Will Harris – A Theoretical Moment

Will Harris concluded his “Connecting the 2008 Election to the US Constitution” program (at ESD 112 October 9-11) with a session titled “The Unseen Debate.”  I’ve written about that session here.  What follows is his reflection on the session; I hope to read yours in the comments section.


Will Harris

Oct. 18, 2008

It looks like we experienced a theoretical moment in Vancouver that Saturday morning, the second weekend in October. Some of us? Maybe most of us, somewhat?

Without really setting out to do so, we made something momentous together. It might have been where we were headed all along without actually knowing it. Now, I think, though, we have to explain it to ourselves. Here’s my offering. I hope you will help with the next steps, because I think it was a big thing that we did, and we shouldn’t just let it fade away.


I’m stepping this up another level (to the theoretical), and down a level (to the personal). I hope you will see this as a continuing effort on my part to respect the extraordinary intellectual alertness and deep-down decency I have seen in the members of your community of teachers from the beginning of our work together at Montpelier, now several years ago. Sometimes shifting levels gives us a better view of the one where we started out.

What I mean by “a theoretical moment” is that — instead of the more normal presentation and discussion about a theory — we seem to have found ourselves inside one. For part of a morning, or all of it; maybe even longer. Still? Mentally walking around in the world it projected. Trying it out emotionally. Sensing a real sort of hope (this time, not just using the word). Fearing it might not be so (usually, what we fear is that something is only too likely to be so). So you could look at it, maybe even feel it, and not just think about it.

What is “theory”?

It is comprehensive. It sets out a systematic alternative to what we might observe as a random assortment of data points around us. But it sustains a greater plausibility than the conventional accounts we casually offer up in the daily course of events — because, if it is a really good theory, it links to the deeper order that makes what we usually do and say possible in the first place. (Sometimes, we call this background foundation the law of nature, or the fundamental science of things. Human “constitutions” perform in this way, too.)

We might want to remember that “theory” is also about “performance,” connecting it to its original association with “theatre,” a place where the structure and relations of a society are acted out in public.

Theory is provocative (literally, from the Latin, it “speaks for” something, strongly) and, as such, often surprisingly brings forth something like anger. Perhaps this is because it speaks in advocacy of what it admits may not be “true” because it claims to be more than true. That is, more than “accurate,” or “verifiable.” It defies the corruption of a thousand little incremental shifts away from where it started, or distortions from what it was for in the first place. If you reject it, you may put your whole world in jeopardy. If it is a “lie,” for now, that may be good — as long as it serves as a fictional possibility that you can live by, diminishing its distance from realization by your conscientious actions. If it is truly a lie, or stays fully a lie, you’re doomed. Better, quickly, start over before it’s too late. The feelings that seem like “anger,” I believe, are actually something else: a sense of loss or failure, that things are not as they should be.

“It’s a lie.“ So you exclaim. In our seminar, this was a wonderful intervention, and very well timed. It almost reminds me of Dr. Frankenstein (in the 1931 film version) as he watched his creation come to life. But which is the lie? The constitution of possibility in our mind’s eye, or the comprehensively corrupted state of affairs that we see around us? Among lies, which would you prefer: artifice, or falsification? When you think about it, this is very much the choice the Federalist advocates of the Constitution offer their “fellow citizens.” Design or decline. We might do well to consider Mary Shelley’s project to reveal the nature of humanity by constructing a monster. Or Madison’s sense of panic as he observes majoritarian republicanism, operating on its own terms to produce its negation, tyranny.

The classical meaning of “theory” was that it is the way to see things, comprehensively, as they are in their deepest nature. The more modern understanding is that theory is a way to make things, as they might be. Or might already be, if we can think big, apprehending and living by what is beyond our eyes (e.g., The Federalist). The Americans add “constitutional” to “theory;” they build a world, as well as see, comprehensively. Theirs is the construction of a new realm of the possible.

Obviously, though, there may be good theories and bad ones; those that work to produce good worlds and those that don’t.

It turns out that what we did on Saturday morning was to go from our customary focus on seeing things theoretically (with the color pictographics and idea-schematics, using the words and images of the primary documents) and into a world made by our constitutional theory. Moving from my own usual style of propositionalism-plus-inquiry to narration, which is an older approach for me.

It might help you to know that, professionally, I was a newspaper reporter before I was a political theorist. I consistently tried to get the picture and experience into the words of the story. At first, then, connecting “word” and “world” was a very practical matter for me. Literalistic and concrete. Describe what it’s like to be there. But, later, the question became: if you can capture the world you can see, with words, a story; maybe you can make one you can’t yet see, with words. A constitution.

On Saturday, I attempted to use the words of a story to make the picture and an experience — the reverse of the journalist. I made a constitution — though I was really trying just to find the one we already have.

Following my newspaper work, at Princeton, the University of Michigan, and the University of Pennsylvania, I developed a style of setting up moot constitutional controversies in my classes, using fictional characters and deploying factual circumstances I constructed with an attentiveness to their constitutional implications. I would set these in a fine balance of analytical and emotional valencies and counter-valencies so that students would have to work out an entire theory of the Constitution to address the problems intelligently. No easy answers. No clear outcomes. No moral righteousness about certainty, even after you’re finished working things out. The narrative was set up to give the theoretical problematics a quality of real life, as well as outlandishness, with a sort of infuriatingly unresolvable contradictoriness. One of the characters I created whom I prized most greatly was a religious figure named the Rev. Lonnie Goodplummet, who headed an organization called “Nation Under God, Inc.” (NUGI). It was committed to “rubbing into the heads” of all Americans the prevailing Christian character of the United States. His political projects, not to mention his personal power-seeking, kept getting into constitutional trouble. The name says it all. But that doesn’t mean we stopped talking.

Walter Murphy, then the McCormick Professor of Jurisprudence at Princeton, from whom I learned so much about these things, is the preeminent practitioner of this approach in his scholarly and literary work. His fictional account of the Supreme Court of the United States through his character, Chief Justice Declan Walsh, is considered by many thoughtful commentators to be the most accurate portrayal of the early Burger Court in operation. Justice Harry Blackman once said this to us about Walter’s The Vicar of Christ. And Walter’s recently published masterwork, Constitutional Democracy, is laid out entirely as a conversation among fictional characters.


Well, let’s go back to the start of the day on Saturday.

Matt Karlsen asked me on the drive to the seminar meeting whether I was ready. I said I thought it would be fun. But I didn’t let him know anything more.

Months ago, Matt and I had discussed the idea of the “unseen debate” on constitutional terms between the two presidential candidates. This would provide the fundamentally missing piece in their competition. I posed the concept initially because I wanted to be more concrete about how my constitutional theory of Federalist/Antifederalist might play out plausibly in practice. What I intended until I began our seminar on Thursday night, was to set out parallel positions, point-for-point, along the scheme of the dual Federalist and Antifederalist constitutional orders, each with its matched positive and negative visions. That is, using the four-part design I had presented to many of you at Montpelier and summarized somewhat more strategically on Thursday night.

That could have been interesting, but it was essentially an allocation project. I thought to myself that the two presentations I had done for you on Friday were pretty heavy-duty. Of course, that’s my usual approach for short, compact academic programs. But for Saturday, I wanted a different approach to finish with.

What the projective constitutional fiction approach would offer was, in fact, very valuable to me — well beyond just a change of pace for you all. This is what Matt now calls the “speculative fiction” you participated in. You see, it is an utterly constitutive strategy: it is embedded in our founding as the approach of the Federalist Papers, and in many of the Antifederalist writings as well. Maybe we should go back to using it. (Do you think McCain is getting close to that in his speech describing the end of his four-year term as President? Maybe that’s why I like it.)

But what it could do, in particular, on the occasion of my work with you all was two things: (a) to bring the theoretical categories to life; set them in motion, so that the pictorial models on the wall behind me could be given some flesh in a context of real consequence, at a time of national decision; and (b) enable me to achieve what I prize as a real balance between good ideas (and, I hope, good persons) in opposition, at a time when John McCain’s campaign in actual practice has degraded hideously in constitutional terms, and Barack Obama’s seems to be just running out the clock by dribbling out policy details. (He does play basketball.)

Here’s a larger point about this latter consideration. It is a crucial value of my work as a scholar and a teacher to see this balance. This is, no doubt, an inheritance from my days as a newspaper reporter, when I seriously believed in the practice of journalism without bias. But it is bigger now. I have realized that one can understand so much more — more critically and more constructively — with this approach. I think it can make you smarter. Big time. I’ve built this approach into my university courses, my scholarly writings, and the founding of the Center for the Constitution. This is centrally a part of what I do and why I do it. It’s about more than ethics, it’s about being efficacious as a thinker. With the fictionalization on Saturday, I could reconstruct the two presidential candidates, on terms I believe they truly already reflect in their best pronouncements. And I could set the two in play, parallel to each other. A precondition for “choice.”

I wanted everything that I said on behalf of describing what might be presented in their two half-hour television presentations to ring true on some deeper level, in accord with what we think we know about them as real political characters. In constructing my sketches of their prospective presentations, I tried to adjust rational substantive content, overall strategy, and even the emotional energy of the speeches, so that they would be a fit parallel to each other. Also, a fair personification of our founding conflicts. And a filling in of components missing from their campaigns so far (so far!), in terms of the overall scheme I had presented to you earlier. Thus, for example, McCain’s Antifederalist-positive institutional vision of the relationship among the branches of government in classic separation-of-powers terms, and Obama’s Federalist-negative comprehensive vision of a covenantal people now divided, now powerfully generating a black-hole of economic destruction radiating out to the rest of the world, countering the Founders’ hope that we would be an example and benefit to civilization at large.

My device of a simultaneous, uninterrupted presentation of each of their views, as if in conversation with a respected party elder (Colin Powell and Al Gore), was an attempt to get beyond the intrusive self-importance of broadcast journalists, which I think has been the distracting bane of all of the so-called “debates” of this long campaign season. A side-by-side comparison, each on his own best terms: Isn’t that what we really want? This is a heritage, I think, of the structure of our dual founding arguments. And, of course, it was the point of our whole seminar in Vancouver.


What lies between hope and fear is belief. For some moments in my scenario, we may have believed. Not probably so much (for most of us), actually believing the narrative. But believing in what lay behind the narrative. The restoration of our constitutional selves. And not just in a solemn, formulaic recitation of constitutional commitments. Or an analytical rendition of their “meanings.” Rather in the possibility of practicing constitutional ways of thinking and doing — this time, in the national Presidential election campaign that we, too, are so exceptionally involved in.

I, too, was in that theoretical moment. A few of you afterwards asked if what I had said was “true.” I didn’t know what to say. I couldn’t honestly say it was a ruse, and did not do so, because that would deny what I think are its deeper truths about us. Or it might destroy the prospect that “this really could happen.” Still, I urged you not to notify the US News & World Report. Were you, too, operating inside the game? That’s what I thought about the “lie” question, as I marked out how chagrinned I was at our colleague’s statement that my two candidates’ presentations were only second-best after Al Gore’s concession speech. My mentioning on several occasions that I had been instructed to weave in implausible elements so that the story could be denied; adding that I had responded to this proviso with a quip that the whole thing was unbelievable, to the annoyance of my political sources; and concluding with a reference to “returning control of your television set” and coming back from the Twilight Zone: all of these points inserted statements of counter-corroboration into the scenario. Then again, the disclaimers themselves may have begun to serve as evidence of overall authenticity.

For nearly everyone, it seems, there was at least some ambiguity about the veracity of the narrative. You see, maybe it is not so hard to lie with the truth. Does it work the other way around?

Still, I think that as the narrative itself became more ostensibly outlandish, the deeper constitutional picture underneath — its book-matched positive and the negative worlds — was increasingly validated. Outland is Our Land. It is what it is. But, also: It is what it isn’t. Maybe more so these days than we recall from the past. And that, I think, may be the source of any dismay or disappointment experienced by some of you. (Maybe, all of us.) It wasn’t that you continued to accept my story on its own terms, except as a device for thinking about and walking around a world that you do, in fact, continue to believe in — notwithstanding the profound skepticism prompted in all of us by recent experience. But you are not about to let that constitutional world’s deeper reality be dashed by the fact that it might, for now, be rendered only as fiction. I’m with you on that.

For those theoretically susceptible among you who were lucky enough to be able to suspend disbelief and enter the world of the fictive — the humanly “made” — Constitution, what did you see? and how did you feel? as you looked and moved around in it? When did you decide for sure what you think about its verisimilitude? At 6 p.m. (Pacific Time) on Sunday, I too wondered what might be on the news about new developments in the campaign. (I forgot to mention that the 9 p.m. time that I said was the target for the two candidates’ presentation was Eastern Time, like the debates.) I was interested to notice that Bill Kristol, in his New York Times column on Monday, urged McCain to fire his campaign staff. How long can you stay in the middle, between observing failure and imagining possibility?

When you reflect on it, though, we should probably all have been crying at the end of the scenario on Saturday morning, as we apprehended the outrageous constitutional state at which our country has arrived. Tears of grief? Tears of rage?

Then, too, I’m sure there should have been outbursts of uproarious laughter as we realized how thoroughly we’ve been fooled by our bad politics. To think that we might be governing ourselves.


3 responses to “Will Harris – A Theoretical Moment

  1. Pingback: The Constitution, the election, and the truth « Teaching American History in SW Washington

  2. I’ll confess to trying to bait Will into giving up the ruse(or was it?) by comparing his comments to Al Gore’s concession speech. He is far better at the game than I am obviously.

    Having said that, I spent the following 24 hours checking major media outlets for proof that he was right. I too was in the moment. I it felt wonderful to think that we might actually be able to rescue the republic and truly live and govern in accordance with our ideals, instead of our cynism.

    Alas, by monday, I was left heartbroken.

  3. “For those theoretically susceptible among you who were lucky enough to be able to suspend disbelief and enter the world of the fictive — the humanly “made” — Constitution, what did you see?”

    Here’s what I saw…
    I wanted to smack the guy who said it was a lie, because I absolutely believed what you said. It sounded so plausible, and the part of me where hope trickles eternal wanted it to be true. I thought I was hearing about two good people who feel called to be President of this country being willing to step outside of the “machinery” that is our current political process and link arms to restore hope for the people that one of them would govern. I kept thinking (as a kept blubbering about on Saturday morning); “Has any president, or leader, done something like this before?” and what I meant by that is, “Has anyone risked everything by taking control of the process and standing truly transparent before the people?”

    The thread of the conversation (Federalist/Antifederalist) that suspends our Constitution in the tension between what we would be and what we are, is tangled, and it needs to be sorted it out. It was heartening to think it might be starting to happen… And oh, what we would all be able to talk about with our students!!!

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