Stories of Origin and Constitutional Possibilities
Robert Cover once observed how “[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture.” Stories of origin locate law, invest it with legitimacy, and so lend it stability. As Cover went on to note, however, the narratives that legitimate a legal order also retain revolutionary force, for a return to the originating acts recounted in the narratives is always possible. A polity begun in revolution remains subject to revolution.
There is an American story of origins. It is a good story. And a useful one. It legitimates the Constitution and gives it meaning. It supports the authority of the republic and helps to secure the foundations. It has also proved, at times, wonderfully transformative, helping to augment the foundations and expand the legal order to embrace those who were formerly excluded. There is abundant reason to celebrate the story of the founding, to retell and employ it, and to affirm it and its regenerative as well as conservative powers.