In today’s episode of the Telos Press Podcast, Camelia Raghinaru talks with Aryeh Botwinick about his article “Epistemological Skepticism, Textual Skepticism, and the Role of Constitutions,” from Telos 189 (Winter 2019). An excerpt of the article appears below. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Purchase a print copy of Telos 189 in our online store.
Epistemological Skepticism, Textual Skepticism, and the Role of Constitutions
Aryeh Botwinick
In an international political climate in countries such as the United States, Egypt, and Russia, where constitutions are proving to be persistently irrelevant in raising the political level of the government and citizenry, it behooves us to take stock of what the strategic, moral, and philosophical justifications of constitutions are. The U.S. Constitution with the core liberal values that it represents in no way blocked the election of Donald Trump. In Egypt, the massive demonstrations at Tahrir Square, which expressed such deep, unquenchable democratic yearnings, failed to transform themselves into a democratic constitutional blueprint and set of practices. In Russia, the collapse of the Soviet regime failed to engender a successful transitional phase to a liberal-democratic or social-democratic constitutional order.
Do these significant pieces of evidence suggest that nation-building connected with constitution-building is a relic from a bygone era that is no longer integral to capturing the dynamics of historical and political change? What historically have constitutions accomplished or failed to accomplish—and on what basis can they serve as fulcra for political responsiveness and responsibility in an era when many of the traditional markers of political development and change are getting eroded and superseded?
I will argue that constitutions, as the sacred texts of secular societies, have a crucial role to play in rhetorically broadcasting and reinforcing what primary values suffuse the collective identity of a society. In the United States, the Constitution has served as a constant reminder that majority rule has to be tempered by minority rights, that the substantive values that many democracies favor have to be kept in some kind of realistic alignment with the formal majoritarian procedures that govern political decision-making, which include protection of minorities. While protection of minority rights can facilitate the election of someone like Donald Trump through the medium of the institution of the electoral college, it can also protect basic freedoms pertaining to speech and to religion through the intermediacy of the First Amendment. My paper will attempt to explore how and why the image of successful, long-lasting constitutions is a minimalist image through a discussion of the relationship between epistemological skepticism generally and textual skepticism specifically. This analysis should also shed light on how constitutions can be invoked for politically creative ends despite the fact that their wording constitutes the legacy of earlier generations.
The U.S. Constitution was the first written modern constitution. How did it come to be written? Probably the most persuasive answer to this question has to do with the type of constitution that the British (the nation, of course, that the colonists were fighting against) had. The British, then and now, were famous for their unwritten constitution. “Unwritten” does not mean that there was no text that could enlighten British citizens about the content of public law in England. “Unwritten” only meant that there was no specific document concerned to delineate the scope and limit of governmental powers, but only the general pool of parliamentary enactments and judicial decisions from which one could inductively infer where British law stood on any particular issue or topic at any given time. One of the perceived grievances against England during the later colonial era was precisely the absence of a fundamental charter outlining the basic distribution of governmental power that could have served as a hedge against its continuing interventions in the daily commercial and personal lives of the colonists.
In order to grasp the meaning and role of modern constitutions, we need to raise the question of whether the leaders of Whig opinion in the colonies were right in their projection of the restraining power of a written constitution and of how a constitution that was merely implicit in the rule of law itself would amount to a denial of fundamental human rights. There are a number of interrelated points to be made about this reading that call it radically into question.
One of the first things to notice about this equation of the absence of a written constitution with greater vulnerability on the issue of infringement of rights is that it is belied by James Madison’s role as the chief architect and writer of the Constitution. There is a strong relationship between Thomas Hobbes’s substantive minimalism as evinced in Leviathan and Madison’s formal minimalism as exhibited in the U.S. Constitution. The pivot of Hobbes’s philosophical liberalism is the notion that all citizens can be presumed to acquiesce in the establishment of the political sovereign because without this postulation the organizing principle of liberalism that political authority rests upon the consent of the governed could not be operationalized. Given Hobbes’s extreme nominalist position that it is not only universals that do not have an independent, autonomous existence but particulars also do not exist on their own in the world but are constructed by human imagination and the resources of language out of whatever sensory traces we confront in the world, there is no way a common medium of verbal communication could be established in the world left only to the momentum of human verbal interaction. Without presupposing the role of the sovereign as what J.W.N. Watkins called the “Sovereign Definer,” who ratifies through his nonintervention the linguistic usages that have obtained currency in any given society at any given time, we cannot reconstruct how human communication becomes possible. For Hobbes, for all intents and purposes, the philosophical archetype of the political principle of no authority without consent becomes the political principle and is all that is required to underwrite the structure of liberal government. This is why the notion of accountability institutionalized as periodic elections is redundant and alien to Hobbes’s political sensibility.
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