Extended Phenotype

I have a lot to say about my “final” book of 2005, Charles Taylor’s “Modern Social Imaginaries (Public Planet)”. I can’t remember a philosopher I’ve enjoyed as much since my Rorty marathon earlier this year. However, I’m on my way out of the house for New Year’s eve (with a bottle of Pol Roger 1990 Cuvee Winston Churchill in tow) so consider this a placeholder post for the moment. I’ll update it with more after the celebration wears off, and I have some thoughts about my year in books and how I intend to guide my reading over 2006.

But first, Happy New Year to everyone reading, and have a terrific celebration tonight!

Quentin Skinner’s slim volume, “Liberty before Liberalism” contains an expanded version of his Inaugural Lecture as Regius Professor of Modern History at Cambridge, and is well worth reading if, like me, you’re studying the history of “classical republican” political theory. The lectures are an excellent historical background into the “neo-roman theory of free states” as understood by English republicans of the seventeenth and early eighteenth centuries. Neo-roman republicanism is the notion that freedom is best served by, and indeed can be understood as being constituted by, citizens who live within a society whose rules are determined by common assent and which foster non-domination among the citizenry. This language is more Phillip Pettit’s way of describing it than Skinner’s, but the two are in fairly close agreement on the components of neo-roman republicanism.

This is important because the neo-roman theory stands in stark contrast to the classical liberal tradition, in which freedom is constituted by any situation in which the preferences and actions of individuals are free of interference. Skinner, Pettit, and to some extent Michael Sandel call into question whether the strict liberal tradition is, in fact, the best constitutive theory of freedom available to us; all believe that what we call “liberal” goals in the United States today are best achieved not through a society founded on classical liberal (or “libertarian”) non-interference, but rather through a revival of the “republicanism” of the Founding era, the Commonwealthmen in England, both ultimately deriving from “neo-roman” principles.

I have to admit a considerable sympathy for this viewpoint, which I hope to elaborate on at length here or at Progressive Commons. I want to finish Pettit’s book first, and connect some threads between Pettit, Skinner, Sandel, Charles Taylor (about which more in my next post), and Richard Rorty. Right now, as the year ends, I merely want to record my impressions reading Skinner, and say that I will be back for more, including Skinner’s two-volume work “The Foundations of Modern Political Thought”.

A Matter of Interpretation collects together Scalia’s Tanner Lecture and comment essays by Laurence Tribe, Gordon Wood, Ronald Dworkin, and Mary Ann Glendon.  Scalia’s lecture is quite interesting, and covers both statutory and constitutional interpretation.  As  several commenters noted, Scalia’s favored methods for statutory interpretation seem quite sensible and non-controversial; I would tend to agree, for example, that legislative intent and history is largely irrelevant to what was actually enacted.  It is a different, and structural, issue if the content of enacted legislation is unknown to, or does not reflect, the intent of legislators.  But it is not an issue of interpretation.

Of course, most people reading the book come for the constitutional issues, like myself.  Here, I find myself on changing ground.  Insofar as "originalism" of any stripe involves reconstruction of past intents or "public meanings," we have an empirical problem not unlike that faced by archaeologists "reconstructing" past cultural practices.  Such interpretations are unfalsifiable almost by definition, and thus strict "originalists" face the same problem they accuse the "living constitution" folks of having:  ultimately both methods produce arguments that are made in the present by actors who vary widely in their motives, allegiences, and ideas of permissible judicial action.  To the extent that originalists rely only upon "public meaning" (the current method in vogue within originalist circles), and use only textual sources for public meaning (i.e., dictionaries, publicly available writings), the interpretive method may verge upon textualism — which is ultimately the position that Scalia describes as his own. 

Mary Ann Glendon does an excellent job in her comment describing how civil-law systems in Europe have retreated from strict textualism over the last generation, and explores their reasoning.  Ultimately, she provides an excellent rationale for a synthetic approach to constitutional interpretation, which combines textual structural analysis (of the kind that Amar’s recent book does so brilliantly for the American case) with a formalist common-law approach similiar to that common in Germany’s constitutional court.  I need to think a bit more on this, and review how this relates to both Amar’s liberal textualism and Larry Solum’s "neo-formalist" approach, but it does seem to avoid the unacknowledged unfalsifiability of originalism while not falling into the tarpit of "realist" approaches to liberal "living" constitutionalism.