Constitutionalism in an Age of Speed

Scheuerman, William E., Constitutional Commentary

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).

I. 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 organizational innovation, directly linked to novel technologies (for example, high-speed computers), constitute core features of a "post-Fordist" economy that has emerged in the last two decades. For Harvey, post-Fordism is driven by high-speed technologies that place a "premium on 'smart' and innovative entrepreneurship, aided and abetted by all the accouterments of swift, decisive, and well-informed decision making." (13) Post-Fordism means that the pace of both everyday economic life and relatively significant economic innovations is dramatically heightened vis-a-vis earlier forms of capitalism. According to this account, a privileged status for speed makes up a permanent attribute of capitalism, yet acceleration has taken an especially intense form since the 1970s.

This is not the appropriate place for a full-fledged critical summary of the ongoing social theory debate. For our purposes here, it suffices to note that participants in the debate are describing a collection of phenomena that can be fruitfully grouped into three categories. Although the empirical borders between them are typically blurred, and notwithstanding the fact that all three "ideal-types" of social and economic acceleration are causally interrelated as well (and thus can be plausibly interpreted as constituting different elements of a single social trend), conceptual clarity demands that we try to distinguish among them. (14)

First, we find evidence for an intense process of technological acceleration, according to which key technical processes (particularly in communication, transportation, and production at large) now take place at a vastly faster pace than in earlier historical periods. Communication transpires between distant geographical points at an unprecedented rate, travel times have been dramatically cut, and the time necessary for the production of even relatively complex commodities undergoes constant reduction. Many recent innovations in information technology (for example, the Internet) constitute obvious examples of this facet of social and economic speed. Under this rubric we can include the heightened pace of technological innovation, as the half-life of many new forms of technology undergoes rapid decline. As the social philosopher Hans Jonas noted over twenty-five years ago, technological development in modern times quickly came to embody "a principle of innovation in itself which made its constant further occurrence mandatory." (15) This type of acceleration can be measured and quantified with relative ease, and its existence has been documented by many empirical studies. (16)

Second, the pace of significant social change or transformation exhibits evidence of acceleration as well. Relatively far-reaching shifts in economic and social life now take place at a rapid pace. Forms of economic organization and occupational patterns, for example, change intra-generationally rather than over the course of whole generations. One familiar result of this alteration in the temporal horizons of social life is that our contemporaries may change jobs many times during the life-course, whereas our early modern historical predecessors often were destined to follow occupations identical to those of their parents and even grandparents. And even those of us who do not shift jobs are likely to find ourselves in workplace settings where constant organizational restructuring or "rationalization" constitutes the norm and not the exception. Technological changes can help produce relatively dramatic changes in economic and social organization in a short span of time; within a mere two decades, new informational technologies have generated far-reaching shifts in many arenas of contemporary economic production and consumption. (17) The example of computerization also reminds us that the process of social change or transformation tends to be related to technological acceleration. As the pace of technological innovation increases, the rate of major social and economic change tends to grow as well, as new forms of technology oftentimes, though by no means necessarily, encourage experimentation with novel forms of social and economic organization. Maybe this is why Dewey could make such an easy transition from describing the "rapidity, scope, and intensity" of social change in general to discussing changes in "industrial habits;" perhaps he understood how the relentless revolutionizing of industrial technologies is often tied to the pace of significant social and economic change.

Finally, the social and economic acceleration of contemporary society includes the heightened tempo of everyday life, according to which substantial empirical evidence points to an objectively-measurable intensification of activities that we nowadays engage in during a given unit of time. We eat, walk, and talk (or at least communicate) faster than most of our predecessors; we also manage to pull this off even though we typically sleep less than they did. When Dewey in The Public and Its Problems alluded to contemporary society's "mania for motion and speed," it was most likely this facet of our high-speed social and economic world that he had in mind. (18) We should probably see this final element of acceleration as most directly linked to technological acceleration, which constitutes the immediate fount for the ever faster pace of everyday life. However, the relative rapidity with which broader social and economic patterns of social life now undergo change may also be tied to it. In recent years, this third face of speed has attracted the attention of a number of popular authors, who worry that the imperatives of an accelerated everyday existence threaten to overwhelm human capacities for absorbing information and coordinating our lives in a meaningful and coherent manner. (19)

II. THE DILEMMA OF CONSTITUTIONAL OBSOLESCENCE

How then does social and economic acceleration impact on constitutionalism? Written constitutions represent exacting forms of prospective lawmaking, according to which constitution-makers are asked to foresee future social and economic trends in order to funnel …

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Publication information: Article title: Constitutionalism in an Age of Speed. Contributors: Scheuerman, William E. - Author. Journal title: Constitutional Commentary. Volume: 19. Issue: 2 Publication date: Summer 2002. Page number: 353+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 2002 Gale Group.

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