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INSOMNIA AND OTHER CONSTITUTIONAL PATHOLOGIES

  • JEFFREY LENOWITZ (a1) and MELISSA SCHWARTZBERG (a2)

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The publication of Richard Tuck's 2012 Seeley Lectures constituted an important event in intellectual history and political theory. The Sleeping Sovereign reflects the depth of Tuck's nearly forty years of historical inquiry into the concepts of rights, reason of state, and freedom, beginning with Natural Rights Theories. The leading member of the “Cambridge school” of the study of the history of political thought in the United States, and the Frank G. Thomson Professor of Government at Harvard University, Tuck combines a contextualist, and often intertextualist, approach to the interpretation of canonical works with a theorist's attention to the value these works retain for contemporary political life.

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A prior version of this essay was presented at a conference on The Sleeping Sovereign at Yale University at 7 April 2017. We thank Isaac Nakhimovsky for the invitation to comment on the work and Richard Tuck for his generous response to the discussion, and are grateful to Bryan Garsten, Sam Moyn, and Sophie Smith for their thoughts on that draft. We also thank Duncan Kelly and the editorial team at Modern Intellectual History for the invitation to review the work and for their advice.

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1 Tuck, Richard, Natural Rights Theories (Cambridge, 1979).

2 Richard Tuck, “The Left Case for Brexit,” Dissent magazine, 6 June 2016, at www.dissentmagazine.org/online_articles/left-case-brexit.

3 Elster, Jon, Sour Grapes: Studies in the Subversion of Rationality (Cambridge, 1983), 45–6.

4 National Institute of Health, publication No 17-3440c, “Brain Basics: Understanding Sleep,” at www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Understanding-Sleep, accessed 24 May 2017.

5 Rousseau, Jean-Jacques, Of the Social Contract (1762), in Rousseau: The Social Contract and Other Later Political Writings, ed. and trans. Gourevitch, Victor (Cambridge, 1997), 39152, Book III, chap. 4, 91.

6 Ibid., II.6, 67.

7 Holmes, Stephen, Passion and Constraint: On the Theory of Liberal Democracy (Chicago, 1995).

8 Bodin, Jean, Six Bookes of a Commonweale, trans. Knowles, Richard (London, 1606), Book IV, chap. 3, 470. Lee, Daniel, Popular Sovereignty in Modern Constitutional Thought (Oxford, 2016), 193; Lee, “‘Office Is a Thing Borrowed’: Jean Bodin on Offices and Seigneurial Government,” Political Theory 41/3 (2013), 409–40, at 418.

9 Lee, “‘Office Is a Thing Borrowed,’” 419.

10 Rousseau, Social Contract, I.7, 52.

11 Jean-Jacques Rousseau, Geneva Manuscript, in Rousseau: The Social Contract and Other Later Political Writings, 153–61, Book II, chap. 4, 160.

12 Rousseau, Jean-Jacques, Constitutional Project for Corsica, in Rousseau: Political Writings, ed. and trans. Watkins, Frederick (Madison, 1986) 275330, at 289.

13 Schwartzberg, Melissa, “Rousseau on Fundamental Law,” Political Studies 51/2 (2003), 387403.

14 Rousseau, Of the Social Contract, IV.1, 121.

15 Ibid., III.15, 113.

16 Ibid., III.15, 114.

17 See Grotius, Hugo, The Rights of War and Peace, ed. Tuck, Richard (Indianapolis, 2005), 546 n. 2 (Book II, chap.V, xvii); Pufendorf, Samuel, Of the Law of Nature and of Nations, 4th edn, trans. Kennet, Basil (London, 1729), 648–9 (Book VII, chap. II, xvi).

18 Schwartzberg, Melissa, “Voting the General Will: Rousseau on Decision Rules,” Political Theory 36/3 (2008), 403–23.

19 Rousseau, Of the Social Contract, IV.ii, 125.

20 Ibid., IV.ii, 125.

21 Ibid., III.10, 106.

22 Ibid., III.13, 111.

23 Ibid., III.10, 106.

24 Ibid., III.11, 109.

25 Lenowitz, Jeffrey, “‘A Trust That Cannot Be Delegated’: The Invention of Ratification Referenda,” American Political Science Review 109/4 (2015), 803816, at 813.

26 Binzer Hobolt, Sara, “Taking Cues on Europe? Voter Competence and Party Endorsements in Referenda on European Integration,” European Journal of Political Research 46/21 (2007), 151–82, at 154.

27 Clarke, Harold D. and Kornberg, Allan, “The Politics and Economics of Constitutional Choice: Voting in Canada's 1992 National Referendum,” Journal of Politics 56/4 (1994), 940–62; Higley, John and McAllister, Ian, “Elite Division and Voter Confusion: Australia's Republic Referendum in 1999,” European Journal of Political Research 41/6 (2002), 845–61.

28 de Caritat marquis de Condorcet, Jean-Antoine-Nicolas, “On the Need for the Citizens to Ratify the Constitution,” in Condorcet: Foundations of Social Choice and Political Theory, trans. and ed. McLeann, Iain and Hewitt, Fiona (Aldershot, 1994), 273.

29 In discussing Whiting, Tuck seems to group him in with advocates of the sovereign/government distinction (193–4). This is a mistake, for Whiting, as least in 1778, was against such a distinction, as can be seen in the central theoretical point of his address—that government was possible without explicit authorization by the popular sovereign.

30 Whiting, William, “An Address to the Inhabitants of Berkshire County, Mass.,” in Hyneman, Charles S. and Lutz, Donald S., eds., American Political Writing during the Founding Era: 1760–1805, vol. 1 (Indianapolis, 1983), 461–79, esp. 461–72.

31 “A Berkshire Convention Addresses the Superior Court, May 3, 1779,” in Taylor, Robert J., ed., Massachusetts: Colony to Commonwealth (Chapel Hill, 1961) 110–11, at 111.

32 Horn, Mike, “A Rude Awakening: What to Do with the Sleepwalking Defense?”, Boston College Law Review 1/46 (2004), 149–82; Bonkalo, Alexander, “Impulsive Acts and Confusional States during Incomplete Arousal from Sleep: Criminological and Forensic Implications,” Psychiatric Quarterly 28/3 (1974), 400–9; Roger Ekirch, A. and Shneerson, John M., “Nineteenth-Century Sleep Violence Cases: A Historical View,” Sleep Medicine Clinics 6/4 (2011), 483–91.

33 FLA. STAT. ANN. § 794.011(1)(C); Crim LR 75; R. v. J.A., [2011] 2 SCR 440, 2011 SCC 28 (Can LII).

34 Hume, David, “Of the Original Contract,” in Hume, Essays, Moral, Political, and Literary, ed. Miller, Eugene F. (Indianapolis, 1985) 465–87, at 475.

35 Roethke, Theodore, The Collected Poems of Theodore Roethke (Garden City, 1975), 104.

A prior version of this essay was presented at a conference on The Sleeping Sovereign at Yale University at 7 April 2017. We thank Isaac Nakhimovsky for the invitation to comment on the work and Richard Tuck for his generous response to the discussion, and are grateful to Bryan Garsten, Sam Moyn, and Sophie Smith for their thoughts on that draft. We also thank Duncan Kelly and the editorial team at Modern Intellectual History for the invitation to review the work and for their advice.

INSOMNIA AND OTHER CONSTITUTIONAL PATHOLOGIES

  • JEFFREY LENOWITZ (a1) and MELISSA SCHWARTZBERG (a2)

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