Broad Notes on Political Theory

This post has two purposes. One, I want to do some grand-level conceptual clarification. Two, I want to itemize some texts of personal relevance in my private library. The latter purpose could seem unbearably pretentious, so let me remind you that you're reading at your own risk.

Originalism takes as its launching point the belief that contemporary materials are the most legitimate source material for clarifying ambiguities in Constitutional and statutory texts. For the most part, Scalia-class conservatives are most enamored with analysis of English common law around the period of the founding. But one of my theses, broadly consonant with bridging the gap between Souter and Kennedy, is that such thinking has to take into account the (historical) normative implications of advocating for and implementing a specifically republican political system in the wake of experience under kingship.

I can think of six canonical authors that would be critical to such a project: Locke, Rousseau, Smith, Montaigne, Hobbes, and Bentham. I'm deeply familiar with the first two, though I must revisit Locke. I think one can argue that its his rootedness in the Anglo tradition of political theory which saves him from the trap which Rousseau falls into... of a tyrannical "General Will" running roughshod over the "citizen/subjects" whose consent has brought it into being. The last time I went over this ground deeply, I was more interested in the problems of completeness inherent in self-regulating systems. At the time, Locke struck me as hopelessly dependent upon baseless and unreasonable assumptions which invalidated his argument at the starting gate.

Now that I'm squarely in my post-metaphysical phase, I suspect what drove me nuts last time was actually a shrewd intellectual maneuver (an "act of faith," if you will) that used strategic axiomatics to avoid paradox. The incoherence of law is aggravating, but I can't deny the utility of axioms for a system that has to actually be implemented. To what extent do the assumptions and backgrounds of the English common law tradition save "popular sovereignty" from the perils of incompleteness? I suspect both Smith and Locke use "matters of course" to craft a blueprint for a "liberal polity" which help to explain the structure of the American political system.

I've only read some Montaigne, during my unstructured post-collegiate journey. He's a delightful read, and clearly a formative influence for all of the other thinkers I've mentioned, as well as many of the founding generation's leading lights.

I suspect that a triangle can be formed between Locke, Smith and Montaigne which accurately describes what a republican government is. Rousseau is useful for an illustration of what it cannot be. de Tocqueville is interesting as an ethnographic account of the system's early phase, infused with sharp political theory acumen.

Hobbes, whom I haven't read, strikes me as a potential challenge to the theory... since he seems a sort of anti-Locke in the English tradition. For that reason alone, he's probably worth investigating during the course of this project.

Bentham's on the list because he was a serious legal scholar in addition to a philosopher, and I've gotten to the stage of life where I'd like to track some of that work down. I've got a copy of Mill's "On Liberty" (which must be mislaid, because it didn't find its way onto my list below). I don't have Utilitarianism. I do have a theory, though... that utilitarianism is a post hoc moral justification for liberal ideology... it's a rationalization which would have been completely unthinkable without coming from within the liberal tradition. In my recent thinking, it's utilitarian theory which saves liberalism from the rather obvious moral critique which otherwise sinks it. To the extent that it's an excuse, not a theory, I think it's a mistake of modern thought to treat it as a premise of liberalism, rather than a byproduct. Not sure what the further implications are of that... beyond the rather obvious point that the Constitution is manifestly not a utilitarian document, and the justification for the Boyd regime's fall in American law (the modern administrative state would be impossible!) is an assault at its ideological cornerstone.

That's kind of rambling. But I'm just trying to slot the political thought-blocks into proper places. On to the list:

Books On-Hand

The following list does two things... it tests the value for my project of certain books that are united mostly by the coincidence of being already at hand on my book shelf. And it provides an incomplete list of things I mean to read this summer (certain other texts, like the Green Book of Poker and The Bible aren't on it). It's for my own reference, so don't be misled. I'm not this big a disaster.

• Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology - This work provides the foundation for my original insight and is in many respects my launching point for this investigation. I've also committed myself to a reading discussion of it. So I'm on the hook with this one, come hell or high water. Priority: Highest
  
  
• Amar, The Bill of Rights - I can't say for sure that this book is relevant. But Amar is a Federal Courts professor of no small stature, which is one reason to read it. The book is a gift, which is another. It deals with personal rights, which is highly relevant to my purposes at present. And I haven't read it before. Priority: Very High
  
  
• Locke, Second Treatis of Government - I've been meaning to revisit this text for years. Since a good part of my argument will be grounded upon "proper understandings" of English republican and liberal political theory, a proper understanding of Locke is essential. Though I've read him, I feel that the decay of memory, the different focuses of my youth, and the particular nature of this text have combined to give me an accurate but incomplete understanding of his argument. It always seemed irredeemably flawed on the basis of its specious appeal to a "state of nature" - an objection which I now suspect fails to respect the book on its own terms. I should definitely read it this summer. Priority: High
  
  
• Weber, The History of Commercial Partnerships in the Middle Ages - I just bought this book, and am hoping that it could deepen my understanding of Kantorowicz's argument, since it wades into the same ground and lays the ground work for Weber's later analysis of American culture. I suspect it'll be useful as a comparison to The King's Two Bodies, and as such, I consider it Priority: High.
  
  
• Rousseau, The Social Contract. A classic, and interesting for its identification of a paradox in contractarian thought - by what mechanism are the rights of persons to be guaranteed in the face of "general sovereignty?" It completely fails to resolve this riddle, postulating a unconstrainable "tyrrany of the majority." Cross-read with Locke, it gives a contrasting example to illustrate how the English tradition of common-law led to a uniquely stable liberal system. It's useful in a broadly philosophical sense, but I'm also very familiar with it already. It can be used to leverage my critique of the Conservative Court's central intellectual failing (a lack of fidelity to republican principles). Also, it'd be fun to accuse Scalia of being too French. Priority: Medium
  
  
• Smith, The Wealth of Nations. I bought this just before coming to law school, and was making happy progress through it before I first met Civil Procedure. It's a fat tome, and I feel like "only" making it 320 pages before laying off for a year and a half suggests I might as well start over. That's insane. It's foundational, it's huge, it's often cited and seldom read. As an American, I have a duty to understand it better. But, it's got a little too much prolixity to be of much help. At the same time, if I don't read it while I'm back in school, when will I be able to? Give it a Priority: Medium
  
  
• Richstatter, Liturgical Law: New Style, New Spirit - a 1960's era tract discussing the radical revision to liturgical law at the Vatican II Council. This is high on my general reading list, but low on this project's reading list. In fact, downright irrelevant. But, I'm really intrigued at the conceptual division in the Church between "canonical" and "liturgical" laws, and whether such intellectual divisions can be of any use within secular doctrine. Given my absolute fury at O'Connor's description of "ceremonial deism" in the Newdow ruling, it might give me intellectual leverage for thinking through my recent concerns regarding "civic liturgy" - which may be a sorely neglected mode of thought in contemporary legal and political discourse. So, despite near-complete irrelevance, I'm going to bootstrap it into the bottom tier of Priority: Medium... after all, these posts will, to some extent double as a summer reading list.
  
  
• Tocqueville, Democracy in America. I've made two previous goes at this work, and feel like I messed it up both times. I'm not confident that a third read will do me much more good. But, it might be worth skimming for relevance in terms of ordering the "grand political" thoughts about the nature and content of a specifically American republican vision. Priority: Low
  
  
• Arendt, Between Past and Future: Eight Exercises in Political Thought - Only on the list because I wish it were relevant, and I've been meaning to revisit several essays for a couple of years now. Especially: The Concept of History: Ancient and Modern; What is Authority?; What is Freedom?; Truth and Politics. It's on my to-do list anyhow. I can't justify displacing an actual priority on its account. But I can flatter myself that it's virtuous leisure reading. Priority: Low
  
  
• Kant, Political Writings: There's a lot of essays I still wish to read in this tome. But Kant's political thoughts are most famous for begetting those of Hegel, which in turn beget Marx, which begets the antithesis of the American political order. But there are some essays which look colorably relevant: On the Relationship of Theory to Practice in Poltiical Right; Introduction to the Theory of Right, Pts. I & II; On the Agreement between Politics and Morality according to the Transcendental Concept of Public Right. Interesting stuff, but probably not relevant. Priority: Low
  
  
• Machiavelli, The Prince - Another library staple for anyone who's received a passing liberal arts education. Vaguely relevant, in that it usefully analyzes the powers of kings. However, it's not really on-point. I doubt very much that I've cause to cite it, and am familiar enough with it that I can't really justify reading it again. Priority: Low
  
  
• Ayton and Price, The Medieval Military Revolution: This book is a testament to why I shouldn't live near used book stores. I've never read it, but would love an excuse for it. I very much doubt its relevance. But, there is a interestingly titled essay on p. 81 by Andrew Ayton: Knights, Esquires and Military Service: The Evidence of the Armorial Cases before the Court of Chivalry. Who wouldn't want a pretext to read that? Priority: Very Low
  
  
• Arendt, The Portable Hannah Arendt: Possibly relevant in that it contains some discussion of political theory from a liberal perspective. The only essay that seems it could be relevant (and mainly just to bolster a point) is the Reflections On Little Rock... which, in my opinion is a devastating critique of the incongruity between liberal ideals and liberal methods in the years since the New Deal. But I've already read that essay several times, and recently. The essays I haven't read are either not on point or already included in Between Past and Future. Hence, Priority: Very Low
  
  
• Rawls, Theory of Justice - I've already read this book twice, and it has the... uh... "virtue" of being the kind of book where once is enough. However, it's a touchstone of much contemporary political thinking, and is especially popular in certain legal circles. Despite some manifest shortcomings, it can be useful for review of some important terminologies and it has a bibliography worth checking in on from time to time. If I have to decide which books to throw in the trunk of a car, this should probably come along for the ride even though I don't actually intend to read it. Priority: Very Low
  
  
• Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes - an angry tirade against the history of legal positivism. Though the author's clearly an arch-conservative, it's funny that I largely agree with him. But I haven't been able to finish the book because it struck me as delusional, angry, and simple-minded. Uh, but it's also a gift from someone I highly respect... so I've probably not given it enough credit. (Is it just poorly written?) Because I should maybe read it and because it's maybe somewhere near my target zone, I'll put it down as Priority: Lowest