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James R. Stoner

Is There a Political in the Declaration of Independence?

Is there a in the Dec- but my point at the outset is that part of the laration of Independence? One step toward question of whether there is a political phi- answering this question—not the only step, losophy in the Declaration is whether what but from the 's point of view the Declaration proclaims as self-evident the most fundamental—is to ask whether really are true. the "self-evident truths" of the Declaration But that is not the whole of the question. are really true after all. Another way of As others have pointed out, the Declara- putting it, which I once saw in a conference tion does not say, "These truths are self- title, is to ask whether the "self-evident evident...." It says, instead, that "we hold" truths" are fact or fiction. them to be so. If we understand "philoso- I have to admit that "fact or fiction" phy" as it is often understood, in the sense struck me at first as an odd way of question- of a doctrine, and if we understand "politi- ing the authenticity of truths, but on reflec- cal philosophy" as political depart- tion I decided it was a particularly felicitous ments often do, as a synonym for political turn of phrase. Living in a pragmatic age, , then the question of whether there we tend to equate fact with , and fic- is a political philosophy in the Declaration tion with falsehood. There is something is the question of whether the Declaration characteristically American about such a binds us to a particular political creed. way of thinking. Still, it is important at the I say "binds" because the Declaration is outset to recognize that this frame of treated, even today, as authoritative in is not universal. No less an than one sense: It is printed at the head of the writes that fiction (poetry) is Code, where it is considered "more philosophic and more serious" than the first of our organic . More to the fact (), because it speaks of univer- point, politically today the Declaration of sals rather than particulars; there is more Independence has no open enemies; it is the truth in understanding the soul of a man touchstone of our political arguments rather like Homer's Odysseus than in knowing, to than an of advocacy any more. Even quote Aristotle, what "Alcibiades did or had done to him"'—or even, did not do or have done to him, as students of 's James R. Stoner is Professor of at Symposium understand. I will return to Louisiana University, and he serves as a member of the National Council for the . His most the question of fact and its relation to truth. recent book is Common Law (2003).

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner those who dismiss the American founders included but that Congress cut out—it still as racist or sexist want to keep the Declara- ought to be legitimate to ask whether the tion. They accuse the founders of hypocrisy Declaration today commits Americans to a rather than mistaken . It is not particular program of development. only that no one wants to be on the wrong These then are my questions. I want to side of the Declaration, but that even the ask whether the self-evident truths are true, charges made against the Declaration's whether we believe they are, and how we authors seem to be anchored in the ought to act on them. First, however, I want Declaration's own principle of equality. to ask what they mean and to answer by V\^ether or not that principle and the paying attention to the document as a purported truths that accompany it are whole. true, they would seem in fact to be the first of our regime. The Short Version and the Long And this leads to my third concern. If the "self-evident truths" of the Declaration are buppose the Declaration had been vwitten either true or fundamentally ours, how as it is usually read today. It would be only should they affect our political life? While about a page in length, edited down to the loyalty to the original is often first two paragraphs and then the last, where dismissed as hopelessly anachronistic or the actual declaration of independence is conservative, loyalty to the Declaration made. No one would deny that these para- might seem to have the opposite conse- graphs—especially the famous second one, quence: to mandate support of those move- with its elegantly simple account of the first ments that seek to extend the reach of equal- principles of natural and just gov- ity in America. Abraham Lincoln seems to ernment—contain the most memorable have thought so. He wrote that the asser- phrases in the document, indeed precisely tion of equality in the Declaration the phrases that have fired the imagination provides "a standard maxim for free soci- of generations of Americans and of reform- ety, which should be familiar to all, and ers and around the globe. revered by all; constantly looked to, con- Nor is it only frequent repetition that gives stantly labored for, and even though never these phrases their ring of self-evidence, perfectly attained, constantly approxi- even several centuries after they were mated, and thereby constantly spreading penned. Jefferson crafted them with care, and deepening its influence, and augment- and he drew upon a rich tradition of politi- ing the and of life to all cal theory that had developed in the previ- people of all colors everywhere."^ At the ous century or so in England, most espe- very least, Lincoln's use of the Declaration's cially as conveyed in the Two Treatises of principle of equality in the controversy by . over slavery set a precedent for its use to Though echoes of Locke's phraseology reform the regime from within. can be heard in Jefferson's language, Still, however important Lincoln's Jefferson claimed that the Declaration did achievement or however appropriate the not reflect any single man's ideas but rather use of the Declaration in its support— "the harmonizing sentiments of the day, Jefferson himself understood the implica- whether expressed in conversation, in let- tions of his principles for the question of ters, printed essays, or in the elementary slavery, as evidenced by the clause con- books of public right, as Aristotle, , demning the slave trade that he would have Locke, Sidney, etc."' Insisting that political

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner reflection must begin with equal natural and abuses of constitutional powers by the rights, that government is itself not natu- king. Here, twelve different complaints are rally given but rather is formed through the lodged, accusing the king of threatening the of those who acknowledge it, that public by the use of his veto, dissolv- government has the limited purpose of se- ing colonial assemblies, obstructing jus- curing rights, and that abusive govern- tice, keeping standing armies among them ment can be cashiered, the theoretical para- in peacetime, and the like. The thirteenth graph of the Declaration sketches a politi- grievance introduces the second division, cal doctrine that today we recognize as the "Acts of pretended " that the classically liberal—in contradistinction, I king has passed by "combin[ing] with oth- might add, despite Jefferson's claim, to ers to subject us to a foreign to Aristotle's teaching that the exists by our Constitution, and unacknowledged nature and has the promotion of as by our Laws." Referred to here are nine its highest end. Whether out of personal acts of , described not by name conviction or because liberty cannot be but by their effects—imposing with- secure unless the people believe—remem- out consent, suspending trial by jury, abol- ber his famous remark a decade later, "can ishing colonial charters, and so forth. Fi- the of a be thought secure nally, there are five statements introduced when we have removed their only firm ba- by an implicit reference to the King's Proc- sis, a conviction in the minds of the people lamation of of August 23, 1775, that these liberties are of the gift of God?""— under which "He has abdicated Govern- Jefferson states more clearly than Locke ment here, by declaring us out of his Pro- that what I have called equal natural rights tection and waging against us." Here, are an of the Creator, presum- his acts of war are summarized and - ably the same "Nature's God" mentioned nounced. in the Declaration's first sentence. But that From the point of view of the theoretical government itself has a human rather than paragraphs with their "self-evident truths," a divine origin is clear. Indeed, in a sense, these many statements in the middle of the that is the whole point—for the Declara- Declaration are the "facts" which prove tion is written to justify^ political change. that the king has in mind a over Still, the famous paragraphs of the Dec- America and that the colonists had better laration are but a part of the whole. Looked act now. As a reading of the middle section, at by an age enamored of political theory this is sound, but not sufficient. To be sure, and , they appear to be its most if has to be made for a , important passages; but at the center of the then there has to be a way of proving that document is a list of grievances against the the king is tyrannical; this is pre- king and Parliament that make the case for cisely what the various facts are meant to independence there and then. These are, show. But unlike the first principles of poli- the Declaration says, "Facts...submitted to tics, the tyranny in these rather general a candid World" to "prove" that the British facts—which never name names or dates or are intent upon " of an places—is not immediately self-evident. absolute Tyranny over these States." The outrage comes from a hidden premise: These central passages of the the English constitutional tradition, or at Declaration's bill of indictment are conve- least the common law rights and liberties of niently grouped in three divisions. The first that tradition, which the Americans claim is concerned with constitutional violations as their rightfiil heritage.

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner

Here is the source of the principle of no What is Not Self-Evident taxation without representation, the inde- about the Self-Evident Truths pendence of the , trial by jury, the priority of civil to authority, and i he self-evident truths of the Declaration, much else. That scholars today no longer then, garner much of their specific political tend to read these parts of the Declaration significance for the is some measure of how from the evidence offered by the facts of Anglo- far we have lost touch v«th h CONGRESS, Jctrj. that tradition, but that American constitutional- does not mean the com- ism; these measure the vio- plaints were not taken se- lations (and later the rem- riously by our founding edies) as well as moderate generation. To speak only the radical potential in the of the federal level, nearly language every grievance detailed in taken by itself. Stripped the Declaration is ad- of this context, the first dressed and prevented by principles enunciated by a specific provision of the Jefferson are not self-evi- Constitution and the Bill dent at all—at least, not of Rights. The bill of griev- to anyone raised in the ances, in other words, adds tradition of Western vir- gravity and substance to tue or in a world formed the abstract principles formulated in the by Judeo-Christian . "self-evident truths," and thus guards Let me give an example. The "self-evi- against arbitrary recourse to rebellion. dent truths," it seems to me, do not give an The Declaration justifies a political revo- adequate account of the family, the funda- lution, to be sure, but the constitutional mental institution of social life. First, what- dispute with England gave our revolution ever might be said of the relation of hus- its distinctive form and contributed to its band and wife, the family is built not around success. That revolution was not without equality, but around the inequality of par- its lawless moments, but on the whole its ent and child. Precisely the most basic mean- spirit was to reinvigorate old forms of self- ing of Jefferson's statement of equality— and to reinforce protection for that no man is the natural ruler or the and . Its self-evident natural subject of another—is not true of first principles were soon to challenge some this relation, for the parents are surely the of these forms—restrictions on the suffrage, natural rulers of their dependent children. for example, and in some of the states, Second, the family is first and foremost not slavery, itself unknown at common law— about rights, but about duties; even the but it is no more an accident that these right of children to care and is challenges were approached in a spirit of abstract and vague compared to the duty of constitutional compromise than that the parents to provide and instruct and the revolution culminated in a Constitution. duty of children to obey and learn. Third, There, after all, in the middle division of the the origin of the family is not exactly con- middle part of the Declaration, is mention sent. In some , including our own, of an unwritten "Constitution" which the spouses choose for themselves whom to Americans already assert to be their own. marry, but even then the roles they assume

THE INTERCOLLEGIATE REVIEW—/Z/Mnter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner are largely socially defined. Except in cases against all the force of dominant opinion of adoption, and very rarely then, children than I am by evidence that abuses have been do not choose their parents, and (leaving diminished and familial happiness more aside brave, new technologies and, again, commonly achieved. The fundamental adoption) parents do not choose their chil- equality of the sexes may be self-evident, dren. Fourth, the end of the family is only but their equality in the sense of their hav- incidentally the security of rights; it is prin- ing no relevant differences even from the cipally provision and nurture in an envi- point of view of the family is not. And unless ronment formed by love. And fifth, when one is driven by a personal or ideological family becomes destructive of its ends, it commitment to non-traditional family cannot be altered and abolished without in forms, I do not see how one can argue that most instances inflicting further wounds the current regime vnth regard to the fam- that never heal. ily in W^estern is self-evidently the Now about this counter-example to the best, at least with respect to children. One self-evident truths of the Declaration, al- might note that almost nowhere in the low me to make two points. First, Jefferson West today are native populations even and his fellows were altogether aware that reproducing their numbers, and in some families were not formed upon their prin- those populations are on the verge ciples. Precisely what they objected to in of precipitous decline. It is a matter in which political theory was political we certainly need, and all have difficulty patriarchalism, the effort to form the state sorting through, the facts. on analogy to the family. Natural equality meant that the king was not to act as father What, Then, Is Self-Evidently True? in relation to his people—not that fathers were not kings in their own homes. Govern- iVLy point in raising the counter-example ment by consent meant that the command- of the family is not to deny that what the ment to honor one's father and mother Declaration calls self-evident truths are true, could not be invoked by a political nobility but to show, first, the grounds that might demanding homage. That abusive govern- be raised in objection to them (and so, I ment can be changed was not seen to under- concede, to caU into question their self- mine the indissolubility of marriage nor evidence), and second, to suggest how they the lifelong attachment between parent and need to be understood so as not to place child. their authors under the charge of hopeless But secondly, there is no denying that, contradiction. since as long ago as John Locke's Two Trea- Of course a contradiction between our tises and even 's , founders' words and practices was much liberal have sought to recon- noted and commented on in the 's ceive the family on liberal terms, and of first four-score years and seven in regard to course in our own day a vast social experi- the institution of slavery. can hardly ment has been undertaken to remodel the be done to this topic in a brief mention, but family on egalitarian principles and to re- I would say that on the whole the founders orient authority vwthin it on the basis of recognized the contradiction and hoped, consent. Though opinions about the suc- in Lincoln's terms, that they had placed cess of this effort are bound to differ, allow slavery on a course of ultimate extinction— me to say for my own part that I am more even though they excised the condemna- impressed by the resilience of old patterns tion of slavery from Jefferson's draft. W^hen

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R, Stoner a generation came along that defended sla- pression was to be dreaded, not against very as a positive good, that generation actual oppression."' either denounced the Declaration or inter- In other words, Americans already knew preted its universal language in narrow political liberty, or at least had tasted some ways. part of self-government, through their ex- With regard to the family, however, I see perience with the practices and rights, the no contradiction within the Declaration's privileges and immunities, of England's theory, though perhaps there is a certain common law constitution. And they could ambiguity. It is easy enough to understand see that Parliament and the king were com- the pressure of analogy that would make mitted to a colonial that would the hierarchical family entail an authori- henceforth keep them subordinate. The tarian state, or make an egalitarian state relation of mother country to dependent demand an egalitarian family. But it also , however appropriate in the early makes sense to see the relation as, I would years, was fast becoming a fiction as a rising argue, our founding fathers did: The patri- generation of Americans learned they had archal state had to go because it makes the wisdom, the skills, the confidence, and children of real fathers, refusing to allow the to govern themselves. them the manly responsibility of governing The British ministry understood this themselves and those with whose care they development, too, and when they moved to are charged. In this way, the issue resembles foreclose it, the colonists struck back. Be- the related theological question of God's cause the Americans soon realized that the kingship. On the one hand, divine kingship confiict was irreversible, they could not might seem to entail by analogy a divine merely invoke traditional liberties. Besides, right to rule in a human, hereditary king. they had learned over the course of a decade On the other hand, if God is king, then every of constitutional dispute that their ability human king is a usurper. Would not the to resist Britain depended on their concert true believer say: "We have no other king of action, and there was no established but God"? continent-spanning government to whose What the Declaration and the revolu- traditional authority they could make ap- tion it articulated did establish was political peal. Thus it is not quite true, as Lincoln liberty. So wrote John Marshall to a corre- later said, that "the assertion that 'aU men spondent in his later years; in fact, his letter are created equal' was of no practical use in was to the redoubtable Edward Everett, effecting our separation from Great Brit- Unitarian . Harvard Professor of ain"; it was necessary to make intellectually Greek literature, then a U.S. Representa- coherent the appeal to traditional liberties tive, later President of Harvard, that would now have to be embodied in of Massachusetts, U.S. Senator from the innovative forms—a federal government same, and the man who shared the plat- that spanned the length of the Atlantic form with Lincoln at Gettysburg in 1863. coast and reconstituted in Wrote Marshall to Everett: "Our resistance "free and independent states." was not made to actual oppression. Ameri- In asserting a right of self-government, cans were not pressed down to the earth by the Americans in the Declaration appealed the weight of their chains nor goaded to to a universal principle, political liberty, resistance by actual .... The war which against the fictions of the time had a was a war of principle against a system radical meaning, but which they themselves hostile to political liberty, from which op- knew from actual , as Marshall's

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R, Stoner letter makes plain. Even when Lincoln sug- Since human are limited beings, we gests its radical potential, in the passage I can only be just if we are also moderate. quoted above, he implicitly clings to its specifically political connotation. The and founders, he adds, "knew the propensity of prosperity to breed , and they meant It was fashionable a couple decades ago to that when such should reappear in this fair debate the revolution and the founding in land and commence their vocation, they terms of a dichotomy between liberalism should have at least one hard nut to crack."* and republicanism. Since my foregoing re- At least in the nineteenth and early twenti- marks might seem to align me with the eth centuries, every extension of the prin- republican camp, let me clarify the dispute ciple of equality in American constitution- as I understand it and explain where I mean alism—from the extension of the franchise to be. coupled with an attack on politically en- On this dichotomy, liberalism describes trenched economic privilege in Jacksonian a political philosophy, traceable to Hobbes times, to the extension of basic economic and Locke, that makes individual rights and then political rights to blacks and to fundamental and government derivative women—involved an expansion of the class and instrumental to their security. Despite who could claim political liberty, not its their differences, both Hobbes and Locke replacement with a contrary . thought men equal in a pre-political state Read in the light of the document as a of nature, and both thought that equality whole, then, the self-evident truths of the was necessarily compromised when society Declaration of Independence constitute an was formed. Men are equally subject to understanding of political liberty that is government, according to Hobbes, or to the basis of our constitutional order. Pre- "settled, standing rules," according to cisely because they commit us to liberty on Locke, but substantial inequalities in prop- political questions, they swear us to no erty and in all the other rewards of civil allegiance to a political creed beyond a society are allowed—indeed, through com- willingness to support the Constitution. merce they would be encouraged to de- Because the political things are not the velop. Hobbes made the sovereign the judge whole of things, or even the noblest things, of what would be publicly taught the truths about the political things cannot in the , while Locke fa- pretend to capture the whole of truth: politi- mously argued that all tolerant sects ought cal liberty can be a good, even a noble good, themselves to be tolerated, but both agreed without the comprehensive good. that religion could raise no claim to politi- But the whole truth is more complex cal authority. In almost no other respect than these Aristotelian propositions alone could Hobbes be thought a champion of would indicate. Under the theory of the political liberty. Locke could, but political Declaration, is instrumental in its life was narrowly circumscribed by making origin and limited in its ends, but this is its end the preservation of property; there precisely what makes it possible for us to act is a place for great politics in Locke, but only freely in political life, to bring truth as we at the moment of an "appeal to heaven," understand it and and interests as we when the people need to call their govern- experience them into the public square. In ment to account for having changed its other words, political liberty is good be- form illegitimately or for having trans- cause it is not the comprehensive good. gressed its end.

THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner

The republican alternative to liberalism republicanism was simply an ideology that sketched by historians is variously attrib- facilitated the transition between two rela- uted to Aristotle, Machiavelli, and tively stable, if not natural, social and po- Harrington, and ought perhaps to refer as litical regimes, and .' well to the early books of 's The republican founders meant to reject Spirit of the Laws or even to the Social Con- monarchy, in which they had been raised, tract of Rousseau. Here, the emphasis is on but they did not intend to establish democ- selfless devotion to the , mili- racy; despite their intention, the changes tary service, education in citizenship, and they initiated in their revolution necessar- the active exercise of virtue in the public ily entailed democracy, once men bred realm. Property is not ignored, but it is the under monarchy passed from the scene. precondition of citizenship: one needs to While I find some cogency to both of the own to have the independence to act freely, critiques just outlined, I do not think that and perhaps one needs to own much to they show the Declaration to be either know how to command. The republican staunchly liberal or increasingly democratic tradition is less philosophical than the lib- in its implications. Instead, it seems to me eral, for the latter was theoretical in na- that the common law ture—it was, after all, imagining some- sketched at the center of the Declaration thing new—^while the former generally had defines the form and the limits of political its eyes on Rome. While liberalism made its liberty as it was understood by those who with human vices, such as avarice and made the revolution and preserves an influ- ambition, republicanism stressed the dan- ence in the American regime that should be ger of corruption and the need for vigilance called Aristotelian. The form of govern- and renewal. As for religion, republican- ment it supposes has a mixed character; the ism prudently retired it to a subordinate goods it secures are multiple and not readily theater or boldly made it civic, consecrat- commensurable; its adversarial process ing the . If the proof texts of this invites rhetorical dispute; its attitude to- civic republicanism are elusive, its monu- ward change is wary, but not dismissive; it ments are unmistakable. Most obviously, makes room for equity, without surrender- they define the architecture of W^ashington, ing government by law to rule of the wise. D.C., and the capitols of many of the states. Common law is unwritten law—like that In recent years, the liberal-republican unwritten "Constitution" mentioned in the dichotomy has been challenged in several middle of the Declaration—and the friends ways. First, scholars such as Paul Rahe, of common law would hold with Aristotle Thomas Pangle, and others have argued that "[ljaws based on unwritten customs that there is a distinctively modern repub- are more sovereign, and deal with more licanism that bridges the gap between the sovereign matters, than written laws."'" two schools of thought.' In Michael Moreover, it is the unwrittenness of com- Zuckert's formulation, liberalism dictates mon law and its consequent openness to that the end of the is the security of truth that made possible its concurrence or rights, while republicanism designs the coexistence with the Christian religion, and political science by which a government later with different varieties of that religion might be constructed to keep rights secure.* and with Judaism and even with other Second, historian Gordon Wood has ar- faiths—and this, without the dogmatism gued that the true alternative to republi- of liberalism's separation of church and canism is not liberalism but democracy; state.

10 THE INTERCOLLEGIATE REVIEW—Fall/Winter2005 Is There a Political Philosophy in the Declaration of Independence? by James R. Stoner

My point is not to deny classical repub- than look to an unelected judiciary for the lican influences in the American founding formulation of our ideals—or to the liberal or in the subsequent history of the regime philosophers who want to rule through or especially in its military traditions; nor them—we should neither shy away from to deny that liberalism laid the basis for our free debate on important social questions dynamic economy and its engine of techno- nor demand that every consensus work out logical development and change, nor that its derivation from first things in order to liberalism has influenced the course of our count. Let us hold, then, to the principles of political development, especially in over- the Declaration as constitutive of our fun- coming racial slavery. But I think that our damental law, but let us not mistake them constitutionalism and the spirited political as adequate to every exigency in our per- liberty that gives it shape depend, if they are sonal, our religious, or even our political to be fully understood historically and ana- lives. Political philosophy of different sorts lytically, on other things. influenced the Declaration, but the Decla- ration itself is not, nor was it meant to be, Conclusion a philosophical text. That by its terms it points us beyond itself, to political philoso- In looking at the Declaration of Indepen- phy and to other things, is no small measure dence, then, I am saying that we can accept of its greatness and no little element of its a few basic political principles that success. undergird our constitutional order with- out having to insist on an orthodoxy of first 1. Poetics, 1451bl ff. principles. We can hold the self-evident 2. Speech at Springfield, Illinois, June 26, 1857, in truths to be self-evidently true precisely Abraham Lincoln, Selected Speeches, Messages, and because the principles they articulate do Letters, ed. T. Harry Williams (New York: Holt, not offer a comprehensive account of hu- Rinehart, and Winston, Inc., 1957), 72-73. man life. Perhaps no one would disagree if 3. "Letter to Henry Lee," in Jefferson: Writings, ed. the issue is put in this way, but it entails, to Merrill Peterson (New York: Library of America, my mind, an agreement not to press the 1984), 1501. argument of the Declaration beyond its 4. Jefferson, "Notes on the State of Virginia," Query proper bounds. When the Declaration is XVIII, in Writings, 289. The passage continues: "That stretched, it becomes a partisan tool, not an they are not to be violated but with his wrath?" anchor of consensus. As there is room in the 5. Letter to Edward Everett, August 2,1826, quoted in American polity for one who in R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme (Baton Rouge: Louisiana State rights but not in the Creator who endows us University Press, 2001), 1. with them, so there ought to be room for 6. Op. dt, 73. one who thinks that rights derive from duties to just such a Creator, or even to a 7. Paul Rahe, Ancient and Modern (Chapel Hill: University of North Carolina Press, 1992), and nature that distinguishes better from worse. Thomas Pangle, The Spirit of Modern Republicanism To be true to the spirit of the Declaration (Chicago: Press, 1989). means, from my perspective, not that we 8. Michael Zuckert, The Natural Rights Republic are bound to the most radical reading of its (Notre Dame: Notre Dame University Press, 1997). most abstract truth, but that we ought to 9. Gordon Wood, The Radicalism of the American recover the spirited aspiration to self-gov- Revolution (New York: Knopf, 1993). ernment that gave the American Revolu- 10. Aristotle, Politics III, 1287bl. tion its force and its justification. Rather

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