Northwestern University Law Review | 2019
Reconstituting We the People: Frederick Douglass and Jürgen Habermas in Conversation
Abstract
This Article draws on Black American intellectual history to offer an approach to fundamental questions of constitutional theory from the standpoint of the politically excluded. Democratic constitutional theory is vexed by a series of well-known challenges rooted in the inability to justify law without democracy (“the countermajoritarian difficulty”) and the inability to justify any particular composition of the popular demos without law (“the problem of constituent power”). Under conditions of genuine egalitarian political inclusion, a constitutional conception of popular sovereignty derived primarily from the civic republican constitutional patriotism associated with Jürgen Habermas and others can resolve these challenges by providing a conceptual basis for understanding the constitutional demos as a corporate body extending across time and capable of ongoing political legitimation. Unfortunately, the constitutional conception cannot justify states, such as the United States, characterized by the persistent exclusion of some legitimate members of the demos from political institutions. The resolution to this problem can be found in an important tradition in Black American constitutional thought, beginning with Frederick Douglass, which represents American constitutional institutions as conditionally worthy of attachment in virtue of their latent normative potential. The correct conception of constitutional legitimacy for the United States combines Douglass’s insights, and those of his intellectual heirs, with those working in the tradition which Habermas represents. AUTHOR—I thank participants at the 2019 National People of Color Legal Scholarship Conference, at the National Conference of Constitutional Law Scholars at Arizona State University, and in seminars at the Institute for Advanced Study, Georgetown University’s McDonough School of Business, McGill University’s Legal Theory Workshop, and the law schools of the University of California Irvine, Northwestern University, and Boston University for very helpful feedback on drafts of this paper and (with respect to most of the above) a predecessor paper, mostly deceased, but which N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 336 bravely evolved into the argument here. I also thank my colleagues at Iowa who very kindly participated in a workshop for this version. Finally, I thank my long-suffering and brilliant research assistants, Anne Carter and Haiyan Qu, for, inter alia, heroic efforts to clean up the citations and convince me to avoid writing 500-word sentences, and the editorial team at the Northwestern University Law Review for careful and extraordinarily helpful edits as well as for patiently tolerating my evident Bluebook allergy. INTRODUCTION ............................................................................................................ 336 I. THE MECHANICAL CONCEPTION AND CONVENTIONAL CONSTITUTIONAL THEORY ................................................................................... 338 A. Digging Deeper into the Mechanical Conception ....................................... 343 B. Why the Mechanical Conception Fails ....................................................... 345 II. THE CONSTITUTIONAL CONCEPTION..................................................................... 348 A. A Model of the Constitutional Conception .................................................. 354 B. How the Constitutional Conception Solves the Deficiencies of the Mechanical Conception .................................................................... 356 C. Black Exclusion and the Failure of the Constitutional Conception ............ 360 III. FREDERICK DOUGLASS’S CONSTITUTIONALISM AND CYNICAL FAITH ................... 373 A. Douglass on the Constitution and Slavery .................................................. 374 B. A Model of Black Constitutional Claimant Critique ................................... 382 C. Claimant Critique and Cynical Constitutional Faith in Black American Thought ............................................................................ 384 D. A Note in Defense of the Ever-Living Now ................................................. 405 CONCLUSION: BLACK CONSTITUTIONAL PATRIOTISM: “CHANGE THE JOKE AND SLIP THE YOKE” ........................................................................................... 408