William F Harris II, The Interpretable Constitution

If one were to take on the proverbial role of anthropologist or…”sociologist” with the external view of a legal system, one might be puzzled by a people who organized their public activity around some words written two centuries ago on a piece of paper.  In general appearance, this people might seem sophisticated and worldly enough, but the idea of creating a form of politics and regulating their collective action by instructions that happen to be on those pieces of paper might make them seem simple-minded or deluded, to say the least.  Or they may have conspired to fool the anthropologist.

From the external perspective of puzzlement, we might well think of these people as in fact simple-minded because they seem to feel a need to refer to these instructions to find out what they can authentically do and, hence, who they are.  It is written down on these pages.  They are the people of the text.

To say such a thing is to suggest the extent of their delusion.  They are unable to distinguish their authentic character from the story laid out there.  More than that, in their naive fatalism, they insist on being or becoming the people set out in the story.  Theirs is a constitutional play-acting according to script.  They seem to fear that in the absence of the script, their ad-libbed lines would cease to have order or meaning–to follow an authorized line of narrative–and the story would ravel out into loud random hollering.

Or perhaps the scenario is, after all, just play-acting to entertain the external observer and bemuse some of the less cognizant of their own members into a dull acquiescence.  In that case, the observer would want to find out what is really happening behind the stage, or outside the theater.  What is the “politics” of the matter?  Something shady may be going on here.  …

What the perspectives of these professional observers tends to cloud, however, is the sense in which this text-boundness and -centeredness actually creates an embracing order from the internal perspective.  The story, however mythic, or the drama, however contrived, still reveals this order, however artificial it may be.  The people go to the trouble to try to justify their goals, beliefs, and actions in terms of this document.  And it is their going to the trouble that becomes their main defining characteristic, however sophisticated the may really be in other matters.  Even if it were true that this people were not doing what they seem to be doing, why would they wish to seem to be?  What is at stake in this constitutional self-image?


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