Hopeful Commitment

Abstract

Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self- Government. New Haven: Yale University Press, 2001. Pp 272. $ 35, cloth. In Freedom and Time, Jed Rubenfeld asserts, "Time is necessary in a special way to the being of things human: of human being and hence of human freedom." Noting the pervasive impulse to link the idea of "living in the present" with the notion of freedom, Rubenfeld suggests that "a people can govern itself only by both being governed by its past and governing its future." According to Rubenfeld, most preexisting theories in constitutional law such as present-consensus constitutionalism, proceduralism, contractarianism, originalism, hypothetical-consent theory, and liberalism are based on an inadequate idea of temporality because they all rest on what he calls a "speech-modeled" conception of constitutional self-government: "If legitimate political authority derives from the will of the governed, then fundamental rights can be legitimated only by deriving them either (1) from the will of the governed at some particular moment-whether past, present, or predicted--or else (2) from truths lying outside the domain of temporal authority altogether." Thus, Rubenfeld contends, "Constitutional law is irreducibly temporal, and yet also irreducible to the political will of any given moment." In order to restore a temporal horizon to the idea of constitutional self-government, Rubenfeld proposes a shift from speech to writing as a paradigm of self-government: "Government by present voice is incompatible with law, because law can never be merely spoken. It requires a writing; it requires language preserved over time." According to Rubenfeld, this temporal reorientation in constitutional law would solve many apparent conundrums in constitutional law, such as the so-called counter-majoritarian difficulty, as such problems arise from the speechmodeled conception of self-government. The book is devoted to a demonstration of this possibility.