Constitutionalism and the Global Intifada
An Essay in Originary Political Thinking
by Adam Katz (Feb. 2007)
The Global Intifada
There is at least one group out there which calls itself the “Global Intifada,” and the title has already emerged more broadly as a slogan aimed at gathering together all the strands of resistance to the West, or capitalism, or America, or the Jew-Crusader conspiracy or whatever the “system” passes as these days in the “resistant” imaginary. (See also this article by Phyllis Chessler: It is altogether fitting that the name given by Palestinians to their rebellion against Israel be used to designate this new global synthesis, tying together the “anti-globalization” movement, the Islamic jihad, remnants of the socialist and communist projects, the human rights NGOs and what we might call the collective “defense attorney” of all these movements: the global media and liberal-left parties within Western democratic systems. Both the origins of the Palestinian liberation movement and its contemporary degeneration into death cult reflect in extremely instructive ways upon the logic of today’s global Left, destructive, nihilistic, parasitic, and yet extremely effectively plugged into a wide range of networks representative of our post-Auschwitz moral and political order.
But the tendency of the global left to see itself as a commemoration of the Palestinian uprising is interesting for another reason: it might serve to remind us that things needn’t have gone in this direction; there were (and, therefore, perhaps still are) other alternative channels for the resentment inevitably produced by even the most successful global market system and which could, in fact, be transformed (“co-opted” as the Left’s favorite complaint has it) into a series of “checks and balances” on the massive and unwieldy social evolution underway. There have been, of course, two Palestinian Intifadas. The first, from December 1987 to 1990, was a much more hopeful event, self-limiting and directed toward dialogue with the Israeli people rather than signaling an urgent desire to exterminate them; and, until it degenerated into an orgy of score settling and inter-clan violence disguised as eliminating “collaborators,” it was a remarkably disciplined affair as well, generating a new, largely secular nationalist but independent vis a vis the PLO leadership which allowed for some serious discussion among Palestinians while presenting a relatively united and moderate front to the Israelis. This first Intifada was media savvy and attentive to divisions within Israeli society, especially regarding new Israeli uncertainties, moral qualms and forms of dissent (like civil disobedience among soldiers) following, in particular, the difficulties faced in Israel’s prolonged intervention in Lebanon.
So, what happened? On one level, such a popular revolt was probably unsustainable beyond a couple of years—without a generally accepted legitimate authority, revolutionary morale cannot resist the accumulation of social antagonisms in such a complicated society and one which had never experienced self-rule. But there were a couple of years, in which an opportunity to dramatically transform the terms of the conflict was lost by Israelis and Palestinians alike. It is easy to hold the Israelis responsible: rather than recognizing the new, essentially non-terrorist nature of the Palestinian revolt, they focused on crushing the uprising in an especially unproductive way: too violent and sweeping to encourage a new generation of leaders ready for co-existence to emerge and not violent enough to really be effective. The Israelis were not quite ready to think about a return to the problem of partitioning Palestine until it was too late. But the larger problem, ultimately, was on the Palestinian side, which failed to present what would have been a genuine breakthrough: the authorization of a new, indigenous leadership which would marginalize the PLO. The elements of such a leadership existed; indeed, a much more qualified and attractive leadership than that of Arafat’s PLO (and they were quite popular, too, completely free of any accusations of being Israeli “stooges” or “compradors”); and yet that leadership’s mantra, “our address is Tunis” (i.e., the location of Arafat’s clique) remained unaltered. Why?
“The Palestine Liberation Organization is the sole legitimate representative of the Palestinian people.” What a bizarre formulation! I suspect it is quite unique, among the forms of recognition of national liberation movements in Western or international fora. Two contrary methods of dealing with anti-colonial struggles are combined here in their extreme forms: on one side, the absolute, essentialized identification of the “people” with whoever manages to attain a monopoly on the use of violence putatively on their behalf; on the other hand, a bureaucratic simplification required by the compulsion to institutionalize and regulate all struggles: if we need to speak with or about the “Palestinian people,” well, this is who we speak with or about, it’s settled. There is much more involved here, though. No Palestinian organization, including the PLO, had “earned” such a designation in the “traditional” way, by inflicting serious damage upon the “oppressor,” or by liberating and holding territory. The PLO was completely negligible in military terms. Somehow, though, this was precisely the point: the inability of the PLO to become what they really already were was a sign of the vicious nature of Israeli dispossession and occupation, which has so silenced the Palestinians and demolished any of the traditional means by which they could represent themselves that external recognition is necessary. And we know that the PLO was indeed the “sole legitimate representative” because they were the ones who “seized the imagination of the world,” “brought the plight of the Palestinians to the attention of the public,” that is, through completely virtual criteria, or through the power of the media. In another twist of this series of tautologies, “electrifying” acts of international terrorism “prove” that the Palestinians had no other alternative because only those with no other alternative would resort to such means. Add to this the UN, an organization at that very moment finding its “voice” in exploiting the Cold War superpower standoff by inventing various forms of “recognition” for the “non-aligned,” and we have what Lee Harris has very perceptively called “honorific” sovereignty, a placeholder of a state that “should” be there.
Even more: the rights of the Palestinians themselves had no reality outside of a series of UN resolutions dating back to the refugee problem resulting from the 1948 Arab-Israeli war. Included in those resolutions were the subsequent ones following the 1967 and 1973 iterations of 1948 calling, in vague formulations, for “land for peace.” The “insertion” of the Palestinians into those clauses reflected a realization on the part of the Arab states that a rerouting of the conflict away from the state to state, superpower to superpower stalemate might suit their purposes better: rather than a war to obliterate a member UN state, the Arab-Israeli struggle could now be shoehorned into the anti-colonialist frame which had worked so well during the period of decolonization, and which proceeded so rapidly in large part due to the horror at all forms of “occupation” induced by the Nazi enormities. Somewhere along the line someone perceived the implicit genius of this new development, insofar as it turned the Jews into the new Nazis, and the Palestinians into the new Jews. The, now, “Israeli-Palestinian” conflict was to be, along, ominously, with the struggle against South African apartheid, the final anti-colonial struggle, and as such a test of the world’s newly minted prohibition on all forms of national, ethnic or racial oppression.
The “Palestinian people,” in short, was a political hologram. But the hologram had real effects, and it was precisely in the first Intifada that this tension between the hologram and the reality it had generated came into open conflict. Here, the Palestinians were faced with a choice: abandon the hologram, with its articulation of honorific rights—the return of the refugees, Jerusalem, the sanctity of the pre-67 borders—which really transformed the Palestinians into a portmanteau sign of a whole range of Arab/Muslim/Third World “issues”; or, they could jettison all that and take on a genuinely national form, negotiating with the Israelis people to people, with no preconditions but relying upon the emerging consensus in Israel that permanent rule over the Palestinians would be fatal to Jewish democracy in Israel. Giving up the hologram would be risky: the outcome of a pragmatic and moral dialogue with the Israelis would be uncertain, and the Palestinians would have to allow for the Israelis’ far greater power as well as their need to see the conflict in regional terms and not merely as a question of bilateral justice.
The Oslo agreement, in effect, tried to give the Israelis the people to people negotiation, with a balance of concessions to and assurances from the Palestinians, with the deferral of final arrangements in the hope that the mutual trust that would have meanwhile developed would make those issues manageable (or at least create some platform onto which the two sides could step back from the brink); but the insistence that the PLO become the new Palestinian Authority signaled to the Palestinians that they need not dismantle their hologram, and, of, course, this impression was reinforced by the Israelis’, for their own less than creditable reasons (not that they had much choice), signing on to the PLO’s role. Looking back, though, it is easy to see that while the Israelis took the negotiations seriously, which is to say as an open ended process, the Palestinians saw them in completely formal terms, as a kind of prolonged ceremony in which their rights would be officially delivered to them. This is why it seems (I wonder if anyone has actually measured it) that the suicide attacks (which the Palestinians used for the first time during the Oslo period) actually increased when the negotiations intensified: the more real the negotiations became, the more they threatened the hologram. The message of the suicide bombing, in that case, is that we hold your reality hostage to your recognition of our hologram. The saturation of the Palestinian media environment, during this same period, with what must be the most sustained and vicious campaign of racist vilification since the Nazis fits this analysis as well and adds to it: we will continue to build upon, fortify, and impose our constructed reality in what has now become a war between the hologramic or virtual reality and the reality of immersion in the world’s economic, political and cultural systems, what I will propose calling our constitutional reality. The eruption of the new, far more deadly and insidious Intifada in 2000 merely confirmed the decision that had already been made to consecrate the Palestinian people to the hologram, and to spread it virally throughout the world.
The sanctification of the Palestinians shrewdly intuits where the point of contact between these realities lie: in the articulation of White Guilt and victimary claims in the post-Auschwitz global order, an articulation which has itself been embedded, in its political form of transnational progressivism, in international law (and all of its attendant institutions, like the UN, the human rights NGOs, etc.) and the global media, which takes as given the “world picture” generated by the former. The hopes of transnational progressives, unalterably committed to the assumption that national sovereignty and unfettered property rights generated the antagonisms out of which two global conflagrations, a third of the like we will not survive, issued, have naturally come to reside in unaccountable international “norms” encoded and interpreted by “experts” whose expertise is translating signs of disorder and dissatisfaction into “rights” and “rights” into a harmoniously Byzantine system of increasingly comprehensive regulation. Postcolonial, postmodern international law provides us with a perpetual, virtual international tribunal in which world leaders and people are in the dock in direct proportion, first, to the relative power they exercise on the world scene and, second, their refusal to grant the a priori legitimacy of the tribunal itself and its myriad representatives. The global media, meanwhile, take as their mission the exposure of crimes, the serving of subpoenas and the compulsion of testimony on behalf of the tribunal. The hologramic reality is itself now globalized, in other words, and it has taken its sharpest form in the scapegoating of the Bush Administration. Think about what an indictment looks like: it is not, nor should it be, a balanced assessment of the actions of the accused; it is interested in the accused solely as a transgressor, and every fact, and every construal of fact that aids that representation, is included, while every fact and construal that would run counter to it is excluded, to the point of even excluding the actions of other agents that must have been part of the entire situation (in the setting of the trial this is proper, because there are other agencies charged with presenting the appropriate mitigations and alternative scenarios). Now, look at just about any attack on Bush Administration, as the quintessential representation of America in the dock, even the supposedly sober ones by respectable and “realistic” figures and outlets, and see how well it lines up with this description. (To give just one example, the otherwise incomprehensible obsession on the part of reporters with getting Bush to cop to a mistake, any mistake, makes very good sense in these terms—that’s exactly the kind of admission you would want to elicit for the record in a deposition. The same goes with the fixation on “lies,” even on the most marginal points, or where it is really an opinion or assessment being expressed rather than a act asserted: the idea is to prepare perjury indictments on top of the war crimes ones and, more broadly, to “discredit” witnesses.) The Global Intifada is this total array, this struggle over reality itself, with the hologram providing total extenuation to one side, whose actions can never be anything more than effects of the guilty practices of the “accused” (and therefore the more depraved those actions, the more “probative”) and unrelenting demonization of the other. The good news is that the Global Intifada offers no alternative social order—unlike Communism, it has no economic, political or cultural program or even strategy. (What program could hold together jihadists and multiply-pierced Starbucks haters? Only finely honed hatred that doesn’t look beyond the immediate object of hatred could accomplish that.) The bad news is that unlike a revolutionary movement, which might want to preserve some of the reality it hopes to take over, and therefore might also find it useful to negotiate some rules of engagement, the Global Intifada is a virus which must—and knows that it must—ultimately devour the host upon which it depends as well. Any concession to any piece of the reality simulated by the transnational progressive world picture can only serve to intensify the demand that that picture be affirmed in toto. In other words, no negotiation is possible between the two realities: as Lincoln said about a Union split between freedom and slavery, the world will become all one thing or all the other, with the “other” most likely a new dark age.
Constitutionalism is the form of politics which uses the generation of new covenants to make social difference the source of complementarity rather than antagonism. A founding, deliberately constructed covenant is the result but even more the source of such a politics. For Hannah Arendt, covenanting was a way of addressing without curtailing the fundamentally contingent nature of human freedom: once I set in motion a new series of events there is no telling where it might lead, especially since such an initiative is likely to inspire similar ones on the part of others; the best way to ensure that it ends neither in violence nor an incoherent logjam is find some way to ratify and establish as a precedent the results of our respective interference in each others’ freedom and this is precisely what the covenant accomplishes. For the political theorist Daniel Elazar, covenanting and constitutionalism was one of the deep roots of Western civilization, one to which we are especially indebted to Judaism and, in modern times, Protestant, British and American civilizations. In addition to all this, I would like to add the reality constituting character of constitutionalism, which provides us with the only way of establishing some kind of reliable relation between causes and effects in social life that doesn’t depend upon coercion. To the extent that we can trust our freely given promises to each other, reality has a “solidity” and “density” to it that serves as an antidote to the nihilistic constructs of modernity and postmodernity alike.
To the classical liberal argument that the purpose of government is to protect property and contract constitutionalism adds the purpose of preserving and encouraging covenanting (exemplified in the founding of that government itself). It’s a subtle but significant addition, perhaps best explored by focusing, first of all, on what constitutionalism would share with classic, Lockean, and, more recently, Hayekian liberalism so as to set off the differences through contrast. What we would all agree upon is a preference for transforming to the extent possible the “vertical” relations between individuals and government not directly associated with assaults on persons or property into “horizontal” relations between networks of individuals. Libertarian political theory would be worth having around for nothing more than the encouragement it gives for creating thought experiments regarding arranging for retirement, unemployment, health care and other entitlements through private insurance arrangements which rely, in turn, upon stock and other markets in a virtuous circle of exchanges. Communities themselves might choose to hire agencies to care for the poor in their midst. Instead of health, safety and labor regulations, we might see the establishment of agencies which, for a fee, issue reports on the practices of the companies that provide us with food, medicine and other goods; those companies which refuse to provide such agencies with free access to their labs, farms and factories would suffer in the marketplace (perhaps the companies themselves and consumers would share the costs of the inspecting agencies). Employers who engage in unfair labor or destructive environmental practices might be subject to informational (or propaganda, if you like) campaigns and boycotts, which might become a significant form of political activity. There might be more lawsuits without clear regulatory guidance, but just as unions create strike funds various agents might learn to rely upon themselves and sympathetic members of the public to hedge against litigation (while we could certainly cap reward payments). Instead of the corrupt alliance we have today between the regulatory state and liberal experts the moral concerns generated by modern capitalism would be addressed through the marketplace itself.
Now, it seems to me clear that if we manage to push our social relations in this direction, we will have dramatically reduced certain kinds of governmental activity—the most unaccountable, unconstitutional varieties—but we will very likely have produced a great many new ones. In other words, the hopes for a simple shrinkage of government are likely to be disappointed as we promote an enormous proliferation of new contracts of great complexity. The courts would have to adjudicate all the conflicts resulting from stock market crashes leading to a drop in my pension account just when I need it—who was entrusted to make the investments, in accord with what obligations, with what checks and balances in play, etc.—no contract could be written to cover such activities which couldn’t be taken to imply a range of possible ways of answering these and other questions. And the legislative branch would have to pass laws aiming at narrowing the range of possible interpretation, the executive would have to decide upon prosecutorial priorities, and so on, all of an irreducibly political character, all taking us well beyond the mere protection of property and contract. The guiding maxim of government action would have to be to encourage the settling of conflicts over contractual obligations through the forging of covenants and, even more, to defer such conflicts in advance by giving contracts, to the extent possible, a covenantal character, binding the parties to behave honorably, to set standards for honorable behavior.
What we find at the center of such a politics (and here is where constitutionalism and covenanting point us beyond classical liberalism) is the never conclusively decided question of the fundamentally illegitimate contract. Our model here, of course, as with so much else in American and American inspired politics, is our experience with slavery, and our conviction that we could never accept the legitimacy of someone selling anyone, including themselves, into slavery, no matter how freely, how much access to all the relevant information and “market signals,” no matter what. But it is the fate of any model to be replicated and to find new applications—there can be no determination in advance of what situation we might find to be “similar” to another one. Who knows: it is even possible that the abolition of wage labor, the fundamental dependence of the individual upon finding someone to whom he can sell his free activity for a certain number of hours a day, will take place not, as Marx imagined, through the overthrow of private property and the market but as their logical extension, as the citizenry becomes so well educated with each individual having so much in the way of unique intellectual “content” to offer others that selling one’s “labor power” will be seen as an abomination. At any rate, it is only through reference to more foundational covenants that such distinctions can be made, at least in a peaceful manner. Unlike the contract, which recognizes a certain legal and political authority as arbiter, in covenanting we pledge our sacred honor and are therefore obliged to reject as dishonorable and therefore void certain forms of agreement.
At the heart of constitutionalist politics, then, will be the deferral of some form of agreement into which we are all tempted to enter but which we acknowledge will lead to rivalries and crises immune to mediation through our system of covenanting. The anthropological presupposition undergirding such an understanding of politics is provided by the originary scene hypothesized by Eric Gans, in which representation emerges as the deferral of violence: precisely that mode of violence which is destructive to the group, driven by mimetic rivalry and therefore contagious, cumulative and, past a certain point, irremediable. For those who would like a more “ennobling” or “principled” ground for politics (or humanity), the deferral of violence might seem rather disappointing. This should not be the case at all, though. Effective deferral contains all the qualities that we might find in principled, graceful or courageous activity while tracing all such activities to a common root. At one, more “disreputable,” side deferral stands for avoidance, “kicking problems down the road,” letting them get aggravated, leaving them for someone else to solve, and so on; at the other side, meanwhile, deferral places us right in the middle of an emergency, where there is only one thing (and it’s not obvious what) to be done to ward off instant and complete destruction. In between both of these possibilities is the intimation of a shared danger, the channeling of attention to those ways in which our own action have created and/or exacerbated the danger, and a diversion away from those forms of activity toward new ones in which all might participate. We thereby understand that force might be necessary against those who refuse to “de-escalate” while establishing clear criteria and justification for the resort to force; we accept that such an urgent situation, so fundamentally tied up in our basic make-up, can not be resolved once and for all but only “re-framed” and provided with various warning signs and cordoned off by protective “fences”; we produce memories and precedents, upon which any principled or courageous activity depends; while remembering that such memories and precedents will never be enough—we will always need someone ready to step into the breach. Thinking in terms of deferral involves the kind of “medium term” thinking that is central to constitutionalism: beyond the upcoming news or election cycle but well short of any utopian, conclusive solution to permanent problems.
Toward a Constitutionalist Politics of Amending
Consonant with such medium-term thinking is a politics of amending. I am suggesting that the most productive way of organizing and conducting a constitutionalist politics in the coming years will be around overlapping movements in support of constitutional amendments. It seems to me there is already some movement in this direction: for example, in the suggestion that we amend the Constitution to, at the very least, forbid the judiciary from inventing a new “right” to gay marriage (along with the amendments to state constitutions being passed across the country), as well as the recent initiative banning affirmative action in Michigan. Some of the outrage over the Kelo decision seems to me to point in this direction as well. Such a politics has much to recommend it: first of all, it frees citizens from support for specific candidates, who can easily betray their supporters—instead, citizens can compel candidates to compete with each over who most credibly promises support for the amendment in question; second, the progressivist left would be terrified by such a politics, based on building not just majorities (which they can’t obtain while honestly proclaiming their views) but supermajorities and aimed therefore at restoring the fundamental cultural arrangments progressives have committed themselves to dissolving; third, it can be a very productive way of deferring conflicts amongst conservatives, libertarians and constitutionalists, since we can always work toward open-ended language that is generally satisfactory but leaves enough questions open so that everyone can then try to inflect the results in their own way; finally, it would be a very sustained and pedagogical approach to politics, requiring lengthy dialogues in every part of the country over long periods of time, while along the way more short term ways of addressing the issue at stake will undoubtedly shape the discussion in unanticipated ways.
Obviously, there have not been a lot of Constitutional amendments in our history: it is very difficult to accomplish. But, if we can agree that almost every social and cultural force currently endangering our polity and civilization can in one way or another be traced back to judicial usurpations of power (whether it be helping undermine equality under the law through affirmative action; banning public expressions of faith; blocking alternatives to public education; instituting a regime of expanded criminal’s rights; stifling all debate about abortion and, perhaps, soon, gay rights and marriage; and, even, now, interfering in our ability to wage war and subverting U.S. sovereignty) or ways of thinking that reflect judicial supremacy (like the taboos against racial profiling, which pre-empt the expanded interpretations of equality under the law we have come to expect), then constitutional amendments aimed very precisely at rolling back those usurpations might prove a concentrated and economic way of restoring a genuinely constitutionalist order. Most such amendments, following the example I just noted of the proposed amendment forbidding the judiciary from imposing gay marriage (while leaving the issue open to legislatures), could simply remove certain decisions from the hands of judges (a power Congress already has but which has clearly severely atrophied): an amendment removing jurisdiction over the armed forces, one banning the imposition of rules of conduct for law enforcement that can only benefit the guilty (like throwing out evidence illegally obtained), one abolishing the use of international law as a precedent or “controlling authority” for our courts, one banning affirmative action—of course, the problem of finding adequate language will range from ridiculously simple to extraordinarily complicated, but this is central to the pedagogical dimension of such a politics.
The prototypical Constitutional amendment (I am drawing, in particular, on the post-civil war amendments 13-15, but I think this will also apply to many of the amendments comprising the Bill of Rights itself) does the following (or is “framed” in the following terms): it re-consecrates some right implicitly already guaranteed by the Constitution (or the traditions streaming into it) by more precisely clearing away some concrete and newly visible obstacle to its exercise as a way of resolving and summing up the experience of some contemporary crisis sparked by our inadequate comprehension or application of that right. Amendments thus bring us back to our origins, reasserting the universality of the rights we hold sacred while embedding them in the specific traditions and struggles through which they have taken shape for us; they involve a kind of “repentance,” involving an implicit diagnosis of our failure to sustain those rights; and they look forward by placing the right in question on more secure and carefully “itemized” footing. Amendments are always—and the more “quintessential” the amendment, the more so—events which iterate the founding (even so self-explanatory an amendment as the Twenty-sixth, extending the vote to 18 year olds is very much a Vietnam-era amendment, sparked by the perceived anomaly of 18 year olds being able to fight for their country without being permitted to help shape the policies that would ask them to do so). They are, furthermore, events of deferral, as opposed to the more hasty referendum process, which is often driven by resentment, however justified. For a constitutional amendment to gain sufficient support and withstand the sustained scrutiny to which it will be subject it must be somewhat distanced from the direct interests and desires of everyone involved: everyone must have a certain faith that their agenda will prevail once the amendment is passed but no such certainty can be inscribed in the text of the amendment itself which, the wider its implications the more unpredictable must be the actual content of those implications. Meanwhile, the gap between text and implementation constitutes the political dynamic of the subsequent historical epoch as everyone has to interpret practically (through supplementary laws, new agencies, judicial interpretations, endless discussion, etc.) what they have just done. The process of promoting, passing and following up on amendments therefore gets us focused on our common indebtedness to the sacred center of the constitutional order we are extending and enhancing, which is ultimately the real result of the process.
The progressivist regime under which we still live despite the ongoing (but waning) conservative challenge, the reign of self-styled experts which sanctifies the “victim” of the normal, was itself an act of deferral: the very idea of “progress,” when applied not merely to specific activities but to human affairs as such, very literally defers all conflicts until some future time when they will become irrelevant because we will have advanced beyond them. Why argue about a particular set of arrangements now when we will all, soon enough, be technologically and scientifically advanced, wealthy, and healthy enough to see the issues we are willing to fight and die over today as trivial? Progressivism simply takes the next step and applies this thinking to our institutions and our consciousness, as if they were as given to rational manipulation as our modes of transportation. And once you can posit an “enlightened self-interest” that can reconcile, say, capital and labor, why not take the next step and project one that can reconcile conflicts between nations; and, further, what would be the ultimate reconciliation if not the abolition of nations themselves, the ultimate source of the conflict? The end of the process is the installation of the progressive mind itself as standard for settling social conflicts.
We ourselves must take responsibility for “outsourcing” our own participation in the deferral of violence to the progressivist regime, which comforts us by announcing that this or that issue has been “settled,” in precisely the way in which the dispute between Newtonian and Einsteinian physics might be settled. A politics of amending would single out those institutions which have usurped power but would also prohibit scapegoating those institutions, whose power also derives from the people, however indirectly. On some level, even normal, middle class, even conservative Americans must have come to be convinced (but, then, they must have been ready to be convinced) that our everyday practices and norms, the things we hold sacred, really were intrinsically violent toward various “others,” and this must mark some limitation in our practice of liberty that we can use that liberty to remedy. And so a reaction which doesn’t enhance our liberties in some way would find itself impotent to take on even what are ultimately overrated opponents like the media, judiciary and academy.
What we need, at the center of a politics of amendment, is one which would render unconstitutional all forms of aristocratic power exercised by experts. This would not be easy—as is often the case, the diagnosis is at lot easier than devising a remedy. I would propose, to get the discussion started, something like the following:
No institution which has not been created by this Constitution shall be granted privileges or immunities not granted to any citizen of or legally formed association in the United States; nor shall Congress pass any law promoting any institution as the unique bearer of rights guaranteed by this Constitution; nor shall the interpretation of this Constitution be the sole prerogative of any one branch of government created by it.
Such an amendment would be aimed, most directly, at the creeping privileging of the mainstream media as the object and guarantor of the freedom of the press: the assumption made by campaign finance law, for example, that the media is not simply another agency spending money to advance an agenda but a neutral arbiter embedded in the constitutional system; and the assumption made, seemingly by almost everyone, that gathering and exposing security secrets somehow means something different when it is done by the New York Times than when it is done by, say, a Chinese spy. At the same time it would expose broader assumptions regarding the “accrediting” of members of the media, the notion that the media has certain “rights” to be informed in accord with a particular schedule of, for example, events in the lives of public figures, and so on. And what further use might it have regarding the quasi-official status of universities, whereby American taxpayers subsidize what is essentially a proudly oppositional and subversive political party? I myself don’t know what laws, precisely, “privilege” the universities as unique bearers of the right to free speech, but I am sure others do. The final clause, meanwhile, strikes at the heart of judicial supremacy, the assumption that the Constitution means what the Supreme Court says it means, returning us to the more risky but certainly more legitimate understanding promoted by Lincoln in his response to the Dred Scott decision, to the effect that we are obliged to respect the particulars of a given Supreme Court decision without being obliged to treat that decision as automatically providing a rule to govern all “similar” cases.
Such an amendment would not “attack” the media, judiciary or universities (although it would certainly be attacked ferociously by them); in fact, an intelligent campaign waged on behalf of that amendment (which—and here lies the power of the politics I am proposing here—can easily flow into and out of, drawing from and supporting in turn, movements to advance many other, and easier and simpler, amendments) could divide these institutions most productively, drawing upon the support of at least a substantial minority of reporters, scholars and lawyers and judges and perhaps encouraging the growth of alternative media outlets, degree-granting institutions and bar associations. And if the amendment seems to be stuffed with heterogeneous material, to be a bit unwieldy, well, take a look at the Fourteenth Amendment or even the Fifth—there is no obvious connection, in the former, between “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States” or, in the latter, between the prohibition on double jeopardy and “nor shall private property be taken for public use, without just compensation”: in the former case, forward looking guarantees are mixed up with unfinished business; in the latter, what from an abstract perspective are very different rights are surely elements of a common ensemble of traditional rights which would have obscured, for those ratifying the Bill of Rights, what to us might look like rough edges. Similarly, the amendment proposed here would be marked by a necessarily imperfect sense that the gradual erasure of constitutional liberties, exacerbated by a strange weakness of will in dealing with or even accurately describing our enemies, and thus placing our very ability and hence our right to govern ourselves at stake, has something to do with what looks like collusion between what are on one level the very different institutions of the media, the academy and the judiciary.
Such an amending politics would help inaugurate what David Brin has called the “century of amateurs.” Mark Steyn has surely been right to claim that if there is one thing that our post-9/11 history has revealed, it is the complete uselessness of “experts.” Every power granted to some expert (everything, that is, outside of the circumscribed sphere of client and professional, a specific skill or delegation and the practical task to which it is applied) is one taken away from someone on the ground, someone who might reasonably be held responsible if we give him enough space and who has the best chance of dealing with the situation intelligently rather than formulaically. And the Global Intifada draws its strength, like a postmodern Antaeus, from our formulas. To take one example, racial, ethnic, or religious profiling can, indeed, become formulaic, once it is turned into a “checklist” of “things to look for.” But it can never be nearly as destructive a formula as one forbidding all such profiling, because the former is inherently open to input and the empirical (yes, terrorists can start to draw upon Western converts, and have them keep their original names—but that will just give us something new to look for, the point is that we are looking)—the latter, though, which is the type of counter-intuitive formula that most perfectly marks today’s expert, closes off the give and take between reality and the intellect. And it is only that give and take, which we are now, after a century of totalitarian unreality infecting our own, able to see as extraordinarily difficult to sustain, which provides us with all we need in our current war; it is examples of that give and take, what we can call “iconic intelligences,” that must be sanctified as our constitutional order draws new life from the amateur, he or she who acts out of sheer love for the activity.
One might almost say that the Global Intifada is a monster created by the dysfunction of our “feedback” mechanisms: when I act I transform the world, which in turn sends me back information on how the world has in fact been changed; among that information is the results of the actions of others, whose interventions modify my own, and remind me that for me as well as for others some of the changes are intended and some unintended, some within my control, others outside of it. As a result of the emergence of these distinctions, I establish a filtering and sorting process, capable of dividing up reality into the intended and unintended, controllable and uncontrollable. New information is now automatically distributed into these categories in a kind of preliminary vetting, allowing for more thoughtful and complex actions, including conscious efforts at coordinating my actions with others attending to similar objects and projects. If my filtering and sorting process, which becomes my “interface” with reality, however, becomes incapable of making these distinctions in a reliable way, I end up retreating by attempting to apply them to the filtering and sorting apparatus itself—that is, I shift my attention to the formal make-up of the screen rather than the reality it should be measuring. This happens because something has happened that has made the distinctions too small to make: let’s posit some experience in which the more the world came to conform to my intentions, the more it came to be under my control, the more unintentional and uncontrollable the consequences which followed. This, in turn, would have happened because my intended consequences have, or threaten to, set me on a collision course with the intentions of others, powerful enough themselves to make my plans unrecognizable to myself even if fulfilled, while the challenge of coordinating actions with others seems too daunting; which, to take one more step, testifies to some inadequacy in our respective deferral procedures: we pursue some object which we have not found a way of dividing or sharing to our mutual satisfaction. Someone who is completely uninterested in such a discovery procedure, whose power derives precisely from the inability or refusal to distinguish between separate spheres and responsibilities because they are in “total” opposition, can easily enter the confusion and systematically interfere with my attempts to regularize the “screen”: my attempts to find some predictability in the relation between intention and effect, most obviously if desperately carried out in the search for “stability” on the screen, singling out narrower and narrower frames of reference (because at the very least I can try and change as little as possible and thereby reduce inputs which might disturb familiar fluctuations in my increasingly limited data flow), now becomes a very easily targeted weakest link. The only solution is to invent new procedures, new forms of cooperation, which can only be done in relation to discrete projects with measurable and shared risks and outcomes, providing new information flows too rapid and complex to be submitted to the outmoded process of filtering, which we can now see was nothing up a collection of reactions to undesirable consequences which, at a particular moment, became overwhelmingly present and therefore definitive of reality, making what I most feared inseparable from what I had actually wanted to happen. We need much more reality, immersion in reality, in short, and the only way to obtain it is in a participatory manner, along with others, whoever will place themselves on the line with, covenant with, us, and to formalize and test the experiences thereby generated at a tempo or “frequency” beyond the measuring capacities of our dominant “interfaces”: we might then find that we have created a new object and renewed sacred center which we can share, that new object being the structures of cooperation and modes of participation themselves.
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