I have said before, though I don’t think in writing, that our system of law is powerful not for the reasons that it seems to be powerful, like the enforcement of rules or the distribution of consequences, but because it’s a tradition giving basic, slightly concealed form to the discourse about how things ought to be. Participating in that tradition is not just a matter of learning a particular vocabulary, upholding a practice of binding people under rules, or formulating arguments according to certain patterns; joining the legal tradition is a subtle process of socialization into the idea, which is rarely articulated clearly, that even when things change, we keep talking about them as though they haven’t.
Or I might say that the law is only apparently firm, but also only superficially mysterious: it works best when people believe in it so securely that they stop thinking about it, and let it change—and the moment you start thinking about it, things start to seize up. There’s a narrow band of mental states where it really works, and it’s easy to slip one way or the other, into fundamentalism or nihilism. (I have an even pithier way of putting it, but I’m loath to write it down. If you know me, you’ll have to ask.)
Given that ground of my crazy views, it was a pleasant surprise this morning to find a paper called “Enumeration and Continuity,” in which Richard Primus says this:
“For better and for worse, American constitutional law is not only about the mechanics of government; it is also about the romance of intergenerational national identity. Individuals’ sense of identification with the regime is an important ingredient in legitimate democratic government, and in the United States identification with the regime is broadly bound up with a sense of connection to a grand national narrative, one in which fidelity to a vision of government handed down by legendary Founders plays a central role. Discursive practices that link us to that narrative and to those Founders help create that sense of connection. To be clear, such symbolic and even romantic performances of historical continuity are not simply cynical shows for the benefit of poorly educated folks who must be duped into loyalty by theatrical mysticism. Lawyerly elites prize the sense of connection just as much as laypeople do, if not sometimes more so.”
So maybe may views aren’t completely nuts.
Read the rest of the paper for a stimulating take on the legal constitution of our federal government.