What is the basis for American Law? How does the law interact with ideology to regulate the belief systems which govern daily interactions in America—the social fabric of the people? It is taken for granted that the “law is the law,” and is therefore to be obeyed (Zizek, The Sublime Object of Ideology, pg. 33). In Freudianism, a fetish conceals the void around which a symbolic network is organized. I therefore examine the basis of American Law through fetishism, the expansion of the law as an obsession to cover its impotency, and the thorny question of Constitutional Authority. While I critique the transcendent basis of the Constitution, I do admire the strict interpretation of civil liberties encoded within. Furthermore, I quote Nietzsche out of the context he deserves. If interested, I encourage you to scour his book The Anti-Christ for your benefit. I apply Zizek to these ideas, but I am still splashing in the deep end when it comes to swimming with this giant.
Theologically, only some “chosen” individuals may achieve pure faith. But for the millions of lower others who want to have faith, justifications emerge. For the faltering religions (and ideologies), an initiate must enter their study with prerequisite belief to deepen their dogma. The justifications they create after they have already followed the path give their initial choices legitimacy: the faith invents itself. As said within the Zen discipline, all the teachings of Zen are the product of your own mind (and to then be overcome). But the teachings only come if you believe. Kierkegaard once decried the lukewarm belief of most, musing that to study the tenets of Christianity and to pray for evidence of God, and only then to accept Jesus Christ once you deem it reasonable is to blaspheme by requiring the Almighty to explain himself (Zizek, The Sublime Object of Ideology, pg. 35).
Yet this tepid belief running parallel in American society is what remains from any original zeal possessed. Manufactured ethno-national ties or appeals to Christianity are shaky grounds for American Tradition. The best available foundation is the Constitution and the believed transcendence contained within. Yet whether American Law and the Constitution contain “Truth” is far overshadowed by whether citizens believe that the law contains Truth. Hence America is predicated on a faith component few recognize: America exists because people believe America exists; our social reality has become a “last resort [] ethical construction” shakily held in place by the legal system (Zizek, The Sublime Object of Ideology, pg. 34).
A Brief Legal History
Nominally, American Law is a “Common Law” growing from a constitution. First: Common Law doctrine. Over time, court decisions “summariz[e] the experience, shrewdness, and experiments in morality of many centuries, [they] draw conclusions, nothing more.” (Nietzsche, The Anti-Christ, Chapter 57). Common Law means a slowly evolving web of court decisions, which when combined, create an aggregate set of rules drawn from the lessons of many individual cases. Yet, the way a common law becomes a “slowly and expensively acquired truth” is “fundamentally different from the way that this truth would be proven.” (Id.). A pure common-law system exists without divine intervention, there is no sending 10 Commandments down from the mountain: metaphysics is not an ontological ground for Common Law sensibility. The Common Law is a hard-fought set of rules organic to its people. Yet if the law is truly organic to them, if the society erodes, the legal system will erode with it. Therefore, a constitution bulwarks against moral decay and tyrannical creeping by giving guiding principles to the growing Common Law.
As such, and secondly, the American Constitution ideally possesses a transcendence—a timeless “core” of principles at the basis of the Common Law system extending beyond any decade or trend. Whether the Constitution contains this transcendence is not as important as whether citizens believe the Constitution is grown from this transcendent inspiration. The legal system then must balance between constitutional ossification, where the law becomes stiff and rigid, and a chaotic Common Law system run amok. However, what happens when the Constitution, the “rock” of the legal system, is rapidly stripped of its believed authority?
Many conservatives decry the debasement of the American Constitution as progressive justices interpret the Constitution to suit their goals. Conversely, conservatives either do not realize—or they ignore—the radical nature of their beloved document (and some are just as guilty as progressives—Justice Scalia in Bush v. Gore 2000). The American Constitution is a piece of revolutionary Gnostic ideas; it was radical and anti-tradition in its time forming an egalitarian stance against European aristocracy and biblical law. It is Ironic that almost 250 years later such a document is praised by conservatives when in 1776 European conservatives abhorred the American Revolution (any study in legal history demonstrates that conservativism is not a substantial ideology as much as a “drag-parachute”).
Nonetheless, the Constitution coupled with Common Law served America well until the deep fissures of the 1960s. It is fine to have a country’s representatives (Congress) analyze the acted societal code (common law and public sentiment) and codify new rules for modern times (pass and amend nation-wide statutes). It is entirely different to have Supreme Court justices reinterpret the guiding set of foundational principles and twist them to enshrine protections for behavior once thought abhorrent over the protest of millions of citizens: such actions crack the absolute belief in Constitutional Authority. What began in the 1960s was a full break with the past, sending shockwaves across the social field.
The Constitutional Revolution
Now note, I do not take offense to many 20th century civil rights movements, the problem to focus on is the ideological effect groundbreaking (and highly politicized) Supreme Court decisions made. Any reputable claims to constitutional transcendence ended in the 1960s and early ’70s under the “activist judges” (Supreme Court Justices acting as politicians) in the Warren Court, then the Burger Court. Here, American law broke with the lingering practices of its founding: within a bit more than a decade, age-old bans on interracial marriage (e.g. Loving v. Virginia 1967), abortion (e.g. Roe v. Wade 1973), and pornography (e.g. Miller v. California 1973) were all declared unconstitutional by the Court.
In addition to the Equal Protection Clause, the Warren and Burger Courts proliferated Substantive Due Process, a legal invention by judges that gave them leeway to constitutionalize rights for their progressive ideas. Substantive Due Process means a longstanding freedom and practice endemic to American society. Yet, the “freedom and practice” does not need to be explicitly written anywhere in the Constitution. Substantive Due Process gives unelected justices incredible leeway to constitutionalize rights and activities. This is called “legislating from the bench,” when judges use their authority to make broad societal changes outside of the democratic process.
Ironically, Substantive Due Process could as easily be argued the opposite in many cases: are not miscegenation laws as old as the country itself and once considered vital to maintaining civic order? Are not abortion bans a longstanding practice in America thought to uphold the sanctity of life? Do pornography bans not have a basis endemic to Puritan morality? Why did the justices assume that broadening activities is intrinsically conducive to “freedom” and restricting behaviors is not? Now note, this is not to argue that interracial marriage bans need be reinstated. The subtle point is that by the 1970s, the Court twisted its position from a (usually) neutral legal arbiter to a politicized power sweeping change across the United States, chipping away at once unquestioned faith in the Constitution with each decision: “for the past two hundred years, our predecessors were actually misreading the Constitution!” the justices haughtily announce.
Courtroom Politics
The newly changed (or newly degenerating as Evolians write) Supreme Court and higher federal decisions quickly became the medium through which political issues could be resolved wrapped in the decorum of the law. As civil discourse breaks down, the courts have an increasing role in defining the social code of American society. To do this, rather than debate clear political and cultural issues, constitutional law is used to abstract out messy societal issues into clean and neat legal arguments.
No sane Congressman is going to tarnish his brand by campaigning to decriminalize sodomy. Rather, progressives can abstract the problem into the legal system as privacy for intimate conduct in your home (Lawrence v. Texas 2003).
It is a knotty discussion to publicly analyze effects if fewer minorities vote. Instead, your party can rephrase the problem as whether the states or the federal government should create a standard of voting rights (Shelby County v. Holder 2013).
The Court is not going to discuss why children should say the pledge of allegiance in school, rather the case becomes about the standing of the parent to bring this claim (Elk Grove Unified School District v. Newdow 2004). The conservative side does not argue the merits of having children say the pledge of allegiance and the progressives do not argue “under God” is coercive, instead, the conservative side has a tidy and boring argument about the standing of a plaintiff to bring a claim; the progressive side makes arcane arguments no non-lawyer can understand about why the parent is legally allowed to go to court on behalf of his child. This is how politics happen now: quibble on pedantic debates over abstract points of law rather than through outright discussion in a gridlocked congress. But if each major constitutional decision is revealed to be the result of partisan sophistry rather than a newly contemplated Truth, why should common citizens obey the law if they disagree?
When an existing belief system buckles, the subject will diligently alter focus to avoid the consternation of traumatic realization. The principled transcendence at the core of the Constitution is no longer seriously studied by most lawyers—the empty phrases and old ideas are manipulated like a child squeezing playdoh. As Zizek writes, a fetish is the last thing the subject sees before realizing his own castration; the obsession America has with rights expansion is the last stage before the loss of faith in the law. The new obsession over growing constitutionally protected behavior symptomizes an approaching breakdown of the American legal system, and with it, the trusted means of regulating the rules in society. This growth is not marked with necessary reforms (i.e. expanding the scope of the 4th Amendment to protect your digital privacy) but rather “petty” high profile issues like wrapping flag-burning in the 1st Amendment (Texas v. Johnson 1989) and constitutionalizing homosexual marriage (Obergefell v. Hodges 2015). Rapid legal growth enshrining more and more protections masks the true impotency of American Law: it is no longer believed to be a sound practice grasping for an elusive truth, the law is rationalized nihilism played with for political gain.
Faith in American Law
“Transcendence” either no longer or never did exist in the root of American lawmaking, it is gradually invented afterward. Perhaps at one point in history, initiated Supreme Court Justices offered a resemblance of transcendence. But today as the decision to have faith creates belief; the legal intelligentsia believing in the law creates its legitimacy. In this sense there is no real obedience to American Law in the same way that very few Christians have true faith; American Law is the “necessary authority” without “underlying truth” (Zizek, The Sublime Object of Ideology, pg. 36).
21st century America depends upon its peoples’ faith in the “social reality” to function through a method of transference. “[T]hus, believing that truth can be found and resides in laws and customs, they believe them and take their antiquity as a proof of their truth” (Zizek citing Blaise Pascal, Pensées, pg. 216). When legal decisions are made there are no appeals to an underlying transcendence—no lawyer is fooled that Substantive Due Process is anything else but another legal tool. When an intern drafts a bill, the intern is not imbued with the transcendent spirit of the Constitution, it is just a draft of a bill. Yet perhaps it always was this way? But the problem now is people are losing faith.
The candidate is propelled into a congressional seat. She then meets with the various special interests that convince her of needed statutory changes that align with her biases. A group of congressional staffers draft a bill, the bill fumbles its way through committees, it becomes a law. The new statute stirs attention. Law students write journal articles about it, projecting their own ideology on the new statute. The statute is challenged in court and in the briefs and opinions, sophists and judges impose and invent reasoning that the staffers drafting the bill could not begin to comprehend.
We blindly act as if the bureaucracy is all-mighty. We act as if the elected President incarnates the Will of the People, as if the Democratic party expresses the objective interests of the working class. Yet is it so? (Zizek, The Sublime Object of Ideology, pg. 34). Does the American Intelligence Community have strategic vision? Is Donald Trump a new guardian of conservativism? Does the DNC have the best interest of voters in mind? Does the Constitution even contain eternal Truths? The Roman Soldiers burst into the holiest of holies, the inner sanctuary of the Temple in Jerusalem, and found no God, only a dark empty room: there was nothing there all along. The belief system collapses.
American society and law are fragile in that as soon as the embodied belief in the social reality is lost, the very “texture of the social field disintegrates” (Zizek, The Sublime Object of Ideology, pg. 34). The belief within the American system allows the turbulent American system to function with justification. It may not have Authority: if an American follows the law because they rationalize the law to be built upon eternal Truths there is no real obedience then, it is an external one, because “obedience out of conviction is not real obedience because it is already ‘mediated’ through our subjectivity” (Zizek, The Sublime Object of Ideology, pg. 35). But nonetheless, like a Christian who later discovers reasons for his original faith, when we already choose to obey the law, we will later discover good reasons to follow the law, “mediating” our choices through our own perception thus reinforcing the legitimacy of the original decision. And as Kierkegaard reminds us, it is a weak form of faith, but it keeps the Church alive with devotees. Likewise, in 21st century America it is precisely this unseen “traumatic, non-integrated character of the law” Which ironically allows its continued functioning . . . until it does not (Zizek, The Sublime Object of Ideology, pg. 35).
The current character of American law is fetishism. There is only expansion, there is only new precedent. Who must receive new rights next? Can we be more equal? How do we obtain greater freedom? Neurotically addicted to creating notions of progress lest the lawyers look deeper. The American legal system is rationalized nihilism, desperately granting notions of new rights to new peoples—mirroring economic models as an infinite growth in legal form—as whatever transcendent basis it was believed to have is far forgotten. “A book of law never describes the uses, the reasons, and the casuistry in the prehistory of a law: this would make it lose its imperative tone, the ‘thou shalt’, the presuppositions for being obeyed. This is precisely where the problem is” (Nietzsche, The Anti-Christ, Chapter 57). Perhaps if lawyers are busy enough, perhaps if they struggle through granting newer and newer rights and protections, they will not realize their Authority has no standing.
American Law is a fetish.
