Among constitutional scholars, a constitution’s endurance—its survival in a future infinite and unknown—is often promoted as its virtue. According to this constitutional common sense, endurance confers political stability and demonstrates the insti- tutional foresight of “founding fathers.” Opponents of the perpetual constitution cite its democratic deficit: How can a constitution be legitimate if it binds generations who did not, and could not, consent to its terms at its founding?
To take the problem of perpetuity and legitimacy to its extreme, I engaged in a thought experiment: What if a nation was founded, and a constitution was written, to phase out human life? Certainly the stakes are high for the generation unborn or in childhood. However, it soon became clear that such a constitution throws into relief issues that go beyond intergenerational legitimacy; issues endemic to the constitutional form itself. Two were of particular interest to me: first, that con- stitutions belong to certain times, encoding the context in which they are written; and second, that constitutions create a sense of time or historical consciousness, typically privileging a narrative of perfectibility.