Corps de l’article

I. I Made An Orchestra

Someone is trying to make music somewhere, with a pair of wooden spoons on an oil drum.

—Elizabeth Alexander[1]

But there are many other things that are still lying around the house, endeavoring to be developed historically.

—Ernst Bloch[2]

I made an orchestra out of objects from the waste stream: household items relegated to the trash bin, pieces of buildings left in the junk yard, scraps of wood and metal, a broken guitar, a sewing machine, glass lamp shades, and a library card file drawer. The goal was to transform so-called post-consumer waste into instruments that could play Bach.[3]

Along the way I met people who were not afraid of odd, creative endeavors and I invited them to join the orchestra as musicians.[4] I recruited Professor Charles Lawrence, a critical race theorist, to conduct our public performance.[5] A poet in the audience penned a poem about the experience, valorizing the struggling instruments that she said “gave complaint.”[6] “It is hard,” the instruments seemed to say, “but we will do it, we will transcend our declared status and send beauty into the world.”

A young filmmaker volunteered to make a short video of the performance and the manifesto reading that went along with it.[7] Would you like to see it?

This lecture includes the first showing of this video, the world premiere, right here at McGill. The filmmaker, Chris Kahunahana, is an Indigenous Hawaiian who is making his first feature film.[8]

Mesdames et Messieurs, may I present the Next Dada Utopian Visioning Peace Orchestra and Manifesto of Radical Intersubjective Collectivity and Imagined Possibility.

[At this point, the lecture stopped for a video of the performance. The video is available online.[9]]

II. There Are Two Kinds of People

There are two kinds of people in the world when it comes to the Next Dada Utopian Visioning Peace Orchestra:

  1. The ones who say “Cool!”, and;

  2. The ones who say “Why?”

Actually, there is probably a third group of negative, doubting haters, but we will not address them in this lecture. I will use the rest of my time to answer the “why” and to suggest that idiosyncratic utopian gestures are relevant to constitutional theory, law, and justice.

A. The Personal is the Political

A basic tenet of feminism, “the personal is the political,”[10] is the first part of the “why”. Feminists start with the experience of women in order to ground theory in the lived reality of a group whose perspective and insight is cordoned off and called irrelevant by the gatekeepers of received wisdom.[11] As a feminist, therefore, I do not discount my own experience.

I am the daughter and granddaughter of makers.[12] All my life, I have known people who use their hands, who use tools to grow food, to make, to fix, to transform discards into useful things. I heard laughing stories about the pages of the Sears catalog used as toilet paper, and the fabric from old rice bags turned into underwear. My mother grew up on a sugar plantation where anything bought came at a high price from the company store, and therefore, almost nothing was bought.

My father lost seven jobs for his politics during the McCarthy era, but we never went hungry because Dad could fix things and people would pay for repairs.[13] He had tool boxes, and voltmeters, and oscilloscopes. He taught me to respect tools, and to always, when taking something apart, have a container for the little pieces so I could find them when I needed to put the thing back together.

My father’s mother was a working-class painter.[14] For her, the only good thing about the World War II internment of Japanese-Americans was that she had time to paint. She died before I was born, but I have always had her paintings to tell me who she was: she loved the soft-edged landscapes of Jean-François Millet, and the images of bodies bent in toil. She read Karl Marx. She valorized labour, and there are often figures at work in the paintings she left.[15]

When I was a law student, the building next to mine caught fire and I had to evacuate in a hurry. I grabbed my grandmother’s painting and ran, and in that instance I learned what object I would protect without thinking.

With this inheritance of art making in my family, I might have become an artist. In the first metal-working class I took in college, the department chair[16] said: “You have talent. Have you considered changing your major?”

Instead, another inheritance called. My father and his parents were Marxist internationalists.[17] They believed in a specific ideology that envisioned a better world, and defined a good life as one spent working for that world. In my limited imagination as a temperamentally cautious, straight-A student in the seventies, my version of this vision was becoming a people’s lawyer, someone who could use the rules and rhetoric of the system to change it and fight it. Art was the unserious, self-indulgent path; law the hard-edged tool to wield against empire.

I walked away from art, and for forty years, carried regret. An art professor said I had talent, and I did nothing with it. This may happen to you: one day you might wake up and realize you are not going to live forever. The marriage I had made with the law—or more specifically to the intellectual work of deconstructing the subordinating, hegemonic functions of the law—suddenly felt unsatisfying. The small regret from closing a door on a promising romance with art grew to a heavy, saddening load. My possible talent lay in the graveyard of life’s unfulfilled intentions, waiting for my body to expire and join it.

Luckily, a sabbatical appeared, and I became a full-time B.F.A. student.[18] A bit before this, I had stumbled upon a Dada exhibition at the National Gallery.[19] For the first time, reading the manifestos and background notes, I realized that Dada was not nihilism and absurdity—the vague legacy I had gleaned from urinals on gallery walls. Dada was despair, it was a cri de coeur for a generation that had watched so many peers—fellow art students, classmates—march off to senseless slaughter in the First World War. The radical refusal to conform to anyone’s conception of what art is was a part of a larger refusal, a rejection of the entire project of modernity and its lie of rationality. It was a refusal of bloated young bodies lying in blood, mud, and mustard gas. It was a refusal of anyone’s paltry effort to explain why it all made sense.

One of the classes I teach is peacemaking. When I ask students what World War I was about, they have a hard time explaining it. The reasons offered, by world leaders then and by historians after the fact are muddled,[20] which is why you might be fruitlessly searching your well-educated brain right now to see what you have filed for “causes of World War I.” Imagine living in that time, when an unexplainable war was killing so many of your friends.

Of course, I would be remiss if I did not acknowledge that unexplainable war is, in fact, what life looks like to people in some regions of our world right now. They are holding broken bodies of loved ones killed in conflicts they did not create, and for which no one has offered a good case of necessity. The pain of loss cuts. The pain of loss unexplained is a second wound, and I proclaim here outrage that this is happening as I speak.

This outrage was part of the artistic toolkit of the Dada crew, and I came to see the original Dadaists as among my many teachers. For anyone who thinks a peace orchestra is ridiculous, the retort was given in Zurich, before I was born.[21] My task was not to explain, but to refuse false explanation.

B. The Tool in Your Hand

A word about tools: making large-scale art requires space, equipment, and help. I had these thing because I was working in a university. I came to see how the university is a functioning model of a collective, communal space for mutual encouragement of art and knowledge. Perhaps I already knew this, but I learned it in the body when I had to move something bigger than myself and I could call out the studio door, and anyone in hearing distance would come to my aid because we were all artists, and artists help artists. I used MIG welders, table saws, and hydraulic lifts that I could not afford to purchase and maintain on my own, deeply grateful for the investment my community had made in the art department. I amassed a precious collection of second-hand tools that gave me great joy just by sitting, well-honed, in a handmade tool holder, waiting for use.

I learned, as the socialist artist William Morris tried to tell us years ago, that holding the right tool in your hand to make a pleasing object will complete your soul and bring you back to the defining joy of human life on planet Earth.[22] We make things, we create beauty, we always have. Tool in hand, I was infinitely happy, making art, all day, every day, for the nine months of my sabbatical year. My fellow sculpture BFA students were all women—strong, optimistic women who were not afraid of fire or power tools. What does their choice of maker culture have to do with constitutional theory?

III. Art and Constitutional Theory: Who Is This Constitution For?

Whoever does not hope for the unhoped-for will not find it.

—Ernst Bloch[23]

Some people think a constitution is a pact that allows us to live together without killing one another. It keeps us at bay from one another, by creating a state apparatus to mediate our life together in a limited space with limited resources, and then, having created the state, it restrains the state, keeping it at bay from us. In the logic of modern constitutions, we cannot trust each other so we create the state. We cannot trust the state either, so we restrain the state. It is as though we are nation of stingy, snarling dogs. Thank goodness, we have a sturdy piece of paper keeping us all on a leash. The fiction is that any piece of paper could do that.

This is the constitution of negative rights. It says who can do what, and what the state cannot do. It says nothing about what human beings need to flourish, nothing about joy or beauty, nothing about our obligations to one another.[24] It says nothing about our obligations to future generations, except in its beautiful, vague, and promising interstices. For example, in the United States Constitution’s preamble, stating the intent to secure the blessings of liberty for ourselves and our posterity.

Frederick Douglass believed that the preamble was ground enough to demand the end of slavery,[25] and I believe it is ground enough to say there is a right to art. To develop this thesis, I return to what, in the art department, they call “process”.

The giddy joy of a late night bronze pour with women buried under layers of protective gear, the whoops of delight when the moulds cracked open and a successful casting emerged, taught me something about what human beings need to flourish: shared endeavour, communal space, creative process, and collective triumph. Sweat and laughter, the cool night air, and relief after pulling off leather gear made for someone twice our size. Bringing the object into the world, a world once without that object now changed by it, is nothing any of us would rather have been doing. Anyone who could have that experience would choose it over ... well, you name your poison:

Consumption of inane popular culture;

Endless acquisition of high status schlock;

Exploitation of the labour of others;

Killing animals for fun;

Killing people for any reason.

The secret kernel of true joy that is known to makers in non-exploitive, communal settings is the world’s best-kept secret, and the elixir that could turn all of us into celebratory, productive pacifists. Or so I posit, in my demand for a constitutional right to a creative commons. For those who need a semblance of a syllogism, it goes like this:

  1. The Constitution establishes a democracy intended to promote the well-being of all citizens through a form of government requiring the effective participation of all citizens.

  2. Citizen well-being and effective citizen participation requires maximizing the talents and abilities of all citizen contributors.

  3. The consumption and production of art are significant factors in citizen well-being and in developing the means of effective participation in self-governance.

  4. The Constitution, therefore, requires art.

In talking to students about a right to participate in artistic production, it is common that they confess to me that they actually have a significant creative practice somewhere in their past.[26] They quickly add, “But I’m not good.” A research assistant told me she had studied opera singing, “But I’m not good”, she replied.

“Who decides who is good?” I raged, “You can sing arias, you must sing better than I, does that mean I should stop singing?” Some imposed, meritocratic ideal decrees that those who are “good” should sing, and the rest of us should pay to watch them, and go to law school.

“But I am REALLY not good.”

Why not have both, a system of recognition for the rare and stunning talent, and a way for the less-talented to participate also? Why not a centre for choral singing in every neighbourhood, with free lessons for those who want to improve? As my utopian exegesis grew more heated, another unsuspecting student stopped by the office.

“Liz,” I said, “didn’t you once tell me you play the piano?” My research assistant, her eyes growing bigger, tried to warn Liz not to say what Liz said next:

“Oh, I play, but I’m not good.”

“NOT GOOD,” I mock shouted, “Who told you you’re not good? Why is ‘good’ the criterion by which we decide whether you can share your talent with us?” By the time this conversation ended, I had convinced both law students that we should have a centre for performing and creative arts in every neighbourhood, with tools, supplies, teachers, and both amateur and expert performances and exhibitions. We brainstormed add-ons—a sewing room, a tool library, a system to drop off children or elders to do art with safe supervision, allowing caregivers a respite. Theatrical productions, a costume shop. A concert series with picnic dinner provided for harried working families. This centre would improve mental health, community relations, public safety, educational attainment, and family well-being. It would cost, I pointed out—as students are always too quick to point out to me—“but look at what it would save,” they pushed back, if it really did reduce things like crime and domestic violence.

This colloquy with students echoes years of classroom teaching in which I ask students to consider utopian possibilities, and they respond with small dreams and lots of reasons why the rest of the world will tell us we cannot have bigger dreams. With push and shove, I have watched dreams grow in dimension.

The sweet and small dreams of my students stay with me over the years: “mandatory two-sided copying”; “giving teachers affordable housing in the neighborhoods where they teach”; “healing gardens next to public buildings”; “chicken tractors”; “a mental health centre at the law school”; and “more bike paths.”

Students, at least until recently, were much less likely to come up with sweeping utopian demands like “guaranteed minimum income”; “free, quality childcare on demand”; or “no prisons”. One legacy of the Cold War and McCarthyism, at least in US universities, is that students are reluctant to make any demand that sounds like socialism. Not so much for fear of political persecution, but for fear of intellectual derision. From the Right will come scolding reminders of statism, gulags, moral hazard, and wasteful social programs; and from the denatured Left, a sense that clear-eyed demands for redistribution lack nuance, complexity, and consideration of all the theoretical and empirical objections that students, of course, do not have at their disposal. The reason students do not have the intellectual tools at their disposal is that since the purge of the Marxists from the academy, any discussion of alternative conceptions of property and work, and the challenges of the actual implementation of socialism, are not discussed. As a result, my students can recite all of the reasons why we should not forgive student loans, but have a hard time articulating a demand for free, quality education as a lifelong right.

In teaching Organizing For Social Change, I have found that most law students have a poorly developed utopian-visioning muscle. This class uses project-based learning to introduce the toolkit of social transformation. Students take on an actual issue in their community, and organize others to join them. At every step in organizing, from choosing an issue to developing a time-line and tactics, students are asked to consider the question of where, ultimately, they want us to go.

I ask students to describe in specific terms the world they would like for themselves and future generations. I have found that my students, who can list easily and with conviction everything that they think is wrong and lacking in the world, hesitate when it comes to asking for concrete change. They are particularly hesitant about change that will require upending the apple cart called “the way things are,” an apple cart they have already told me is broken and decaying under the weight of rotting fruit. In class, we interrogate this hesitancy. Why, if the problem is houselessness, don’t we build more housing and give people the social services they need to come in from the cold? And while we are at it, what would quality affordable housing look like? What amenities? What design? With a little prodding, students realize that they know what kind of house they want to live in.

The great Marxist theorist, Edward Thompson, called this “the education of desire.”[27] Thompson rehabilitated the work of William Morris, seeing Morris’s romantic vision as something more than sentimental Victorian dreaming. Envisioning a world so much more humane and delightful than the one we currently inhabit is theory, is criticism, is politics. It is strategic.

Standard strategy-making requires a vision of where we want to go, in order to select interim goals.[28] If students cannot articulate a vision, they have no means of evaluating whether their current strategy and tactics help them get there. A utopian end-goal is a pre-condition of strategic social change formation.

My demand for utopian vision, however, is not just strategic, it is the historical imperative of this particular moment.

IV. The Imperative of Big Change

Call it the elemental earth

Bursting the clasp of too-long winter.

—Pauli Murray[29]

The ascendancy of ideologies of austerity, tax cuts for the rich, free markets, slashing social services, defunding public education, parsimonious versions of liberalism, trickle-down economics, deregulation, union-busting, and mocking of the poor began the year I graduated from law school and Ronald Reagan was elected president of the United States. This radical experiment resulted in an extraordinary transfer of wealth to the rich, and a growing chasm between the very richest and the rest of us.[30] It has completely captured our political system, such that money and politics are inseparable, and it has reduced public discourse to name-calling, gossip, and science denial. In the meantime, the scientists tell us, it is too late to stop devastating climate events and coming food scarcity.[31] The best we can hope for now is to have some plan of amelioration in place. You may have noticed, there is no plan.[32]

Without radical, world-changing plans, you will wake up one day and turn the spigot in the bathroom sink. It will sputter and spurt, and then stop still. Or you will go to the grocery store and find a long line outside, moving slowly, as people strip the shelves and pay—cash only—for the last available food in your city. I am not a writer of dystopian fiction, I am simply a world citizen hoping to survive in the coming season of scarcity and climate disruption. If enough of us keep talking about this emergency, perhaps we will come to see how real it is, and do something about it.

That required “something” is large and visionary. Right now, there are big fights in my country about the regulation of coal, about whether to make coal less harmful.[33] As many of you in Canada know, we are well past the hour of regulating fossil fuels to make them less harmful. We have to leave them in the ground, or else we, in effect, offer our grandchildren’s bodies up as collateral against our continued extraction.[34]

For the first time in my career as a law teacher, I feel not only the pedagogical need, but the moral imperative to push utopian visions, hard. The whole system of greed-driven decision-making passing as constitutional interpretation has to come down, now, or we will die.

V. The Utopian Constitution

... There are no magics or elves

Or timely godmothers to guide us. We are lost, must

Wizard a track through our own screaming weed.

—Gwendolyn Brooks[35]

A Constitution is SOMETHING WE DO.

A constitution can be seen as activity—as political struggle.

—Charles R Lawrence III[36]

Utopian method, for purposes of Constitutional theory, means that we reach for a better interpretation, describe it, and send it into the world to meet its fate in the democratic melee. The Peace Orchestra’s manifesto attempts to state a set of aspirations once thought beyond the reach of the law. What would a constitution that took human needs seriously look like?

To begin it would retain the protection of the individual and constraint of state power necessary to keep the democratic conversation lively and literally alive. There is scarcely a nation on this planet without its version of McCarthyism.

I preface this analysis of utopian visioning in constitutional theory with the premise that the basic norms of democracy and the rule of law are required scaffolding. They are needed no matter what social or political structures evolve around us. I see no justification, ever, for gulags.

Traditional interpretation of the United States Constitution focuses on restraint of the state, seeing no need to journey forward to what Robin West calls progressive constitutionalism, one charged with upholding and promoting citizen well-being.[37] What people obviously need, is not obviously relevant to traditional constitutional interpretation. For classical Marxist observers, this interpretation is obviously what capitalism generates, and utopian complaints are pointless.

Thus, while I begin by elevating rights that Frederick Engels saw as temporary expediencies of the transition out of feudalism, I do follow him beyond those rights. Engels, in his deep dive into utopian thought, began with a different premise. For Engels, the rule of law developed under capitalism was superstructural.[38] It was a predictable and hard-won progression designed to bring order to the anarchy of unrestrained markets on the one hand, and unjustly entitled nobility on the other.[39] The regime of law developed in one particular time might not work in another, he believed, as history and all the ways in which humans organize themselves are a process, understood through scientific observation.

Perhaps I am a product of the twentieth century, well aware of my own country’s all-too-frequent departures from basic human rights—the Palmer Raids,[40] COINTELPRO,[41] Guantánamo[42]—and thus hyper-attached to the rule of law. Read enough about the twentieth century, and feel the desperate absence of legality, fear the coming of bodysnatchers. Watching a scene, in the film Neruda,[43] of union organizers herded into holding pens in the Chilean desert, I know I never want to live in a land without habeas corpus. That, however, is the minimum. It is the platform from which we can ask questions about thriving, meaning, and the good.

Before reading what Engels actually said about utopians, I assumed he was disdainful.[44] Dreamers, after all, are not scientists, and to Marx and Engels, scientific analysis was all-critical. While Engels does note the pre-scientific status of early socialist dreamers, he does not disparage them.[45] He situates them in a history of displacement—first of peasants, then of workers—that generated moments of realization and coming to terms with human misery.[46] A natural response to misery was the human capacity to imagine a way out:[47] not yet scientific, not fully realizing the shape of the forces compelling concentration of wealth and throwing lives of ordinary folk into chaos, but suggesting the outlines of an alternative. From Sir Thomas More,[48] to St. Simon,[49] to the Owenites,[50] to the Communards,[51] to the Chartists,[52] to the artist-dreamers like William Morris,[53] those impatient with contemporary injustice dared to offer up specifics of what life could look like under different arrangements. While Marx added a grand political economic analysis of alienation and surplus value, Morris understood through his own hand what it felt like to produce and use the beautiful tray that held your home-baked daily bread. He wanted workers to grow their own food and own their own tools for dignified work, because he had watched too many hungry children going off to toil in sooty factories.[54] He was not a scientific Marxist, but he was, in his way, a materialist. His dreams came out of what he saw.

Engels does not disparage these thinkers, he simply adds what, in his view, they left out. He acknowledges them as forerunners of scientific socialism. He cites them as examples of the immanent revolutionary potential residing in our actual lived experience under the unstable and contradictory structures of inequality.[55]

Similarly, the great organizer and Marxist theorist Mother Bloor, from the United States, is commonly thought of as one who disparaged utopians.[56] Her great break with Eugene Debs came from her belief that his attempt to fund and build actual utopian colonies was a waste of resources and a diversion from the task of organizing workers.[57] In her autobiography, she speaks of Debs with deep respect and affection, although she says of his colony plan: “I simply could not stay with anything so unscientific.”[58]

Marx, Engels, and Mother Bloor pushed science, which for them meant a scientific socialist knowledge of history, dialectical materialism, and the conditions necessary for progress. They railed against religion, idealist philosophers, and any theorizing that happened without empirical knowledge of history and political economy: how did we get here, what are the forces at play, where is the power, where is the contradiction? They never said “have no dreams.”

This lecture suggests that utopian visions have value to constitutional interpretation. By deploying utopian visioning as both theoretical method and practice of politics, I draw on the long tradition Engels cites, as well as Engels himself, who dreamt of workers controlling the factories, with the transition to worker control being the first and last job of the state under socialism, before the sunset of the state. In lieu of defining the ultimate “utopian vision”, this lecture suggests simply that we ought to begin a conversation about one, or many, such visions. We should dare to deploy what Thompson called the “vocabulary of desire” to conceive of something lovely that would make our lives better.[59] We should send that conception out into the democratic conversation for responses of affinity and criticism. In making an orchestra, I attempted to create a little piece of the world I want to live in, in which people make art and music and performance together and share their aspirations. Touch this instrument made out of discards. I believe it is worth giving life to, to make us rethink our relationship to the waste stream, and to one another. What do you believe, when you touch it? Does this sound ridiculous—either the music or the intended utopian claim? Suggesting this conversation also points out its general absence from our usual political discourse. I made an orchestra, and discovered it had an audience of many, ready to consider the utopian.[60]

Without big ideas of what the world could look like—for example, if art were a right—we risk asking for too little. This is particularly true in times of retrenchment. When protestors are in the streets over Muslim bans in my country,[61] when children are growing up without homes, when rape culture means that no woman feels free to wander the streets and parks of her city at night enjoying the moonlight, we are living in a siege state. Our first job, the one that had lawyers rushing to courtrooms on a Saturday to file those habeas corpus petitions, is resisting immediate harm.[62] When Immigration and Customs Enforcement raids are rounding up parents while their children stand by in terror,[63] it hardly seems the time to suggest the right to music making. Stop, take a breath, while I tell you it is perhaps exactly the time.

While we do the exigent work, we should also do the other work, the visioning and the theorizing of alternatives. Siege happens because change is possible. All over the world, “this can’t be happening” political events are the new normal. Engels said to use science, know where you stand in history:

[T]he final causes of all social changes ... are to be sought ... in the economics of each particular epoch. The growing perception that existing social institutions are unreasonable and unjust, that reason has become unreason, and right wrong, is only proof that in the modes of production and exchange changes have silently taken place, with which the social order, adapted to earlier economic conditions, is no longer in keeping.[64]

The changes wrought by technology, globalization, and neoliberalism have rendered the current system unsustainable. We are fighting under emergency conditions because of this instability. This is precisely the moment when a grand vision offers exactly what we need. To ask for too little would lose the moment.

First, think big lest you think too small at the historical crossroad.

Second, know that the utopian imaginary is an organizing tool. Utopian thinkers have always attracted an audience because they fulfill a human need. Like religious prophets, they offer a salve—an opiate, if you will—for existing pain, but also something worth living for: the dream of a better life. The best organizers I know[65] understand that people need more than bread, they need roses too.[66] They need dignity.[67] The workers who were willing to die for a dream, from the Paris commune[68] to the hunger march protesters in Detroit,[69] were not risking their lives for a simple pay raise, although they needed one. They were risking their lives for their human dignity and the love and community they found in their cause. Bread was the spark, dreams were the fuel.

An inspiring example of this comes from the new generation of social change makers, such as Black Lives Matter, who have added self-care and mutual care to their practice. Attention to mental and physical health, care in how we resolve conflicts within our movements, incorporation of art, healing, music, dancing, and joy in all we do, allows us to remain strong as we struggle. More importantly, it is the work of living the future we want as we make it, showing ourselves and everyone watching that we are making something worth fighting for.

Third, utopian long-term goals are strategic guides in developing short-term goals. Determining what constitutional core we will bring, or what social norm we will inscribe, or how we will divide chores at the art commune, all happen best if immediate responses are tied to long-term goals, visions, and values. The shape of our first step on the path is determined by where the path is going. If we want a world without gulags, we might want to begin socializing ourselves for empathy, kindness, and non-violence now, as we do our organizing.

Finally, for lawyers, utopia is an interpretive tool. Originalism aside, our task as constitutionalists is to see to it that our foundational, constitutive legal documents promote our collective well-being. If the rule of law, legalism, and rights are worth preserving, the question we have to answer, again and again in each era, is “why?” Why preserve a polity and its rules? The answer comes from the quality of our lives, both present and future. The Constitution lives on because it helps us to thrive together in peace.

In the hardest times, as in the Great Depression, we expected the government to ameliorate economic disruption and help people get what they needed to thrive. The populist artist Norman Rockwell captured this shared sense of need in his Four Freedoms series, which depicted ordinary Americans enjoying their constitutional rights in tangibly familiar settings: the Thanksgiving table, the town hall meeting.[70] The Four Freedoms made no distinction between substantive rights to food and procedural rights to political participation.

Rockwell understood that we are all interpreters of our constitution, and that in our lives and practices, we give life to notions like “free speech”. David Cole has argued that citizen participation in constitution making is, essentially, the constitutional history in the United States.[71] Charles Lawrence makes a similar argument in “Promises to Keep: We Are the Constitution’s Framers.”[72]

The Constitution of the United States was not originally written for all the people.[73] Built right into it are the contradictions of slavery and native displacement.[74] The carnage of chattel slavery, ending in the carnage of the Civil War, was the price paid for that contradiction. The amendments bringing equality to the Constitution were the result. Equality was fought for, in blood, and not just once, and it is not yet over. A fight continues to finally make explicit that equality really means equality, for everyone.

In the United States, that is our particular challenge. The richest and most powerful nation to emerge from the twentieth century is the product of slavery and genocide, and efforts to inscribe equality without acknowledging this history have meant continued and deepening inequality.[75] From “forty acres and a mule”[76] to Black Lives Matter,[77] from the Iroquois Confederation[78] to Standing Rock,[79] alternative visions of how we could live together in equal dignity in the United States have emanated from outside elite discourse in constitutional interpretation. At every step, outsider constitutionalists have brought their claims, and exploited contradictions, to bring a brighter vision of mutual care to our interpretive work.

This work, giving full meaning to equality, happens not just because we fight against our chains, but because we imagine the fullness of a life without chains. That is the utopian project. It is not a substitute for science, organizing, or law school. It is a practice of using what we know from our lives to bring richer versions of human possibility to the work of constitution-making.

Working among artists, I met many who know in their bones that creative participation is essential to human well-being. The evidence of their lives could help us find our way to a right to art.

VI. Art as a Right

What would a right to art look like? The reason I know it is not entirely crazy to envision a collective, constitutionally constituted decision to alter radically the terms of engagement between capital and art is that it happened, once. The reason I know it is not entirely crazy to envision the state funding neighbourhood art centres producing theatre, dance, fine arts, crafts, at the amateur and professional level, with paid staff, across the land, is that it happened, once. In the United States, it was called the New Deal. It responded to the Great Depression, and it remade constitutional interpretation and citizens’ reasonable expectations of mutual aid.

Since so many of my students do not know the story of the Works Progress Administration (WPA),[80] I will tell part of it here. Once, in the United States, lying, cheating, and unregulated speculation in banking and finance brought down the economy, throwing millions into poverty. In response, we created new rules regulating capitalists, and we gave workers new rights and economic protections—including social security, unemployment insurance, and the right to join a union. We created massive jobs programs to put people to work. In a stroke of genius, it was decided that the solution to unemployment was to give people jobs.[81] The United States, like much of the world, faces a similar crisis today. Unfortunately, the lie that direct government employment does not work sets aside a much-needed remedy, leaving us only wobbly solutions like reducing interest rates and cutting corporate taxes in the hopes that businesses will stop hoarding their cash and start hiring.

Part of putting people back to work under the WPA was funding jobs for artists. Overnight, artists, musicians, directors, writers, and photographers suddenly had good jobs and a mandate to go out and make art and teach others.[82] Some of the best public art we have—including the famous mosaic subway designs in New York City, and beautiful murals and sculptures in schools and parks across the United States[83]—are WPA legacies.

Congress fretted that the WPA was infiltrated by communists.[84] In part, they were right, because most artists and creatives in that period were in some way sympathetic to the idea of socialism. There was no Marxist orthodoxy, however, as artists are notoriously hard to corral. In Harlem, a debate raged among Marxist critics over whether “swing” was an authentic expression of the Black experience, deserving promotion, or a commercialized vulgarization that demeaned the proletariat.[85] Swing won—because, well, how could it not—and WPA-funded productions featured packed shows of the swingingest rhythms.[86]

Traditional Marxist cultural critics preferred drama that valorized labour. One such play, Orson Welles’s The Cradle Will Rock, was shut down by censors on opening night.[87] The entire cast, crew, and audience marched down the street to an empty theatre, and performed from the seats, the stage being off limits because of union rules that required bond protection for actors before they took the stage. The stage manager called out cues, and actors rose in the audience to recite their lines. Those present remember it as a great act of theatre civil disobedience that only added to the liberatory message of the script.[88]

Not all of the WPA drama was in New York. In little towns all over the country, debates raged about whether nudes and social themes were appropriate, but everywhere the WPA set up shop, it was met with eager crowds of ordinary people who wanted to see and make art. Four million visitors filed into art centres in North Carolina.[89] In the tiny town of Helper, Utah (population 2,700), the opening exhibition of the Art Center recorded an attendance of 3,017 in the first week, which meant that residents came more than once or visitors rode in from beyond the town limits.[90]

In addition to art centres for instruction and exhibition, the WPA paid artists simply to make art. These grants led to interesting conflicts between the artist’s lifestyle of inspired all-night studio sessions followed by periods of recovery. To make sure government funds were not “wasted”, artists were required to “check in” at an office every morning at nine, then go off to make art, their whereabouts monitored by spot checks.[91] Despite the conflicts between bureaucracy and art, some of the most iconic art of this period, like the photographs of Dorothea Lange, were made on the federal payroll.[92]

As a baby boomer growing up in the world the New Deal left us, I was offered art, dance, drama, and music instruction free of charge, in school and at neighbourhood recreation centres. I performed on stages that were literally built by workers employed by the WPA, creating a sense of entitlement: healthy communities provide access to the arts to all people, regardless of age, ability, or wealth. I played Persephone before I ever understood that she was part of a canon of the classics. I learned to plié before I knew French was a language. I walked to ballet lessons at the recreation centre on Queen Anne Place in Los Angeles, on my own second grade legs, and I signed up without any parent involved. The New Deal made it normal to do this. Reaganomics and neoliberalism replaced it with a new norm of slashing public services and moving to privatization. If my post-Reagan children were to have dance, or music, or art in second grade, I had to find it, enroll them, pay, and chauffeur.

When we moved to Hawai‘i, one of my children went to a public school with an experimental curriculum that included art and music for every child, every day.[93] How sad that the arts have gone from entitlement to experiment. Sadder still, I report to you this experiment is a resounding success. The students at this school outperform their income-matched peers in schools with the traditional curriculum, in test scores, academic achievement, matriculation to college, and, not surprisingly, lifelong commitment to the arts.[94] We have data that shows keeping art in children’s lives makes them less likely to make the dreaded bad choices, and increases neurons available for things like calculus and literature.[95] But art is now in the private realm. You get it if you pay for it.

An alternative vision has existed for as long as the fetish of the free market has existed: communal luxury. Kristin Ross’s book by that title discusses the ideology emanating from the lived experience of the Paris Commune.[96] The artisan, the artist, and the farmer, in this view, are all entitled to do their work at the level of art, imbuing the hand’s labour with dignity. The work, collectively supported, and collectively consumed was owned by no one and everyone at once. From this work, beauty would surround us in all things—beautiful tools, beautiful orchards, beautiful tables, beautiful chairs, beautiful knives, and beautiful forks. This idea—of beauty in the items ordinary people use in their lives, and elaborate art in the places where they gather, reflecting nature and honoring the hand—has pulled my eye all my life. It is the amazing tea rooms of MacIntosh,[97] the curvaceous metal work of the Glasgow Girls,[98] the handmade books of William Morris,[99] the swirls of the Vienna Secession.[100] We are entitled to beautiful spaces, and no academy will dictate to us what art is. A teapot is art. A garden is art.

An orchestra made from the waste stream is art. And what it is singing to you, with its complaining voice, is a version of constitutionalism.

The orchestra says yes to those portions of the liberal ideal that protect individual expression and the dream of each person valued and shielded from the worst impulses of statism. Long ago, I started my journey as a theorist in the little corner known as the critique of the critique of rights.[101] Then, as now, the primary call of subordinated communities in my country was “stop killing us”, and it remains the ultimate negative right.[102] I support the demand that the state may not take a life, and continue to support basic rights claims that subordinated people, out of their experience, make. This support is not intended as a valorization of rights talk,[103] but as a recognition that vulnerable humans need protection, and law is potentially constitutive of a culture of protection. I would also like to add a new footnote: the way to really make all citizens entitled right-holders, protected from the state, is to embed, through lived practice, aspirational definitions of full citizenship into the Constitution.[104] The New Deal practice of providing jobs and support for the arts, lifted some of the least advantaged citizens, allowing them to walk and live as rights-holders, and to self-present as creative, intelligent selves entitled to respect. Elites have never worried about things like police killings because their elite status automatically warns state actors against overreaching. The aspirational goal of economic justice is linked to the goal of effective rights-claiming for all.

The peace orchestra, therefore, says no to an impoverished Constitution with no room for positive rights.[105] Effective participation in the liberal ideal of self-governance requires literacy, internet access, and basic needs of survival met. It requires that citizens possess a sense of their self-worth, and the skills and habits of self-expression. The great artist activists in US history—Paul Robeson, Nina Simone, Harry Belafonte, Ruby Dee, Ossie Davids come to mind as examples—used their artistic training to help them stand on the stage of history as compelling advocates for freedom. I am inspired by their lives to adopt a New Deal vision of liberty that includes the right to meaningful labour, a living wage, artistic participation, and lifelong learning.

The ultimate process failure is that we all die. We stumble along for another decade or two with small, reformist goals in lieu of visionary, utopian ones, until we render this planet uninhabitable. The rights-based goals of liberalism—orderly state functioning, due process, rule of law—require drastic intervention to end wealth inequality and unrestrained markets, or we lose it all—the rights, the dreams, the courts, the habitable planet—in one fell swoop.

Enter, the visionaries. It is no accident that environmentalists have decided to start chaining themselves together to block the pipelines at the same time that Black Lives Matters brothers and sisters are chaining themselves together to shut down freeways.[106] It is no accident that the Leap Manifesto[107] and the Black Lives Matter Platform[108] came out in the same year, both providing radically reformulated visions of our relations to capital and to the state. The lunatics are the ones who think we can get by with small adjustments and paltry concessions to a worldwide demand for justice. The clear-headed ones are the visionaries with bold demands.[109]

They are doing this now, out of radically different experiences, because global capital has globalized our pain. Whether it is Indigenous peoples fighting to protect sacred lands, migrants fighting for legal recognition, Black citizens in the United States facing extra-judicial killings, or climate scientists panicking about polar ice melts, we all face the same corporate capture of our governments that has made state actors unresponsive to clear citizen demands. Thus, our visions are converging. Compare, for example, the Leap Manifesto and the Black Lives Matter proposals:

Redistribute wealth through progressive taxation: Black Lives Matter and Leap Manifesto.

End capital punishment: Black Lives Matter.

100% clean economy: Leap Manifesto.

Invest in community-based sustainable energy: Black Lives Matter.

Universal basic income: Black Lives Matter and Leap Manifesto.

Remove corporate money from politics: Black Lives Matter and Leap Manifesto.

Bring back local agriculture: Leap Manifesto.

Full funding for lifelong learning: Black Lives Matter.

Renegotiation of trade agreements to prioritize interests of workers and communities: Black Lives Matter.

End all trade deals that interfere with our attempts to rebuild local economies: Leap Manifesto.

We could create jobs while we relearn how to feed ourselves locally and repair our broken planet. We could end the endless war and send new armies of teachers, doctors, engineers, and—yes—lawyers, out into the world to create places of solidarity instead of places of deepening rupture. A trillion dollars into the endless war on terror and we are less, not more, safe. There is another way.

I found it easier to say this in an art performance than in a law review article. Law is the profession of doubters who poke holes in rhetoric and point out gaps in evidence: “How do we know that after spending a trillion dollars on your arbitrary idea of a peace army, we would end up in a better place?”

A critical move we learn in law school is to respond to a destabilizing question with a more incisive question. I do not have a formula to prove to you my idea is better, but I have a trillion dollars in sunk costs, a disgraceful pile of bodies, and the daily news to prove that we are not safer under your plan. The certainty in the voices that took us to war barely covered the reality that there was no plan for success. You have no argument that their way worked, are you suggesting we continue it?

There is no requirement that we have a complete blueprint of what one hundred percent clean energy, or restorative justice, or aid before bombs, or neighborhood art centres for all, or any other utopian suggestion will look like. The defenders of the status quo have no alternative blueprint. It is enough that we start the hard work of the blueprint, looking at past models for ideas and self-criticism.

VII. Problematizing Art as a Right

A utopian project is an invitation to critique. Imagining creative futures invites risk-taking, best accompanied by tales of caution. Rather than pretending one has all the answers, the better course is to admit that this is a collective journey, inviting challenge and self-criticism, so that we can dream smarter and implement dreams with appropriate humility.

Let me close with a self-critique of the idea of art as a right. Art as a right opens a slew of post-modern inquiries: what is art, who is an artist, who gets to decide? I start with the notion of respect for communities—communities of artists, communities of art learners, and art consumers. I trust artists to hold a generous view of “what is art,” and to work through the bitter fights over legitimacy. I have met talented and passionate artists whose work almost never ends up in museums: those who carve duck decoys, those who paint hotrods, those who quilt by hand. All of these art practices have known champions and standards of excellence. I would include all these practices, and say we are better off for it. The divide between high and low might fade, or we might decide, collectively, that some art really belongs in the vaults that preserve them for the ages. We might include the lowrider in the treasures exalted for display, as the Smithsonian once did in an exhibit I will never forget.[110]

I trust viewers to know what they want, but I also know, historically, that people change their minds. Early art education and exposure to making, viewing, criticizing, thinking critically, and situating historically might stave off the problem the WPA had with some rural communities flocking to “[p]aintings from New England,” and bitterly rejecting “modern art.”[111]

Another challenge is waste and quality control. Handing out arts grants will mean that some artists will produce amazing work and others will not. For the most part, the history of art funding has shown significantly less waste than, say, military contracting.[112] Most artists report, with a body of work to support it, a felt imperative to make art. They cannot stop. It is their breathing. The danger that we will pay them to hang out in bars is overstated. The possibility that we might not like what we pay for is real, and democratic systems for selection and oversight, with strong emphasis on artistic freedom, have worked through this issue in the programs of public funding that do exist. The big fights over unappreciated monoliths, like Richard Serra’s iron wall in the plaza,[113] are part of our democratic work as artists and art-consuming citizens, to dive into pluralism and contested aesthetics. The fights themselves are valuable practice.[114]

Universal art education will change how we wade into the roiling art waters. When workers are artists too, with experience with art exhibitions and art history, the battle over elite versus non-elite notions of artistic value will shift. The current art world affrays over appropriation and blackface, for example, reflect an investment-driven art market and historic structures of racial exclusion in the curatorial ranks more than they reflect any competing concepts of artistic value.[115] The more equality we bring to the arts, the more interesting and useful our aesthetic conflicts will become. Fights over artistic value, once we overcome maldistribution of power, are enlightening fights. You will want to grab a front-row seat.

Next, there is the debate over what actual form these shared spaces of artistic production will take. Autonomous, local, communal, and spontaneous? Funded, promoted, and regulated by some larger federation? National? International? And what will become of the State? Who, if anyone, will enforce safety and accessibility at the local art centre, and does it make sense to train a cadre of teachers and organizers in the specifics of maintaining safe workspaces and teaching to all levels of talent? Will the local art centre become a precious and isolated harbor of escape, or will it have a connection to a broader struggle to remake the world into a beautiful and just place? And how will we do this if we spend all our time arguing about the chore chart in the shop?

Anyone who has worked with others to accomplish a major collective project knows that danger of sinking deep into the weeds of making it go. When I was twenty years old, my father fixed up a broken offset press and turned it over to young organizers who used it for pamphlets, newsletters, posters, and notices for everything from land struggles to ads for the local food co-op. I spent hours volunteering on the press, happy as the youngest one allowed to hang out with the doers and intellectuals the press attracted, but I watched the main printer become exhausted from the actual work of printing and negotiating task distribution. Years later, I heard he had dropped out of movement work. Perhaps doing everything collectively, by hand, with no revolution anywhere on the horizon, took the fight out of him. Discernment between wheel-spinning and world-making is required.

Whatever little oasis we create has to remain tied to the big vision, shared commitments, and openness to a wider world. I am a tentative federalist. I like local control, but also believe in the knowledge and practical applications of scale and of standards. I have seen how in one’s comfortable local shop, it is easy to go lax on safety rules, since it has been a long time since the last explosion. The traveling inspector who has seen multiple sites of carnage is much more attuned to the dangers and can remind us about spark suppression. There are thoughtful students of planning, design, and bureaucracy who have ideas about how to keep true to a wider vision, while still maintaining the discovery, love, and spontaneity that arise at the local commune.

There are many specificities of implementation we will confront as we ask how to teach and bring art to every corner, and as with any ambitious endeavour, we will work through the specific challenges, preferably with intelligence and generosity. As constitutional theorists our job is to point out complexities and suggest possible responses, weaving between identification of the challenges and exaltation of the beautiful possibilities.

And finally, one can ask why make an orchestra, when what we need is a revolution. Why art, when Rome is burning? I am reminded of Grace Lee Boggs, student of C.L.R. James, and herself a classically trained philosopher, who could argue base and superstructure until she took you down.[116] At the end of her life in her beloved Detroit, she was immersed in bike co-ops and community gardens. A wicked theorist with a commitment to revolutionary class struggle was teaching children how to raise their own food. She was no advocate of self-help, charity, or one-step-at-a-time, but there she was handing out shovels. When the city is broken, and people are hungry, giving them the means to feed their neighbours and themselves, is the chance to live the imaginary. From the artists, and from Grace, I learned this:

If you make a revolution by tasting it, feeling it, loving it, you enter knowing what you are fighting for. You enter with love.

VIII. Make Your Revolution with Art in Your Hand

A pacifist once said: “if you make your revolution with a gun in your hand, you will have a gun in your hand after the revolution.”[117]

I am a constitutionalist because I want to make a revolution with law in my hand. I am an artist because I want to make a revolution with art in my hand. And after the revolution, I want both law and art in my hand.

This is what I learned by spending nine months in the world of artists: they are natural-born revolutionaries. They have already chosen the call of something outside the market, or more typically, had that experience of having something outside the market choose them.

I sat next to a young man and watched him start sketching in a notebook before class began. He sketched the desks, the people, anything he saw.

“Have you always done that?” I asked.

“Always,” he said, grinning.

Among the artists, I read aloud a Dada manifesto of revolutionary tenor, and not one of them thought it was silly. “I sent it to my mother, and she loved it,” one told me. Mom, and her artist child, are members of a growing tribe of the aspirationally willing. From the Leap Manifesto to Black Lives Matter, to uprisings and wellsprings all over the planet, a new world emerges of those who say: “we choose love over war, sharing over greed, and making over taking.”

Whether in the community garden, the bike co-op, or the circle of art students gathered for critique, we have in this paltry world real experiences of a better one. My body learned the feeling of anxiously putting the product of one’s hand before others and seeing their amazed, expletive-tinged responses. “[expletive], Mari, you made that?” It is a feeling better than anything, anything the market offers. I believe anyone who could feel it—that moment when something you made brings gasps of delighted amazement to someone who encounters it—would choose it over acquisitive hoarding, war, or hate. Give them all the creative commons.

IX. A Constitution of Aspiration

The documents—your country’s and mine’s—that form the rules of engagement for politics have a lot of work coming their way. My commitment to doing the work through the available documents does not reflect deluded acculturation to the superstructure of empire. The documents themselves contain the contradictions and exploitable fault lines of empire. I choose to mine those fault lines because I do not want my dream of art collectives to end with thousands of artists lined up against walls and shot by someone they considered a fellow citizen.

In my hometown, the American Civil Liberties Union (ACLU) fought a battle to force the city to notify the unhoused before destroying their cardboard homes and worldly goods.[118] Every week, the city now announces, in writing, planned “sweeps” so people have notice before their tents and hovels are cleared. The ACLU has not, thus far, been able to win a claim of the right to shelter.[119] The absence of housing rights creates a contradiction so wide that we can write a positive rights constitution comfortably within it. If you aren’t learning to do that as a lawyer, you are not ready for the revolution that is coming, with or without you.

We, the people, created these governments, as the Constitution of the United States says, to secure the blessings of liberty for ourselves and our posterity. Liberty was the goal, and liberty has to mean more than the right to receive written notice before the only place you have to sleep is cleared from the sidewalk.

There is a bounding majority of us ready to ask for more: for the liberty to thrive and flourish in a community of mutual care and creative production.

I made an orchestra so outside of what is normally presented on this stage at the venerable McGill University, that I was worried I could not bring it to you. This is the season, however, of rewriting the possible. We did come, the instruments and I, to ask you to consider great, balletic leaps of constitutional interpretation, that will stop human extinction by inscribing, in our foundational texts, our capacity for love.