UC Berkeley

Anti-Constitutionalism: Frontiers sans Frontiers maps and critiques a revitalized “rule-of-law” discourse in contemporary American politics, a discourse that cuts across and binds traditional ideological differences. I argue that this discourse generates a logic whereby the “law” is rendered a per se good threatened by two primary antagonists: lawlessness and politicization. All territories and persons, according to this vision, must be brought within the bounds of the rule-of-law and simultaneously the law must resist the temptations of politics. Drawing upon a variety of critical political and theoretical traditions that have witnessed the law as something other than synonymous with “justice” or “freedom,” including feminist legal theory and critical race studies, the dissertation argues that law void of political attachments is an impossibility. Thus, the desire for a depoliticized legality is always a desire tethered to and through a particular political ordering of things. In advancing this argument, I look to several recent events in U.S. law and political life that have incited this flight of hope to legality: the Supreme Court decision in Bush v. Gore, the emergency “culture of life” legislation aimed at Terri Schiavo, and the “Torture Memos” authorizing torture as method for imperial governance. Each of these cases suffers from being neither lawless nor political but rather from a radical singularity that undercuts the very possibility of a constitutive political ground. This thesis engages with contemporary political theorists on the question of “lawlessness” in the present and with theorists of the Early Republic (particularly Thomas Paine, James Madison and Alexis de Tocqueville) on the “politics” of law at constitutional inception.