Response to Heather Gerken
Heather Gerken has launched this seminar on Our Declaration with an elegant exposure of my method. Like Constitutional lawyers, I focus on a single fragment, one utterance, crafted in a particular moment of time under the most unusual and trying of circumstances, and develop “a robust set of democratic commitments from a thin textual guarantee.” How did the words of the Declaration come to be expressed? How can we still access the intentions of those who wrote these words and interpret their evolving meanings for our own generation? “When constitutional lawyers turn to a text, they look not for precision,” Gerken writes, “but what Ronald Dworkin calls ‘fit’ and ‘justification’ – a normatively attractive account that fits within the extant interpretive landscape.” As in the work of constitutional lawyers, there is a marriage in my book of historicism and pragmatism (by which I mean the school of philosophical thought bearing that name). This marriage is effected through a theory of language and its place in politics.
Language has always been, for me, the strangest and most cunning unifier of past and present, a deep ever-flowing stream passing from mouth to ear and ear to mouth and on again, across millennia, shifting yet durable, transporting visions and perspectives from the deepest recesses of history to the present, under layers of silted accretion, accumulated through a confounding blend of social accident and logic. These layers give way to a form of archaeology, and reveal the secrets of the past.
Why does it become reasonable, as you will read in Our Declaration, to introduce the divorce decree dis-uniting Prince Charles and Princess Diana in order to explain the dissolution of the political bands between the colonies and Britain? This isn’t just the teacher’s trick of using something present, something already known, to lead the students from what is familiar to what is more distant. Among genres, legal language is distinctively durable. This durability in effect shrinks the time span between the Declaration of Independence and the royal divorce decree of 1996. This stands in contrast to the temporal distance between the popular speech, images, and metaphors of eighteenth-century almanacs and what now gushes forth abundantly on blog pages, Pinterest, and Instagram. Popular speech is volatile and changeable. Set an almanac’s maxim and a blog’s self-disclosure side-by-side and the two periods will look more rather than less distant. [click to continue…]