Constitutionalism in an age of speed.

• Author: Scheuerman, William E.

The fact of change has been so continual and so intense that it overwhelms our minds. We are bewildered by the spectacle of its rapidity, scope, and intensity.... Industrial habits have changed most rapidly; there has followed at considerable distance, change in political relations; alterations in legal relations and methods have lagged even more.... This fact defines the primary, though not by any means the ultimate, responsibility of a liberalism that intends to be a vital force.

--John Dewey, Liberalism and Social Action (1935) (1)

Defenders of constitutionalism would do well to heed Dewey's observation that the rapid-fire pace of contemporary social and economic activity poses considerable challenges. For sure, an impressive body of political and legal thought already addresses the nexus between constitutions and social and economic change. Both Progressive-era intellectuals and the Legal Realists, to some extent inspired by Dewey, harshly criticized the U.S. Constitution for its seeming inability to adjust effectively to twentieth-century social and economic conditions. (2) Since the late nineteenth century, advocates of social reform have repeatedly attacked Article V, arguing that its burdensome amendment procedures undermine possibilities for constitutional adaptation required by the changing realities of social and economic life. The left-wing journalist Daniel Lazare's recent characterization of the U.S. political system as subject to an anachronistic "frozen constitution" fundamentally inimical to reform is only the latest salvo in a series of harsh reviews of Article V previously proffered by suffragists, supporters of a constitutional ban on child labor, and New Dealers who sought a formal amendment codifying the welfare state. (3) For their part, many liberals in the legal academy long have touted the merits of an elastic "living constitution," arguing that only flexibility in legal exegesis can keep the constitution attuned to the challenges of social and economic dynamism. They consider the literalist and originalist modes of interpretation propounded by conservative rivals wrong-headed in part because such views allegedly obscure constitutionalism's temporal presuppositions: Written constitutions are intended to remain a source of binding law for "an indefinite but presumably long future," but constitutions can fulfill this function only if we interpret their norms flexibly in order to allow for adaptability amidst "so continual and so intense" social change. (4)

In light of this rich tradition of intellectual debate, it might seem presumptuous to assert that scholars have failed to focus sufficiently on the threats generated by social and economic dynamism to constitutionalism. Nonetheless, I argue here that contemporary debates in social theory provide renewed significance to the familiar question of the nexus between social change and constitutionalism. (5) In 1935, when Dewey referred to the "rapidity, scope, and intensity" of social and economic change, he anticipated a core theme of recent social theory, according to which we can only make sense of present-day social and economic affairs by focusing on their high-speed character. Ours is an epoch in which social and economic processes are undergoing a multi-pronged acceleration that raises many difficult questions for legal scholarship (I). (6) Social and economic acceleration challenges the noble aspiration to establish fundamental constitutional "rules of the game" capable of serving as an effective binding force on legal and political actors for a relatively long span of time. Conventional ideas about constitutionalism are predicated on achieving a modicum of legal constancy and clarity, but this task becomes increasingly difficult in a social world in which "the rapidity, scope, and intensity" of change becomes ever more significant (II).

After showing that the recent turn in social theory to provide "conceptual attention to the timing and spacing of human activities" raises tough questions for constitutionalism, I sketch the outlines of an institutionally-minded typology of how constitutional systems adapt, albeit typically "by drift and by temporary ... improvisations," to social and economic acceleration. (7) Social and economic acceleration sheds fresh light on traditional debates about constitutional change. In addition, our high-speed social and economic environment privileges problematic modes of constitutional adaptation, thereby threatening the worthy ideal that fundamental constitutional reform requires substantial popular participation and deliberation (III). Finally, I conclude with some tentative suggestions for how we might counteract the alliance between speed and relatively undemocratic mechanisms of constitutional change. In order to do so, however, we will need to rethink temporal assumptions located at the very heart of modern liberal democracy (IV).

1. SOCIAL AND ECONOMIC ACCELERATION

   Although political and legal scholars have been reluctant to pick up the baton, social theorists have been busily developing a perceptive analysis of why the high speed temporal horizons of social and economic activity are pivotal for understanding our contemporary situation. In a wide-ranging debate that has engaged writers as diverse as Zygmunt Bauman, Anthony Giddens, David Harvey, Reinhart Koselleck, and Paul Virilio, a consensus appears to be emerging that ours is a world in which social and economic processes operate at an ever faster speed, and the tempo of even relatively significant social and economic change takes an increasingly rapid pace. (8) To be sure, distinct theoretical accounts of the institutional roots of the acceleration of social and economic life, not surprisingly, differ substantially. For example, whereas Giddens and Koselleck have identified a variety of institutional and conjectural sources for the growing importance of speed in social and economic affairs, others (most prominently, David Harvey) have tried to locate its origins chiefly in modern capitalism. For the Marxist Harvey, capitalism represents

   a revolutionary mode of production, always searching out new organizational forms, new technologies, new lifestyles, new modalities of production and exploitation and, therefore, new objective social definitions of time and space.... The turnpikes and canals, the railways, steamships and telegraph, the radio and automobile, containerization, jet cargo transport, television and telecommunications, have altered time and space relations and forced new material practices.... The capacity to measure and divide time has been [constantly] revolutionized, first through the production and diffusion of increasingly accurate time pieces and subsequently through close attention to the speed and coordinating mechanisms of production (automation, robotization) and the speed of movement of goods, people, information, messages, and the like. (9) Nonetheless, even those theorists who dispute Harvey's Marxist account of the origins of social and economic acceleration generally accept his observation that "the history of capitalism has been characterized by a speed-up in the pace of life." (10) Modern capitalism's structurally-rooted drive to reduce turnover time and accelerate the course of economic life for the sake of improving profitability undoubtedly constitutes a key feature of modern economic life; a number of studies--Marxist and otherwise--confirm the existence of an intimate relationship between capitalism and social and economic acceleration. Making effective use of ever more rapid forms of production and consumption is a proven strategy for business people to maintain profitability and defeat competitors; and capitalism's built-in tendency to speed up economic processes manifests itself in myriad ways. (11) The unanswered question in the social theory debate concerns the precise status of capitalism as a driving force behind social and economic acceleration, as well as its place as a causal factor among other institutional facets of modernity that constitute plausible sources of our high-speed social and economic world. Yet no serious social analyst questions the view that modern capitalism plays a significant role in generating pivotal facets of the "so continual and so intense" change described by Dewey.

   The social theory discussion also continues to focus on questions of historical periodization. Most agree that the ascent of industrial capitalism in the nineteenth century unleashed a particularly intense period of social and economic acceleration, though some have complicated this widely-endorsed account by linking social and economic acceleration to features of the modern world that clearly predate industrial capitalism. (12) But the dominant view seems to be that we have experienced a relentless speed-up of key social and economic processes for well over 150 years now, resulting most immediately from a series of economically-generated technological innovations (including the railroads, telegraphs, airplanes, and computers) that have worked continuously to alter the temporal contours of social and economic life. Some writers have elaborated on this periodization to claim that recent decades have exhibited a further intensification of this long-term trend, as evinced by growing reliance on information and communication technologies that provide economic actors with dramatically improved opportunities to make use of simultaneity and instantaneousness. In this vein, Harvey has tried to demonstrate that economic crises are intimately linked to relatively intense bouts of social and economic acceleration. The worldwide economic downturn of the 1970s paved the way for a reorganization of capitalism in which fresh possibilities for the successful exploitation of information, communication, and transportation technologies came to play a crucial role in economic life. Improved rates of commercial and...