Another Long Year

Well, here we are again, at the end of another year. This felt like an especially long one. Part of that had to do things I’ve been subjected to alongside everyone else; the Democratic Primary race and its never ending churn of C and D list politicians having their fifteen minutes, which feels as though it has been going on three years longer than it in fact has. Donald Trump’s presidency, in general, culminating in actual articles of impeachment less than half a month from the end of the year. Alexandria Ocasio-Cortez’s meteoric rise at the beginning of the year, if somewhat more leveled off position in the second half. And on and on, in the manic political and media environment in which we now exist. In part because I now operate a political publication, but also because of the near-inescapability of political conversation these days, political events in particular made 2019 feel longer than 365 days (and as of this writing we’ve only actually had 354).

Speaking of that political publication: Liberal Currents has had a banner year, in terms of attention, engagement, and most of all, the quality and quantity of contributions and the number of new, bright, talented contributors we managed to bring on. Jason, Paul, and I started LC in 2017 after the shock of Trump’s victory. As an all volunteer operation (a fact I hope to change in the future but cannot be sure when we’ll be in a position to) there have been moments where our contribution pipeline went quite dry for uncomfortably long. But in July of this year, we hit a real turning point, after which our pipeline has been quite robust. Cameron Harwick, Jerrod Laber, and Adam Rust all wrote magnificent pieces that received a good amount of attention. Adam’s piece resulted in our running a response from Kian Hudson, the Deputy Solicitor General of Indiana. I’m very excited by our current trajectory and incredibly proud of our editors and everyone who has been a part of the project. We’re really making something special. The future looks bright for Liberal Currents.

Coincidentally, I didn’t write any pieces for LC myself until July. And that was a piece I shopped around first, but alas its moment had not come. I’m proud of the piece itself, which I worked quite hard on with a number of other people’s input, Jason’s most significantly (as usual). The others were largely book reviews, a format which we have gone in for much more this year. Other than the piece from July, my favorite non-review piece I wrote concerned the nature of freedom of speech, in the context of current controversies over platforms like Facebook. I also wrote more here than I have in years; mostly spitballing but my piece on Rorty’s vision of national self-respect, and an outline of conservative media’s history, while rough, will probably be revised and turned into something more substantial in the future.

It has also been a very good year reading-wise. In my first post here this year, I noted:

Philosophy of law is no shortcut to understanding law. Hermeneutics is no shortcut to understanding literature. Moral philosophy is no shortcut to understanding right and wrong. Political philosophy is no shortcut to understanding either politics or political institutions as they exist and function in life. Epistemology and philosophy of science are no shortcut for becoming a competent scholar or scientist. Metaphysics is no shortcut for understanding reality.

I concluded that it was time to “dial back philosophy” in my reading and “invest more of my time in history, law, political science, and other works focused on concrete particulars.”

By and large, I have done well. I am currently close to finishing my 57th book this year, and may or may not manage another before the year’s end. That will leave me 2-3 books behind last year, though Goodreads tells me I have already exceeded last year in number of pages read. Gross quantities aside, I learned a tremendous amount this year. The one philosophy book I did read, William Curtis’ delightful book on Richard Rorty, was actually quite clarifying in a way that lends itself to application in more practical subject matter. It also coalesced with the image of Rorty that had been forming in my mind since I read Achieving Our Country last year and wrote the post about it this one. 

Otherwise, in my nonfiction reading has stuck very closely to my goal; I’ve read about climate science, the use of memes in the 2016 election (however disappointing that book was), the history of Cuba, the history of postwar India, the Great Enrichment, the history of Athenian democracy (such as we can reconstruct it), the life of Alain Locke, sociology, the Dutch Golden Age, the history of American counterculture, the French Revolution, the life of marginal groups in contemporary rust belt towns, the nature of dog whistle politics, the history of de jure residential segregation in America, eugenics and immigration restriction, the history of protest in Hong Kong, the life of Malcolm X, the history of Uber, the conflict between Peter Thiel and Gawker, parliamentary theory, and the history of policing and Fourth Amendment case law in the 20th century. Two of the novels I read this year were well researched intergenerational histories as well, and I have fallen quite in love with that format.

Looking ahead: legal realism and political science in 2020

Any one of the topics I read a book about this year (including any one of the subtopics touched upon in those books) I could stand to learn a lot more about. But as the year went on, the germ of an idea developed in my mind. Well, more of an impulse, or as those close to me might more aptly call it, a new obsession.

Its seeds were planted by the two pragmatists (in the philosophical rather than merely colloquial sense of the word) who have so influenced my thinking over the last two years, Adrian Rutt and Adam Rust. Adam has experience in both criminal and civil law, and currently works at a firm that represents unions. We have talked at length about his experiences and about legal realism, and his work on originalism (which became the July piece at Liberal Currents mentioned above) opened my eyes to the fact that it is a species of rationalism. Kian’s response only cemented my conclusion: he did not have much to say about the role of precedent, except to note Justice Thomas believes that if we know what the text says, then precedent shouldn’t matter at all. This is rationalism and dogmatism of the highest order, the exact type that Hans-Georg Gadamer debunked in the 20th century.

Legal realism is the jurisprudence, if you can call it that, which focuses on the system as it exists in practice. The more I grew interested in it, the more I worried that embracing it would require discarding the rule of law as an ideal. After all, if the law is nothing more than what the institutional authorities decide, as human beings with fickle psychologies, then how can we ever expect it to be a consistent, predictable, source of stability and bulwark against arbitrary authority?

A very helpful paper by Hanoch Dagan answers exactly that question, breaking down what exactly we value about the rule of law and how legal realism as he formulates it addresses those values. In particular he discusses the pragmatic role of what he calls “doctrinal categories” and how the legal community of a given moment constitutes an interpretive community with a lot of shared understandings that serve to ground interpretations; but these are not the only sources of interpretation. I am not going to rehash the whole paper here, but suffice it to say that Dagan offers a very useful way of thinking about the law as it exists in practice but also in relation to important ideals.

My interest in legal realism and what it means for liberal ideals, and my longer term goal to attend to concrete particulars as opposed to high level abstractions, have led to a project I will be pursuing in 2020, and indeed have already begun. I was loosely calling it the legal realism = unwritten (or ancient) constitutionalism project, but now that the reading list has gelled, I can more clearly characterize it as a crash course in the political science of the American system.

I want to get a better understanding of it all, from top to bottom. The operation of Congress, down to the role of the staffers; the sociology of the legal community and how respectability within it and within the specific social circle that Supreme Court justices operate within constrain judicial decisions; the way policing and prosecution are practiced and how that has changed over time; how the 500 pound gorilla in the room of governance, the administrative state, operates and relates to the more “traditional” branches of government; local government and how it nullifies federal level law in practice; the party system as it is and has been; all of it.

Any one of these is a specialized area of research and knowledge in its own right, so the emphasis here is on “crash course.” I would like to lay a foundation by this time next year, however. In fact, one concrete outcome of this project that I am aiming for is to write a piece in the wake of the 2020 election, whatever its outcome, on what the long term plan should be for Democrats. And that plan will include a laundry list of constitutional amendments to fight for should the opportunity (given a necessary combination of local electoral success, both houses of Congress, and strong party discipline) arise. We too often make the mistake of either writing off amending the constitution entirely, or half-assing what we’d do if we could. The Progressives added four amendments in a seven year span. If you are patient and lay the groundwork, and are ready to be decisive when the right moment comes, it can be done. 

But if you do it, you’d better get it right. If there’s one lesson I have taken away from my various discussions with Adam Rust and my legal realism reading to date, it is that amendments such as ERA are nothing more than an invitation to judges to develop a body of case law. The amendments that matter are ones that restructure our existing institutions in concretely specified ways. The age minimum to run for president, or the apportionment rule for the House, are examples of things that do not leave much latitude for judicial discretion. Creating a new rule like “the president can be removed if two-thirds of the House vote to do so” likewise adds something specific to the House’s toolkit, where “Men and women shall have equal rights throughout the United States” and “Congress shall have power to enforce this article” are much more ambiguous and quite plausibly will change nothing at all.

To return to the piece I wish to write next year: laying the foundation for this will require a much more disciplined approach to reading. To that end, I have laid out around 20 books which I will commit to reading by October. This will hopefully provide me with the basic level of competence required to write the piece I wish to write. Assuming that I stand by that commitment, I have a further 15 to begin going through after that. If I have really stuck to this project and get through all 35 of those, I have yet another set of books to begin going through; if I make it to this point by November I will feel extremely confident in my ability to write the piece. After that, I just have a grab bag of “would be nice to get to” books, including some more theoretical and philosophical works on ancient constitutionalism, legal realism, and jurisprudence generally. I do not expect to get to this grab bag in any meaningful way in 2020 but might draw from it in 2021.

The piece is one specific goal, as I mentioned, but it’s not really the main one. I am attempting to build a basic foundation with several larger ends in mind:

  • Attempting to popularize small-c constitutionalism against “written” constitutionalism, in part by demonstrating its superior merits in meeting liberal ideals
  • Developing a general framework of political activism by laying out a basic sketch of where the main “levers” of power are and which to employ in a scenario where a political opponent controls some specific subset of them
  • Extending the 2020 piece into an academic paper or even a book laying out the specific systematic changes that we should be working towards
  • Developing Curtis’ (and Rorty’s and Deirdre McCloskey’s) virtue liberalism into something concrete and situated in the American system as it exists in practice

These are all quite interconnected and will require developing the same basic foundational knowledge, so which of these I end up pursuing first or in any depth will depend as much on what opportunities are available to me as anything. The 2020 piece itself is largely meant to be part of a broader effort to create such opportunities.

That is what is occupying my thoughts most prominently these days. I admit that I’m more than a little excited to embark on this project. Perhaps it’s an intellectual retreat in politically troubled times, but it feels less like a retreat than focusing on hermeneutics and ontology. At any rate, watch this space. Congratulations to you all for surviving this long year, good luck with the long year ahead.

Decorum

Decorum (L. “propriety”) – To prepon.

As a rhetorical concept, the idea advanced in Aristotle’s Rhetoric, and developed by Cicero, Quintilian and others, that style should suit subject, audience, speaker and occasion. No idea was more carefully worked out in rhetorical theory nor more universally acclaimed; everyone writing about rhetoric touches on it in one way or another. And from Horace – really from Aristotle – onward it forms a major theme of literary criticism as well. (For a detailed discussion and list of citations, see D’Alton, Roman Literary Theory and Criticism, pp. 116ff.)

In spite of its obviousness, and venerability, the idea of decorum could use some rethinking. We might notice, for example, that decorum as a stylistic criterion finally locates itself entirely in the beholder and not the speech or text. No textual pattern per se is decorous or not. The final criterion for excess, indecorum, is the stylistic self-consciousness induced by the text or social situation. We know decorum is present when we don’t notice it, and vice versa. Decorum is a gestalt established in the perceiving intelligence. Thus the need for it, and the criteria for it, can attain universal agreement and allegiance, and yet the concept itself remain without specifiable content.

The number of stylistic and behavioral variables such a judgment must take into account leave the rules which are said to inform it far behind. It becomes an intuitive judgment of the sort a modern phenomenologist might examine, dependent on deep patterns of what Michael Polanyi would call “tacit knowledge.” It thus becomes – and clearly was for classical education – not only a rhetorical criterion but a general test of basic acculturation. To know how to establish the “decorum” of a particular occasion meant that you had, as a child or a foreigner might, learned to find your footing in that culture. I’ve taken the phrase “find your footing” from Clifford Geertz, a cultural anthropologist who locates the center of anthropology in something not too different from classical decorum.

From the perspective of postmodern thought, one can also see more clearly that decorum is a creative as well as a pious concept, that it creates the social reality which it reflects. Decorum, not to put too fine an edge on it, amounts to a pious fraud, the “social trick” par excellence. We create, with maximum self-consciousness and according to precise rules, an intricate structure of stylistic forces balanced carefully as to perceiver and perceived, and then agree to forget that we have created it and to pretend that it is nature itself we are engaging with. Rhetorical theory has spent endless time discussing how to adjust utterance to this preexistent social reality without reflecting on how that reality has been constituted by the idea of decorum. Like the human visual system, rhetorical decorum is a bag of tricks which constitutes for us a world that it then presents as “just out there” awaiting our passive reception.

Further, one might even think of decorum as the origin of, and basis for, what we usually call “common sense” or “reasonability.” Richard Harvey Brown has “reformulated” reason along these lines in a brilliant essay, “Reason as Rhetorical: On Relations among Epistemology, Discourse, and Practice,” where he argues for a “reason” which seems to me isomorphic with the “decorum” of classical rhetoric.

With decorum, as so often in current thought, the basic ideas of classical rhetoric have found new life and further development in disciplines other than the study of formal rhetoric.

-Richard A. Lanham, A Handlist of Rhetorical Terms