Friday, October 21, 2016
At the Washington & Lee symposium honoring his work, Lyman Johnson offered a luncheon keynote reflecting on what he found when he entered the world of corporate law teaching thirty years ago. Corporate law was experiencing enormous upheaval, particularly via the hostile corporate takeover movement. This movement received the support of the Chicago law-and-economics school, a reductionist interpretation that drained the corporate institution of its humanity and left it as a nexus of contracts. This view did not account for real harms to employees, local communities, and others. The Delaware judiciary, unlike federal actors, could not avoid weighing in, and the judges used traditional tools (including fiduciary duties) to stabilize the corporate landscape. Lyman has spent much of his career explaining, teaching, and criticizing these materials.
His scholarship is premised on the belief that people everywhere crave meaningful work as a key element of human flourishing. In his remarks, he highlighted ongoing themes of his scholarship, including corporate purpose and the relationship of religious faith to corporate law. He believes that a pluralistic approach to corporate purpose is preferable to the economically reductionist view of shareholder wealth maximization. He has helped point out that shareholder wealth maximization is not legally required. Directors must enhance monetary goals for the purpose of benefiting shareholders, but that is not maximization. We should favor a diverse business ecosystem over a business monoculture. This debate remains crucial, as reflected by a Wells Fargo employee's recent lament that the company's culture was "soul crushing."
Lyman wondered why criticism of corporations comes primarily from the left. Conservatives (of which he is one) should care deeply about corporate culture and the elevation of profit over other considerations. At the corporate theory level, people are regarded simplistically as individuals, not as fully formed persons who can behave sacrificially, not just selfishly. There is a profound dissonance between what we expect of ourselves in life generally and what is demanded in business. The belief in a shareholder wealth maximization norm has a prescriptive and pedagogical function, shaping corporate culture in powerful ways as rampant self-aggrandizement is rewarded.
The dominant corporate law paradigm does not pay much attention to the corporate body in favor of focusing only on shareholders and directors. He believes we need to reclaim the corporation itself as a subject of study for corporate law. Like other groups, corporations can have commitments that are not equivalent to the commitments of its individual members. The corporation should be respected as a distinct person. It would be helpful to have a rule requiring the corporation to state its purpose clearly, providing an understanding to all stakeholders of its corporate identity.
He closed by underscoring the value of collaboration in our work, praising the contributions of his friend and frequent coauthor, David Millon.
Today I'm at Washington & Lee for a corporate law symposium in tribute to the scholarship of David Millon and (my St. Thomas colleague) Lyman Johnson. Both Lyman and David have together expanded our understanding of corporate purpose and social responsibility, and Lyman especially has done tremendous work exploring the religious dimension of corporate law (a subject I'll explore this afternoon). The opening panel addresses theoretical perspectives on the corporation.
Matt Bodie (St. Louis U Law) kicked things off by recounting how Lyman and David have created a countervailing ethos to the dominant shareholder primacy theory, focusing more on norms than on straight law. They keep posing the question, what norms should be operative when we think about the corporation? Matt wants us to move beyond norms and think about real shifts in power within the corporation, giving employees some of the traditional rights of corporate governance. Shareholder primary is based on more than a norm -- it's a function of power given that shareholders have voting rights, so a stakeholder theory grounded in norms rather than power won't go very far. Neither labor law nor contract are mechanisms by which employees will participate meaningfully in corporate governance -- e.g., voting rights, board participation. He also suggests that employers should owe certain fiduciary duties to employees.
Eric Orts (Wharton) expressed gratitude for Lyman and David serving as champions of humanism in the corporate law field and alerting us to the dangers of adhering to a single outlook (economics). He explained how David's work helped bring attention to the wealth distribution effects of corporate law -- we cannot focus solely on its wealth maximization effects. David has also argued that limited liability acts as a kind of subsidy to corporations, which raises questions about the corporation's contributions to society.
Alan Palmiter (Wake Forest Law) presented his paper, "Corporate Governance as Moral Judgment." Science tells us that we have no idea how we make moral judgments; such judgments are not based on rationality. As Lyman and David have encouraged, socially responsible investment and boards' focus on sustainability are increasing, but changes are likely not induced by rational arguments. We make moral judgments instinctively and emotionally, then our reasoning is motivated by those judgments. As Jonathan Heidt argues, intuitions come first, strategic reasoning second. So how do we shift corporate focus? Perhaps by shifting perceptions of risk, adding moral vectors (e.g., caring or sacred), and introducing moral modelers.
Leo Strine (Chief Justice, Delaware Supreme Court), citing Berle and Orwell, noted that, if we want the world to be what we want it to be, we have to be clear-eyed about what it is. He objects to Hobby Lobby and Citizens United as bad corporate law decisions that do not do anything to alter the existing concentration of power with equity holders. He respects the consciences of Hobby Lobby's owners, but not to the extent that they should be empowered to override the publicly mandated benefit packages of their employees. He encourages us to think about power. When we cite companies like Hobby Lobby and Cracker Barrel, we're still supporting the maximization of the interests of equity holders -- we're not broadening traditional corporate law to consider other stakeholders. The money that is in the system makes it very difficult to address important externalities through regulation. If we want to change the world of corporate law, we need to do more than raise the consciousness of independent directors; we need to push for real solutions. E.g., he's a fan of statutes creating benefit corporations.
Wednesday, October 19, 2016
Tuesday, October 18, 2016
As MOJ readers probably know, among the DNC emails hacked and leaked by Wikileaks (story here and here and here) are some exchanges among Clinton insiders that, among other things, call for a "Catholic Spring" and that express pretty clear disdain for "conservative" Catholics. Our own Robby George commented on these exchanges, in the Wall Street Journal, here.
A number of politically-left-leaning Catholics have pushed back against the idea that there's anything particularly troubling or anti-Catholic about these emails, including Michael Sean Winters (here), Anthony Annett (here), E.J. Dionne (here), and -- one of the participants in the exchange -- John Halpin (here). These and other commentators contend that, for example, the emails " tell a far more interesting tale about the struggles inside the Catholic Church in the period before the ascendancy of Pope Francis" (Dionne), that they simply reflect a "react[ion] in a private email to the arguments of leading conservatives who often misuse Catholicism to defend their agenda" (Halpin), that their discussion of a "Catholic Spring" should be seen as highlighting "the genuine need for a corrective balance" and "a call for something very much like the agenda of Pope Francis" (Annett), and that one participant's charge that "the right-wing attempt to co-opt Catholicism for the Republican Party [has] been a bastardization of the faith" is, well, right.
Certainly, it is not news that politically-left-leaning Catholics believe that politically-right-leaning Catholics are focusing too much on abortion at the expense of other issues, are insufficiently critical of the Republican Party (or insufficiently attached to the Democratic Party), are "co-opting" the Catholic Social Tradition and various bishops for "right-wing" purposes, etc. In my view, these beliefs are unwarranted (or, at least, held with a confidence and fervor that the facts do not justify). Nor, really, is it news that political-left operatives and activists like the people involved in this email exchange regard many of the teachings and practices of the Catholic Church with bemusement, if not contempt. (See, e.g., Halpin: "They must be attracted to the . . . severely backwards gender relations.") It's not news that Catholics are divided not only about the political implications of the faith but, more fundamentally, about what (and who decides what) "the Faith" is.
So, since it's all old news, maybe Winters is right that the "Catholic email scandal is no scandal" (indeed, maybe it's a no-doubt-unintended compliment!). In my view, though, it should be troubling -- to "progressive" Catholics as well as others -- that political operatives like John Podesta, who has been associated with Clinton campaigns and administrations for decades, admits that his organization set up (with funding from the Koch Brothers . . . I mean, George Soros) groups with the purpose of promoting a "revolution" -- a "Catholic Spring" -- "in which Catholics themselves demand the end of a middle ages dictatorship and the beginning of a little democracy and respect for gender equality in the Catholic church." This is not a call for dialogue among Catholics about how best to live out the faith; it's strategy-and-tactics about how to co-opt and marginalize an opposing force.
This is not, contrary to the suggestions of some, simply a call for the full spectrum of the Catholic Social Tradition to be proposed to our politics, in the public square. The exchange was not just an intra-Catholic discussion about the possibility of changes in Church practices under Pope Francis, or a thoughtful corrective to the selective misuse or blinkered use by some "conservatives" of Catholic Social Teaching. The nature of the "revolution" to be hoped for, funded, and supported is to make the Catholic Church more like the Center for American Progress imagines itself to be (I say "imagined" because contemporary progressives' attachment to "democracy" is, well, complicated.)
Just as a reminder: Here's Sandy Newman, sounding pretty much like Paul Blanshard or Loraine Boettner:
There needs to be a Catholic Spring, in > which Catholics themselves demand the end of a middle ages dictatorship and > the beginning of a little democracy and respect for gender equality in the > Catholic church. Is contraceptive coverage an issue around which that could > happen. The Bishops will undoubtedly continue the fight. Does the Catholic > Hospital Association support of the Administration's new policy, together > with "the 98%" create an opportunity? > > Of course, this idea may just reveal my total lack of understanding of the > Catholic church, the economic power it can bring to bear against nuns and > priests who count on it for their maintenance, etc. Even if the idea isn't > crazy, I don't qualify to be involved and I have not thought at all about > how one would "plant the seeds of the revolution," or who would plant them. > Just wondering . . .
"The economic power it can bring to bear against nuns and priests who count on it for their maintenance, etc." No, this isn't just a call for Catholic Social Thought in the public square. It's ignorant, and it should be offensive . . . to "progressives" and "conservatives" alike.
Monday, October 17, 2016
From Christianity Today (full article here):
What Trump is, everyone has known and has been able to see for decades, let alone the last few months. The revelations of the past week of his vile and crude boasting about sexual conquest—indeed, sexual assault—might have been shocking, but they should have surprised no one.
Indeed, there is hardly any public person in America today who has more exemplified the “earthly nature” (“flesh” in the King James and the literal Greek) that Paul urges the Colossians to shed: “sexual immorality, impurity, lust, evil desires, and greed, which is idolatry” (3:5). This is an incredibly apt summary of Trump’s life to date. Idolatry, greed, and sexual immorality are intertwined in individual lives and whole societies. Sexuality is designed to be properly ordered within marriage, a relationship marked by covenant faithfulness and profound self-giving and sacrifice. To indulge in sexual immorality is to make oneself and one’s desires an idol. That Trump has been, his whole adult life, an idolater of this sort, and a singularly unrepentant one, should have been clear to everyone.
And therefore it is completely consistent that Trump is an idolater in many other ways. He has given no evidence of humility or dependence on others, let alone on God his Maker and Judge. He wantonly celebrates strongmen and takes every opportunity to humiliate and demean the vulnerable. He shows no curiosity or capacity to learn. He is, in short, the very embodiment of what the Bible calls a fool.
Some have compared Trump to King David, who himself committed adultery and murder. But David’s story began with a profound reliance on God who called him from the sheepfold to the kingship, and by the grace of God it did not end with his exploitation of Bathsheba and Uriah. There is no parallel in Trump’s much more protracted career of exploitation. The Lord sent his word by the prophet Nathan to denounce David’s actions—alas, many Christian leaders who could have spoken such prophetic confrontation to him personally have failed to do so. David quickly and deeply repented, leaving behind the astonishing and universally applicable lament of his own sin in Psalm 51—we have no sign that Trump ever in his life has expressed such humility. And the biblical narrative leaves no doubt that David’s sin had vast and terrible consequences for his own family dynasty and for his nation. The equivalent legacy of a Trump presidency is grievous to imagine.
Saturday, October 15, 2016
Michael Gerson's op-ed on the "pathetic" state of the GOP is spot-on. I won't attempt an excerpt - you should read the whole thing. The GOP's collapse as a principled, idea-driven party this election cycle should be cause for concern to liberals, not just conservatives. Our political culture is so much more focused on winning than on governance, though, that it seems many on the left will continue to see the sorry state of the opposition as cause for glee rather than deep concern.
Our country needs a strong center-right party, and I am hopeful that one will emerge from the ruins. But we have to be candid in acknowledging the ruins before building again. I'm not making a point about the candidates' relative merits (though I have my own views on that topic as well). My point is that the country is better off with a strong center-right party that champions the ideals, priorities, and virtues that have been associated with the GOP over the past few decades. Even those who are on the left should recognize that we're stronger as a nation with an opposition party that pushes back with a different but principled perspective. If the GOP nominee would have been a person who upheld that tradition, Hillary would not be coasting to victory right now. Political parties are important counterweights that make the opposition's ideas better, align ultimate policy more closely with public opinion, and help avoid overreach in governance. That's obviously not happening this year. And there really isn't any comparison between the candidates on this front: Hillary is nowhere close to my first choice, but she hasn't played the same type of corrosive role in upending the Dems' traditional positions and priorities that Trump has within the GOP. Trump seems incapable of carrying on an idea-driven conversation for more than 30 seconds, and that will result in a Clinton administration implementing ideas that have faced little or no reasoned opposition on the national stage. That's bad news for her presidency and for the country.
Friday, October 14, 2016
In collaboration with the American Principles Project, the Boston-based Pioneer Institute has released the study, "After the Fall: Catholic Education Beyond the Common Core," written by scholars Anthony Esolen, Dan Guernsey, Jane Robbins, and Kevin Ryan. The purpose of the study, as stated in the Executive Summary, is to take "a critical look at the issues and principles behind the Common Core movement and, in particular, the standards’ effect on and suitability for Catholic schools." It's a robust 40 page version of the 2013 letter more than one hundred Catholic scholars addressed to the nation's bishops concerning the implementation of Common Core in diocesan schools (coordinated by Robbie George and Gerry Bradley). More than half of the dioceses, including Boston, have adopted Common Core.
The study presents and then refutes the most popular arguments in favor of the program in Catholic schools and then proposes an authentically Catholic alternative: liberal arts education. The study beautifully and effectively exhorts Catholic schools to retrieve their inheritance of virtue-based character education and the "soul-shaping and soul-expressing power" of great literature, among the many merits of classical Catholic education.
From the study's preface, by Ambassadors Raymond L. Flynn and Mary Ann Glendon:
Realizing that combining humanities and the arts with religious instruction aids spiritual development, Catholic schools have traditionally provided a classical liberal-arts education that generations of grateful parents and students have prized. Through tales of heroism, self-sacrifice, and mercy in great literature such as Huckleberry Finn, Sherlock Holmes, and the works of Charles Dickens, Edith Wharton, Dante, and C.S. Lewis, they seek to impart moral lessons and deep truths about the human condition. The moral, theological, and philosophical elements of Catholic education that are reinforced by the classics have never been more needed than they are in this era of popular entertainment culture, opioid epidemics, street-gang violence, wide achievement gaps, and explosive racial tensions.
Common Core, on the other hand, takes an approach that is contrary to the best academic studies of language acquisition and human formation. It drastically cuts the study of classical literature and poetry, and represents what Providence College English Professor and Dante scholar, Anthony Esolen, calls a strictly utilitarian view of mankind, “man with the soul amputated.” It is devoid of any attention to “the true, the good, the beautiful.” It eliminates the occasions for grace that occur when students encounter great works that immerse them in timeless human experiences. Instead, it offers stones for bread in the form of morally neutral “informational texts.” The basic goal of Common Core is not genuine education, but rather the training and production of workers for an economic machine. We see this in the reduced focus on classic literature, and in the woeful mathematics standards that stop short of even a full Algebra II course – giving students just enough math for their entry-level jobs. The goal is “good enough,” not academically “excellent.”
All students ought to read Dante, Shakespeare, and Flannery O’Connor; those who do are better for it, regardless of whether they plan to become philosophers or welders. All students ought to study, or at least be given the opportunity to study, mathematics that allow them a sustained and detailed scientific investigation of creation. But Common Core seems to view “overeducating” students as a waste of resources, or, as its proponents say, “human capital.” In what looks like an effort to define human beings as mere objects or beasts, it aims to provide everyone with a modest, utilitarian skill set...
As the influence of religion diminishes, for the sake of our civilization itself, it becomes more urgent than ever to find ways to provide children with the fundamental intellectual, spiritual, and moral ideals necessary for humans to flourish. But Common Core moves in the opposite direction. Sterile informational texts and workforce training will not help children to learn how to be good human beings. And no free society can survive for long without cultivating character and competence in its citizens and public servants.
Common Core’s shift away from the moral and cultural patrimony of Western Civilization comes at a most unfortunate time, when increasing marginalization of religion in our society is taking a severe toll on the moral culture that sustains our American democratic experiment. Religion plays a pivotal role in sustaining our freedoms, upholding the rule of law, creating a culture of compassion for the disadvantaged, and fostering social cohesion. Even the professed atheist Jürgen Habermas recognized that Western culture cannot abandon its religious heritage without endangering the great social and political advances grounded in that heritage.
Kevin Ryan and Mary Ann Glendon sit on the Board of Trustees and Advisory Board, respectively, of my children's school--the first classical Catholic school in the Boston area, founded in 2013. St. Benedict's, and other schools like it, are a true education in freedom, and parents are catching on: we will outgrow our current site this coming year. As the Pioneer Institute study shows, and Hillsdale education professor Jeff Lyman discussed in a presentation to the school community last night, once a student's natural faculties are perfected in the study of the liberal arts, that student can go on to learn anything -- even contributing in a meaningful way to the "workforce" (the be all and end all of Common Core)! But, far more essentially, the student educated in the classical Catholic tradition will learn what it means to be a human being with an eternal destiny--and, as such, how to live a virtuous life and thereby contribute to the common good. The timing of this study, in light of the abject moral failings of our presidential candidates, could not be better.
As we contemplate the days ahead, it's well worth rereading this great judge's brief remarks on liberty, delivered in 1944 in New York's Central Park, where more than a million people, including 150,000 newly naturalized citizens, gathered for "I Am an American Day." Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
Here's the whole thing:
We have gathered here to arm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.
Thursday, October 13, 2016
From Weigel's recent piece at First Things:
[T]he sickness in our political culture is serious and it reflects the pathogens that have been at work for some time in the general culture.
What are they?
• A raw individualism that conceives “freedom” as radical personal autonomy because it thinks of the human person as a twitching bundle of desires, the satisfaction of which is the full meaning of “human rights” and the primary task of government.
• A lack of commitment to the common good, which shows up in everything from bad driving habits to declining volunteerism to tax cheating to declaring a pox on politics and sitting out elections.
• The vulgarization of popular culture and entertainment, which has so deeply wounded our politics that they’ve become another form of reality TV, producing a spectacle that should shame us into a collective examination of our consciences as consumers.
• The confusion of “success” with sheer wealth by individuals, businesses, and corporate boards, which empties economic life of its vocational nobility and inculcates a counter-ethic of beggar-thy-neighbor competition that’s a grave danger to markets and a threat to the capacity of free enterprise to help people lift themselves from poverty.
• A grotesque misunderstanding of “tolerance” and “fairness,” rooted in an even more comprehensive delusion about what makes for human happiness, which isn’t “I did it my way.”
The list could be extended ad nauseam, but perhaps the basic structure of our situation is in sharper focus. We must rebuild American political culture so that, at its presidential apex, it is far less likely to produce such a mortifying choice as the one created by this election cycle. That requires the rebuilding of our public moral culture. And that is a task for several generations, which must begin now, at the retail level.
A tall order. But this sounds right.
Thanks to the good folks at the Religious Freedom Institute for organizing this multi-faith letter to President Obama, Rep. Ryan, and Sen. Hatch, urging them to "renounce publicly the claim that 'religious freedom' and 'religious liberty' are 'code words' or a 'pretext' for various forms of discrimination. There should be no place in our government for such a low view of our First Freedom—the first of our civil rights—least of all from a body dedicated to protecting them all." Amen. Read the whole thing (it's not long).
UPDATE: The USCCB's press release about the letter is here.
Wednesday, October 12, 2016
A recent piece by Ruth Graham at Slate identifies several reasons to be hopeful about the future of the pro-life movement. The energy and hopefulness of the newest generation of pro-life leaders brought me back to thinking about my college experience at Dartmouth. I was reminded, in particular, of an early event that we hosted when restarting the Dartmouth Coalition for Life. It was a presentation by Philip Arcidi of the Pro-Life Alliance of Gays and Lesbians (PLAGAL). And it was a successful event. Through the wonders of the Internet, I found an archived PLAGAL newsletter dated December 20, 1995 that describes our event. Here's what it says:
When Philip Arcidi spoke for PLAGAL at Dartmouth on November, 28th, he greeted one of the most diverse audiences we've encountered at a college campus: pro-lifers and self-titled pro-choicers; some straight, some gay, and some lesbian. All were curious about the synergy between the pro-gay and pro-life point of view. An atmosphere of civility and mutual respect prevailed, with many of the best questions coming from our sisters and brothers in the gay community.
The Dartmouth Pro-Life Coalition, which invited PLAGAL, is an energetic campus presence, an impressive alliance of thoughtful men and women. Arcidi joined a couple of them in a long conversation with a lesbian doctor who performs abortions. The dialogue was refreshingly civil, but the doctor's perspective was unsettling -- and inconsistent. Our Dartmouth allies, adept at thinking on their feet, asked her if she'd abort a preborn girl if the parents wanted a boy. No, she couldn't. When the child is no longer an abstraction, abortion advocates find it hard to trivialize his or her right to exist.
Hard to believe that was over 20 years ago, as I still remember in particular the conversation mentioned at the end of the newsletter excerpt. But exciting to imagine the possibilities for improvement that the next 20 years might bring.
Protestant fundamentalist anti-Catholicism ain't what it used to be; it's far less prominent in the Protestant vision today. But you sometimes run across current versions, and I just ran across a passage that made me laugh out loud. It's a criticism of a younger evangelical speaker/blogger, Jen Hatmaker, and the supposed theological dangers she poses. One such danger, the critic says, is that Hatmaker has called Pope Francis one of her heroes and
also has a quote from Mother Teresa prominently displayed on the opening page of her personal website. The quote itself is not wrong, but it is not wise to point other Christian women to any Catholic leader as an example of Christ-likeness. Christ is our head, He is our model. [That's true.--TB] To say nothing of the fact that the Roman Catholic church is an apostate counterfeit of the true Church.
I love the writer winding up that paragraph by just tossing in the last sentence.
Actually the post then raises a worthwhile reminder on a separate issue: how people can get smug when they reduce Christian faith to doing good works, i.e. "works-righteousness piety." But I digress.
I have this short reflection over at the Liberty Law blog, which picks up a little bit on some things I've thought about at MOJ before. This is my own contribution of sorts to the symposium at the Law and Religion Forum that we are hosting on Professor Phillip Muñoz's fine paper, "Two Concepts of Religious Liberty," and the set of posts it has generated. A bit:
Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.
Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.
As Hamburger puts it:
If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.
The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.
Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.
I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.
Tuesday, October 11, 2016
John Halpin, of the "Center for American Progress", highlights the vital need for "Mirror of Justice."
Bishop Robert Barron has a post at Word on Fire bearing the title of this one: "The Virtues of Saint John XXIII." I recommend it. For those of us who are lawyers, in particular, it is worth reflecting how the virtues discussed in the piece relate to our practice and profession of law.
October 11, 2016 | Permalink
Monday, October 10, 2016
I appreciate Tom's response to the quoted paragraphs I posted from Legutko's book. I did intend them to be in conversation with Tom's post, just as I have made arguments at Mirror of Justice in the past in conversation with his posts regarding many of the points he makes below. We may not agree about a few things, but we do agree about others. I'll just mention a few of the agreements (one of which is a tentative agreement) before noting a possible disagreement.
Tom and I agree that churches and religious institutions have made social contributions in the past and continue to make them today. Tom and I also agree that churches and religious institutions should be permitted to continue to make these contributions notwithstanding their standing athwart various moral, cultural, and political values supported by the broader secular society.
I think, but am not as sure, that we also agree that any time churches and religious institutions must justify the sorts of contributions they make to the broader secular world, there is a danger that in so justifying themselves, they may feel pressure to compromise as to certain of their core beliefs. That can occur not only, as Tom writes, under such circumstances as when "Catholic colleges drop...major religious elements in order to be eligible for federal funding." It can also occur more subtly, as when a religious institution vying for a particular contract knows that it is less likely to obtain that contract unless it soft-pedals, or moderates, its views on particular political, moral, or cultural issues of interest both to it and to the broader secular polity. It might happen in the context of tax and other fiscal exemptions. Under circumstances which, as Tom said, religious freedom is not an accepted premise, but a premise that needs to be justified by religious institutions' contributions to secular society, it seems only reasonable to suppose that an increasingly secularizing society will want to see justifications that match up with its own premises concerning the public good. That might very well be dangerous both for religious freedom and for the continuing survival of the religious organizations' contributions to the social sphere. And that, I believed, was one of the points made in the paragraphs I quoted--that the twin dangers of conciliation and capitulation must be minded. One stratagem to circumnavigate this problem might be for the religious organization to focus its energies on ostensibly "nonpolitical" or "noncultural" issues. I doubt it is an effective stratagem, however. More importantly, though there may be a difference in pursuing secular aims and justifying one's aims in secular terms, keeping these two projects conceptually pure may be rather challenging over time.
Tom and I may disagree about what he has described as "the middle" and the sorts of arguments that are likely to persuade it. Those disagreements have been rehearsed in other posts, but they are relevant here, too. In fact, I took it to be a premise of Tom's post that as American society becomes more secular, the middle itself will shift, and therefore the sorts of arguments that will be persuasive to it will shift, too. Those arguments will need to be made, more and more, in the language of secularism and within the accepted premises of what makes for a "social contribution" and what does not, and less and less in a language which takes it as a premise that religious freedom is intrinsically good. Tom and I may also disagree, in that case, about the likelihood of the dangers of conciliation and capitulation that face religious institutions as those changes persist.
We could all use a tonic for this political season, and what could be better than the soothing prose of John Henry Newman, whose feast was yesterday? I've noted before some resources from Newman for how to think about legal arguments. And I recently came across an essay (available here to those with JSTOR access) by Alvan Ryan from the Review of Politics in 1945 that nicely pulls together themes from Newman's writings (some of them quite obscure, such as the essay "Who's to Blame?" from his 1872 collection Discussions and Arguments) on politics. Ryan concludes:
If one were to summarize Newman's thought, it might be said that it has four phases: (1) the denial of the excessive claims of the State against the Church; (2) the de facto recognition of cultural and national traditions as determining the mode of operation of the Church in each State; ( 3) the affirmation of the rights of the person against the State, which leads Newman to his distinction between Nation and State, and explains his distrust not only of the tyranny of unregulated State power, but his dislike for radical democracy; (4) the affirmation of the dignity of the person, and the appeal to the dictates of conscience against the extreme advocates of Papal Supremacy, whose views, by the way, cannot be identified with those of the Church. Only by recognizing such a complex of relationships, so Newman held, could just and lasting solutions of political problems be achieved.
Sunday, October 9, 2016
Marc places a passage from political philosopher Ryszard Legutko in "conversation" with my assertion (in this post) that "[i]n an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make." That sentence introduces the post, which in turn links to my article exploring how exactly the societal contributions that religious organizations make are relevant to the case for religious freedom. In that article I assert that the societal contributions are part of the case for religious freedom: "an important strain in America’s religious freedom tradition" is that "we protect voluntary religious organizations is that they are important means by which individuals develop and exercise 'civic virtue.'” I then acknowledge some objections to this argument and briefly develop some corresponding answers.
The Legutko passage describes, critically, two of the strategies Christians might adopt toward liberal democracy: "conciliation" and "capitulation." (I should make clear that can react only to this passage, because I don't know the book's broader arguments.)
The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.
I'm not sure whether Marc's suggestion is that arguing for religious freedom based on religion's societal contributions reflects "conciliation" or that it reflects "capitulation." (From the quoted description, capitulation sounds worse, but "conciliation" sounds naive). I don't think it reflects either, really. I'm talking about arguments in the legal and political arena that religious organizations should be legally free to follow their tenets and identity, even in the face of conflicting laws, when they serve and employ others in society. (The provision of service and employment to others outside the immediate religious community is what's triggering the most serious threats to religious freedom; the legal position of churches as such still remains pretty strong, although not impregnable.)
If an organization advocates for the ability to follow its tenets in the face of the law, it certainly is not capitulating: it's not showing a "willing[ness] to accept any [and all] terms and concessions." It's not like, for example, Catholic colleges dropping major religious elements in order to be eligible for government funding. Here the organization advocates to preserve its differences, not to shed them. (Elsewhere I've argued that these organizations are "partly unacculturated" in that they adhere to certain counter-cultural norms, and that they may be effective because they are willing to be counter-cultural.)
The "societal contributions" argument is "conciliatory," but only in the sense that making any argument in the legal or political system seeks to work within that system and holds out some hope for doing so. Perhaps the hope is misplaced and no arguments will succeed--but we don't know that, and the project still seems worth pursuing, among other things because I don't see that it involves any compromise of principle, i.e. "capitulation." This kind of "conciliation" does not seem to fit Legutko's analysis, later in the paragraph, that conciliation rests on the premise
that an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.
To the contrary, the "societal contributions" argument asserts that religious organizations are not simply "about God, souls, and salvation": they have service work in society at their religious core, as a matter of loving their neighbors. (Service to others is in fact part of "evangelization," but the Legutko passage seems to use that term in the narrow sense of saving souls--which sounds more fundamentalist-Protestant than Catholic.) So while the "societal contributions" argument may defend religious freedom in secular terms, it does not adopt secularism in the sense of privatizing religion and conceding its irrelevance to society. To contrary, it argues for religious freedom precisely because religion is relevant to society.
I would describe arguing for religious freedom based on religion's societal contributions not as conciliation or capitulation, but as a kind of political/civil "apologetics." All apologetics assumes some receptivity in the hearer; in that (limited) sense it's conciliatory, but it seems to me in that limited sense, the Catholic tradition itself is conciliatory.
I also think that the "societal contributions" argument fits with a Catholic (and more broadly Christian) understanding of civil society, where moral and "political" claims are is not limited to claims about what moral projects government itself should pursue. The argument is that religious organizations also serve moral/political/social goods: they are mediating institutions that make distinctive contributions to a flourishing society.
This is one among several arguments for religious freedom--aimed at people in the ideological/political/jurisprudential middle. Those are the arguments that I generally choose to pursue and refine, in my current work, because I think they have a chance of succeeding.
Saturday, October 8, 2016
Rick Garnett has noted (here) that I am one of the MOJers who signed the "Brief of Amici Curiae Legal Scholars in Support of Equality and Religious and Expressive Freedom". Unless I am mistaken, I am the only MOJer who signed the brief who also believes that Obergefell v. Hodges was rightly decided--although I do not believe that Obergefell was rightly reasoned. For my alter ego Justice Nemo's concurring opinion in the case, see Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment. Another MOJer, Tom Berg, and acclaimed religious liberty scholar/advocate Doug Laycock are also supporters both of SCOTUS's decision in Obergefell and of the understanding of religious freedom that animates our friend Steve Smith's argument in "Brief of Amici Curiae Legal Scholars".
Friday, October 7, 2016
Time for a re-read:
October 7, 2016 | Permalink
Thursday, October 6, 2016
I was pleased to sign this (Download Smith brief) "Brief of Amici Curiae Legal Scholars in Support of Equality and Religious and Expressive Freedom," which was authored (and wonderfully written) by Prof. Steven Smith (San Diego) and signed by about two dozen scholars, including our own Kevin Walsh, Michael Moreland, Robby George, Michael Perry, and Marc DeGirolami. It's well worth a read.
Below, Tom writes: "In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make."
I've been reading Ryszard Legutko's book, The Demon in Democracy: Totalitarian Temptations in Free Societies. Here's something in conversation with Tom from Legutko in his final chapter, "Religion," at 164-66:
Hostility to Christianity in modern liberal democracies raises the question of how religion should manifest itself in public life.
The simplest answer--close to what some Protestant movements embodied--is that religious life and political life should be separated. Religion is essentially a private matter, a family matter, and sometimes a community matter, but definitely not a state matter. There are quite a lot of people today who are public figures, professionals, politicians, and it is rarely that we know what religion, if any, they profess, and even if we knew, this would be irrelevant in the assessment of their public performance. Such a strict separation of the religious and the public realms is very much in tune with today's ideology of modernity. And it is all the more convincing that it confirms the assumption--considered obvious but, in fact, doubtful--that the freedom of religion is guaranteed in Western democracies, and that Christians, being denied a public presence, should have no reason to complain.
This strategy--let us call it conciliatory--should be distinguished from another one--let us call it capitulatory. The difference between the first and the second is at the beginning one of degree, but ultimately one of essence. The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.
One can, of course, defend both strategies, conciliation and capitulation, and the standard argument of defense is the following: an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.
No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue. But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion. Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for religion to find a place in a society where it would be free from the pressure from liberal-democratic orthodoxy and where it would not risk a conflict with its commissars. Even the issues thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity....
Wednesday, October 5, 2016
It is striking, as some others have noted, that the first time "social issues" or "faith and politics" came up in this cycle's "debates" was at the tail-end of the (widely regarded as irrelevant) debate between the vice-presidential candidates. I expected there to be some discussion (that is, I expected Sen. Kaine to bring it up, even if the moderator didn't) of the RFRA controversies -- especially given the experience in Indiana -- and of the ongoing debates about the sharpening conflict between antidiscrimination law and religious freedom. It strikes me that the lack of attention to (or interest in) these matters says a lot of not-encouraging things about the fate of these issues after the election is over, Sec. Clinton is President, and the Republican Party rebuilds (or not) after Trump.
Sen. Kaine's answer on the "faith and politics" question was unsurprising, but still inadequate. If one has reasons for being "personally opposed" to abortion, then those reasons are also reasons why abortion should, at least presumptively, be discouraged and regulated. Kaine's position treats opposition to abortion like an aesthetic preference, regarding which de gustibus non est disputandum. What's more, even a candidate inclined to resign him or himself to legal abortion -- thinking that it's not practical or feasible to ban abortion, ours is a pluralistic society, we disagree on the morality of abortion, etc. -- need not earn a perfect rating from Planned Parenthood, oppose late-term bans, or support the repeal of the Hyde Amendment. Gov. Pence (appropriately) expressed respect for the sincerity of Kaine's faith, but was effective in pointing out (as so many have) the flaws in the Cuomo position.
Monday, October 3, 2016
Courtesy of Mr. Gregsbury, a wonderfully awful politician in Chapter 16 of Charles Dickens's Nicholas Nickleby. The scene is one where Gregsbury is answering to the complaints of his constituents, who accuse him of various episodes of flip-flopping for pecuniary advantage and other sorts of craven behavior that has betrayed the interests of the people. Gregsbury's reply to these charges, and the narrator's comment on it:
"My conduct has been, and ever will be, regulated by a sincere regard for the true and real interests of this great and happy country. Whether I look at home or abroad, whether I behold the peaceful industrious communities of our island home, her rivers covered with steamboats, her roads with locomotives, her streets with cabs, her skies with balloons of a power and magnitude hitherto unknown in the history of aeronautics in this city or any other nation--I say, whether I look merely at home, or, stretching my eyes farther, contemplate the boundless prospect of conquest and possession--achieved by British perseverance and British valour--which is outspread before me, I clasp my hands, and turning my eyes to the broad expanse above my head, exclaim, "Thank Heaven I am a Briton.""
The time had been when this burst of enthusiasm would have been cheered to the very echo; but now the deputation received it with chilling coldness. The general impression seemed to be, that as an explanation of Mr. Gregsbury's political conduct, it did not enter quite enough into detail, and one gentleman in the rear did not scruple to remark aloud, that for his purpose it savoured rather too much of a "gammon" tendency.