Monday, December 31, 2012
I caught on C-SPAN the other night this speech (video here, text here) by George Will, which was delivered earlier this month at Washington University under the auspices of the Danforth Center on Religion and Politics. I admire much about Will, though there is always plenty to disagree with in an author who has been writing regularly and prodigiously since 1974 (!), and I think his best work reflects an earlier American Toryism in such books as Statecraft as Soulcraft: What Government Does (1983) and the collected essays in The Pursuit of Virtue and Other Tory Notions (1982). Will is himself not a religious believer, as he discusses somewhat autobiographically in the talk (philosophical trivia: Will mentions his father, Frederick Will, a longtime member of the Philosophy Department at the University of Illinois and also a friend and colleague of moral philosopher James Wallace, father of David Foster Wallace). But Will thinks religion serves an important purpose in American politics, expressed in his thesis:
Religion is central to the American polity because religion is not central to American politics. That is, religion plays a large role in the nurturing the virtue that republican government presupposes because of the modernity of America. Our nation assigns to politics--to public policy--the secondary, the subsidiary role of encouraging, or at least not stunting, the flourishing of the infrastructure of institutions that have the primary responsibility for nurturing the sociology of virtue. 13
I worry, however, that the rest of the talk expands upon a basically instrumental and peculiarly modern (see the praise of Hobbes at pages 25f that will surely cause panic among some of my MOJ colleagues) conception of religion and politics that is too theologically austere to sustain itself, even if I am sympathetic in some respects to what Will says on, for example, natural rights (but then note the debatable anti-perfectionist conclusion to this line of argument):
They [the Founders] understood that natural rights could not be asserted, celebrated and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator.
This is the Creator who endows us with natural rights that are inevitable, inalienable and universal--and hence the foundation of democratic equality. And these rights are the foundation of limited government--government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.
A government thus limited is not in the business of imposing its opinions about what happiness or excellence the citizens should chose to pursue. Having such opinions is the business of other institutions--private and voluntary ones, especially religious ones--that supply the conditions for liberty.
In short, read or watch the talk for its engaging and provocative presentation of a certain kind of "American-establishment-constitutional-conservative-natural rights-liberalism," but then ask what it leaves out.
Augustine was preoccupied throughout his life by questions about beginnings and origins, so here is some food for thought on New Year's Eve and in light of today's Gospel reading from John 1:1-18:
Augustine, Confessions XI.8
There is, I think, an interesting parallel in the discontent expressed in Patrick's recent post on the inadequacies of our constitutional form and Louis Michael Seidman's column yesterday. I should say first that Professors Brennan and Seidman know a tremendous amount about constitutional law -- much more than I do, and about many subjects, more than I am likely ever to know. I've learned a lot from their writings over the years and will continue to do so. And, to be sure, they express different positions, coming, as they do, from very different points of departure and having very different ends in mind. Consider this post just a thought about an interesting parallel, seasoned with a sprinkle of skepticism.
It seems to me that there is a fundamental convergence of perspective in the gentlemen's outlooks, and it is this. If we want to understand what is "broken" about our government today -- what has failed, or what is decaying, or even what never had a chance to succeed at all -- our diagnosis must focus on our legal forms. We can explain, at least in large part, how we have gone so badly wrong by looking to the constitutional forms of government and to the authority that we vest in the text of the document -- where we will find, as Seidman has it, "the culprit" of many infirmities in today's body politic. The root cause of our "dysfunctional political system" -- the Constitution -- has thwarted us from being our best selves -- a position with which (I think) Patrick might agree. For example, Seidman writes that the Constitution prevents us from having a unitary "interpretive method," because it can actually accommodate both originalism and living constitutionalism: "Whichever your philosophy, many of the results — by definition — must be wrong." It is the structure and the forms, both men say, which seem to entrench disagreement, perhaps even to valorize it. So we are already predisposed, by the structure itself, not to think clearly, and rightly, about political governance. And until we reject the structure and replace it with a better structure -- one that (for Seidman) reflects the ideal of popular "real freedom" achieved through "mature and tolerant debate" or that (for Brennan) reflects the ideal of real (that is, true) thinking ("intellectus") about the human good -- we will not be the best political community that we can be (as Seidman and Brennan, respectively -- and very differently -- conceive it).
I am skeptical about this view. One reason is that I do not agree with the claim that our contemporary disagreements are traceable to structural legal arrangements. Structures and forms are mechanisms that contain, limit, and focus disagreement. They do not eliminate disagreement. Pick a different structure; you will not have eliminated disagreement. You will only have redirected it into other channels arranged by the structure. I believe that Seidman agrees with this point, but he then says this: abandoning the form, and the authority that we place in it, would make it "apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace." I am unsure why abandoning the constitutional form would make this likely to occur. If it would, the aspirations would have to be taken at the very broadest and least helpful level.
That gets at another, perhaps larger, reason that I do not find convincing the view that the legal or political structure is the "culprit." In republics and democracies, structures of governance are chosen by people. People choose structures and the structures that they choose reflect their cultural commitments. Culture precedes positive law, not the other way round. And a culture (like ours) within which widespread and deep disagreement is the rule may be well-advised to choose a legal and political structure in which disagreement has maximal space to dissipate -- like a gas that, when concentrated, will explode, but can be tolerated as it becomes more and more diffuse.
Forms, in this view, are protective; they are a bargain reflecting respect for differences of opinion, and we are in need of protection against one another's desires, intentions, and wills. Just so, formality (in interpersonal dealings, in personal expression, in dress, and so on) is no mere nicety, but a (small) gesture of respect toward other people. Most people, with good reason, want very much to be protected from what lies beneath the manicured surface of their fellow human beings. Formality betokens respect for other people's sensibilities, accompanied by the hope for reciprocity. None of this means that forms and structures cannot be improved or modified or amended to accommodate either a changed vision of the human good or a changed understanding of contemporary circumstance. Surely they can be; certainly the Constitution can be. But criticizing forms and structures, and wishing for their replacement with others, is largely a distraction from the real action -- action that has comparatively little to do with the Constitution or the forms of constitutional governance.
Saturday, December 29, 2012
"[T]he liberal constitutional State is completely confused with respect to its character and behavior. It cannot reason. It cannot hear the messages of nature spoken by organic corporations. It cannot see society’s final spiritual end or justly coordinate men as they actually are, body and soul. It has no effective head to administer its accidental, arbitrary, and willful laws. Lacking intelligence, it must increasingly resort to force to survive, even though this unintelligent use of force must contribute mightily to its own destruction. If it tries to appeal to the support it has from 'the majority' of traditional-minded people, it is nonetheless not appealing to justice, but only to force of numbers, a force indeed that a party can manipulate better than the State can. In point of fact, the history of liberalized constitutional states is one of helplessness, lack of confidence, and paralysis, making any decisive action, whether just or arbitrary, impossible." John Rao, available here , at page 58.
Does the situation of helplessness and of ever-increasing resort to force described by Rao remind you of our nation's present predicament? Maybe just a litte? Guns, murders, budgets, "fiscal cliff," bickering . . . .
A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:
For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.
John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.
Thursday, December 27, 2012
This piece, by Detroit's Archbishop Vigneron, is wonderful. Read it, share it with everyone you know, and commit yourself to doing all you can to strengthen and sustain Catholic schools and their mission. A bit:
I also believe that in order to re-launch Catholic school education, fulfilling the
mission Our Lord is calling us to fulfill through our schools, we need to become
agents of a fundamental renewal of our Catholic schools. Here I look to the great
scholar Alcuin, who was the schoolmaster of Charlemagne and a very significant reformer
of Catholic education around the turn of the 9th Century and one of the leading lights of
the Carolingian Renaissance. Alcuin’s efforts at launching a new education project
bore great fruit, reshaping Christian culture over 1000 years ago.
Today, we’re Alcuin. Christ is calling us “(to) put out into deep water” in the work of
renewal. We must be “deep” in our selfexamination, “deep” in the changes we are
willing to make for the sake of our mission, and “deep” in the boldness with which we
will launch out into a new way of educating our children. Half-measures will not be
sufficient to do the job. Our schools need our commitment, our self-investment, and
our resolve if they are to become the instruments of the New Evangelization Christ
wants them to be. Our children need what we have to offer in our schools, which is to
say they need Jesus, and woe to us if we fail them. Jesus himself expects this of us, and
we cannot disappoint him. I am resolved to spend the rest of my time as Archbishop of
Detroit working to strengthen our schools. I know that you join me in that resolve,
because we know that nothing less than our children’s salvation is at stake.
7 Lk 5:4.
Here is Stanley Fish's "Christmas Column," "Religious Exemptions and the Liberal State." The piece is, among other things, a reflection and reaction to Brian Leiter's new book, Why Tolerate Religion? As Fish puts Brian's question: "Does the undoubted centrality of religion in the lives of its adherents suffice to justify exempting it from generally applicable laws?" Fish ends his discussion with this:
If Leiter is right and religion is no different from any other comprehensive doctrine (John Rawls’s term), why should there be a religion clause? There is of course a standard historical answer to that question. The desire for religious freedom motivated those Europeans who came to North America in the 17th century. It makes sense that the founding document of their new nation should protect the individual from state-sponsored religious discrimination (the Free Exercise clause) and protect the state from becoming an appendage of religion (the Establishment Clause). Leiter, however, is not interested here in the history of the matter. He is seeking, as he says repeatedly, a principled philosophical justification of the special treatment religion seems to receive in the Constitution. He doesn’t find one and comes to conclusions that render the religion clause largely superfluous.
He thus participates in a project inaugurated by the first important establishment clause case of the modern era, Everson v. Board of Education (1947), a case in which the majority shifted the focus from the question of whether public funds were being expended for religious purposes to the question of whether public funds were being distributed evenhandedly to religious and secular institutions alike. A religion clause issue became an equal treatment issue. In dissent, Justice Rutledge complained that by so reasoning the majority ignored “the religious factor … thereby leaving out the only vital element in the case.” Ignoring the religious factor or generalizing it out of sight has been the approved strategy of religion clause jurisprudence ever since. In fact it might be said that the purpose of religion clause jurisprudence, a purpose Leiter joins, is to ensure that the religion clause causes as little trouble as possible.
Find out why here. A bit:
From federal budget debates echoing with catch phrases like "subsidiarity" and "common good," to a vice presidential contest between two members of the faith, it's clear: Catholics are engaged in the larger culture like no other time in the nation's history. We help shape national conversations and hold influential posts that affect lives across the country in profound ways.
Our choice for person of the year acknowledges this growing reality. Decisions made by him and his court, which currently includes a total of six Catholics, altered in a fundamental manner the way in which U.S. politics are conducted, ensured that a major policy goal of the U.S. church for almost a century will be implemented, and limited civil law's reach into the personnel policies of religious institutions.
For 2012, our person of the year is John Roberts, chief justice of the Supreme Court of United States of America. . . .
Our person of the year comes from the Catholic milieu, formed and educated in its institutions. He is reserved and circumspect in public, has a reputation for being a family man and an active Catholic who attends his children's sporting events. His wife, Jane, also a lawyer, is active in such nonprofits as Feminists for Life (which gave qualified approval to the court's health care ruling) and the environmental group Citizens for Affordable Energy and, in the recent past, as a member of the advisory board of the Washington Home and Community Hospices.
Roberts does not hide his religious affiliation, but he also demonstrates that while religious attachment may provide a philosophic underpinning for decisions with ethical significance in public service, it doesn't guarantee unanimity of thinking or consensus on such issues. . . .