The Myth of Eternal Return and the Politics of Judicial Review

Abstract

"Some people see in all earthly things only a dreary cyclical movement," Heinrich Heine wrote around 1833.1 "In contrast to the fatal and indeed fatalistic view," he added, "there is a brighter view, more closely related to the idea of providence." As Heine described it, from this alternative perspective "all earthly things are maturing towards a beautiful state of perfection ... a higher, godlike condition of the human race, whose moral and political struggles will at last lead to the holiest peace, the purest brotherhood, and the most everlasting happiness."

Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law.4 As such, constitutionalism began its life linked to "dreary cyclical" stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long.