In the cold light of day, I can see the draft syllabus I posted yesterday has quite a lot of new stuff, and not very much in the way of classic articles / books. Too much, probably: one thing a student would completely miss from this syllabus is any serious engagement with the history of constitutional thought. There are a couple of reasons for that. The first is that I think, especially with graduate students and a broad topic like this, there's value in diving right into current controversies and contemporary statements of the issues. You lose some sense of the history, yes, but you also get up-to-date bibliographies and a better feel for how the problem is currently framed. Basically: it's not an history of political thought class, and if you want that thing, I'm not the guy for you.
But there's also a strong bias in the syllabus for on-line articles. Part of this can be defended on ideological/altruistic lines: I'm bothered by the course-pack licensing-fee racket. But it's more than that. As someone who is both lazy and only started getting into this stuff in the last, oh, five years or so, my own knowledge is heavily channeled towards on-line sources: journals my institution only has in print almost don't exist for me. This cuts the other way, too--though Solum's Legal Theory blog, I end up reading a lot of articles that would never get on my radar screen otherwise, including a number of bad ones.
Anyhow. It's a real issue.
Saturday, August 23, 2008
Friday, August 22, 2008
Let this be my annual reminder / that we could all be something bigger
A hypothetical syllabus for a graduate seminar in constitutionalism (broadly construed). Assuming 14 weekly meetings of 2 hrs. Constructive criticism welcome. It feels very ... busy, but I think there's value in an overview of this sort. (Hence the reliance on survey articles, SEP stuff, and reviews.) I'd definitely like to make it less US-centric. So ... thoughts?
----
This class is on constitutionalism. It is not a class on constitutional law, and it is especially not a class on American constitutional law, although American voices will get disproportionate representation in the readings. While we will discuss the legal aspects of constitutionalism, one of the primary themes of the class is just how much more there is to the subject than can be found in the case law of constitutional courts. In addition to constitutions as “higher law,” then, we will be looking at constitutions as institutional settlements that simultaneously empower and limit the organs of the modern nation-state. We will also look at constitutionalism as an aspect of political identity, both for individuals and for states. Keeping these varied perspectives in mind, we will then tackle some of constitutionalism's most vexing problems: the mechanisms and legitimacy of constitutional change; the meaning and enforcement of constitutional rules; conflicts between constitutionalism and democracy; and the morality of constitutional constraint more generally.
In keeping with this pluralist agenda, the readings will draw from political science and philosophy as well as law. You will be required to write five short response papers (800-1000 words) and a research paper (6000-9000 words), and participate in class discussions. While I will prepare some introductory remarks each week to provide additional context for the readings and put my own spin on the material, the bulk of each class will be discussion format; the responses papers and class participation, therefore, count for half of your grade. Each response paper should engage with the current week's reading, although it may draw on previous material; so that we can all have a change to read that week's responses, they must be posted to Blackboard by noon on the previous day. You may pick which weeks to write on, although they must be selected in advance.
Session 1 – Introduction
Brief historical overview and introduction to the central problems of the course.
[38pp] Graham Maddox, “Constitution,” in Ball, Terence, James Farr, and Russell L. Hanson. 1988. Political Innovation and Conceptual Change. New York: Cambridge University Press.
[40pp] McIlwain, Charles Howard. 1947. Constitutionalism Ancient and Modern. Revised. Ithaca: Cornell Univ Press. Ch. 1, 2; at http://www.constitution.org/cmt/mcilw/mcilw.htm
[2pp] Selection from Paine, Thomas. 1998. Rights of Man, Common Sense, and Other Political Writings. Oxford University Press, USA.
[18pp] Waluchow, Wil, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL =
Optional: Gordon, Scott. 2002. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge: Harvard University Press.
Session 2 – Foundations of legal theory
A whirlwind tour through the debates about the nature of law. What grounds the legality of particular laws or official acts?
[18pp] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta (ed.), URL =
[21pp] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL =
[28pp] Postema, Gerald J. 1994. “Implicit Law.” Law and Philosophy 13(3):361-387.
[54pp] Shapiro, Scott J. 2007. “The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed.” University of Michigan working paper, available at: http://ssrn.com/abstract=968657
Optional: [70pp] Hart, H. L. A. 1997. The Concept of Law. 2nd ed. New York: Oxford University Press. Especially ch. 5-7.
Optional: [25pp] Green, Leslie. 2005. “General Jurisprudence: A 25th Anniversary Essay.” Oxford J Legal Studies 25(4):565-580.
Optional: [75pp] Greenberg, Mark. No date. “The Standard Picture and its Discontents.” UCLA School of Law Research Paper No. 08-07. Available at: http://ssrn.com/paper=1103569 [Accessed March 21, 2008].
Session 3 – The constitution as law
What do constitutions look like from the perspective of law and legal philosophy?
[8pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[25pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[26pp] Alexander, Lawrence, and Frederick Schauer. 2008. “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance.” In The Rule of Recognition and the U.S. Constitution, eds. Matthew Adler and Kenneth Himma. New York: Oxford University Press. Available at: http://ssrn.com/paper=1235202 .
[22pp] Adler, Matthew D. 2006. “Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism.” SSRN eLibrary. Available at: http://ssrn.com/paper=897988 .
[39pp] Dworkin, Ronald. 1997. Freedom's Law: The Moral Reading of the American Constitution. Cambridge: Harvard University Press. Introduction.
[15 pp] Lüth decision of the Federal Constitution Court of Germany, BVerfGE 7, 198.
Session 4 – The constitution as institution
What picture emerges if we focus on constitutions as defining the set of governmental institutions extant in a polity?
[40pp] Llewellyn, K. N. 1934. “The Constitution as an Institution.” Columbia Law Review 34:1.
[66pp] Young, Ernest. 2007. “The Constitution Outside the Constitution.” Yale Law Journal 117:408-473.
[56pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 4, 13.
[10pp] Extract from 2nd Certification Decision, Constitutional Court of S. Africa.
[23pp] Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. Ch. 1; ch. 2 is optional.
Extracts from the Constitution of South Africa.
Session 5 – Constitutions and identity
Can a constitution be understood without seeing it as somehow rooted in the society and the people who live under it? What role do constitutions have in shaping national identity?
[5 pp] Loughlin, Martin. 2005. “Constitutional Theory: A 25th Anniversary Essay.” Oxford J Legal Studies 25(2):183-202. Parts C and D.
[16pp] Habermas, Jürgen. 2003. “Toward a Cosmopolitan Europe.” Journal of Democracy 14(4):86-100.
[10pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[37pp] Jacobsohn, Gary Jeffrey. 2006. “Constitutional Identity.” The Review of Politics 68(03):361-397.
[25pp] Barker, Ernest, and Ernest Barker. 1962. The Politics of Aristotle. New York: Oxford University Press. Book 3, esp. parts 3, 6-13.
Extracts from the Constitutions of Turkey, France, South Africa.
Session 6 – Enforcing the constitution: judicial solutions
Can courts guard the constitution? What are the conditions that make it possible?
[43pp] Holmes, Stephen. “Lineages of the Rules of Law,” in Przeworski, Adam, and José María Maravall. 2003. Democracy and the Rule of Law. New York: Cambridge University Press.
[25pp] Hilbink, L., T. Moustafa, and A. W. Pereira. 2007. “Courts and Judges in Authoritarian Regimes.” World Politics 60:122-45.
[5pp] Federalist 78. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[26pp] Graber, Mark A. 2005. “Constructing Judicial Review.” Annual Review of Political Science 8:425-51.
[14pp] Whittington, Keith. 2005. “'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99(04):583-596.
Session 7 – Enforcing the constitution: beyond judicial review
What other mechanisms besides courts can be used to enforce constitutional rules?
[12pp] Frey, Bruno S. 1997. “A Constitution for Knaves Crowds out Civic Virtues.” The Economic Journal 107(443):1043-1053.
[10pp] Federalist 47-51. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[21pp] Smulovitz, Catalina. “How Can the Rule of Law Rule? Cost Imposition through
Decentralized Mechanisms” in id.
[46pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 8.
Session 8 – Constitutional change
How do constitutions change? How much change is good?
[19pp] Schauer, Frederick. 1995. “Amending the Presuppositions of a Constitution.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[24pp] Balkin, J. M., and R. B. Siegel. 2005. “Principles, Practices, and Social Movements.” University of Pennsylvania Law Review 154:927.
[45pp] Balkin, J. M., and Sanford Levinson. 2006. “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State.” Fordham Law Review 75(2).
[32pp] Holmes, Stephen, and Cass R. Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[2pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[27pp] Jacobsohn, Gary Jeffrey. 2006. “An unconstitutional constitution? A comparative perspective.” Int J Constitutional Law 4(3):460-487.
Optional: [26pp] Vernon Bogdanor. 2005. “Constitutional Reform in Britain: The Quiet Revolution.” Annual Review of Political Science 8:73-98.
Optional: [40pp] Kersch, Kenneth I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” Princeton Law and Public Affairs Working Paper No. 06-003. Available at: http://ssrn.com/paper=908322 .
Session 9 – Constitutionalism and democracy
[8pp] Habermas, Jürgen. 2003. “On Law and Disagreement. Some Comments on 'Interpretative Pluralism'.” Ratio Juris 16(2):187-194.
[43pp] Freeman. 1990. “Constitutional democracy and the legitimacy of judicial review.” Law and Philosophy 9(4):327-370.
[61pp] Waldron, J. 2006. “The Core of the Case Against Judicial Review.” Yale Law Journal 115.
[20pp] Devins, Neal. 2006. “The D'Oh! Of Popular Constitutionalism.” Michigan Law Review 105:1333.
Session 10 – Constitutional meaning
How can we figure out what the constitution means? Does the very existence of disagreement imply something about meaning?
[33pp] Paulsen, M. S. 2006. “How To Interpret the Constitution (and How Not To).” Yale Law Journal 115(2037).
[19pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[20pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[47pp] Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System.” In A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman. Princeton: Princeton University Press.
[51pp] Berman, Mitchell N. 2007. “Originalism is Bunk.” SSRN eLibrary. Available at: http://ssrn.com/paper=1078933 [Accessed August 22, 2008].
Optional: chapters on India, Germany, and Canada in Goldsworthy, Jeffrey. 2007. Interpreting Constitutions: A Comparative Study. New York: Oxford University Press.
Optional: Samaha, A. 2008. “Dead Hand Arguments and Constitutional Interpretation.” Columbia Law Review 108.
Session 11 – Constitutionalism and administrative discretion
From either an institutional/functional or aspirational perspective, much of what is considered “administrative rule-making” has a constitutional dimension. Can the vast discretion vested in most states' administrative agencies be squared with constitutional theory?
[21pp] Luban, David. 2002. “The Publicity of Law and the Regulatory State.” Journal of Political Philosophy 10(3):296-316.
[19pp] “Introduction,” in Dyzenhaus, D. 2004. The Unity of Public Law. Hart Publishing.
[22pp] Shapiro, Sidney A., and Richard W. Murphy. “Eight Things Americans Can't Figure Out About Controlling Administrative Power.” Administrative Law Review, Vol. 60, 2008. Available at: http://ssrn.com/paper=1162872 [Accessed August 8, 2008].
[41pp] Vermeule, Adrian. “Our Schmittian Administrative Law.” Harvard Law Review, 2009. Available at: http://ssrn.com/paper=1126726 [Accessed August 19, 2008].
Optional: [51pp] Dyzenhaus, David, and Evan Fox-Decent. 2001. “Rethinking the Process/Substance Distinction: Baker V. Canada.” The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242. Available at: http://ssrn.com/paper=1090260 .
Optional: [67pp] Rubin, E. 2004. “The Myth of Accountability and the Anti-Administrative Impulse.” Michigan Law Review 103:2073.
Session 12 – Executive constraint and war
Is there something about war that makes it inapt for constitutional control, or any sort of rule-governance? Can emergency powers be constitutionalized? If so, should they be?
[30pp] Ferejohn, John, and Pasquale Pasquino. 2004. “The law of the exception: A typology of emergency powers.” Int J Constitutional Law 2(2):210-239.
[3pp] Elster, Jon. 2004. “Comments on the paper by Ferejohn and Pasquino.” Int J Constitutional Law 2(2):240-243.
[28pp] Dyzenhaus, David. 2004. “Intimations of legality amid the clash of arms.” Int J Constitutional Law 2(2):244-271.
[23pp] Coomaraswamy, Radhika, and Charmaine de los Reyes. 2004. “Rule by emergency: Sri Lanka's postcolonial constitutional experience.” Int J Constitutional Law 2(2):272-295.
Session 13 – Constitutional morality for officials
Should officials treat constitutional restraints as morally obligatory? If so, which ones? Can a conscientious official ever be a good person?
[18pp] Goldman, Alan H. 2006. “The Rationality of Complying with Rules: Paradox Resolved.” Ethics 116(3):453-470.
[21pp] Walzer, Michael. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy and Public Affairs 2(2):160-180.
[17pp] Kleinerman, B. A. 2005. “Lincoln's Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3(04):801-816.
[30pp] Extract from Graber, M. A. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
[52pp] Fox-Decent, Evan. 2005. “The Fiduciary Nature of State Legal Authority.” Queen's Law Journal, Vol. 31. Available at: http://ssrn.com/paper=1090292 [Accessed February 13, 2008].
Optional: [140pp] Barak, A. 2002. “A Judge on Judging: The Role of a Supreme Court in a Democracy.” Harvard Law Review 116:19.
Session 14 – Constitutional morality for citizens and subjects
What moral status should ordinary citizens accord constitutional rules and institutions? And to what extent do the answers to all these questions depend on whether the state properly encompasses the an appropriate group of people?
[16pp] Green, Leslie. "Legal Obligation and Authority", The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL =
[29pp] Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1):3-30.
[15pp] Mandela, Nelson. Opening statement of the defense case in the Rivonia Trial, Pretoria Supreme Court, 20 April 1964. Available at http://www.anc.org.za/ancdocs/history/rivonia.html.
[30 pp] Trapnel, X. N.d. “Consequentialist Constitutional Duties.”
[36 pp] Nasstrom, Sofia. 2007. “The Legitimacy of the People.” Political Theory 35(5):624-658.
Optional: [44pp] Jones, Benjamin F., and Benjamin A. Olken. 2007. “Hit or Miss? The Effect of Assassinations on Institutions and War.” SSRN eLibrary. Available at: http://ssrn.com/paper=986952 [Accessed March 24, 2008].
Optional: [12pp] Thoreau, H.D. 2003. “Civil Disobedience,” in Thoreau, H. D. Walden and Civil Disobedience. Barnes & Noble Classics. Available at http://theinfovault.net/vault/documentsbillslegis_files/Duty%20of%20Civil%20Disobedience.pdf
Optional: [210pp] Edmundson, William A. 1998. Three Anarchical Fallacies: An Essay on Political Authority. New York: Cambridge University Press.
----
This class is on constitutionalism. It is not a class on constitutional law, and it is especially not a class on American constitutional law, although American voices will get disproportionate representation in the readings. While we will discuss the legal aspects of constitutionalism, one of the primary themes of the class is just how much more there is to the subject than can be found in the case law of constitutional courts. In addition to constitutions as “higher law,” then, we will be looking at constitutions as institutional settlements that simultaneously empower and limit the organs of the modern nation-state. We will also look at constitutionalism as an aspect of political identity, both for individuals and for states. Keeping these varied perspectives in mind, we will then tackle some of constitutionalism's most vexing problems: the mechanisms and legitimacy of constitutional change; the meaning and enforcement of constitutional rules; conflicts between constitutionalism and democracy; and the morality of constitutional constraint more generally.
In keeping with this pluralist agenda, the readings will draw from political science and philosophy as well as law. You will be required to write five short response papers (800-1000 words) and a research paper (6000-9000 words), and participate in class discussions. While I will prepare some introductory remarks each week to provide additional context for the readings and put my own spin on the material, the bulk of each class will be discussion format; the responses papers and class participation, therefore, count for half of your grade. Each response paper should engage with the current week's reading, although it may draw on previous material; so that we can all have a change to read that week's responses, they must be posted to Blackboard by noon on the previous day. You may pick which weeks to write on, although they must be selected in advance.
Session 1 – Introduction
Brief historical overview and introduction to the central problems of the course.
[38pp] Graham Maddox, “Constitution,” in Ball, Terence, James Farr, and Russell L. Hanson. 1988. Political Innovation and Conceptual Change. New York: Cambridge University Press.
[40pp] McIlwain, Charles Howard. 1947. Constitutionalism Ancient and Modern. Revised. Ithaca: Cornell Univ Press. Ch. 1, 2; at http://www.constitution.org/cmt/mcilw/mcilw.htm
[2pp] Selection from Paine, Thomas. 1998. Rights of Man, Common Sense, and Other Political Writings. Oxford University Press, USA.
[18pp] Waluchow, Wil, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL =
Optional: Gordon, Scott. 2002. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge: Harvard University Press.
Session 2 – Foundations of legal theory
A whirlwind tour through the debates about the nature of law. What grounds the legality of particular laws or official acts?
[18pp] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta (ed.), URL =
[21pp] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL =
[28pp] Postema, Gerald J. 1994. “Implicit Law.” Law and Philosophy 13(3):361-387.
[54pp] Shapiro, Scott J. 2007. “The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed.” University of Michigan working paper, available at: http://ssrn.com/abstract=968657
Optional: [70pp] Hart, H. L. A. 1997. The Concept of Law. 2nd ed. New York: Oxford University Press. Especially ch. 5-7.
Optional: [25pp] Green, Leslie. 2005. “General Jurisprudence: A 25th Anniversary Essay.” Oxford J Legal Studies 25(4):565-580.
Optional: [75pp] Greenberg, Mark. No date. “The Standard Picture and its Discontents.” UCLA School of Law Research Paper No. 08-07. Available at: http://ssrn.com/paper=1103569 [Accessed March 21, 2008].
Session 3 – The constitution as law
What do constitutions look like from the perspective of law and legal philosophy?
[8pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[25pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[26pp] Alexander, Lawrence, and Frederick Schauer. 2008. “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance.” In The Rule of Recognition and the U.S. Constitution, eds. Matthew Adler and Kenneth Himma. New York: Oxford University Press. Available at: http://ssrn.com/paper=1235202 .
[22pp] Adler, Matthew D. 2006. “Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism.” SSRN eLibrary. Available at: http://ssrn.com/paper=897988 .
[39pp] Dworkin, Ronald. 1997. Freedom's Law: The Moral Reading of the American Constitution. Cambridge: Harvard University Press. Introduction.
[15 pp] Lüth decision of the Federal Constitution Court of Germany, BVerfGE 7, 198.
Session 4 – The constitution as institution
What picture emerges if we focus on constitutions as defining the set of governmental institutions extant in a polity?
[40pp] Llewellyn, K. N. 1934. “The Constitution as an Institution.” Columbia Law Review 34:1.
[66pp] Young, Ernest. 2007. “The Constitution Outside the Constitution.” Yale Law Journal 117:408-473.
[56pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 4, 13.
[10pp] Extract from 2nd Certification Decision, Constitutional Court of S. Africa.
[23pp] Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. Ch. 1; ch. 2 is optional.
Extracts from the Constitution of South Africa.
Session 5 – Constitutions and identity
Can a constitution be understood without seeing it as somehow rooted in the society and the people who live under it? What role do constitutions have in shaping national identity?
[5 pp] Loughlin, Martin. 2005. “Constitutional Theory: A 25th Anniversary Essay.” Oxford J Legal Studies 25(2):183-202. Parts C and D.
[16pp] Habermas, Jürgen. 2003. “Toward a Cosmopolitan Europe.” Journal of Democracy 14(4):86-100.
[10pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[37pp] Jacobsohn, Gary Jeffrey. 2006. “Constitutional Identity.” The Review of Politics 68(03):361-397.
[25pp] Barker, Ernest, and Ernest Barker. 1962. The Politics of Aristotle. New York: Oxford University Press. Book 3, esp. parts 3, 6-13.
Extracts from the Constitutions of Turkey, France, South Africa.
Session 6 – Enforcing the constitution: judicial solutions
Can courts guard the constitution? What are the conditions that make it possible?
[43pp] Holmes, Stephen. “Lineages of the Rules of Law,” in Przeworski, Adam, and José María Maravall. 2003. Democracy and the Rule of Law. New York: Cambridge University Press.
[25pp] Hilbink, L., T. Moustafa, and A. W. Pereira. 2007. “Courts and Judges in Authoritarian Regimes.” World Politics 60:122-45.
[5pp] Federalist 78. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[26pp] Graber, Mark A. 2005. “Constructing Judicial Review.” Annual Review of Political Science 8:425-51.
[14pp] Whittington, Keith. 2005. “'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99(04):583-596.
Session 7 – Enforcing the constitution: beyond judicial review
What other mechanisms besides courts can be used to enforce constitutional rules?
[12pp] Frey, Bruno S. 1997. “A Constitution for Knaves Crowds out Civic Virtues.” The Economic Journal 107(443):1043-1053.
[10pp] Federalist 47-51. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[21pp] Smulovitz, Catalina. “How Can the Rule of Law Rule? Cost Imposition through
Decentralized Mechanisms” in id.
[46pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 8.
Session 8 – Constitutional change
How do constitutions change? How much change is good?
[19pp] Schauer, Frederick. 1995. “Amending the Presuppositions of a Constitution.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[24pp] Balkin, J. M., and R. B. Siegel. 2005. “Principles, Practices, and Social Movements.” University of Pennsylvania Law Review 154:927.
[45pp] Balkin, J. M., and Sanford Levinson. 2006. “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State.” Fordham Law Review 75(2).
[32pp] Holmes, Stephen, and Cass R. Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[2pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[27pp] Jacobsohn, Gary Jeffrey. 2006. “An unconstitutional constitution? A comparative perspective.” Int J Constitutional Law 4(3):460-487.
Optional: [26pp] Vernon Bogdanor. 2005. “Constitutional Reform in Britain: The Quiet Revolution.” Annual Review of Political Science 8:73-98.
Optional: [40pp] Kersch, Kenneth I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” Princeton Law and Public Affairs Working Paper No. 06-003. Available at: http://ssrn.com/paper=908322 .
Session 9 – Constitutionalism and democracy
[8pp] Habermas, Jürgen. 2003. “On Law and Disagreement. Some Comments on 'Interpretative Pluralism'.” Ratio Juris 16(2):187-194.
[43pp] Freeman. 1990. “Constitutional democracy and the legitimacy of judicial review.” Law and Philosophy 9(4):327-370.
[61pp] Waldron, J. 2006. “The Core of the Case Against Judicial Review.” Yale Law Journal 115.
[20pp] Devins, Neal. 2006. “The D'Oh! Of Popular Constitutionalism.” Michigan Law Review 105:1333.
Session 10 – Constitutional meaning
How can we figure out what the constitution means? Does the very existence of disagreement imply something about meaning?
[33pp] Paulsen, M. S. 2006. “How To Interpret the Constitution (and How Not To).” Yale Law Journal 115(2037).
[19pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[20pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[47pp] Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System.” In A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman. Princeton: Princeton University Press.
[51pp] Berman, Mitchell N. 2007. “Originalism is Bunk.” SSRN eLibrary. Available at: http://ssrn.com/paper=1078933 [Accessed August 22, 2008].
Optional: chapters on India, Germany, and Canada in Goldsworthy, Jeffrey. 2007. Interpreting Constitutions: A Comparative Study. New York: Oxford University Press.
Optional: Samaha, A. 2008. “Dead Hand Arguments and Constitutional Interpretation.” Columbia Law Review 108.
Session 11 – Constitutionalism and administrative discretion
From either an institutional/functional or aspirational perspective, much of what is considered “administrative rule-making” has a constitutional dimension. Can the vast discretion vested in most states' administrative agencies be squared with constitutional theory?
[21pp] Luban, David. 2002. “The Publicity of Law and the Regulatory State.” Journal of Political Philosophy 10(3):296-316.
[19pp] “Introduction,” in Dyzenhaus, D. 2004. The Unity of Public Law. Hart Publishing.
[22pp] Shapiro, Sidney A., and Richard W. Murphy. “Eight Things Americans Can't Figure Out About Controlling Administrative Power.” Administrative Law Review, Vol. 60, 2008. Available at: http://ssrn.com/paper=1162872 [Accessed August 8, 2008].
[41pp] Vermeule, Adrian. “Our Schmittian Administrative Law.” Harvard Law Review, 2009. Available at: http://ssrn.com/paper=1126726 [Accessed August 19, 2008].
Optional: [51pp] Dyzenhaus, David, and Evan Fox-Decent. 2001. “Rethinking the Process/Substance Distinction: Baker V. Canada.” The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242. Available at: http://ssrn.com/paper=1090260 .
Optional: [67pp] Rubin, E. 2004. “The Myth of Accountability and the Anti-Administrative Impulse.” Michigan Law Review 103:2073.
Session 12 – Executive constraint and war
Is there something about war that makes it inapt for constitutional control, or any sort of rule-governance? Can emergency powers be constitutionalized? If so, should they be?
[30pp] Ferejohn, John, and Pasquale Pasquino. 2004. “The law of the exception: A typology of emergency powers.” Int J Constitutional Law 2(2):210-239.
[3pp] Elster, Jon. 2004. “Comments on the paper by Ferejohn and Pasquino.” Int J Constitutional Law 2(2):240-243.
[28pp] Dyzenhaus, David. 2004. “Intimations of legality amid the clash of arms.” Int J Constitutional Law 2(2):244-271.
[23pp] Coomaraswamy, Radhika, and Charmaine de los Reyes. 2004. “Rule by emergency: Sri Lanka's postcolonial constitutional experience.” Int J Constitutional Law 2(2):272-295.
Session 13 – Constitutional morality for officials
Should officials treat constitutional restraints as morally obligatory? If so, which ones? Can a conscientious official ever be a good person?
[18pp] Goldman, Alan H. 2006. “The Rationality of Complying with Rules: Paradox Resolved.” Ethics 116(3):453-470.
[21pp] Walzer, Michael. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy and Public Affairs 2(2):160-180.
[17pp] Kleinerman, B. A. 2005. “Lincoln's Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3(04):801-816.
[30pp] Extract from Graber, M. A. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
[52pp] Fox-Decent, Evan. 2005. “The Fiduciary Nature of State Legal Authority.” Queen's Law Journal, Vol. 31. Available at: http://ssrn.com/paper=1090292 [Accessed February 13, 2008].
Optional: [140pp] Barak, A. 2002. “A Judge on Judging: The Role of a Supreme Court in a Democracy.” Harvard Law Review 116:19.
Session 14 – Constitutional morality for citizens and subjects
What moral status should ordinary citizens accord constitutional rules and institutions? And to what extent do the answers to all these questions depend on whether the state properly encompasses the an appropriate group of people?
[16pp] Green, Leslie. "Legal Obligation and Authority", The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL =
[29pp] Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1):3-30.
[15pp] Mandela, Nelson. Opening statement of the defense case in the Rivonia Trial, Pretoria Supreme Court, 20 April 1964. Available at http://www.anc.org.za/ancdocs/history/rivonia.html.
[30 pp] Trapnel, X. N.d. “Consequentialist Constitutional Duties.”
[36 pp] Nasstrom, Sofia. 2007. “The Legitimacy of the People.” Political Theory 35(5):624-658.
Optional: [44pp] Jones, Benjamin F., and Benjamin A. Olken. 2007. “Hit or Miss? The Effect of Assassinations on Institutions and War.” SSRN eLibrary. Available at: http://ssrn.com/paper=986952 [Accessed March 24, 2008].
Optional: [12pp] Thoreau, H.D. 2003. “Civil Disobedience,” in Thoreau, H. D. Walden and Civil Disobedience. Barnes & Noble Classics. Available at http://theinfovault.net/vault/documentsbillslegis_files/Duty%20of%20Civil%20Disobedience.pdf
Optional: [210pp] Edmundson, William A. 1998. Three Anarchical Fallacies: An Essay on Political Authority. New York: Cambridge University Press.
Thursday, August 14, 2008
Calling me all the time / like Blondie ...
Okay, what? No. Just, no.
I'm the last to deny the value of art, literature, and cinema in enlarging our moral sensibilities, etc., etc., but look: the idea that one filmmaker's take on a man who transitions out of love and suffers for it is going to reveal a deep and universal truth about gender expression or identity is simply nuts.
The claim seems to be that this story (man falls for straight man, man becomes woman, man is still rejected by his beloved) is an example of the purported fact that our gender identity is primarily about gender presentation, and how we wish others to respond to this presentation. And I'd be a fool to deny that having others respond to one as an X is a big part of--a psychologically necessary component of, I'd say--identifying oneself as an X. But this just doesn't get Helen anywhere near what she wants (I'm assuming that What Helen Wants is to be warranted in saying "one ought not take up deviant gender identities; others are right to shame those who do; social institutions ought to discourage their creation, proliferation, and persistence").
I have to say, I'm not even sure I see where her argument is supposed to be going. It looks something like this:
Well, I would say that at least this makes more sense than the Underpants Gnomes' business plan, (Step 1: Collect underpants. Step 2: ? Step 3: Profit!) but I'm actually not sure about that. Remember that the whole dialectic (see here, here, and especially here) is Helen's attempt to give an internal critique of subversive gender roles--one that doesn't rely on their supposed Harm to Society (inevitably based on shoddy social science). So what she needs to show is that pursuing deviant gender identities is somehow self-defeating, and this she fails to do. After all, it is simply not the case that validation from social/sexual interaction is a monotonically decreasing function of distance-from-conventionality. Even if all we got out of gender performance was others' approval (or lack), many people would feel more validated by a subculture's acknowledgment of their genderqueerness than they would by 'passing' with the mainstream.
But Helen's mistake goes deeper than that. She seems to hate authenticity, so I'll avoid the term, but my preferred understanding of the philosophy of action makes me think that social recognition and acknowledgment matter as much as they do precisely because we need to maintain a sense of meaningful identity over time. That is, we need to understand our lives as narratives that matter, and this can't be done if we see ourselves as windowless monads acting out individualized scripts. The quest for personal identity (and even, gasp, authenticity) isn't in opposition to sociability, normative constraint, or tragic loss; it requires at least the possibility of all of these.
Helen's argument needs it to be true that subversive identities are doomed--that genderqueers will always fall in love with squares who can't deal, that transmen will inevitably find their sense of self disrupted by pregnancy, etc. But this is not merely bleak, it's wrong. Thomas Beatie seems to have no problem being a pregnant man; sometimes marriages continue when one partner transitions. Those few people willing to be openly gender-subversive typically derive not just pleasure but meaning from it, which is why, like the Christians in ancient Rome, they continue to do it despite persecution. About the only group for whom Helen's story seems remotely apt is the "ex-gay" movement, populated as it is with folks who found homosexuality incompatible with their religious beliefs, but anyone who takes the time to read through Disputed Mutability's archive (in comparison to, say, Eve's) must surely acknowledge the folly of prescribing that path for all.
Moreover, insofar as the tragedy with "ex-gays" derives from the difficulty with integrating deep aspects of sexual desire into a personal identity marked by precisely the traditionalist, religious norms Helen is trying to defend ... well, it looks a lot like her theory has a tragic narrative of its own: believing in it makes it true that one will experience the very moral dissonance and tragedy that the theory insists is inevitable. Well, no, thanks. Not when all it takes is reading, e.g., Sugarbutch to see just how much goodness and value--how much meaning--can be derived from what Helen would condemn as intrinsically deficient.
Look. It's true that gender identities are deeply entangled with sexual identities and preferences. What turns one on--what represents the beautiful, the sublime, the cute, and all the rest; what makes sex delicious or sacred or just fun--all of this has a lot to do with gender roles, with archetypes of social presentation (rather than just anatomy). And vice versa. So maybe this is what's driving Helen's about-face on butchness--if gender roles and sexual preferences are entangled, and we stop repressing deviant gender roles, might we arrive at her oft-ridiculed dystopia, that world where nobody knows who to fuck anymore?
Not so much. I've been ridiculing that dystopia for a reason; it's nuts. People would still need to find meaningful identities for themselves as sexual beings in a world with other sexual beings, and those identities would necessarily reflect extant traditions and practices, just as they do now. Even if sexual desires are quite socially relative, they're not particularly mutable for most individuals; even a society fully accepting of gender diversity would find that diversity anchored by both the need for social recognition and that relative immutability of desires. If anything, a flourshing of alternate gender identities would encourage everyone to be more thoughtful and conscientious about sexuality and gender. Helen fears a world of 12-year-old wallflowers, too bereft of shared understandings of sexual interaction to even get dates on Craigslist, but it's precisely our current, outmoded, ill-fitting gender dualism that leads to those wallflowers--and the 20- and 30- somethings that are their benighted future selves, the Nice Guys who can't get beyond the roles to see the people, and the all-too-common males who simply have no idea what they want out of sex or relationships because they've never had to think about it. (I'm sure there are equivalent female pathologies.)
So. Sure, most straight guys don't go for butch women. But substitute in "tomboy" or "Amazon" and suddenly "most" seems quite contestable; and Helen's corresponding assertion that there are no straight butches is just laughably wrong. Yes, sexual desire--both one's own and that of others--shapes gender identity and expression, and yes, most people throughout history have had tragically cramped understandings about all three (IBTP). But it's a blessing, not a curse, that economic, social, and technological shifts have increasingly provided space for gender and sexual deviance to flourish.
And once we see that flourishing for what it is, see those who reach for it as no more doomed or tragic (though certainly more vilified, and perhaps more self-conscious) than anyone else, then there's just nothing more to be said about arguments like Helen's. If you believe (straight) masculinity and femininity have value because of the way they enable flourishing through the constraints of tradition, if you're attracted to the metaphors of genre and poetic form, you should be on the front lines at the next Pride march.
If you want to argue God, of course, or make consequentialist arguments about social change--well, I don't think there's much to be said for those claims, either. But that's a different topic altogether.
I'm the last to deny the value of art, literature, and cinema in enlarging our moral sensibilities, etc., etc., but look: the idea that one filmmaker's take on a man who transitions out of love and suffers for it is going to reveal a deep and universal truth about gender expression or identity is simply nuts.
The claim seems to be that this story (man falls for straight man, man becomes woman, man is still rejected by his beloved) is an example of the purported fact that our gender identity is primarily about gender presentation, and how we wish others to respond to this presentation. And I'd be a fool to deny that having others respond to one as an X is a big part of--a psychologically necessary component of, I'd say--identifying oneself as an X. But this just doesn't get Helen anywhere near what she wants (I'm assuming that What Helen Wants is to be warranted in saying "one ought not take up deviant gender identities; others are right to shame those who do; social institutions ought to discourage their creation, proliferation, and persistence").
I have to say, I'm not even sure I see where her argument is supposed to be going. It looks something like this:
1. The value in performing a certain gender role is in others' social validation of it, rather than in its congruence with your inner self;
2. And men want femmes;
3. And so does God, for that matter;
3. So strap on those stilettos, laydeez; that you prefer steel-toes is irrelevant.
Well, I would say that at least this makes more sense than the Underpants Gnomes' business plan, (Step 1: Collect underpants. Step 2: ? Step 3: Profit!) but I'm actually not sure about that. Remember that the whole dialectic (see here, here, and especially here) is Helen's attempt to give an internal critique of subversive gender roles--one that doesn't rely on their supposed Harm to Society (inevitably based on shoddy social science). So what she needs to show is that pursuing deviant gender identities is somehow self-defeating, and this she fails to do. After all, it is simply not the case that validation from social/sexual interaction is a monotonically decreasing function of distance-from-conventionality. Even if all we got out of gender performance was others' approval (or lack), many people would feel more validated by a subculture's acknowledgment of their genderqueerness than they would by 'passing' with the mainstream.
But Helen's mistake goes deeper than that. She seems to hate authenticity, so I'll avoid the term, but my preferred understanding of the philosophy of action makes me think that social recognition and acknowledgment matter as much as they do precisely because we need to maintain a sense of meaningful identity over time. That is, we need to understand our lives as narratives that matter, and this can't be done if we see ourselves as windowless monads acting out individualized scripts. The quest for personal identity (and even, gasp, authenticity) isn't in opposition to sociability, normative constraint, or tragic loss; it requires at least the possibility of all of these.
Helen's argument needs it to be true that subversive identities are doomed--that genderqueers will always fall in love with squares who can't deal, that transmen will inevitably find their sense of self disrupted by pregnancy, etc. But this is not merely bleak, it's wrong. Thomas Beatie seems to have no problem being a pregnant man; sometimes marriages continue when one partner transitions. Those few people willing to be openly gender-subversive typically derive not just pleasure but meaning from it, which is why, like the Christians in ancient Rome, they continue to do it despite persecution. About the only group for whom Helen's story seems remotely apt is the "ex-gay" movement, populated as it is with folks who found homosexuality incompatible with their religious beliefs, but anyone who takes the time to read through Disputed Mutability's archive (in comparison to, say, Eve's) must surely acknowledge the folly of prescribing that path for all.
Moreover, insofar as the tragedy with "ex-gays" derives from the difficulty with integrating deep aspects of sexual desire into a personal identity marked by precisely the traditionalist, religious norms Helen is trying to defend ... well, it looks a lot like her theory has a tragic narrative of its own: believing in it makes it true that one will experience the very moral dissonance and tragedy that the theory insists is inevitable. Well, no, thanks. Not when all it takes is reading, e.g., Sugarbutch to see just how much goodness and value--how much meaning--can be derived from what Helen would condemn as intrinsically deficient.
Look. It's true that gender identities are deeply entangled with sexual identities and preferences. What turns one on--what represents the beautiful, the sublime, the cute, and all the rest; what makes sex delicious or sacred or just fun--all of this has a lot to do with gender roles, with archetypes of social presentation (rather than just anatomy). And vice versa. So maybe this is what's driving Helen's about-face on butchness--if gender roles and sexual preferences are entangled, and we stop repressing deviant gender roles, might we arrive at her oft-ridiculed dystopia, that world where nobody knows who to fuck anymore?
Not so much. I've been ridiculing that dystopia for a reason; it's nuts. People would still need to find meaningful identities for themselves as sexual beings in a world with other sexual beings, and those identities would necessarily reflect extant traditions and practices, just as they do now. Even if sexual desires are quite socially relative, they're not particularly mutable for most individuals; even a society fully accepting of gender diversity would find that diversity anchored by both the need for social recognition and that relative immutability of desires. If anything, a flourshing of alternate gender identities would encourage everyone to be more thoughtful and conscientious about sexuality and gender. Helen fears a world of 12-year-old wallflowers, too bereft of shared understandings of sexual interaction to even get dates on Craigslist, but it's precisely our current, outmoded, ill-fitting gender dualism that leads to those wallflowers--and the 20- and 30- somethings that are their benighted future selves, the Nice Guys who can't get beyond the roles to see the people, and the all-too-common males who simply have no idea what they want out of sex or relationships because they've never had to think about it. (I'm sure there are equivalent female pathologies.)
So. Sure, most straight guys don't go for butch women. But substitute in "tomboy" or "Amazon" and suddenly "most" seems quite contestable; and Helen's corresponding assertion that there are no straight butches is just laughably wrong. Yes, sexual desire--both one's own and that of others--shapes gender identity and expression, and yes, most people throughout history have had tragically cramped understandings about all three (IBTP). But it's a blessing, not a curse, that economic, social, and technological shifts have increasingly provided space for gender and sexual deviance to flourish.
And once we see that flourishing for what it is, see those who reach for it as no more doomed or tragic (though certainly more vilified, and perhaps more self-conscious) than anyone else, then there's just nothing more to be said about arguments like Helen's. If you believe (straight) masculinity and femininity have value because of the way they enable flourishing through the constraints of tradition, if you're attracted to the metaphors of genre and poetic form, you should be on the front lines at the next Pride march.
If you want to argue God, of course, or make consequentialist arguments about social change--well, I don't think there's much to be said for those claims, either. But that's a different topic altogether.
We gotta stay positive!
I'd put off reading Mark Greenberg's "The Standard Picture and its Discontents" for an embarrassing reason: I suspected that I would find it extremely challenging and persuasive, and be forced to reorient my thinking about general jurisprudence as a result. And I was right. It is really, really good, and I think hits on exactly what I find frustrating with much of the general jurisprudence literature. I suspect, too, that a rejection of the "standard picture"--something like a command paradigm of law, where authoritative pronouncements directly explain the content of legal norms--may be at the root of my disagreement with constitutional originalism. (And an implicit acceptance of it may be why some of my interlocutors seem so dogmatic from my perspective--Solum's "Semantic Originalism," for example, seems entirely unmotivated from outside the SP.)
That's not to say that I agree with everything in the paper, which after all is merely a draft. I'm dubious about the direction he seems to be pushing his Dependence View in--I think any attempt to have law-on-morality dependence will need to take account of moral disagreement at the ground floor, as it were. But as a critique of the prevailing paradigm, it's nothing short of brilliant.
I found it curious that Greenberg doesn't mention Gerald Postema's work at all--having recently read a few of his papers, especially "Implicit Law," "Melody and Law's Mindfulness of Time," and "Law as Command," it strikes me that they're both hitting on the same point.
That's not to say that I agree with everything in the paper, which after all is merely a draft. I'm dubious about the direction he seems to be pushing his Dependence View in--I think any attempt to have law-on-morality dependence will need to take account of moral disagreement at the ground floor, as it were. But as a critique of the prevailing paradigm, it's nothing short of brilliant.
I found it curious that Greenberg doesn't mention Gerald Postema's work at all--having recently read a few of his papers, especially "Implicit Law," "Melody and Law's Mindfulness of Time," and "Law as Command," it strikes me that they're both hitting on the same point.
Saturday, August 09, 2008
I'm kinda saving myself for the scene...
I really don't understand the argument Eve Tushnet is making here, prompted by an article in First Things claiming that Huckabee's mistake lay not in the substance of his arguments but his failure to give appropriately public reasons (and, more controversially, that Natural Law arguments would be sufficiently public). Is her view that natural law arguments presuppose evaluative standards which are just as contested (think justice, flourishing, common good, etc.) as the policy prescriptions the natural lawyers wish to arrive at? And that since we no longer share such standards ... well, what then? This is where I really can't follow Eve--it seems like she's saying we must replace them with evaluative-but-not-moral ones, such as aesthetic terms. And thus, we must be very, very afraid of mixed-sex college dorms, because they will make sex (both the fact of sexual difference, and the activity of intercourse) meaningless.
If this is the argument, then I think I disagree with her about everything except her acknowledgement of deep moral disagreement. And even here, I think she moves much too fast. What's important about disagreement is responding to it appropriately, which depends a lot on who disagrees and how much. Sometimes we have disagreement all the way down, but sometimes not. It really depends on the issue. Moreover, it's only through a thick public conversation about these normatively-loaded terms that we can create such shared meanings. Yes, some people are just talking past each other, but in the process of doing so, public meaning can take root. (And when we stop talking to each other as if it matters, public meaning dissolves.) There's certainly a difference between attempting to speak the language of public reasons versus not even trying, and the former can have valuable effects even when it's seemingly mistaken in its assumptions about consensus.
Second, I just can't see how aesthetic imperatives--or even the demands of practical reasoning, but this is because I'm an internalist about the latter through and through; let's put that aside here--can even come close to taking the place of moral discourse as a standard of public reason. At best, aesthetic response can function as an input in moral argument (in making claims about the value of environmental preservation, say); at worst, it reduces to Leon Kass's so-called "wisdom of repugnance." When it comes down to brass tacks, aesthetic responses are no more shared than moral ones, and--what is worse--are much less amenable to correction through argument and reflection. De gustibus, etc.--at least where politics is concerned. Public meaning--at least as far as law goes--is not merely fragile and contingent; it's also an achievement with real moral consequences. If it's really hopelessly lost, the answer is decentralization, subsidiarity, a liberal archipelago--not a Jurisprudence of Yuck.
Finally, one of the two examples she uses--the supposed banality of sex within any ideology that rejects traditionalist doctrines about its proper role--just rings false to me. I'm not saying that no one fits this diagnosis; the "pick-up artist" subculture described in Neil Strauss' "The Game," for example, seems full of unhappy men whose pathologically instrumentalist search for sex has made the prize no longer worth winning. But insisting that mixed-sex college dormrooms ought to be permitted is a far cry from committing to a training regimen explicitly designed to reduce all conversational interaction with women into a series of game-theoretic moves and counter-moves.
Recognizing that one can live harmoniously in a mixed-sex household doesn't mean desacralizing sexuality (for straights, obviously). If anything, it requires recognizing that sex isn't just about putting together parts that fit; if it were, mixed dorm rooms really would be a big distraction. Seeing women as people rather than as exotic Others is precisely what allows a man to escape the cramped misogyny of the "pick-up artist", and see sex as a joint exploration rather than as a prize. There are many ways for sex to be beautiful, but almost all require this reciprocal recognition of common humanity--a recognition that is blocked, rather than encouraged, by living arrangements (and other cultural practices) that keep men and women strangers in each others' eyes.
As embodied beings, we can never entirely break down the barriers that divide us. We can never merge with our loved ones in order to know them completely. And sometimes, sex is beautiful precisely because it is a concrete expression of that longing, an always-imperfect pursuit of an impossible unity. But trying to protect and encourage this beauty by further estrangement of the sexes is needlessly perverse: while seclusion and mystery may ignite a fiery lust, it cannot help but be the shallow obsession of the self-absorbed. Gourmands, oenophiles, lovers of music and dance and art in all its varieties--not only is the connoisseur's passion heightened and honed by knowledge and familiarity, but they are the only things that can ever bring it into being. The same goes for sexuality, and all the social interactions touched by it--ignorance, not knowledge, is what breeds banality.
I don't expect Eve to agree with this argument, at least in the context of sexuality; I know she takes Catholic doctrine here quite seriously. But I think those of us who aren't so bound, but who similarly value the aesthetic dimension of sexuality, should recognize that the gender rigidity and social repression of traditionalism represents its true enemy.
If this is the argument, then I think I disagree with her about everything except her acknowledgement of deep moral disagreement. And even here, I think she moves much too fast. What's important about disagreement is responding to it appropriately, which depends a lot on who disagrees and how much. Sometimes we have disagreement all the way down, but sometimes not. It really depends on the issue. Moreover, it's only through a thick public conversation about these normatively-loaded terms that we can create such shared meanings. Yes, some people are just talking past each other, but in the process of doing so, public meaning can take root. (And when we stop talking to each other as if it matters, public meaning dissolves.) There's certainly a difference between attempting to speak the language of public reasons versus not even trying, and the former can have valuable effects even when it's seemingly mistaken in its assumptions about consensus.
Second, I just can't see how aesthetic imperatives--or even the demands of practical reasoning, but this is because I'm an internalist about the latter through and through; let's put that aside here--can even come close to taking the place of moral discourse as a standard of public reason. At best, aesthetic response can function as an input in moral argument (in making claims about the value of environmental preservation, say); at worst, it reduces to Leon Kass's so-called "wisdom of repugnance." When it comes down to brass tacks, aesthetic responses are no more shared than moral ones, and--what is worse--are much less amenable to correction through argument and reflection. De gustibus, etc.--at least where politics is concerned. Public meaning--at least as far as law goes--is not merely fragile and contingent; it's also an achievement with real moral consequences. If it's really hopelessly lost, the answer is decentralization, subsidiarity, a liberal archipelago--not a Jurisprudence of Yuck.
Finally, one of the two examples she uses--the supposed banality of sex within any ideology that rejects traditionalist doctrines about its proper role--just rings false to me. I'm not saying that no one fits this diagnosis; the "pick-up artist" subculture described in Neil Strauss' "The Game," for example, seems full of unhappy men whose pathologically instrumentalist search for sex has made the prize no longer worth winning. But insisting that mixed-sex college dormrooms ought to be permitted is a far cry from committing to a training regimen explicitly designed to reduce all conversational interaction with women into a series of game-theoretic moves and counter-moves.
Recognizing that one can live harmoniously in a mixed-sex household doesn't mean desacralizing sexuality (for straights, obviously). If anything, it requires recognizing that sex isn't just about putting together parts that fit; if it were, mixed dorm rooms really would be a big distraction. Seeing women as people rather than as exotic Others is precisely what allows a man to escape the cramped misogyny of the "pick-up artist", and see sex as a joint exploration rather than as a prize. There are many ways for sex to be beautiful, but almost all require this reciprocal recognition of common humanity--a recognition that is blocked, rather than encouraged, by living arrangements (and other cultural practices) that keep men and women strangers in each others' eyes.
As embodied beings, we can never entirely break down the barriers that divide us. We can never merge with our loved ones in order to know them completely. And sometimes, sex is beautiful precisely because it is a concrete expression of that longing, an always-imperfect pursuit of an impossible unity. But trying to protect and encourage this beauty by further estrangement of the sexes is needlessly perverse: while seclusion and mystery may ignite a fiery lust, it cannot help but be the shallow obsession of the self-absorbed. Gourmands, oenophiles, lovers of music and dance and art in all its varieties--not only is the connoisseur's passion heightened and honed by knowledge and familiarity, but they are the only things that can ever bring it into being. The same goes for sexuality, and all the social interactions touched by it--ignorance, not knowledge, is what breeds banality.
I don't expect Eve to agree with this argument, at least in the context of sexuality; I know she takes Catholic doctrine here quite seriously. But I think those of us who aren't so bound, but who similarly value the aesthetic dimension of sexuality, should recognize that the gender rigidity and social repression of traditionalism represents its true enemy.
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