A Political Theology for a Civil Religion_Paul Kahn

8/12/2019 A Political Theology for a Civil Religion_Paul Kahn

1/28

Funded by European Research Council7th Framework Programme

LECTURE

A POLITICALTHEOLOGYFORACIVILRELIGION

PAULW. KAHN

JANUARY2012


2/28

1

A Political Theology for a Civil Religion

Paul W. Kahn!

Mention of political theology often triggers two sorts of worries. Some worry

about the influence of religious groups on government policy in the United States,

Christian fundamentalists; in Europe, Muslims. Others, particularly those who know

the work of Carl Schmitt, worry about authoritarian forms of politics. These are

certainly legitimate worries in the United States: consider the role of religious groups

in the Republican primaries or the actions of the Bush administration in response to the

exceptional circumstances of the war on terror. Both concerns arise out of a felt need

to defend the liberal institutions of the secular state. Both imagine a point of tension

between the secular idea of the rule of law and a theological approach to politics. My

plan today is to question that tension. I want to explore the theological dimensions of

that most secular of activities, the rule of law. My ambition is not to open up a space

for sectarianism or authoritarianism, but rather to suggest that it is far too simple to

address this problem in terms of a secular/theological divide.

!

Robert W. Winner Professor of Law and Humanities, and Director

of the Orville H. Schell, Jr. Center forInternational Human rights at Yale Law School


3/28

2

For both Americans and Europeans, talk of political theology, instead of

political theory, has a vaguely anachronistic feel to it. If political theology places a

good deal of weight on the concept of sovereignty the point from which Schmitt

began then it runs against the contemporary politics of globalization. Unsurprisingly,

political theorists and political scientists tell us that sovereignty is a term that we should

leave behind. Nations are now enmeshed in countless transnational relationships,

ranging across commerce, policing, finance, communications, migration, climate

change, humanitarian aid and virtually every other aspect of modern life. Problems in

each of these domains are to be managed in ways that are transparent and justifiable

under objective, reasonable norms. Sovereignty points in just the opposite direction: it

is particular not universal; it is not a matter of justice and not accountable to reason.

Sovereignty rests on contingent formations of power that are grounded in history, not

reason. Political theology seems out of place in an era in which democratic politics is

increasingly displaced by bureaucratic management, and national institutions by

transnational.

I will argue that it is too simple to think that the forces of faith, myth and

irrationality are on one side, and those of the law and reason are on the other.

Americans continue to live in a political world that rests upon a civil religion. The

object of their faith is the popular sovereign, which is a transhistorical, collective

subject. Political theology, as I pursue it, is the theology of this civil religion. At stake

in the contest between political theology and political theory is not just the continuing

role of sovereignty, but also the meaning of the rule of law and the nature of political


4/28

3

violence. Rather than occupying the margins, political theology studies an entire

political imaginary.

My plan is to present the nature of this modern political faith. Key

elements of American legal practice, so puzzling to many Europeans, cannot be

properly understood without seeing them as embedded in this imaginary. To lend

concreteness to my interpretation of American practices and beliefs, I will use the

example of our constitutional debate over the new health care law presently before

the Supreme Court. In the conclusion, I will briefly consider two recent critiques of my

work. This will give me an opportunity to say something about the normative

implications of my pursuit of political theology.

An American Civil Religion

No one from abroad can study American constitutional law for long

without sensing that something is out of place. Our practices of judicial review are

difficult to reconcile with the dominant ideas of the nature of the modern regulatory

state or even with contemporary ideas of human rights. Consider our constitutional

debate over the recently enacted health care reform legislation. What might we want to

know about this health care plan? Will it actually deliver quality care to everyone at a

reasonable cost? Will it meet the expectations of patients concerning autonomy and

choice? Will it be responsive to changes in health care technology? Does it deal fairly

with those who already have substantial investments in the health care business? If we

have religious and ethical concerns, we might want to know how the plan deals with

issues such as end of life care and abortion. None of these issues will be before the

Court, when it considers the case.


5/28

4

Strikingly, the Court will begin from the commerce clause of the

Constitution, which grants Congress the power to regulate commerce among the several

states. Does that grant of regulatory authority include the power to compel an

individual to purchase health insurance? That is the primary question for the Court.

This question would not appear to anyone outside of our own practice of constitutional

law. Indeed, they might question why anyone would locate a question of individual

liberty in an insurance mechanism, given that every health care delivery system must

rely upon some form of insurance.

Notice the shift in the direction of my discourse as I take up the

constitutional issue. I said that the constitutional issue arises under the commerce

clause. But to describe the dispute, I have had to shift from the language of commerce

to that of liberty. How did commerce come to do the work of liberty? Why are we not

speaking directly of the scope of individual freedom under law, of a right to dignity or

even of a positive right to health care?

To understand this peculiar conjunction of commerce and liberty, one has

to know something about the work of the Supreme Court in the early part of the 20th

century. That was a story of resistance to the rise of the modern regulatory state.

Doctrinally, the Court deployed two constitutional provisions the commerce clause

and the due process clause neither of which speaks directly to the substantive issue of

liberty. That resistance was often pursued in the name of the individual actually, the

worker providing for his family but the beneficiary was usually the corporation.

Some see the same thing today: the beneficiaries of this argument for liberty will be the

insurance companies, not the individuals left without insurance. No doubt there is


6/28

5

some of this, but this hardly explains why a majority of voters in Ohio symbolically

rejected the federal health care law in the last election. For them, something important

is at stake, and it is not insurance company profits.

Where we locate an issue of liberty is a function of history, not theory.

One hundred years ago, it was plausible to locate liberty in the right freely to enter a

contract: free labor was a political aspiration, as well as a political movement that

carried much of the nation through the Civil War. By the time of the Depression, it was

difficult to imagine the labor contract as a site of liberty. At stake in the contract was

not the power of the worker, but his powerlessness before economic forces that he

could neither understand nor control. Government regulation was no longer seen in

opposition to freedom, but as a condition of freedom. The Court, accordingly, changed

its view: no longer would it strike down regulatory interventions in the market.

By the early 60s, the site of constitutional liberty had shifted from contract

to the body. The Court started taking up cases involving sexual autonomy, leading

ultimately to its famous abortion and, then, gay rights decisions. The critics of these

decisions often point out the similarity between the Courts early and since repudiated

decisions in defense of contractual liberty and its defense of sexual liberty today. The

parallel is indeed there. The point, however, cannot be that the Court should not defend

liberty.

The contemporary health care debate is yet another effort to shift the site of

contested liberty. The new site arises at the intersection of contract and the body. This

makes little sense apart from these earlier histories of liberty of the body and of

contract. The doctrinal power of the current question draws from both: does a


7/28

6

mandatory health insurance policy renew a memory of contract as a site of liberty? does

the health insurance law draw the subject into a regulatory regime that violates her

liberty to control the disposition of her own body? To those who never quite accepted

the New Deal Courts abandonment of contractual liberty, the case offers the ironic

promise of harnessing the new doctrine of the liberty of the body to the old idea of

liberty of contract.

How will the Court go about answering this question of constitutional

liberty? It will begin with the text itself: Congress has the power to regulate

commerce . . . among the several states. Some lower courts have concluded that

regulation of commerce does not include the power to force someone to enter into a

contractual relationship. Before there can be regulation, there must be commerce.

Someone who chooses not to purchase insurance is not yet engaged in commerce.

Accordingly, Congress acted beyond the textual grant of authority. This argument

repeats one of 100 years ago, when the Court lectured Congress on the distinction

between commerce and production. Congresss commerce power did not allow it to

regulate the means or conditions of production. The fact that production affects

commerce was irrelevant because everything affects commerce. To accept this

argument from effects would give Congress unlimited authority, and that is

unacceptable because it would render the words of the Constitution meaningless.

To this textual argument will be added historical arguments of two sorts.

First, the court will inquire into the original understanding of the text. Justice Thomas

will surely raise the issue, asking whether the federal government could force free

citizens into a contract in 1787 probably not. Second, the Justices will surely


8/28

7

interrogate the Courts own precedents. The lower courts have been very focused on

two recent cases in which the Supreme Court insisted on limits on commerce clause

authority. Those decisions too were taken in the name of individual liberty. Indeed,

the Court offered an explicit theory linking the clause to individual liberty: liberty is

advanced by keeping clear the lines of regulatory authority. Not surprisingly, one

decision involved guns and the other involved sex (actually sex and football): all

historically contingent sites of liberty in the American imagination.

A decision against the law would probably be on a 5 to 4 vote. If that

happens, the Court will likely invoke the original foundation of judicial review, its

1803 decision of Marbury v. Madison. There, the court claimed that in reading the

Constitution, it speaks in the voice of the popular sovereign. Despite all that we know

about the partisan, political backgrounds of the individual Justices, the nation will

accept whatever the Court concludes. There will be no proposals to amend the

Constitution, to act in disregard of the decision, or to dismantle the Court. Instead, we

will see law review articles taking up the doctrinal issue of the meaning of the

commerce clause and politicians recalibrating political possibilities in light of the

decision.

Many elements of our civil religion are on display in my imaginative

construction of a possible decision. We argue from a text: the Constitution. We have

an idea of authorship: the popular sovereign. We have a hermeneutic issue: how do we

interpret this text? We have an issue of authority: why is the Courts interpretation

final? More deeply, we have the imaginative construction of a free citizen, who is both

the author and subject of the law.


9/28

8

Begin with the insistent focus on the text itself a text written according to

18thcentury conventions. Our interpretive practices go so far as actually to consult 18th

century dictionaries on the meaning of the words. No matter that the sense of a word

for example, commerce may shift over time to reflect changing popular

understandings. How can we map a 21stcentury practice of commerce in cyberspace

on to an 18thcentury concept of commerce as a trade in goods transported by water or

wagon? It is not even clear that medical care would have been conceived as commerce

in 18th

century America perhaps it was more like ministering to the soul.

Doubts about the rationality of looking to the original meaning are hardly

new. Yet, the reverence for the text continues. Reverence is exactly the word that

Lincoln used to describe the relationship of Americans to their constitution. That

reverence includes what Chief Justice Marshall described in Marbury as a no

surplusage principle of interpretation: every word of the text must be given a meaning.

There can be no infelicitous draftsmanship, no needless repetition, no failures to

communicate. Such fastidious adherence to a text might be justified in statutory

interpretation as a kind of default position. Congress can always respond when it

disagrees with the judicial interpretation of a statute. But the constitution is

extraordinarily difficult to amend. Why privilege archaic text over contemporary

reasonableness?

One cannot describe our practices of interpretation without quickly seeing

the parallel to biblical hermeneutics. We begin with the same puzzle: how do we

maneuver between a text that has a sacred warrant and the human voice that purports to

speak for the text. One answer is to move toward a point at which the speaker displays


10/28

9

no subjectivity. We are not to hear the voice of the interpreter, but only of the text

itself. The no surplusage rule is one devise for eliminating the subjectivity of the

reader. In an odd rhetorical play, voice is suppressed and sight is emphasized. The

reader is simply to look at the text. His will is determined by his sight. Reading

becomes an act of seeing.

Often, the argument is put forth that the reason for textualism is to limit the

judges discretion, which is understood as opening a space for the expression of the

judges own personality. Just last year, we had an example in the political controversy

over President Obamas remark that he was looking to nominate Justices who had a

quality of personal empathy. Empathy is a personality trait that operates where there

is discretion. The threat seen in a manifest judicial personality is twofold. First, any

appearance of the judge would pose an unrepresentative claim to power. Lacking a

democratic warrant, the judge must always appear to subordinate himself to a law

outside of himself. That much is easy, but it does not explain the horror that the figure

of the uncontrolled judge evokes in the American imagination. Thus, there is a second

point, which sounds not in democracy but in heresy. For a judge to appropriate the

voice of the constitution in order to speak for himself is to speak as a false prophet.

With reverence always comes a fear of heresy.

Can we really make use of this prophetic idea to understand American

constitutionalism? Absolutely. The biblical prophet is not a soothsayer; he is not

someone who foresees the future. Rather, the prophets role is to call the nation back

to its sacred origin. That founding carries the meaning of the whole. History is

imagined as the working out of that original appearance of the sacred. The prophetic


11/28

10

role, accordingly, is to accuse the society of decline, of failing to remember the

transcendent, original meaning embodied in the political order. The prophet offers a

vision of a recovered Jerusalem in order to criticize the pathologies of history.

The American Supreme Court aims to speak in a prophetic voice. The

constitutional future is not an open field for construction of the polity. It is rather a

field for holding forth that which we already are. To play the prophetic role, the Court

must suppress the particular, contingent character of the Justices. The prophet does not

have a personal opinion; he does not aim for a balanced or reasonable view of the

totality of the circumstances. Rather, he claims to have a direct, unmediated

relationship to the sacred.

In American political life, the displacement of the subjectivity of the judge

is the point of the ritual passage through the confirmation process. The nominee goes

into this rite as a subject with a particular history. Indeed, he has been nominated for

reasons both political and personal. In the course of the ritual, the nominee literally

swears to give up that prior self and to speak now only in the voice of the

Constitution. All that he had known is abandoned; everyone he knew before, in his

professional and political life, is left behind. He brings with him no assistants, no

professional colleagues, no political associates. This produces the odd character of the

ritual inquiry in which the nominee is actually to say nothing at all, apart from

proclaiming his faith in the constitution: to say something would be to express a point

of view. From this point on, he begins again. His new beginning is the taking up into

his own life of that collective beginning that is the Constitution.


12/28

11

The rite of judicial passage offers a kind of metonym of the nation itself.

Reenacted in the rite is the enduring relationship between revolutionary sacrifice and

constitutional construction, the giving up and taking on that is the constitutive act of

national existence. Revolution in the American imaginary is both a historical event and

an extraordinary way of being. It is the coming into being of the popular sovereign.

Revolution is accomplished not when the British depart, but when the political

imaginary is occupied by a new subject: We the people. The people do not first come

into existence as a collective subject and then choose to revolt. Rather, revolution is

the presence of the people. That presence is always characterized by a willingness to

sacrifice. Conversely, every act of citizen sacrifice is a making present of the popular

sovereign. Giving up his finite, particular self, he or she becomes the point through

which we experience the whole.

Sovereign presence is no longer carried in the body of a king, but in the

body of the sacrificial citizen. Revolution has, accordingly, the quality of existential

presence. It begins history by creating the subject of the national narrative. Absent

revolutionary presence, there would be only an aggregation of individual members of

the community; there would not be a trans-temporal, collective subject that is the

popular sovereign.

This popular sovereign has many of the qualities of the monotheistic God

of the West. It fills the time and territory of the nation: it is present everywhere and

always. It is whole and complete wherever or whenever it appears. It can do only one

thing: exercise its will. This is the quality of the sacred, for its being is its meaning.

The revolution, accordingly, does not represent some meaning apart from itself; it is not


13/28

12

measured by some universal, normative standard. To experience the popular sovereign

is to experience an unlimited claim upon the self. We are enthralled to the sovereign,

which always has the power of life and death. At the moment of sacrifice, there is no

distance between the citizen and sovereign.

To say that the American Revolution creates the nation by creating the

subject the popular sovereign is not to state a historical fact. The meaning of the

revolution does not actually stabilize until deep into the 19th

century. Only then does

the nations history appear as the working out in time of the limitless meaning of that

appearance of the popular sovereign that is the Revolution. To use a metaphor from

modern physics, the revolutionary appearance of the people is the big bang that already

contains all that will ever be.

Because Americans do not stabilize the meaning of Revolution until late,

they do not imagine revolution unlinked to constitution. There is no place for

permanent revolution in the national narrative. The permanence of the link to law is

the enduring meaning of the Civil War. Defending that link makes the war essentially a

conservative effort to preserve the Constitution despite its emancipatory result.

From this point on, Americans see the revolution through the constitution. The author

of this text is the sovereign people.

The movement between revolution and constitution is reciprocal: we see

constitution as the truth of revolution and revolution as the truth of constitution. A

revolution that failed to produce a text would not be a revolution at all, but at best an

act of rebellion. A constitution that could not claim a revolutionary foundation would

lack legitimacy: it would not express the will of the popular sovereign. It would be, at


14/28

13

best, a contingent product of a collection of people acting at a particular time and place.

It may express laws of which we approve. Its claim upon the citizen would rest, then,

upon the justice that it promises, not on the identity of its author. The American

constitution was demonstrably unjust in its protection of slavery. That injustice created

a national problem, but it did not sever the constitution from its revolutionary

foundation.

The biblical dimensions of all of this are hardly hidden. The Bible is the

trace of sovereign presence left behind after the exceptional moment of divine

appearance. That text is the continuing point of access to the now withdrawn

sovereign. We know the Bible is a sacred text because we see through it to Gods

presence. We do not ask for some other proof some normative measure of this

connection. If we fail to read the text as a representation of a sovereign presence, then

it has no particular claim upon us. We might agree with its moral prescriptions, we

might find it interesting, but we would have no reason to privilege its representations

over others. Similarly, we cannot imagine Gods appearance absent the production of a

text. Such an appearance would found nothing; it would be lost in time, which is to say

it would be as if it never happened. This is what we are likely to think of claims of

divine appearance that rely on personal witnessing, but leave no text. We are skeptical

of the neighbor who tells us that God speaks directly to him; we dismiss the claims for

divine presence made by those in other cultures.

No God without a text, and no text without God. This is the same

relationship of identity to representation that structures the American political

imaginary. Law is always a representation: its source of authority is always outside of


15/28

14

itself. It points elsewhere, until that moment when we ask about the authority of the

constitution itself. At that point, we acknowledge the revolutionary presence of the

popular sovereign. If we ask why we are bound by that, we have asked one question

too many. The popular sovereign does not bind us by virtue of some other

representation; rather, its power is that of identity. We either find here the truth of the

self or we find nothing at all. To understand this is to understand the power of

textualism and originalism in American constitutionalism: we are not bound by the acts

of long-dead, white men. We are bound only because, and as long as, we see their acts

as our own.

A politics that rests on this formation of the social imaginary faces two

sorts of challenges, which we can label Protestant and Jewish. The Protestant challenge

arises from the unstable place of an authoritative voice. If the Constitution is the text

produced by the popular sovereign, and every citizen has the same claim to

membership in the popular sovereign, then with what authority can the Supreme Court

claim finality for its interpretations. This is indeed a tremendous problem in American

constitutionalism. Every branch of government, every interest group, and even every

citizen can frame a political claim as a constitutional claim. No one willing gives up

this rhetoric of constitutional truth. Each of these contending voices claims the

prophetic role of returning the nation to its founding truth. This renders minorities

relatively indifferent to their lack of standing among the population at large, for that

larger population is in a state of political fallenness. When we couple this claim to

truth with a violent, sacrificial tradition, we begin to grasp the threatening and

dangerous character of American political contestation.


16/28

15

The dominant form of this Protestant challenge is fundamentalist: the idea

that the text need not be interpreted, but only read. The text is a trace, a remainder, of

the presence of the popular sovereign. The text is a kind of gift that is not to be

corrupted in its reception. Out of this idea comes the enduring appeal of an anti-

interpretive approach to constitutional law. It is enough to hold the text in plain sight to

know what is to be done. To this textualism is often coupled an appeal to original

history: temporal proximity to sacred presence carries its own weight.

The Courts response to the Protestant challenge, apart from relying on the

power of its own rituals, is to appeal to what otherwise appears as the Jewish challenge.

That challenge juxtaposes to the fundamentalist return to the text itself, the tradition of

erudite commentary. Think of the Talmud as a model: it literally constructs a field of

esoteric knowledge out of layers of interpretation. To be an expert requires mastery of

this entire field of commentary. To think that one can simply read the original now

appears as naive. Interpretation requires a lifetime of study precisely because we do

not read with Gods mind. So too with the Justices. Their expertise is located in the

body of commentary that is the collected opinions of the Court. The opinion they

create weaves its argument out of this inherited legacy, adding yet another commentary

to the continually growing body of interpretations. In this direction, the challenge

comes from the law professors, who claim to know better than the Court the meaning of

past, judicial decisions. They are the Talmudists of the law. Accordingly, American

law professors unashamedly produce books with titles like We the People.

American constitutional practice moves easily between the textualism of

the fundamentalist and the erudition of the Talmudist. It is a matter of looking, on the


17/28

16

one hand, and reading, on the other. Each is always available as a critique of the other.

There is no particular pressure to come to a consistent, interpretive position. We find

ourselves open to persuasion in each form, but we cannot say in advance which will

prove effective under any particular circumstances. In part, it depends upon what the

opposition is saying. What has no place in this grand narrative is that form of judicial

reasoning that characterizes much of the rest of the world: proportionality review. That

is a model of reasoning stripped of any contact with the sacred.

Because there is a diversity of interpretive forms, there is an indeterminate

relationship between text and decision. The arguments purport to set forth of the truth

of the text, but that truth does not exist until there is a decision. We dont apply the

rule in a decision, but rather come to know what the rule is through the decision. The

law is a product of the decision, and we come to a decision once we have been

persuaded. Persuasion always contains an element of free decision, for persuasion is

not deduction.

Often in constitutional cases, the arguments appear quite literally in

equipoise: we must decide. Once we decide, we know which are the right arguments.

Until there is a decision, we have only interpretations. After the decision, we have the

truth of the Constitution itself. When the Court is successful, we dont hear the Justices

interpreting. Rather, we hear the Constitution through them, which is to say we hear

the voice of the popular sovereign whose text this is. Achieving this identity in which

the judicial opinion appears as the opinion of the people is the goal. At that point, the

free decision of the judge re-presents the free decision of the sovereign whose trace is


18/28

17

the Constitution. From that point forward, we dont say the Court decided x, but

only the constitution requires x.

The decision reminds us that the state is neither natural nor logical. It must

be willed into existence and it continues only as long as the will remains. Norms alone

will not carry forward the political project. The decision requires an act of the will.

The decision is, for that reason, always an act of violence: sometimes the violence is

only the elimination of other interpretations; sometimes the violence is enforcement of

the decision; sometimes the violence goes to the continuing existence of the state itself.

In the end, each of these moments relies on the next: the constitutional project endures

in the nations continuing to will its own existence.

All of these imaginative structures are visible in our debate about the new

health care law. The opposition, despite its minority status, claims to speak a

constitutional truth. They claim to speak with the authority of the popular sovereign.

They seek the symbolic high ground of defending the nation against a modernist

pathology of legal regulation. The judges turn to the constitutional text, on the one

hand, and the 20thcentury opinions elaborating the meaning of the commerce clause on

the other. There is no expertise that can tell us in advance where the case will come

out, because we do not know the law until the decision is made.

Translating the debate over health care financing into a constitutional issue

means constructing the regulatory claim on the individual as a site where the meaning

of citizenship is at stake. That is never a matter of reason alone. Rather, political

meaning begins with the individual who gives himself freely to the state. Not contract,

but sacrifice; not a claim of right, but a gift of life. One reason human rights discourse


19/28

18

has so little purchase in the United States is because there is no space within our legal

imaginary for a pre-political individual who has rights against the state. Rights arrive

only after the revolution extends its claim upon everybody.

The social contract is a way of thinking about the just content of law, while

sacrifice is a matter of sovereign presence. The social contract answers the question

what should the law be? Sacrifice answers the question who are we? A universal

health insurance scheme sounds like exactly the sort of thing that we might find in a

social contract negotiated behind a veil of ignorance. This suggests that the problem

with the law lies not in the dimension of justice but in that of sacrifice.

Serious problems of constitutional law often arise at the point at which law

is forced to confront the conditions of sacrifice a point always resistant to

considerations of justice. It is not an accident that the fundamental issue in the health

care debate is a drama of possession of the citizens body. American have long

struggled with the material conditions of the body politic. The most infamous of

Supreme Court cases, Dred Scott, decided just before the Civil War, held that black

people could not be citizens under the Constitution. They could not be citizens because

their bodies could not be part of the body politic; their bodies could not bear the

constitutional project. Put bluntly, white people could not imagine the death of a black

person as a sacrifice for the nation. This remained a problem even after the Civil War,

when the black soldiers contribution to the war effort was largely effaced from

national memory.

At issue in such controversies is participation in the mystical corpus of the

state. This is entirely a matter of the social imaginary. There is no logic, no claim of


20/28

19

justice, that grounds these beliefs. As Dred Scott shows, however, this imaginative

construction is subject to a kind of regulatory pressure: a desire to juridify. In one

direction, we have laws of inclusion and exclusion raising issues of race, eugenics,

and immigration. In another direction, we have legal attempts to commodify the citizen

body, as if it were state property or a state resource.

One form of this idea of commodification was rejected by the Court in the

famous Lochnerdecision of 1904, in which state efforts to regulate the conditions of

the workplace were held unconstitutional. One argument in defense of the law was that

the state has an interest in maintaining the health of workers because they might be

conscripted. Obviously, the nation needs strong and healthy soldiers. The Court rejects

the argument, not because it is not true but because it has no limits: any regulatory

intervention might be defended on this ground. To this male form of commodification,

the female form was added 70 years later, when the Court rejected the claim that the

state could deny a woman access to abortion because it has an interest in the production

of new citizens.

Both decisions stand in some tension with the acknowledged right of the

state to conscript. Why doesnt the greater power to take possession of the citizen body

include the lesser power to regulate? The liberty of the body protected against the idea

of rational, bureaucratic management is misunderstood if seen only as a libertarian

interest in freedom from government control. Self-possession as an aspect of the

American political imaginary gains its symbolic weight from precisely the opposite

direction: self-possession is a necessary condition of the sacrificial gift. If the citizen is

to bear the body of the state, he must stand apart from the state. He must preserve the


21/28

20

capacity freely to give himself in an act of sacrifice. Claiming possession of the self

against the regulatory/bureaucratic interests of the state is, oddly, an opting in, rather

than an opting out. To be bound to the state is not to find oneself within its jurisdiction,

but to decide for the state. We preserve the possibility of that decision by preserving a

space between the state and the individual. The citizen owns himself not for himself,

but for the sake of the nation.

At stake is an interplay between the logic of conscription and that of

sacrifice. Under the logic of conscription, the regulatory interests of the state are

without limit for the state retains the right to dispose of every person and all of the

material wealth of the nation. The final cause of the state is its own continued

existence; the state is an end without limit. The constitution contains no sunset clause.

Sacrifice rests upon an alternative biopolitics. Not that of discipline and regulation, but

rather that of the decision. Sacrifice is always an act of will, not of reason. Its logic is

that of the gift, which can never be demanded. Nevertheless, like every gift, sacrifice is

dependent upon its reception. A sacrifice not received is not a sacrifice at all; it is a

senseless act of violence. Precisely here, we see that the exception is dependent on the

norm, but not determined by the norm.

Sacrifice is not a part of law, but it is the aether within which the

constitutional decision works. This begins with the judge himself, who offers himself

as a paradigm of sacrifice for law. He has given up his particular interests and become

a point of revelation of the sovereign. That gift must be received or the Court will be

viewed as an illegitimate, counter-majoritarian institution. The point was put

remarkably well in one of the Courts most controversial abortion decisions.


22/28

21

Some cost will be paid by anyone who approves or implements a constitutional

decision where it is unpopular, or who refuses to work to undermine the decision or to

force its reversal. The price may be criticism or ostracism, or it may be violence. An

extra price will be paid by those who themselves disapprove of the decision's results

when viewed outside of constitutional terms, but who nevertheless struggle to accept it,

because they respect the rule of law. To all those who will be so tested by following,

the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for

nothing. . . . From the obligation of this promise this Court cannot and should not

assume any exemption when duty requires it to decide a case in conformance with the

Constitution.

Law, the Court says, is bound to sacrifice. The judicial decision is only as

strong as the willingness to hold to it. This begins with the judges own giving up of

him or herself. That is the free act that is beyond law, but is the condition of law.

An analogy to the unique American position on gun control can help here.

America is an armed body politic. Surely, regulating weapons is in the interest of most

people, just as regulating health care is in the interests of all. Again, the opposition to

gun control is misunderstood if seen only as a libertarian interest in occupying a

position outside of politics. Doing so, we fail to see the imagination of politics as a

calling forth of the body. The gun represents the condition of the possibility of

sacrifice for the nation. This is never managed but always freely given.

To understand the American political project, we have to think with the

body: we have to plot an imaginative structure, rather than develop a theory of justice.

Imagining the sovereign body, we begin not with the needful body of the welfare state,


23/28

22

but with the plentiful body of sacrifice. The giving of that body was the violent act of

Revolution. It remains the imaginative structure that made it so easy for Americans to

take up a war on terror. Always the point is the same: the law stands on an originary

sacrificial act that is never fully past, but always an imagined possibility.

Our popular debate over the constitutionality of health care stands squarely

in this tradition. One enduring image offered by those in opposition has been that of

the death panels: a regulatory regime of managing death. The point is not that

Americans expect to live forever; rather, they object to the states commodification of

the body. The rebellion against health care insurance is not about freedom as an escape

from the obligations of citizenship, but freedom as a condition for the realization of the

meaning of citizenship. Only understood in this way, can we understand how an

insurance mechanism seems to so many people to put the very life of the nation at

stake.

The Stakes

These symbolic skirmishes inform the imaginative structure behind our

constitutional debates. Political theology explores this imaginary. Its ambition is

phenomenological, not normative. I have, for example, not said anything about how

the health care debate should be resolved. Political theology as an inquiry into the

fundamental structures of the imagination simply cannot answer such a question.

These structures make possible our controversies; they do not resolve them one way

rather than another. My work pursues thick description by considering the various

products of the political imaginary judicial decisions, political rhetoric, fiction, film,


24/28

23

and historical narrative. Recently, I have engaged two forms of critical response that

have forced me to think again about the relationship between theory and practice.

One set of responses comes from those with a broadly similar agenda of

inquiry, but who generally work in humanities departments. They too are interested in

studying power; they too reject the techniques of quantification and measurement that

characterize much of the social sciences today. They too are interested in the nature of

interpretation. We share an interest in popular culture as a site of serious inquiry,

although they rarely share my interest in law.

What separates us are contrasting views of the relationship between theory

and practice. They insist that there is no neutral position from which to engage

interpretation. For them, every act of speech is also an assertion of power. If so, every

inquiry can be interrogated from the perspective of power. This puts immense pressure

on theory. The classroom becomes a site of politics, and scholarship becomes a form

of partisanship.

The problem this poses for me is evident. For those who support national

health care, the interpretation I offered cannot help but look like support for the

opposition. I developed a sympathetic account of the imaginative construction of

political meaning that is at stake. If I am persuasive, I may indeed have helped the

opposition, for my point is that their fears are not met by pointing to the economics of

health care. Even worse, I have undermined the claim that the opposition rests on self-

interest. When I say that my own politics are liberal, and that I support health care

reform, my interlocutors think that I am simply confused. For whatever my personal


25/28

24

views, my work is not contributing to the success of that project. But should it? Is

theory to be judged as we would judge other forms of political practice?

The second form of criticism comes not from the humanities, but from the

divinity schools. The theologians see in my work an expression of idolatry, for it links

a claim about the sacred to a fully human project. I speak of a politics of transcendent

value, which supports a practice of sacrifice. The popular sovereign, however, is not a

metaphysical entity, but a way of imagining the self and the community. To see in the

products of mans imagination the expression of transcendent value is the very

definition of idolatry. While the theologians appreciate my exploration of the

continuing place of the sacred in the political imaginary, they insist that this be read as

evidence of the continuing role of God in our common life.

Both sets of criticism are skeptical of my claim to pursue a political

theology that is descriptive, not normative. Both see theory through the lens of power:

human or divine. One sees theory as an element in a political project of emancipation,

the other sees it as part of a project of subordination to God. In each case, the larger

project offers a normative perspective that gives direction to theoretical inquiry.

My own work insists on the autonomy of theory. The proof of this

possibility is not separate from the inquiry itself. Thus, my discussion of the health

care controversy tries to show that we can indeed take the categories of our own

experience as a subject of critical reflection.

I try to imagine the debate from the inside, not as a matter of tactics but as the

expression of an entire world of meaning. That exploration of the nature of the political


26/28

25

imaginary did not entail any answer to the question of what the law should be. It did

not, because it cannot choose between the biopolitics of conscription and that of

sacrifice. The autonomy of theory lies in this capacity to reveal the sense of our world

from within, while simultaneously standing outside. After all, as an actual insider, I

have a political position about health care. I dont think, however, that my work as a

scholar should be marshaled to support that position. By suspending my own beliefs, I

make myself an outsider.

This double perspective is captured by the idea of the historical a priori.

We find ourselves imagining the world one way rather than another, but we also

recognize the historical contingency of our own imaginations. Here, we get to the

deepest point, for this double perspective of being simultaneously bound and

recognizing contingency describes our condition as free even as we find ourselves fully

vested in a particular culture. Political theology is a practice of freedom precisely

because it occupies these dual perspectives of commitment and contingency. In terms

of this talk, I have pursued the deepest of all commitments sacrifice while arguing

that the formations within which the issue arises are completely contingent.

Both forms of criticism directed at my work miss this point. For those in

the humanities, freedom is understood as self-invention under a rule one gives to

oneself. Every speech act becomes a political act, because the agent is unbound.

Contingency without commitment might be their motto. To the theologians, freedom

remains fundamentally a metaphysical problem. There can be no such thing as self-

invention for them. Commitment without contingency might be theirs.


27/28

26

We are never so bound by culture, historical circumstance, or power that

we cannot establish a critical distance from our selves. But still we must begin from

where we are. We must say what we think, and we must think something. Similarly,

we cannot help but believe that others have this same double capacity of affirmation

and critique. Knowing what we do of ourselves, and of how we have come to be

ourselves, we cannot help but believe that we might be moved by others, just as we

believe we can move them. This proposition is the foundation of a belief in the

possibility of a free discourse with every other subject.

None of this will tell us what to do, but it may help us to understand who

we are. At this point, methodological reflection on political theology crosses from

positive to normative. It states the conditions of belief that ground free inquiry as a

project of mutual dialogue. It describes a modern form of the Socratic idea that

freedom is an end toward which we always have to work from within a cultural

practice. I like to think that my claim that I have no normative position is not very

different from Socrates claim that he knew nothing that is, nothing that could inform

the citys laws.

In sum, the normative implications of my work have nothing to do with

resolving controversies within the law such as our health care debate. Rather, those

implications have to do with the way in which the theory itself becomes a site of

freedom, not power. We cannot think freely without being free. As free subjects, we

must decide what to say, just as we must decide what to do, which is only to say we

must take responsibility. We take responsibility, when we try to persuade others and

open ourselves to persuasion in turn. On this, I suspect my critics agree with me.


28/28

27

ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES

The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by

Stefano Bartolini since September 2006, aims to develop interdisciplinary and comparative

research and to promote work on the major issues facing the process of integration and

European society. The Centre is home to a large postdoctoral programme and hosts major

research programmes and projects, and a range of working groups and ad hoc initiatives. The

research agenda is organised around a set of core themes and is continuously evolving,

reflecting the changing agenda of European integration and the expanding membership of the

European Union. The aim of the Robert Schuman Centre for Advanced Studies is to

contribute to the public debate by offering views and opinions on matters of general interest.

The European University Institute and the Robert Schuman Centre for Advanced Studies are

not responsible for the proposals and the opinions expressed by the author(s).

RELIGIOWEST

ReligioWest is a four year research project funded by the European Research Council and

based at the European University Institute, Florence, Italy. It aims at studying how different

western states in Europe and North America are redefining their relationship to religions,

under the challenge of an increasing religious activism in the public sphere, associated with

new religious movements and with Islam.

Documents

A Political Theology for a Civil Religion_Paul Kahn