Pragmatics 5 :2.

263
-280.
Internati onal Praqmati cs Associ ati on
PERFORMING THE PEOPLE
Benj ami n Lee
1. Introduction
The invention in the New World of national communities imagined to be
independent, equal and comparable to those of Europe was at its time "felt to be
something absolutely unprecedented, yet at the same time, once in existence,
absolutely reasonable (Anderson 1983: 192)." The inaugural event was the American
Revolution, with the Declaratiott of Independence announcing the formation of a
sovereign people and the Constittttion declaring "we, the people" to be the
subject/agent of an open ended, self-constituting political process. The American
idea of a nation embodying and representing a sovereign people was something both
startling and new, and then immediately imitated in the constitutions of other
nations.
Although the invention of "the people" was a long, historical process, its roots
lie in the new forms of subjectivity developing in the public spheres of Europe and
its colonies during the eighteenth century. In philosophy, the "inward turn" (Taylor
1990) begun by Augustine takes the self-ret-lexive examination of consciousness as
the starting point for both morality and epistemology. Descartes' cogito and its dico
variant make the self-evident truths produced by self-reflexiveness the core of a
radically new role for individual consciousness: That of' the ground for morality and
epistemology, not merely the tool for discovering some other ultimate authority,
such as God in Augustine' s account. Locke rejects Descartes' appeal to innate ideas;
he not only further objectifies and instrumentalizes subjectivity, but also posits a
model of how society can be created out of the mutual consent of individuals who
see themselves and society in the light of this new model of consciousness and
agency" Implicit in the Lockean move is a further removal of God as society' s
performative source and a relocation of that performativity in the social contract.
These new forms of philosophical subjectivity were developing in what Jurgen
Habermas has termed the "bourgeoi s publ i c sphere"; they provi ded a pol i ti cal
i deol ogy for the emergi ng bourgeoi s cl ass i n i ts struggl es wi th the absol uti st state.
Yet as Habermas hi msel f poi nts out, thi s publ i c sphere al so nurtured the
development of new forms of "expressive" subjectivity which were most clearly
real i zed i n the devel opment of fi cti onal narrati on. The
j uncture
between phi l osophy
and literature will also provide the "transportable" torms necessary for Anderson' s
imagined communities of nationalism. The crucial moment is when a new structuring
consciousness emerges through the development of a print capitalism mediated by
an institutionally structured, self-reflexive appropriation of the meta-linguistic
potentials of narration. Narration is constituted by a semiotic reflexivity of the event
of narration and the narrated event, whose coordination reveals the locus of a new
264 Benjanin Lee
type of subjectivity, that of the narrator. The changes in novelistic form and
narrati on duri ng the ri se of the bourgeoi s publ i c sphere paral l el those i n phi l osophy.
The authori ty of omni sci ent narrati on i nteracts wi th a new form of narrati on whi ch
was especi al l y popul ar around the ti me of the Ameri can Revol uti on, that of the
epi stol ary novel ; the epi stol ary novel creati d a tone of narratori al i nti macy and
reader sol i dari ty among an extended, pri nt medi ated audi ence whi ch contrasted
sharpl y wi th the "obj ecti vi ty" of omni sci ent narrati on.
Earl i er i deol ogi es of pri nti ng constructed pri nt as the extensi on of face-to-
face communi cati on. In the bourgeoi s publ i c sphere, peopl e began to see pri nti ng
as foregroundi ng wri ti ng' s potenti al tbr unl i mi ted di ssemi nati on, thereby creati ng a
pri nt-medi ated di ft' erence between publ i c di scourse and the worl d of l etters that
characterizes private correspondence. As Michael Warner has argued (Warner
1990), the cri ti cal transformati on i s when communi cati on i s seen not as face-to-face
rel ati on between peopl e but rather as medi ated by a potenti al l y l i mi tl ess di scourse.
It i s i n thi s space that narrated texts i nsert themsel ves and become the semi oti c base
tor new forms of subjectivity.
Thi s space i s at l east doubl y metal i ngui sti c. Fi rst, phi l osophi cal and narrated
texts are formally metalinguistic in their use of reported speech, double voicing,
i ndi rect di scourse, and free i ndi rect styl e to construct the rel ati on between narrator
and narrated material or the philosclphical selt--reflexive examination of
consci ousness. Second, the di scussi on of such texts i s al so metal i ngui sti c, and
accounts such as those of Habermas, Tayl or, Anderson, and Warner coul d be
interpreted as showing how these emergent forms of consciousness contribute to the
devel opment of nati onal i sm, ci vi l soci ety, and the mcl dern nati on-state. Concepts
such as publ i c opi ni on, the voi ce of the peopl e, and popul ar soverei gnty are
metal i ngui sti c obj ecti fi cati ons of the i ntersecti on of narrated and phi l osophi cal
di scourses and the publ i c spaces they create and medi ate.
2. The founding problem
It i s now di ffi cul t to see the foundi ng documents of the Uni ted States as usheri ng
in a new social form of modernity. Yet as both Anderson and Hannah Arendt
(1963) poi nt out, they announce the creati on of a pol i ti cal subj ecti vi ty that breaks
wi th tradi ti onal forms of l egi ti mati on. In nei ther document are there references to
the anti qui ty of the Ameri can peopl e or a conti nui ty of cul ture and custom that
bi nds them; i nstead, there was "a protbund t-eel i ng that a radi cal break wi th the past
was occurri ng
-
a
' bl asti ng
open of the conti nuum of hi story' (Anderson 1983: 193)",
the idea of which would spread and be emblazoned in the French Revolutionary
cal endar' s marki ng of a new worl d era starti ng wi th the Year One of the new
French Republ i c.
The modern concept of revol uti on, i nextri cabl y bound up wi th the noti on that the course
of hi story suddenl y begi ns anew, that an enti rcl y new story, a story never known or tol d
before, i s about to unfol d, was unknown pri or to the two great revol uti ons at the end of the
ei ghtecnth century. Before they were engaged i n what then turncd out to be a revol uti on,
none of the actors had the sl i ghtest premoni ti on of what the pl ot of the new drama was
goi ng to be. However, once l he revol uti ons had begun to run thei r course, and l ong before
those who were i nvol ved i n them coul d know whether thei r entcrpri se woul d end i n vi ctory
Performing the people 265
or di saster, the novel ty of the story and i nnermosl meani ng of i ts pl ot became mani fest to
actors and spectators al i ke. As to the pl ot, i t was unmi stakabl y the emergence of
frecdom....(Arendt 1963: 28)
Revol uti on combi ned the i deas of a uni que begi nni ng and freedom whi l e al so
creating a new historical subject and agent. The revolutionary project of "inventing
the people" produces a new form of make-believe which "then takes command and
reshapes real i ty (Morgan 1988: 14)" cven as i t attempts to establ i sh a uni que hi story
for each new nati on. Yet ul ti matel y, revol uti ons si mpl y repl ace one form of make-
believe with another.
At the ti me when Engl and' s Ameri can col oni es were founcl ed, the fi cti ons that sustai ned
government
-
and l i berty
-
were al most the reverse of those we accept today. Engl i shmen
of the si xteenth and scventeenth century affl rmed that men were created unequal and that
they owed obe<lience to government because the Creator had endowed their king with his
own sacred authori ty. These proposi ti ons too were fi cti onal , requi ri ng suspensi on of
di sbel i el defyi ng demonstrati on as much as those that took thei r pl ace. How then di d the
one gi ve way to the other? How di d the di vi ne ri ght of ki ngs gi ve way to the soverei gnty of
the pcopl e? How di d thc ncw fi cti ons both sustai n govcrnmcnt by the fcw and restrai n the
few for the benefi t of the many? In other words, how di d the exerci se and authenti cati on
of power i n the Angl o-Ameri can worl d as we know i t come i nto bei ng? (Morgan 1988: 15)
The battle to create a sovereign people contains within it the overthrow of
an older order of legitimacy, that based upon the divine right of kings. Yet to
overthrow this source of legitimacy was to call into question that which had always
been assumed: governments were legitimated by higher laws. If religion could not
provide the source of legitimacy, what could? Even more specifically, what
l egi ti mates the consti tuti on of a modern nati on when tradi ti onal sources of authori ty
have become el faced by a ri si ng secul ari sm' / Arendt descri bes the si tuati on as a
vi ci ous ci rcl e:
...those who gct togethcr to consti l utc a new government are themsel ves unconsti tuti onal ,
that i s, they havc no authori ty to do what they have set out to achi eve. The vi ci ous ci rcl e
i n l egi sl ati ng i s present not i n ordi nary l awmaki ng, but i n l ayi ng down the fundamental l aw,
the l aw of the l and or the consti :uti on whi ch, from then on, i s supposed to i ncarnate the
' hi ghcr
l aw' from whi ch al l l aws ul ti matel y deri ve thei r authori ty. And wi th thi s probl em,
whi ch appeared as thc urgcnt necd for some absol ute, the men of the Ameri can Revol uti on
found themsel vcs no l ess conl ronted than thei r col l eagues i n France. The troubl e was
-
to
quotc Rousseau once more
-
that to put the l aw above man and thus to establ i sh the
val i di ty of man-madc l aws, i l
faudrui t
des di etu,' one actual l y woul d need gods' . (Arendt
1963: 184)
3. The American solution
When the col oni sts fi rst came to the Uni ted States, they came as Engl i shmen.
There was no crisis of legitimacy or issue of sovereigntyr flo vicious circle to be
undone. The Mayflower Compdcl was drawn up in Britain before the colonists left
for the New World; they left under the
jurisdiction
of the Virginia Company and
signed the Compact aboard the Mayflower before it ever landed. The
Compact combines a performative moment of mutual agreement, sanctioned by
266 Benjantin Lee
Gocl , wi t h a const i t ut i onal one:
we sol emnl y and mutual l y i n the Presencc of God and one another, covenant and combi ne
oursel vcs together i nto a ci vi l Body Pol i ti ck...; and by vi rtuc hereof cnact, consti tute, and
frame, such
j ust
and equal [,aws, Ordi nances; Acts, Consti tuti ons, and Offi ces, from ti me
to ti me, as shal l be thought most meet and conveni ent for the gcneral Good of the Col ony;
unto whi ch we promi se al l due Submi ssi on and Obedi ence.... (quoted i n Arendr 1963: I73)
Wi thi n one hundred and fi fty years, l he di fferent threads woven i nto the Contpact woul d
begi n to unravel around the probl em of rcpresentati on. Nearl y al l of the great debates of
the peri od, begi nni ng wi th the i mperi al controversy i n the 1760s and endi ng wi th the cl ash
over the new Federal Consti tuti on i n the 1780s, were ul ti matel y grounded i n the probl em
of representati on. Indced, i f representati on i s dcfi ned as the means by whi ch the peopl e
parti ci pate i n governmcnt, ful fi l l ment of a proper representati on bccame the goal and
mcasure of the Revol uti on i tsel f,
"the whol c subj ect of the present controversy" as Thomas
Jefferson put i t i n 1775. (Wood 1969: 1)
The Amer i can Revol ut i on woul d r epl ace t he monar chy as t he sour ce of
authori ty wi th the vox popul i . The ki ng i ssues commands i n God' s name; the peopl e
would replace him as the performative source of law. Unlike the French Revolution,
the Ameri can sol uti on woul d be to separate the sources of power and l aw by a
pri nted textual medi ati on. The Consti tuti on woul d be the source tor l aw; the peopl e
woul d be the source of l egi ti mate power. The di stri buti on of a pri nted Consti tuti on
to be ratified by state legislatures would make possible a new form of social
mediation which would then be the source for an abstract notion of the people
whi ch woul d transcend any parti cul ar l ocal e, yet be i mtnanent i n al l the ci ti zenry.
As Mi chael Warner puts i t.
..our soci ety' s rcpresentati onal pol i cy rests on a recogni ti on of the abstract and defi ni ti onal l y
nonempi r i cal char act er of t he peopl e. I t i s t he i nvent i on of t he wr i t t cn const i t ut i on, i t sel f
now the ori gi nal and l i teral embodi ment of the peopl e, that ensures that the peopl e wi l l
henceforward be nonempi ri cal by dcfi ni ti on. (Warner 1990: 103)
3.1 Hannah Arendt
The creati vi ty and unprecedented nature of the Ameri can sol uti on to the vi ci ous
ci rcl e paradox has been forceful l y argued for by Hannah Arendt i n her book On
Revolution, and extended by Bonnie Honig in her Derridean update of Arendt and
i n Mi chael Warner' s Habermas i nspi red work on the Republ i can publ i c sphere.
Arendt sees thi s breakthrough i n the arti cul ati on of a new model of pol i ti cal
authori ty whi ch rel i es upon consensual agreement rather than any appeal to
transcendental authori ty. Honi g poi nts out that Arendt' s concepti on pri vi l eges a
performative interpretation of modern political authority which, when augmented
with some points from Derrida' s analysis of the Declaratiort of Independence,links
problems of political power and authority with the performative and constative
nature of speech acts. Warner' s work adds a new dimension by showing how print
medi ati on contri butes to the process of the pol i ti cal l egi ti mati on of the
Consti tuti on.
Arendt fel t that "the col oni zati on of North Ameri ca and the republ i can
Perfoming the people 267
government of the United States constitute perhaps the greatest, certainly the
boldest, enterprises of European mankind (Arendt 1963: 55) because they founded
"an entirely new body politic" which "liberated the power of covenant and
constitution-making (ibid, p 168)"; the American colonists discover a new way of
"world-making" based not upon some Lockean social contract, but rather what
fuendt calls a "mutual contract" (ibid, 169). In Locke' s account of the founding of
political authority, there are really two social contracts. The first is concluded
between individuals and moves them from the state of nature to the state of society.
The second is between these social persons and their ruler and legitimates his
authority. Since both contracts are fictions, Arendt focuses on the first type of
contract in which "each individual person who outside the constituted political realm
remains impotent" mutually consents to the creation of a new form of social power
from which they all can benetit. This form of "mutual consent" which creates and
enhances power while binding it via an egalitarian and reciprocal contract contrast
sharply with the contract to create a sovereign in which individuals "resign" their
power in their consent to have someone rule them. The two forms of contract
distribute power and responsibility differently. The power gained by the individual
in the former is in direct proportion to the power he gives over to the ruler in the
latter. In mutual consent, people lose their isolation in order to cooperate with one
another; in the creation of a sovereign ruler, they protect and safeguard their
isolation.
In other words, the mutual contract where power i s consti tuted by means of promi ses
contai ns i n nuce both the republ i can pri nci pl e, accordi ng to whi ch power resi des i n the
peopl e, and where a
' mutual
subj ecti on' makes of rul ershi p an absurdi ty-
' i f
the peopl e be
governor, who shal l be governed?'
-
and the federal pri nci pl e, the pri nci pl e of
' a
Commonwealth for increase' (As Harrington called his utopian Oceana), according to which
consti tuted pol i ti cal bodi es can combi ne and enter i nto l asti ng al l i ances wi thout l osi ng thei r
identity. (Arendt 1963: 17I)
In an obvious reference to the French Revolution, Arendt points out the
totalitarian implications of the
' authority'
contract.
It i s equal l y obvi ous that the soci al contract whi ch demands the resi gnati on of power to the
government and the consent to i ts rul e contai ns i n nuce both the pri nci pl e of absol ute
rul ershi p, of an absol ute monopol y of power
' to
overawe them al l (Hobbes) (whi ch,
i nci dental l y, i s l i abl e to be construed i n the i mage of di vi ne power, si nce onl y God i s
omni potent), and the nati onal pri nci pl e accordi ng to whi ch there must be one representatl ve
of the nati on as a whol e, and where the government i s understood to i ncorporate the wi l l
of al l nati onal s.
(Arendt
i dem)
Arendt sees the American struggle for independence as the first modern
revolution which begins to articulate the implications of a politics of mutual consent.
Starting with the Mayflower Compacl and running through the Declaration of
hdependence and the Constitution, "promises and covenants" create and maintain
power. In the Mayflower Compact and the Declaratiott oJ' Independence,, these
agreements still appeal to God, laws of nature, and self-evident truths. But the
Declaration, in the preamble' s "we hold these truths to be self-evident",
joins
this
appeal with the mutual subjectivity and agency of a "we" which the Constitution will
268 Benjantin Lee
enshri ne as the source of i ts l egi ti macy as "we the peopl e". For as Arendt poi nts out,
the self evident truths "that all men are created equal" and "are endowed by their
Creator wi th certai n unal i enabl e Ri ghts" were ncl t of the same order as what were
usual l y consi dered to be sel f-evi dent truths, such as those of mathemati cs.
Jefferson' s famous words, "we hol d these truths to be sel f-evi dent' , combi ne i n a hi stori cal l y
uni que manner the basi s of agreemcnt between thosc who have embarkcd upon revol uti on,
an agreement necessari l y rel ati ve because rel ated to those who enter i t, wi th an absol ute,
namel y wi th a truth that needs no agreement si nce, because of i ts sel f-evi dence, i t compel s
wi thout argumentati vc dcmonstrati on or pol i ti cal persuasi on. (Arendt 1963: 192)
In Arendt' s opinion, the Constittttiott is the "true culmination of this
revolutionary process". The Declaratiort of hdepettdence announces and the
American Revolution brings about a liberation; the Cottstiltttiolr creates a foundation
for a new form of power that enhances freedom
-
"there is nothing more futile than
rebel l i on and l i berati on unl ess they are fol l owed by the consti tuti on of the newl y
won freedom (Arendt 1963: 142)." The Declaratiort provides the sclurce of authority
from which the Constittttiort derives its legitimacy; it creates the
' we'
that the
Cortstittttion presupposes. The Declaratiott and the Constittttion are the founding
documents i n a process i n whi ch men "mutual l y bound themsei ves i nto an enterpri se
for which no other bond existed, and thus made a new beginning in the very midst
of the history of Western mankind (Arendt 7963: 194)."
3.2 Deconstructing
foundatiorts
Arendt published On Revoltttiort in 1963 during the heyday of French structuralism;
three years l ater Jacques Derri da woul d i ntrcl duce deconstructi oni sm to the Uni ted
States at a famous conf' erence at Johns Hopkins University. At first glance, there
woul d seem to be l i ttl e rel ati onshi p between Arendt' s pol i ti cal phi l osophy and
deconstructionism, but in a conference celebrating the bicentenary of the
Declaratian of hdepertdettce, Derrida presented an analysis of the Declaratioru which
locates in it the very vicious circle of foundation and legitimation that Arendt says
is at the heart of modern politics. The crucial question Derrida raises is "who srgns,
and with what so-called proper natne, tlrc declarative act whiclt
fourtds
an instittttiort?
(Derri da 1986: 8, i tal i cs i n ori gi nal )." The probl em i s that
The
"wc"
of the decl arati on speaks
"i n
the name of the peopl e."
But this people does not exist. They do not exist as an entity, it does /,o/ exist, before this
decl arati on, nol ds such. If i t gi vcs bi rth to i tscl f, as free and i ndependent subj ect, as
possi bl e si gner, thi s can hol d onl y i n the act of the si gnaturc. The si gnature i nvents the
si gner. Thi s si gner can onl y authori ze hi m or hersel f to si gn once he or she has come to the
end
[parvenu
au vout], i f one can say, of hi s or hcr own si gnaturc, i n a sort of fabul ous
retroacti vi ty. That fi rst si gnature authori zes hi m or her to si gn. (Derri da 1986: 10)
Honig interprets Arendt and Derrida as differing in the role of the constative
i n pol i ti cal l egi ti mati on. Arendt sees i t as groundi ng an order of sel f evi dent,
absolute, and therefore non-reviseable truths which must be overcome if the
democrati c i mpl i cati ons of government by mutual oonsent are to devel op. Derri da
sees the constative as a linguistic necessity, inscribed into every performative event
Perfoming the people 269
of legitimation. Honig proposes that one way to overcome their differences is to
accept Derri da' s cl ai m that al l foundi ng moments contai n a constati ve backi ng, but,
pace Arendt, to resisf its claim to irresistibility. In the modern era, politics becomes
"a practice of deauthorization"; the "genius of Arendt' s account is that Derrida' s own
project of deauthorization
-
his adoption of a posture of intervention
-
becomes a
part of. a practice of authority, not simply an unauthorized assault on the institutions
of authori ty from some outsi de (Honi g 1986: 111)."
The politics of performativity are highlighted in Arendt' s construal of how the
Declarotion of Independence and the Constitution have become authoritative. The
founding tathers were faced with "the problem of how to make the Union
' perpetual' ,
of how to bestow legitimacy fbr a body politic which could not claim the
sanction of antiquity" (Arendt 7963: 202): they found such a model in the structure
of Roman authority in "which all innovations and changes remain tied back to the
foundati on whi ch, at the same ti me, they augment and i ncrease (i dem)."
Thus the amendments to the Consti tuti on augment and i ncrease the ori gi nal foundati ons
of the Amcrican Rcpublic; needless to say, the very authority of the American Constitution
resi des i n i ts i nherent capaci ty to be amendcd and augmented. (i dem)
Honig draws a parallel between Arendt' s notion of augmentation and
Derrida' s notion of.sttn-ivanceby which something is maintained through translation.
Translation for Derrida is not a passive act; it necessarily augments the original
meaning by placing it within a new context. Translation partakes of the same
structure of iterability as citation; in survivctnce, the translating text preserves the
ori gi nal moment of foundati on by augmenti ng i t wi th another event, speech act, or
text.
Under these i nterpretati ons of how "foundati on, augmentati on, and
conservation are intimately interrelated (Arendt 1963: 201)", the Constitutiort
becomes the key text because it authorizes its own continuous revision. Every such
revision augments it authority, and in so doing it revalidates its author, "we the
people", thereby reinscribing the performative act of the Declaratiort of Independence
as its creative presupposition. By a "fabulous retroactivity", the Constitutiort
reaffirms and draws into it as a living part of a textualized narrative of national
history, the future subject whose creation the Declaratiortboth announces and brings
i nto bei ng.
3.3 Performing the performative
Honig' s interpretations of Derrida and Arendt rely on the performative/constative
distinction which was first introduced by John Austin in his work on speech acts.
Derri da' s i nterest has been l ong standi ng, and evoked a quarrel between hi m and
John Searle, a student of Austin' s, over the interpretation of Austin' s work. Austin
wrote his most influential work, How to Do Things with Words, in order to criticize
logical positivists who insisted that non-truth functional and non-empirically
verifiable uses of language were meaningless. According to logical positivists, truth
functional uses of language included statements, descriptions, and assertions. Among
these, those which were empirically verifiable and therefore had specifiable truth
270 Benjanin Lee
condi ti ons were meani ngful ; al l others were meani ngl ess. Austi n cal l ed these truth
functi onal constructi ons "constati ves" and contrasted them to "performati ves" such
as "l promi se to do X." The l atter does not seem to be a descri pti on or asserti on but
rather, the making of a promise, an enactment. Among the "humdrum verbs in the
first person singular present indicative active"' performatives stand out because they
are neither true or false nor descriptive or reportive, but are "the doing of an
action" rather than merely "saying something" (Austin 1962:5). He then analyzes the
uses of pertormatives to show that they have "felicity" conditions which play a role
si mi l ar to that whi ch truth condi ti ons have for constati ves; i nstead of bei ng
meaningless, performatives require different assessment conditions than constatives.
Austin made explicit performatives a key to his analysis of illocutionary forces
and speech acts. He and others have thought by isolating what made them effective,
they could generalize the results to other speech acts which were not so explicitly
marked, creati ng a general doctri ne of i l l ocuti onary forces. However, i t now seems
more l i kel y that expl i ci t performati ves are actual l y qui te uni que i n thei r l i ngui sti c
properties. Thev are effective because of their position in a system of metalinguistic
relationships, as a form of locutionary "citation" functioning within a more
general i zed i terabi l i ty whi ch i s at the basi s of al l l i ngui sti c functi oni ng. As Benveni ste
has poi nted out, thei r uni queness l i es i n thei r creati ve sel f-reference.
This leads us to recognizc in the pcrformative a peculiar quality, that of being self-referentiol,
of referri ng to a rcal i ty that i t i tsel f consti tutes by the fact that i t i s actual l y uttered i n
condi ti ons that make i t an act. As resul t of thi s i t i s both a l i ngui sti c mani festati on, si nce
i t must be spoken, and a real fact, i nsofar as i t i s the performi ng of an act. Thc act i s thus
i denti cal wi th the utterance of the act. Thc si gni fi ed i s i denti cal to the ret' erent. Thi s i s
evi denccd by the word "hereby." Thc utterance that takes i tsel f as a refl erent i s i ndeed sel f-
referenti al . (Bcnveni ste 1966: 236' 1
To the extent that pertbrmati ves are creati vel y sel t-referenti al , i .e. that they create
the act they seem to refer to, they create the maxi mal contrast between the
creativity of linguistic reference and the contextual conditions that need to be
presupposed to make such ret' erence effective. The creative indexical properties of
performati ves bri ng about the condi ti ons that make them true; thei r referenti al and
predi cati onal structures seem to cl assi fy that created token as an i nstance of the
speech act named by the predi cate.
The crucial t' eatures of performatives for Honig' s analv.sis is that they require
a first person subject, a performative verb in the present, nonprogressive tense and
aspect, and that they create what they refer to. Examples are "we...do formally
publish and declare" of the closing lines of the Declaration of Independence, and the
openi ng l i nes of the Consti tuti ort, "we the peopl e of the Uni ted States...do ordai n
and establish this constitution for the United States of America." According to
Honig, Arendt tries to establish a notion of political authority which derives directly
trom the pure perfomati vi ty of peopl e promi si ng and maki ng soci al contracts.
Derrida insists that any performative which is effective as a founding instance,
requires some form of constative backing which in the Declaratiorr comes in the
form of the appeal to God; Arendt view.s the founding fathers' apeal to God as
showi ng thei r i ncompl eteness awareness of the breakthrough they were bri ngi ng
about.
Perfornting the people 277
3.4 Constitutional subjectivity
Despite the apparent continuity between the "we" of the Declaratiott of
Independence and the Constittttiort, it is immediately evident that this relationship
is a historically constructed one which links two different subjects. The "People" of
the colonies appealed to at the end of the Declaration is not the same "people"
which opens the Cortstittttiort. The latter was created by James Madison, agreed
upon by the Constitutional Convention, and ratified by the state legislatures. It was,
as Morgan has put it, an "invention."
But even before the convention met, Madis<ln recognized that it could achieve the objectives
he had i n mi nd for i t onl y by appeal i ng to a popul ar soverei gnty not hi therto ful l y
recogni zcd, to the peopl e of thc Uni tcd Statcs as a whol e. They al one coul d be thought to
stand superi or to the peopl e of any si ngl e state. (Morgan 1988:267)
AJthough this notion of "the people" would draw upon the peoples of the individual
states, i t woul d be "a separate and superi or enti ty" whi ch woul d gi ve to the "nati onal
government an authority that would necessarily impinge on the authority of the state
governments (i dem)."
Madison' s invention was responding to several crises. First, the Continental
Congress lacked the legislative authority to get the various states to work effectively
together after the threat of war was over. As the Declaration itself stated, its
representatives were indirectly elected by the state legislatures. The Congress itself
was made up of the el i te sectors of col oni al soci ety, and, si nce i t l acked a di rectl y
elected house of representatives, it could not claim to directly represent the people.
The state l egi sl atures coul d cl ai m to represent thei r consti tuenci es, but the Congress
has no corresponding claim that could "trump" those of the states; it therefore
lacked the sovereign powers of a truly national government. By 7787, Congress' lack
of legislative authority had produced a crisis. There were secessionist uprisings in
Massachusetts, New Hampshire, and Connecticut. John Marshall, the future chief
j usti ce
of the Supreme Court, thought unl ess there.was a nati onal government wi th
effective powers, there would be "anarchy first, and civil convulsions afterwards
(quoted i n Morgan: 267);'
Yet creati ng a sol uti on that woul d gi ve some enti ty both power and
legitimacy would require a new conceptualization of representation. Much of the
revolutionary rhetoric was a critique of indirect and virtual political representation.
During the Stamp Act debates, it was argued not only that the colonies were not
properly represented in the Parliament, but it was even suggested that because of
the distances involved, thev could never be because any representatives would soon
lose touch with local issues. With the Decluration of Independence, these issues of
representation soon beczrme involved in the vicious circle of a legitimation crisis.
When the Conti nental Congress decl ared cn May t5,I715 that the authori ty of the
crown should be replaced by new state governments based on the authority of the
people, the question immediately arose of the legality of such a decree since there
was no longer any precedent for legally claiming the authority of the people.
Previously, the law derived its legitimacy from the King and Parliament; with the
overthrow of that order, it seemed that legal authority itself was lost. In
Philadelphia, a pamphlet called Tlrc Alarm soon appeared which raised the question
272 Benlanun Lee
of who aut hor i zed such an aut hor i zat i on. War ner descr i bes t he par adox as t ol l ows:
The Assembl y was cl ai mi ng that ri ght, but as The Al amt poi nted out, the Assembl y deri ved
i ts l egal warrant from the propri etary charter, the authori ty of whi ch was now voi d. Were
the Assembl y to suppress the authori ty of the Crown and i nsti tute the authori ty of the
peopl e, i t woul d be suppressi ng i ts own authori ty and i nsti tuti ng i ts own authori ty; thus the
Assembl ymen mi ght be
' conti nual l y
maki ng and unmaki ng themsel vcs at pl easure.' The
Assembl y, i n other words, was not l egal enough because i l u' as al ready l egal . (Warner 1991:
ee)
One of the sol uti ons Madi son drew upon was the practi ce of creati ng
constitutional conventions which quickly spread after the Declaration. These
conventions broke with the vicious circle of finding some legal way to
justify
the
foundi ng l aw preci sel y because they were consi dered to be extra-l egal .In Commott
Sense, Tom Paine describes them as "some intermediary body between the governed
and the governors, that i s, between the Congress and the peopl e (quoted i n Warner
I99I:101)." Madi son' s goal was to create a nati onal government whose authori ty
woul d rest on a noti on of the peopl e of the Uni ted States whose authori ty woul d
not rest on state governments or the parti cul ar consti tuenci es they represented;
i nstead, the Ameri can peopl e woul d consti tute "a separate and superi or enti ty"
which was "capable
of conveying to a national government an authority that would
necessari l y i mpi nge of the authori ty of state governments (Morgan 1988: 267)." Thi s
noti on of the Ameri can peopl e woul d face two di recti ons: It woul d be a
transcendent source of legitimacy yet be embodied in every citizen. Madison' s
i nsi ght was to use the occasi on of the Consti tuti onal Conventi on to create a
document which would lay out the legal procedure' s for claiming the authority of
the peopl e.
By consti tuti ng thc government, the peopl e' s text l i teral l y consti tutes the peopl e. In the
concrete form of thcsc texts, the peopl e dcci des the condi ti ons of i ts own embodi ment. The
text i tsel f becomes not onl y the supreme l aw, but the onl y ori gi nal embodi ment of the
peopl e. (Warner 1991: 102)
The printed textuality of the Cottstittttiort allows it to emanate trom no
individual, collectivity, or state in particular, and thus from the people in general.
Its ci rcul ati on mi ti gated the parti cul ari sm of l ocal i nterests, and thereby sol ved one
of the conti nui ng probl ems of that peri od: How to bal ance l ocal i nterest and the
public good by creating a mediation between the two. By building upon the
transl ocal nature of the medi ati on, i t created the ground for a noti on of
disinterested public virtue. It creates a textualized mediation of what Arendt had
cal l ed "the worl dl y i n-between space by whi ch men are mutual l y rel ated" (\963: 175)
in which the reading and ratification of the Constittttion creates the very "we" that
is its opening subject and also its audience, cataphorically instantiating the "we" of
the Declaratiott .
The people serve as the subjectivity that validates the Constittttiort, but its
performativity is different from the appeal to God in the Declaration; it is not an
external absolute used to secure the authority of text, but rather it "distributes" its
performativity into two separate moments. With its reference to the twelfth year of
the Independence of the United States, it links itself back to the performative
Perfoming the people 273
moment of the Declaration, suggesting that the "we" about to be created by the
ratification process is continuous with the "we" of the Declaratiott. At the same time,
it makes that "we" the subject/agent of the legal process it is about to constitute.
The performative effect of "we the People of the United States...do ordain and
establish this Constitution for the United States of America" is to create a "we" that
looks like a presupposition for the document' s effectiveness, and to create a "we"
that the document' s ratification will make the source of its power.
fuendt points out the radical breakthrough in the notion of authority that is
inscribed in the Constitutitnr by contrasting it with the Roman case which was one
of the models for the founding fathers. The Constittttiott links foundation,
augmentation, and conservation; new amendments extend the foundation; even the
ratification process for new amendments, involving either a three-fourths vote of the
states or of a constitutional convention, recalls the original ratification process. Yet
despite the founding tathers' attempts to appropriate the Roman model, in the
Roman case, authority "was political, and consisted in giving advice, while in the
American republic the function of authority is legal, and it consists in interpretation
(fuendt 1963:200)." The closest thing to an absolute subjectivity mentioned in the
Cortstittttion is the creation of a Supreme Court whose justices
are appointed for life
and therefore not popularly selected, but they are then stripped of any kind of
legislative power; theirs is a purely interpretive function, contrasting with the oral,
advice giving model of Roman senatorial authority. The mixture of oral and textual
models of perfomativity are at the heart of the authority and legitimacy of the whole
American constitutional process. As Arendt points out, the word "constitution" has
two meanings: The first refers to process, or constituting act whereby a people
constitutes itself into a body politic, and the second is the written constitution that
results from this act. Arendt brilliantly describes how these two aspects are
combined in the "undiscriminating and blind worship" of the Constitution by the
peopl e of the Uni ted States.
...wc may be abl e to see how ambi guous thi s worshi p has al ways been i n that i ts obj ect was
at l east as much the act of consti tuti ng as i t was the wri tten document i tsel f. In vi ew of the
strange fact that constitution-worship in America has survived more than a hundred years
of mi nute scruti ny and vi ol ent cri ti cal debunki ng of the document as wel l as of al l the
' truths'
whi ch to the founders carri ed sel f-evi dence, one i s tempted to concl ude that the
remembrance of the event i tsel f- a peopl e del i beratel y foundi ng a new body pol i ti c
-
has
conti nued to shroud the actual outcome of thi s act, the document i tsel f, i n an atmosphere
of reverent awe whi ch shi el ded both evcnt and document agai nst the onsl aught of ti me and
changed ci rcumstanccs. And one may be tempted even to predi ct that the authori ty of the
republ i c wi l l be safe and i ntact as l ong as the act i tsel f, the begi nni ng as such, i s
remembered whenever consti tuti onal questi ons i n the narrower sense of the word come i nto
pl ay. (Arendt 1963: 204)
3,5 Declaring independence and constituting a people
The contrast between oral and textual forms of performativity are inscribed in the
differences between the Declaratiott of Independence and the Constittttiorr. Although
the Constitutiort relies on the Declarutiort as "the sole source of authority from
which the Constitution, not as an act of constituting government, but as law of the
274 Benjanin Lee
l and, deri ves i ts own l egi ti macy" (Arendt 1963: 195), i t di tfers remarkabl y i n i ts
form and content. The Con.stittttiott makes no overt references to God, or laws of
Nature or reason. The preambl e opens wi th the subj ect performati vel y created i n
the Declaration, attributes to it a means-end intentionality ("in Order to torm a more
perf' ect Uni on...."), and then performati vel ,v asserts "we...do ordai n and establ i sh thi s
Consti tuti on for the Uni ted States of Ameri ca." Arti cl e I secti on I makes a reference
to the textual nature of the Cottstitutioru:, referring self-reflexively to "All legislative
powers herei rt granted", and then tol l ows a seri es of arti cl es mostl y wri tten i n the
future tense. It concl udes wi th a statement about the document havi ng been "done"
by the "States present" i n the twel fl h year of the rndependence of the Ll ni ted States.
Whereas in tlrc Declaration, the performativity creates both the subject and the
declared independence, in the Cortstittttiort there is no subject to be created, only
the performati ve of creati ng the Consti tuti orr. The si gnatures have no performati ve
effect, in sharp contrast tcl the Declsrutiotu As Warner puts it,
whereas the cl i macti c moment fur the Decl arati <-rn of Indcpcndence was thc si gni ng, for the
Consti tuti on the cl i macti c moment was thc maneuvcr
[i .e,
Frankl i n' s moti on for unani mous
agreementl that depri ved si gni ng of personal mcani ng. For the same reason, whereas the
si gncd copy of the Dccl arati on conti nues to be a nati onal feti sh, from whi ch pri nted copi es
can onl y bc deri ved i mi tati ons, the Consti tuti on found i ts i deal form i n every pri nted copy,
begi nni ng, though not speci al l y, wi th i ts i ni ti al publ i cati on, i n thc pl ace of the weekl y news
copy of thc Pennql vani a Packel . (Warner l 99l : 107-108)
The audi ence of the Cortsti tutktrt was the potenti al ci ti zenry and the state
l egi sl atures that woul d have to rati fy i t. The "we" theretore has a pecul i ar i ncl usi ve
quality. Each addressee/reader is, via the ratification process, potentially a rnember
of thi s "we", whi ch al so i ncl udes al l other col l ecti vi ti es made up of ci ti zens, i ncl udi ng
those i n the future. [t thus forms the "we-ness" at the heart of Anderson' s noti on of
an i magi ned communi ty of potenti al l y non-present consoci ates movi ng through ti me,
gi vi ng i t an agenti ve and coordi nati ng force deri ved from the pri nted medi ati r>n of
the document i tsel f. The presupposi ng and creati ve di mensi ons of the performati ve
moment of the Cortstitutiort are, in effect, distributed between its cataphoric
reference to the Decl arati cttt' s
"we"
whi ch then appears as i ts fbundi ng
presupposi ti on, and the future rati tl cati on and i n some sense, perpetual
rerati fl cati on by the peopl e. The o' rrtsi de subj ecti vi ty i nvoked by the decl arati ve
speech act of the Declaruliort is transtormed into that of the constitutional legal
process i tsel f.
In contrast, the Declaration of Indepertdence was designed to be read aloud. It
fol l ows a speech act model of performati vi ty whi ch i t secures wi thi n a constati ve
order establ i shed by God; God al so suppl i es the tel i ci ty condi ti ons tbr i ts
performati ve etfecti veness. It i s di rected towards fel l ow col oni sts, especi al l y those
who are wavering, foreign governments whose political recognition the Congress
sought, and Engl and. To the col oni sts, the "we" has the effect of an i nvi ted
i ncl usi ve: You are i nvi ted to
j oi n
us. To others, i t has an excl usi ve qual i ty,
indicating that a new subject (a speaking/signing "*e" and others
-"we"
and "they")
seeks the addressee' s recogni ti on as a soverei gn "we" i n thei r own ri ght. At the same
ti me, i t seeks to secure such a recogni ti on through a "we" that i t does not refer to,
that of al l the peopl e who share the recogni ti on of God' s truths and therefore the
j ustness
of the revcl l uti onari es' cause.
Perfornting the people 275
The structure of the document moves from general to performati ve. The
openi ng sentence i s a l ong general statement i n the nomi c present tense about the
"course of human events". It then l ocates a speci ti c si tuati on under the "l -aws of
Nature and Nature' s God" i n whi ch i t becomes necessary fbr one peopl e to di ssol ve
the pol i ti cal bands that have connected them wi th one another, makes reference to
the opi ni ons of manki nd, and then states that those who seek i ndependence shoul d
decl are the reasons whi ch "i mpel them to the separati on."
In the second sentence, a "we" appears whi ch hol ds "these truths to be sel f-
evi dent." It thereby combi nes the creati ve sel f-referenti al i ty of "we" wi th a stati ve
verb, "hol d". The shi ft from the nomi c l evel of the fi rst sentence to a present
reference ("we hol d" i s ambi guous between a nomi c or true present readi ng) i s
si gnal ed by the two i ndexi cal s "we" and "these" whose reterence poi nt i s the moment
of speaki ng. The "we" as subj ect agent sel ects from among certai n truths, "these"
sel f-evi dent truths whi ch turn out not be the truths of rnathernati cs whi ch were
consi dered to be the paradi gm cases of sel f evi dence, but rather truths about human
soci ety. The reference to "we" hi nts at a torm of authori ty whi ch wi l l be secured not
by appeal to some absol ute, but by mutual agreement. The next several sentences
assert how governments are created tcl embody these truths, and then proceeds to
list the King' s violation of them. Because of these violations, "\try' e, the
representati ves of the Uni ted States of Ameri ca" seek the acknowl edgment of the
j ustness of our i ntenti ons by God (otherwi se the performati ve act woul d be nul l and
voi d), and "do ...sol emnl y publ i sh and decl are, that these Uni ted States are, and of
Ri ght ought to be Free and Independent statcs." T' he effect of thi s decl arati on i s to
make the representati ves "rnutual l y pl edge to each other our Li ves, our Fortunes
and our sacred Hr)nr)r", fol l owed by thei r si gnatures.
In his reacling clf the Declaratioru, Derrida argued that the appeal to truth or
a constative nloment, always interacts with the perfilrmative to create the legitimate
referent of the "we" or performing subjectivity. Every performative moment, if it
i s to be a foundi ng moment, must i nvoke both: "Thi s obscuri ty, thi s undeci deabi l i ty
betwee n, l et' s say a pertormati ve structure and a censtati ve structure, i s requi red to
produce the sought-after etfbct (Derri da 1986: 9)." Al though he focuses on the
i ntertwi ni ng of perfbrmati ve and constati ve i n the si gni ng cl f the Decl arati orr, thei r
pai ri ng extends throughout the document.
In the Dccl aruti ur the ref' erent of the i ni ti al "we hol d" i s not di sambi guated
unti l the document' s performati ve concl usi on. Jel -fbrson drafted the document whi ch
was then modi fi ed by the representati ves <tf "the Uni ted States of Ameri ca" who are
acti ng "i n the Namc and by Authori ty <l f the good Peopl e of these Coi oni es". The
performati ve i s si gnal ed by the choi ce i l f the metal i ngui sti c verbs "publ i sh", "decl are",
and "pl edge", the unmarked present tense and aspect, and a "we" that subsumes the
i ndi vi dual "l ' s" that si gn; but thi s "we" i s not
j ust
a col l ocati on of assembl ed
representati ves, but are al so representati ves of the Uni ted States of Ameri ca. They
si gn, but thei r si gnatures and the fel i ci ty of thei r act i s guaranteed by the "recti tude"
of thei r i ntenti ons whi ch are vouchsafed by the "Supreme Judge of the Worl d". The
recti tude of i ntenti ons i s one of the fel i ci ty condi ti ons fci r thei r pertorrnati ve act, and
i t l i nks the sel f-evi dent truths to thei r real hi stori cal understandi ng as an excuse
(another performati ve) or
j usti fi cati on
fur what wi l l happen. God moves from the
l evel of the transcendent ground of sel f-evi dence, to the j udge
of i ntenti onal i ty. The
l i nk between the eternal truths, the recl ui si te i ntenti ons, and the speci fi c act of
276 Benjantin Lee
declaring independence is secured by God who guarantees the continuity of one
moment to another. The linkage is made explicit in the subordinate clause tlmt these
United Colonies are and of right ottght to be
free
and independent states in which the
ougltt actually prepares for the rs because of England' s violation of the self-evident
oughts already announced. The double struciure of this oughtness secures both a
transcendental ground and a future for the tounding performative event. It allows
the founding event to be inserted into a chain of oughts, and God becomes the
proper name or counter signatory of the people' s performative. This performative
is secured by the good intentions of the signers, and brings into being that which
they purport to represent: The peopl e of the Uni ted States of Ameri ca.
The linguistic structuring of the Declaratiorr also points to the performative
moment of speaking and signing. Unlike the Cortstitutiort which is written mostly in
the future tense, the Declarqtion opens in the nomic present tense, then moves to
the indexical anchoring of
"we
hold". The list of complaints is written not in the
simple past tense, but the present perfect which signals the continuing relevance of
the past state of affairs for some reference point. That reference point is established
as the present by the performative conclusion of the Declaration; the ongoing
rel evance of these
j usti fi cati ons
and the "recti tude"
of thei r present i ntenti ons are
felicity conditions for the effectiveness of their pertormative declaration. The spoken
performativity of the conclusion is even more dramatic in Jefferson' s draft version
whi ch reads "we...rej ect and renounce al l al l egi ance and subj ecti on to the ki ngs of
Great Britain...we utterly dissolve all political connections...and finally we do assert
and decl are these col oni es to be free and i ndependent...."
Paral l el to the temporal structure from ti mel ess si tuati ons to the moment of
performative declaration, there is a change in the role of the agency of the "\rye".
In the fi rst sentence, there i s onl y God as an agent. In the second, a "we" i s asserted
which grasps certain truths, each of which is listed within a complement clause
i ntroduced by "that", i .e., "that al l men are created equal ....") each of whi ch i s i n a
nomic present tense. In the list of provocations, the King is the active agent, and the
"we" an object of his unreasonable actions. The "we" that publishes and declares
i ndependence sti l l appeal s to God to
j udge
the recti tude of thei r i ntenti ons, but the
final "we" that mutually pledges creates its performativity unassisted; their "firm
reliance" on "divine Providence" is for their own protection, not to guarantee the
effecti veness of thei r pl edge to each other.
Despite being a written and then printed text, the Declaration' s rhetorical
structure i ndi cates that i t was meant to be read al oud. Jefferson' s sti l l -survi vi ng
rough draft of the Declaration is marked with diacritical accents, and the proof copy
of John Dunlop' s official broadside printing of the Declaration contains inexplicable
quotation marks in the opening two paragraphs which are probably the printer' s
misinterpretations of Jefferson' s reading marks (Fliegelmann 1993). All over the
colonies, there were public readings of the Declaration designed to overcome the
separati on of the peopl e i nto parti cul ar cl asses and occupati ons.
At the time of the Declaration, rhetoric and oratory were also undergoing a
revolution. There was a search for "a natural spoken language that would be a
corollary to natural law, a language that would permit universal recognition and
understanding (Fliegelmann 1993:2)." The move to "plainspeak" cut rhetoric from
its aristocratic origins as a sign of breeding and proper class behavior, and signaled
the public exploration of a private subjectivity in which one' s thoughts and feelings
Perfomting the people 277
became self-evident in public. As Jefferson himself put it, oratory had three styles:
"The elevated," appropriate for orators and poets, "the middling, appropriate for
historians," and "the familiar". The last of these would be suitable for "epistolary and
comic writers" (quoted in Fliegelmann 1993: 27) whose works were the popular rage
and in which the narrators would address their readers as if they were equals in a
frank conversation. The inward turn that Habermas and Taylor describe receives
its articulation in novels which create an imagined community of bourgeois readers
exploring values of everyday life that would sustain their common social world.
In a post-Lockean milieu that believed the self to be the sum total of its experiences and
reflections upon those experiences, reading would become not a substitute for experience
but a pri mary emoti onal experi ence i tsel l a way of understandi ng and maki ng one' s sel f.
(Fl i egel mann 1993: 58)
As Fliegelmann has pointed out, this revolution affected all forms of public
expression in the Republican era, including art, theater, and music. These forces are
all part of the milieu in which Jefferson drafts the Declaration. Jefferson combines
the rhetorical models developing in literature with the philosophical models of
subjectivity developed by British philosophers. He draws directly upon Locke' s Two
Treatises
for
Goventment in which Locke asserts that "a people" can rise up in
revolution if there is "a long train of Abuses, Prevarications, and Artifices" to make
his claim in the Declaration that "under absolute despotism" people have the right
and duty "to throw off such a government "(see Gustafson 1994: 199 for a fuller
discussion). From the assertion of the self-evident truth that governments which
deny that men are created equal and have inalienable rights may be overthrown,
and the minor premise that Great Britain was such a government, it naturally and
inevitably followed that the colonies should be independent. The conviction of the
conclusion lay not only in its syllogistic quality, but also in its accordance with the
rhetorical principles of the time in which self-evident arguments lead to an intuitive
consent by creating a feeling of immediate clarity that reached straight to the heart
as well as the head (Fliegelman 1993: 51). The written Declaratio,n speaks with the
force of an immediate performative.
4. Conclusion
The performativity of the Declaration builds upon an inward, self-reflexive turn
which begins in Western philosophy with Descartes and is reworked into the
"punctual" self of Locke that Jefferson and the founding fathers drew upon (Taylor
1989). The Declaratiort aspires to the self-grounded performativity of the cogito, only
it is not a solitary thinker which is created, but a people. When we declare that we
are independent, we are free and independent. Descartes' model of an indubitable
proposition was the complement clause of "I think that I am" because the very act
of thinking or saying it made true the subject whose existence the statement
asserted. The Declaratiott aspires to the performativity of cogito, but it has to create
both the acting subject, and the state of affairs announced in the complement clause
("*e... formally publish and declare that..."). The felicity conditions it has to fulfill
are thus of two sorts: that of the subject which is secured through the relays
218 Benjanin Lee
between "*e", the signatures, and the representatives, and that of the "is and ought"
which is secured by God.
The Declaratiott of Independence is structured to make its conclusion
performatively effective. Unlike the complement clause of Descartes' "l think that
I am" which is made true by it being thought, no first person declaration by itself
can bring about "that these United Colonies are, and of Right ought to be Free and
Independent States". Whi l e i t may be true that i n the ri ght ci rcumstances, an
assertion or reading aloud of the concluding sentences of the Declaratiort might
i ndeed be the maki ng of a decl arati on and a pl edge, nothi ng woul d guarantee the
truth of the complement clause. In a stroke of rhetorical genius, the Declaration
sets up in the preceding paragraphs the conditions that must be true if the
performative conclusion is to have effect and secure the proper uptake. God' s
subjectivity and agency is thus invoked as the guarantor of the constative truths that
will make the conclusion performative.
The uni queness of the expanded versi on of Descartes' cogi to, especi al l y i n
its dico variant ("I say that I am, therefore I afi1"), is that its assertion is not only
performative, but it creates the presupposition needed to make the complement
clause true. The assertion "l say that I am" is performatively true whenever I say it;
i ts asserti on creates the l whi ch makes the proposi ti on expressed i n the compl ement
clause, that I am,, true. Since all the illocutionary verbs are hyponyms of the verb to
say, embedded in every performative act of promising, declaring, or "formally
publishing" is a tacit reference to the pertormative act of speaking. The difference
between speaking and other metalinguistic acts is specified by the differences in
thei r fel i ci ty condi ti ons, wi th sayi ng havi ng mi ni mal ones as, say, compared to
promising or excusing. It is this gap between the telicity conditions for the
performativity of speaking and the performativity of declaring independence that
God' s intentions secure in the Declaratioru. The performativity of the
' we
publish and
declare" lies in the creation of the subject and the performativity of the two
metalinguistic verbs. But unlike Descartes' cogito where an act of the thinking
subject creates the subject of the propositional complement and therefore
guarantees its truth, the mere act of declaring independence cannot secure
i ndependence because that requi res uptake, i .e., the recogni ti on of the val i di ty of
the claim by others. The grounds for this validity claim are provided in the
paragraphs preceding the Declaration' s conclusion which are written under the eyes
of God as wi tness and guarantor. The act of decl ari ng i s pl aced i n a transcendent
order that i s meant to guarantee i ts effecti veness. If the appropri ate "others" agree
with
the argument and then accept the pertormative creation of the "we" and its
declaration of independence, then the complement clause of the performative
becomes true, and the col oni es become a free and i ndependent state.
There is a subtle creative ambiguity in the chain of we' s that connect the
Declaration and the Cottstittuiort. The referent of the first appearance of the we in
the Declaratiort is not disambiguated until the end of the document. Does the initial
we refer only to the signers, or also what they purport to represent, the peoples and
people of the colonies? But if the document is to declare and create the fact of
independence, then that does not occur until the end of the Declaratiott, so the
referent of the initial we is not created until the end. Yet the performative "we
do...formally publish and declare" also appeals to a Cartesian certainty, namely that
Perfornting the people 279
any use of we creates itself as the topic/subject of its own assertion, so at least some
subset of the referent of we is created whether the uptake is successful or not. The
effect of the reference to God is to place that which is created by the act of formally
publ i shi ng and decl ari ng, i .e., the decl arati on by the subj ect wq as the obj ect of
God' s divine will which will make what ottght to be into what is. God will transform
this ambiguous lre into thewe of a free and independent nation. The initial
performative we which is merely a discourse subject with ambiguous reference, is
objectified by God into a we that can stand for a united people which can then be
retroacti vel y read back i nto the fi rst we of "we hol d these truths....". The peopl e are
created by God' s taking that which is created by a social speech act performative
and transforming it into a subject/agent in it own right. The subject we of the
Cottstitrttion' s opening performative "captures" thewe of the Declaration and embeds
i t i n a text i t creates and opens up to an i nterpreti ve process whi ch i t speci fi es and
i naugurates.
The Constitutiott thus ushers in a new model of legal and textualized
performativity. Whereas the Declaration was criticized as too etfective in trying to
"captivate the people" (Fliegelmann 1993: 187) with its rhetorical polish, the
Cortstitntiort was otien criticized for its vagueness, abstractness, and ambiguity. A
del egate to the Massachusetts conventi on compl ai ned:
I thi nk a frame of government on whi ch al l l aws are founded, shoul d be si mpl e and expl i ci t,
that the most i l l i terate may understand i t; whcrcas thi s appears to me so obscure and
ambi guous, that the most capaci ous mi nd cannot ful l y comprehend i t. (quoted i n Gustafson
1992:278)
Al though some of the worri es about the meani ng of the Cortsti tttti ort woul d
be addressed in the Bill of Rigltts, much of the anti-Federalist sentiment was fueled
by the fear that an ari stocrati c el i te, hi di ng behi nd an ambi guous document whi ch
requi red constant rei nterpretati on, mi ght use the word of l aw to vi ol ate the freedom
and liberty of others. They were complaining about the shift from a model of
pol i ti cs i n whi ch textual i nterpretati on woul d repl ace the popul i st model s of the
direct expressivity and sociability of face-to-face communication.
If the Declaration of Indepertdence aspired to the performativity of Descartes'
cogito as a founding moment when a new national history would begin, the
Cortstitutioru embeds that pertormativity in a textualized iterability it creates. The
Cortstittttiorr changes the punctual quality of the Declaratioru face-to-face model of
performativity with a text mediated, "durative" performativity which "writes in" the
conditions tor its own uptake. In addition to its "capturing" of the we of the
Declaratiorr, it writes the tuture of its own interpretation into the document in the
form of the Supreme Court, and i t speci fi es the condi ti ons of i ts augmentati on
through the amendment process. The Constitutiort creates the institutionalized
space of authori ty i nto whi ch i t i nserts i tsel f and i ts future i nterpretati ons, and i n so
doi ng, si gnal s a recogni ti on of the i ntenti onal i st fal l acy. The document i s so
constructed, from i ts openi ng words to the si gnatures i ndi cati ng unani mous consent
and the establ i shment of the Supreme Court, to make the i ntenti ons of i ts drafters
irrelevant for its interpretation. The founding fathers created the first anti-
fbundati onal i st foundi ng document.
280 Benjantrn Lee
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