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Textualism and Democratic Legitimacy: The Moment and the Millennium, 66 GEORGE WASHINGTON LAW REVIEW 1085 (1998)


Every age, it is said, gets the savior it deserves. Who then would be recognized as a deliverer for our millennium? The answer is pretty clear. Our redeemer would have been a programmer, a cyber-savior, walking forth upon the worldwide web with a cheap fix for the so-called Year 2000 problem.

Surely it is a matter of cultural concern when the only millennial event anyone can talk about is the coming of a bug—a computer bug. How much will it cost to exterminate this little Year 2000 bug? Only, according to one estimate, about $600 billion—and that's for the United States alone. Given that I am supposed to be addressing constitutional textualism today, you will probably be surprised—you will probably not even believe me—when I say that the aim of this paper is to discover a deep truth buried in this chiliastic coding fiasco, the reflection it casts upon our entire democratic culture, and the hidden secret it reveals about constitutional law in general and textualism in particular. (I said you wouldn't believe me.) But to make this connection between the Charter of 1787 and the codes of the Year 2000, I need to introduce another text, a famous thesis of Thomas Jefferson's. Jefferson's thesis encapsulates not only a particular view of constitutionism (a view, as we shall see, that underlies a variety of interpretive schools, including textualism), but also at the same time, a particular imperative concerning the proper human relationship to time (an imperative, as we shall see, that underlies a variety of social phenomena, including the Year 2000 problem). It is Jefferson's second declaration of independence—this time from time itself.

Here is Jefferson's simple thesis: "the earth belongs to the living." Not to "the dead," nor to "the unborn," but rather, "in usufruct," only to us, only to those in being here and now. This anti-millennial thesis will be our anti-millennial text as we investigate textualism at the millennium.

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