By Christine Desan

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The vocabulary of time is exhausted: from the “post-modern” to “Generation X,” it expresses fatigue with the sequence of our efforts. We have mapped our steps with any number of methods—millennial to scientific, Enlightened to romantic, Marxist to positivist, Whig to progressive, neo-Whig to neo-progressive, soup to nuts. History, however, may have escaped us long ago. This essay experiments by taking seriously the possibility that coherence is a temporal event, a movement that clarifies experience over time by sacrificing past uncertainty to a comprehensible present. Such an approach, developed in a concerted way, could reveal from a different angle the way the constitutional order of a community unfolds, endures, or changes.

The conventional approaches to time are familiar. As a matter of historical narrative, we debate a particular trajectory. Most frequently in legal histories, it is a national or state story, but it can also describe the experience of a group—women, the working class, the African-American enslaved. This narrative, which may be celebratory or critical, progressive or nostalgic, a tale of inclusion or exclusion and oppression, operates against a baseline, a shared memory of the way things were before. It maps out a later equilibrium; in the best accounts, we understand a set of debates about alternatives that will write a community’s future—as hewing to national or local power, libertarian or protective possibilities, communal or competitive theories. Contested as it may be, the equilibrium is implicitly unitary: a particular order prevails or, at least, predominates. In the standard account of the American system, for example, a constitutional design is formed in popular conventions, elaborated by legislatures, implemented by the executive, interpreted and adjusted by courts. The resulting narratives may assume that government officials represent popular constituencies, or explore the myriad ways in which courts and legislatures reflect social forces, including the clash of interests, the power of ideas, and discrepancies in power. Change occurs in these histories in a variety of ways: formalists at one pole may highlight moments of constitutional amendment while realists sketch the transformations effectuated in constitutional doctrine by judges in common law fashion. Many attend to the issue whether and how people participate in constitutional formation. In each case, the issue remains to identify the underlying design of government, put into place by the relevant authorities in exchange with others around them. Agency, the act of decision and its distribution, obsesses author and audience alike. Time, in this account, is a shared record of those determinations, a path of steps that traces the life of a community.

The structure of these histories comports with our current theories of constitutional decision-making. The mainstream approaches from rights theorists and utilitarians alike manage past and future as a positivist sequence, running through the present moment. In that alternative, the character of change is imagined in common instants. We are invited to consider or participate in ideal worlds of deliberation, individual exchange, or preference evaluation. Decision is the focus there, as opposed to movement, in the sense of experience, learning, or reaction. Decision is, of course, dramatic—institutions, patterns of authority, practices, worlds change with states of mind. Reason chooses, and an imagined politics—an applied process of agency or will—replaces the contextualized processes recorded in the historical narratives. That politics transforms the program, here as there. Time, again, maps a decisional sequence along an axis of past to future.

On closer look, the passage of time in these accounts has a curious quality. As suggested by the motif of the graph, it appears as a series of moments. When we contemplate the past, it is as if we seek to confront and ordain the reality of those points. In turn, we seek to understand something about the path of our community.

The present essay suggests, although very speculatively, another approach to the problem. It argues that, at least for this moment, we should conceive time within constitutional experience quite differently. Rather than conceiving time as a series of points, we should think of time as movement, the creative manufacture of the present out of the past. Rather than considering the path that may be created by a series of points, we should consider the qualities that might attach to a phenomenon of movement, to our own predicament as beings constantly losing a set of possibilities and always getting the present ground. The essay attempts in that way to change the focus of inquiry. The question is no longer whether or what has been chosen in a regime assumed to be unitary. Rather, the question is how the passage of time instills a sense of the present, how the experience it produces reiterates a particular conception of constitutional authority, and how the character of that order as coincidental should affect our assumptions about human action, including agency and consent.