Butler rightly rejects this fantastic figure of sovereignty. But why should we accept that such a figure inhabits the writings of critical legal theorists or hate-speech codes at all? Two aspects of Butler's own account make her figure of a fantastic sovereign returning to haunt the law unconvincing.
First, given her focus in Excitable Speech on American law and the place of free speech in American jurisprudence, it is difcult to make sense of the phrase no longer when Butler claims that "contemporary power is no longer sovereign in character:' If the notion of sovereignty she has in mind is one invested in a single sovereign body or locus of authority, then the American framework of separation of powers eludes from the start a simple notion of sovereignty. The innovation of the American Constitution was its investment of sovereignty in the people and its provisions for enabling the people to exercise sovereignty not only through laws but through necessarily separated powers. 5 The federal system relies on separating and distributing the means of governance, again, so as to ensure that the people remain sovereign. If sovereignty in the United States has been thought as a sovereignty of the people, then what could it meah to say that the figure of a unified, poyv-erful, sovereign master returns in legal discourse?
Second, given Butler's reliance on Foucault's notion of governmen� tality, why should we not consider hate codes e1:nd the discourse around hate codes likewise in terms of the decentered structure of the state? Interventions into the constitution and management of a population; regulations on hate speech are typically pursued at campus, local, and state levels rather than as federal laws. We might say, then, that such codes are tools or instruments that the people use in governing themselves, hi arrangin<sub>�</sub> their interactions with one another. And we might wel recognize that these instruments wil be contested, open to interpretation, and implicated in other practices through which the people attempt to change their collective modes of being. Yet Butler treats these legal codes as somehow resistant to interpretation and resignifcation, insisting instead that they are attempts to isolate accountability in the words of a single sovereign speaker.
Perhaps my reading of governmentality misses what is actually at stake in Butler's emphasis on a "particular historical anxiety:' She is attending to the setting of what Lacanian psychoanalysis theorizes as a change in the discourse of the master. As chapter 2 explains, in his later work, Lacan moves away from his earlier notion of a symbolic order held in place by a master signifer to emphasize the instability of signification and the absence of guaranteed meaning. Understood in terms of this setting, Butler's account of the change in sovereignty appears not simply as an analysis oflegal arrangements of power but also as a discussion of changes in subjectivity and the character of the social link. The speaking subject is not sovereign. Speech is out of its control. This subject is called into being in and through speech and n�cessarily remains vulnerable to and dependent upon these linguistic arrangements. Just as sovereignty is not concentrated in a single extrasocial location but penetrates society as a whole, relying on various state and nonstate apparatuses, so does the subject persist in and through language, wielding the very terms that produce and sustain it. For Butler, the "contemporary scene of cultural translation emerges with the presup;. position that the utterance does not have the same meaning everywhere, indeed, that the utterance has become a scene of conflict" (ES, 91). Chapter 2 introduces Zizek's notion of the decline of symbolic eficiency as a tag for this setting of instability and conflict. Vhile Butler views this setting as opening up opportunities for resignification and new experiences of freedom, Zizek emphasizes the closure and domination that accompany our inability to know what to trust or on whom we might rely. 6
126
FIVE