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Papers by David N McNeill

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(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4441685)

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary—and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis.

The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and ‘textualist originalism’ more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court’s recent ‘textualist’ jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates

European Journal of Philosophy

Inquiry: An Interdisciplinary Journal of Philosophy, 54:5, 2011

Sophocles’ Antigone contains the first recorded instance of the word αuτoνoμoς, the source for ou... more Sophocles’ Antigone contains the first recorded instance of the word αuτoνoμoς, the source for our word “autonomous”. I argue that reflection upon the human aspiration toward autonomy is central to that work. I begin by focusing on the difficulty readers of the play have determining whether Antigone’s actions in the play should be considered autonomous and then suggest that recognizing this difficulty is crucial to a proper understanding of the play. The very aspects of Antigone’s character that seem to militate against understanding her actions within the play as autonomous—her rejection of life, her intimacy with death and the way she seems defined by her incestuous heritage— serve to illustrate the inherently problematic character of a moral ideal that we can provisionally call Antigone’s autonomy. I show how the movement of the play can be understood in terms of Antigone’s progress from what Kant would characterize as a heteronomous representation of her irremissible duty to bury her dead brother, to a self-conception defined by a recognition and embrace of her autonomy understood as, in Kant’s words, “a respect for something entirely different from life”. Antigone’s autonomy is exemplified by her choice to be dead, the choice to bear the burden of responsibility to her own. This choice, I argue, must be understood as the choice of herself as defined by her obligation to her own. Sophocles’ Antigone suggests that the moral ideal Antigone represents is unliveable, but that this ideal is nonetheless essential to human moral aspiration.

Review of Metaphysics 72, 2018

Aristotle claims in the Metaphysics that in order to be resourceful (εὐπορῆσαι) in first philosop... more Aristotle claims in the Metaphysics that in order to be resourceful (εὐπορῆσαι) in first philosophic inquiry it is useful to go through perplexity well (τὸ διαπορῆσαι καλῶς). In the following essay, my focus will be on the role that going through perplexity well plays in practical inquiry. The specific claim I seek to defend, or at least make initially plausible, is that the right sort of perplexity is necessary not only for the dialectical inquiry concerning practical wisdom Aristotle undertakes in the Ethics, but also for the practical deliberative inquiry he explores and describes in that work. Ethical deliberation, on Aristotle's account, is a kind of inquiry, and the intellectual virtue of good deliberation (εὐβουλία) a particular kind of rightness (ὀρθότης) in inquiry. What Aristotle's discussion of good deliberation in NE 6.9 makes clear, however, is that while the kind of rightness exemplified in good deliberation is a kind of rightness in thinking, it cannot be equated either with rightness of opinion nor with rightness of scientific knowledge (ἐπιστήµη). Genuine deliberative thought (διάνοια), as opposed to both opinion and scientific knowledge, is "not yet an assertion" (οὔπω φάσις), so the rightness involved cannot be identified with arriving at the right account (ὀρθὸς λόγος) of what one is to do. It is not to be found in the answer to the question about which one deliberates. The rightness involved, I will claim, is rather to be found in an achieved clarity about the fundamental ethical question about which one deliberates. Moreover, I will claim that it is precisely in and through going through perplexity well that one achieves clarity about the question..

Phaedo - a Ghost Story. In Plato and the Moving Image, Shai Biderman and Michael Weinman, eds. (Leiden, The Netherlands: Brill | Rodopi, 2019), 2019

In this essay, I argue for a reading of Plato's Phaedo as both a ghost story, and a story about g... more In this essay, I argue for a reading of Plato's Phaedo as both a ghost story, and a story about ghost stories, in something like the sense of ghosts introduced into contemporary film theory through Jacques Derrida's appearance in Ken McMullen's 1983 film Ghost Dance and his reflections on 'spectrality' and the ghostly in his 1993 Specters of Marx. As a ghost story, the dialogue makes dramatically manifest certain paradoxes concerning visibility and invisibility, materiality and immateriality, presence and non-presence. Moreover, as was the case with Derrida's interest in ghosts, what is ultimately at stake in Phaedo's ghost stories are questions of tradition, memory, and the possibility of a genuine inheritance. Principally, I show how the opposition between two distinct aspects of Derrida's account of the role of ghosts in our psychic economy, the first emphasized in Ghost Dance, the second emphasized in Specters of Marx, is a crucial part of the Phaedo's exploration of the fate of Socratic philosophy after Socrates' death.

Critical Horizons, 16:2, 2015

Http Dx Doi Org 10 1080 0020174x 2011 608877, Sep 7, 2011

... through her extreme daring (853???55). She only responds to their claim that she is paying fo... more ... through her extreme daring (853???55). She only responds to their claim that she is paying for some torment of her father (856). With these words they have touched Antigone's most painful concern (857). It is this reminder of her ...

A paper I gave in 2006 at a Nietzsche workshop at the University of Essex as part of the Transcen... more A paper I gave in 2006 at a Nietzsche workshop at the University of Essex as part of the Transcendental Philosophy and Naturalism project. It expands on some of the arguments I presented in briefer form in "Bad Conscience and the Origin of Temporality"

International Studies in Philosophy, 2007

The Review of Metaphysics, Dec 1, 2001

International Studies in Philosophy, 2004

Journal of Moral Philosophy, 2011