it and knows how.

    As I said before, I think it’s great that some historians at least do recognize that they are dealing with time. I wish more would. But bully for you!

  7. “Varad: What is ‘T-symmetry’?”

    Eric, that’s a very useful question, especially since I am no physicist, and therefore shouldn’t throw terms like that out.

    The short version is that the “T” stands for “time,” so T-symmetry is the symmetry of the physical laws of the universe with regard to time, i.e., their validity backwards or forward with respect to time. If you’ve ever heard someone say that there’s nothing in the laws of nature which requires time to move only in one direction, this is what they mean. Obviously, this is one instance where what is true in theory is not true in practice. The long version is the Wikpedia entry which, if you are like me, will be 90% or more incomprehensible to you.

    http://en.wikipedia.org/wiki/T-symmetry

  8. Or, to be really pithy (and paradoxical): T-symmetry is that which makes time linear by being absent from the universe.

  9. You say, “As T-symmetry exists exactly nowhere in the observable universe, I think we are safe in assuming that time’s linearity is in fact a natural phenomenon, the efforts of sociologists and anthropologists, not to mention physicists and philosophers, to prove otherwise notwithstanding.” thank you for your clarification.

    The point of the wikipedia page that you cite, as i understand it, is that thermodynamics and other developments in physics suggest that time can only run in one direction (very colloquially put)–that is, you can’t run things backwards. as you say, T-symmetry exists nowhere.

    what does this have to do with the constructedness of notions of time? i think it’s a long way to go between this point, which seems to me to most directly have to do with the calculability of physical phenomena, and, say, Bejaminian messianic temporality (about which one of course might have much to complain).

    maybe more pointedly, i’m not sure that it is the same to say that time is irreversible and to say that it is linear.

    We might, in a very intellectual-historical mode, point out that Dudziak cites Durkheim in support of her argument about the social construction of time. Durkheim was writing in no small measure against Bergson, who was himself profoundly influenced by the debates in theoretical physics at the turn of the century around exactly this question (Einstein!). this isn’t exactly a conceptual point, but i think it is a point in the history of ideas: the notion of the social construction of time (or, perhaps, temporality) arose very much in response to the challenge presented by physicists to common-sense and traditionally philosophical notions of time. so, again, i would suggest that linearity is not at all the same as irreversibility, and conversely that in rejecting the linearity of time, one by no means asserts its *mathematical* reversibility.

  10. Eric, it’s all well and good to talk about the social construction of time. But one can’t extrapolate from that to the notion that the idea of linearity comes from culture rather than nature, as Carol Greenhouse apparently does. I have no problem with Durkheim; time is embedded in social life, obviously so. But the stance Greenhouse adopts (if the description is accurate) is bunk.

    Linearity simply means that something behaves as a line. Time is linear because we perceive it as moving in a line. A line can go forward and backwards, but time’s line is an arrow which moves only in one direction, forward. Hence the idea of time’s irreversibility implies, if it does not entail, its forward linearity, that it is an arrow.

    As you point out, the idea of time as socially constructed arose as a response to developments in physics which indicated that how time actually works is different than the way human minds think it works. Philosophers still think of time in ways physicists say are impossible. But that’s the point. Both are necessary, and both emanate from the human desire to understand time. But it’s simply a fallacy to suggest that because human culture possesses a sense of temporal linearity, that sense can only originate there and has therefore been projected onto nature. No, the reason we think the universe moves along time’s arrow is because that’s how the universe works. That holds whether one adhres to a Newtonian or Kantian view of the nature of time.

    I think I’m actually agreeing with you that one can speak legitimately of the social construction of time, or at least of how time functions in society and culture. I find this side of it, the philosophical side, much more interesting (and comprehensible!). What I object to is the notion that this actually tells us anything about the actual structure of time and the universe. People can believe time isn’t linear. But they can also believe in spontaneous generation. Thinking doesn’t make it so.

    “i would suggest that linearity is not at all the same as irreversibility, and conversely that in rejecting the linearity of time, one by no means asserts its *mathematical* reversibility.”

    If you say that, you are proposing an understanding of time which is consonant with neither the Big Bang nor the second law of thermodynamics. So what are you proposing?

  11. Varad,

    We indeed agree about many things here. We’d have to talk about what is meant in different situations by the ‘linearity’ of time. I myself do not believe that historians gain anything at all from actively attempting to square their work with theoretical physics. there’s simply too much explanatory space between the laws of thermodynamics and any recognizable historiography for the relation between them to be interesting. at least this is generally the case–but i wouldn’t want to minimize the issues here, or the space for possible disagreement. people have been arguing about it for a long time.

    I don’t know Greenhouse’s work at all, but my understanding of Dudziak’s point is that constitutional or legal time, so to speak, is not linear in the sense that it is structured by a sequence of events or equivalent moments that could be arrayed on a line, one following the other, and which could not be reversed. some moments are exceptional, some return, some are erased–some moments overlap with one another. this is not a transcendental deduction about the nature of time and its constructedness (or something) but a historical argument about how legal regimes handle their own articulation (or, if you like, how people articulate legal regimes across time). Does anyone else–like perhaps professor Dudziak herself–want to weigh in here?

    Since we’re agreeing both that modern science should be (at least grudgingly) respected and that we aren’t familiar with the specific arguments Greenhouse makes (or Dudziak, elsewhere in her writings)–since we agree on that, the question seems to me really to be how seriously historians who want to think about the nature of time ought to take how physicists think about time. Does that seem like a fair description of the question?

  12. Eric,

    If I used both my hands to count the reasons historians should know about Minkowski space-time manifolds, I would have ten fingers left when I finished. I think your description of the question is a fair one, re: to what extent historians should heed scientific accounts of time in their own. I’d say it’d be nice for them to be cognizant of them, but beyond that I wouldn’t demand much, if anything.

    My objection was solely to the sort of cultural determinism I took Greenhouse to be advocating. I have no patience for that sort of thing. I have no problem with suggesting that notions of temporal linearity can be culturally determined. It’s what I argue in my own work about the idea of modernity. But it’s irresponsible to try to paint that cultural determinism onto accounts of nature, as though that’s the only reason people might think of nature in a certain way. There could be some culture out there that believes it’s possible for humans to breathe in the vacuum of space. They’re in for a rude shock if they ever manage to get there and decide to eschew space suits. The culture first/culture is everything stuff, as I said, I find intolerable.

    That’s what I was rejecting. We can talk about culture and nature without having to explain, let alone justify, the one by the other. That I think is best way to go about things.

  13. Varad — just a quick point about Greenhouse. She’s not doing this:
    “But it’s irresponsible to try to paint that cultural determinism onto accounts of nature, as though that’s the only reason people might think of nature in a certain way.”
    Instead she’s arguing against an assumed determinism about time. You might like her book. And for more on time — there is really interesting current work by historians and others. I draw upon it in a focused way — to unpack the way “wartime” is thought about, but someone like Thomas Allen, in A Republic in Time, interrogates temporality in a more sustained way. I like the book a lot. Also recommended: Hunt, Measuring Time, Making History; and Stephen Kern, The Culture of Time and Space.

  14. Prof. Dudziak –

    Thanks for the book recommendations. Allen’s book I purchased only last month. Both Hunt’s and Kern’s books are already on my virtual Google bookshelves. I’ll add Greenhouse’s, who I recognize I’m probably being unfair to. I have encountered the attitude I decry – the notion that one can simply dismiss temporal linearity with a wave of the hand and somehow that will alter the structure of the universe. What that really is is a naive dismissal of a naive, Whiggish view of history. But I shouldn’t be so hasty in assigning such a position to Greenhouse who, as she is actually studying the issue closely, would know better than to conflate linearity and historical Whiggism.

    With all these books, my virtual Google shelves are near overflowing. I might have to build another library!

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