Volume 101

Sovereignty and Subversion

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

Between those who advocate “too great liberty” and those who contend for “too much authority,” Thomas Hobbes found it difficult “to pass between the points of both unwounded.” It does not appear that he cleared the gauntlet successfully. One of the many curiosities in Hobbes’s work is its provocation of two diametrically opposed, and seemingly inconsistent, criticisms. When Leviathan was first published some 350 years ago, Hobbes’s very name became an epithet in polite circles, evoking the horrors of atheism, libertinism, and worst of all, defiance to established authority. Today, the same work that Hobbes’s contemporaries denounced as a “Rebel’s Catechism” is widely viewed as an unequivocal and misguided defense of an authoritarian and absolutist government. Hobbes’s descriptions of the need for a powerful sovereign are many and memorable enough to have eclipsed, over time, his endorsements of a few specific rights to resist the sovereign. But Hobbes’s contemporaries did not overlook the subversive strands of his work, and neither should we. In particular, there is much to be learned from the juxtaposition of Hobbes’s account of law—a command made with authority, to one obliged to obey—and his account of punishment—an act of violence that the target has a right to resist. This juxtaposition illuminates some recurring jurisprudential questions about the relationship of law to coercion, and the possibility of strictly descriptive, nonevaluative legal theory.

Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. I shall argue that the fault lies in our categories, and not in Hobbes. He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals.

The Article is organized around three questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first of these questions has been tackled by Hobbes scholars, of course, but Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement.

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare.

To do so, I will rely on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like an unlikely ally to enlist in this endeavor. As I will seek to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. In what follows, I first summarize some key aspects of Grice’s philosophy of language (Part II) and briefly illustrate their relevance for constitutional law (Part III). The remainder of the Article (Parts IV to VI) is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the government of the United States?

Intellectual History as Constitutional Theory

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

What role, if any, should intellectual history play in constitutional theory? This is a complex question, because there are many ways in which the history of ideas and the theory of constitutional law could interact. Two of the most important possibilities are captured by the distinction between “intellectual history of constitutional theory” and “intellectual history as constitutional theory.”

Consider intellectual history of constitutional theory first. Intellectual history can take constitutional theory as an object of study, constructing narratives that trace the development of constitutional theories, elucidating the motives and goals of constitutional theorists, and explaining the processes by which constitutional theories influence constitutional practice (and vice versa). This is surely an important enterprise, valuable in itself and for the contribution it can make to the development of constitutional theory. The intellectual history of constitutional theory and doctrine may give rise to problems and controversies, but such difficulties seem likely to be similar in kind to the history of ideas in related domains, such as political philosophy or jurisprudence.

This Article is mostly about the second possibility—intellectual history as constitutional theory. It might be argued that intellectual history could constitute a theory and method of constitutional interpretation—or to be more precise, of constitutional interpretation and construction. Professor Saul Cornell has discussed this possibility in his recent article, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism. Cornell proposes that constitutional interpretation utilize “the contextualist methodology favored by most contemporary American intellectual historians,” which Cornell asserts provides “a common set of interpretive practices.”Cornell relies on the work of Professors James Kloppenberg and David Hollinger, as well as the work of the Cambridge School, represented by Professor Quentin Skinner and others.

The nature of Cornell’s claim about the role of intellectual theory is not entirely clear, and ultimately the important question is not what Cornell claims. The important question is what role intellectual history can and should play in constitutional practice. In order to get at that question, we will investigate a strong (and perhaps exaggerated) version of Cornell’s thesis. We will consider the possibility that intellectual history (as practiced by contemporary historians like Kloppenberg and others) could be employed as a theory and method of constitutional interpretation that can displace the approaches represented by textualism and originalism and by those forms of living constitutionalism that incorporate textualism or originalism as one of a plurality of methods or modalities of constitutional interpretation. That is, we will investigate the idea that interpretive methods drawn from intellectual history will do a better job of extracting the “meaning” of constitutional text than the methods developed by judges, lawyers, and legal scholars.

This Article will begin that exploration in Part I by presenting a framework for assessing theories of constitutional interpretation and construction. Part II will investigate contextualist methodology used by selected intellectual historians. Part III will outline the difficulties with any attempt to utilize intellectual history as a method for discovering the communicative content of legal texts. Part IV will turn to the positive (but supporting) role that intellectual history can play in constitutional practice. A conclusion will follow.

The primary focus of this Article is the role of intellectual history in constitutional interpretation and construction; however, to some extent, an investigation of the “contextualist methodology” of intellectual history will require a comparison with ideas from legal theory. For this reason, textualism and originalism will be used as points of comparison

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