Friday, February 28, 2014
Recently Cornel West and I visited Swarthmore College, where I received my undergraduate eduction, for a day of conversations on the theme "The Bond of Truth-Seeking." Following our visit, I was interviewed by Victor Gomes, a student at the College, for the campus newspaper The Phoenix. The interview has now been published under the title "Swarthmore at Its Best."
In case the interview might be of some interest to MoJ readers, here are some excerpts, followed by a link to the complete interview. Victor began by asking about my backround and beliefs when I arrived at the college in the mid-1970s, and how they changed. Here are some bits of my reply:
. . . . Like my peers, I wanted to be sophisticated and enlightened—and to be regarded by others as sophisticated and enlightened. So a lot of what I believed simply as a matter of tribal loyalty was reinforced by a tendency to adopt views that conformed to the beliefs of what the late Irving Kristol dubbed “the knowledge class”—professors, elite journalists, and the like. With the exception of abortion, which I had thought about a lot, I hadn’t really thought myself into the positions I held. Rather, I had taken the short cut: I was content to believe what I thought sophisticated and enlightened people believed, or at least were supposed to believe. I simply, and rather unselfconsciously, assumed that an approach of that sort would reliably place me on the correct side of the issues. And, of course, it would give me access to a world I wanted to enter more fully—the elite world of important people who really counted and made a difference. If I got the right credentials, beginning with a Swarthmore degree, and held the right views, I could be someone who mattered. It was then, as it is now, a common motivation for students at elite colleges and universities.
I wasn’t completely blind, though, to problems on the left. I saw cases—they could scarcely be missed—of self-indulgence masquerading as principle or courageous defiance of social norms. And I was not entirely comfortable with the harder leftward turn being taken by the liberal movement and the Democratic Party in the 1970s, especially on what we now call “social issues.” The movement and the Party were becoming quite unlike what they were when their leaders were people like Roosevelt, Adlai Stevenson, and Hubert Humphrey. Still, I was a partisan Democrat and a loyal center-left liberal. I attended the 1976 Democratic National Convention as an alternate delegate and was happy with the nomination of the moderate Jimmy Carter and the liberal Walter Mondale as the Party’s national ticket. But even then, I was in the midst of a major rethinking of, well, everything. The triggering event was one I mentioned at the Collection with Professor West. I had encountered Plato’s dialogue Gorgias in a political theory course taught by Professor Sharpe. It made me realize that I hadn’t actually been thinking much at all. I had views, but I was scarcely entitled to them. I was a skilled debater, but skilled in talking for victory, not for truth. I regarded my interlocutors, especially those with whom I had partisan or ideological differences, as adversaries, not as partners in the quest for knowledge and wisdom. My arguments did not reflect any actual thinking that had gotten me to where I stood on this issue or that; rather, they were offered as justifications for positions I held for all sorts of questionable reasons: tribal loyalty, personal preference, applause, the wish to be and be seen to be sophisticated, the desire to fit in with others at the College and in elite sectors of the culture generally.
My views did not change overnight—though my attitude did. But they did change. At least they changed on some pretty important issues. By 1980, five or so years after my encounter with Plato, people to my left started describing me as a “conservative.” It took me another decade to accept the label—and even then I accepted it only grudgingly. Tribal loyalties (and labels) are even less easily abandoned than they are acknowledged. In some cases, what changed was not my view of the ends that ought to be pursued, but rather the best means for pursuing them. Observing, first with concern and then with anxiety, what was happening in my native Appalachia, I grew skeptical of the general approach to fighting poverty that had traditionally been favored by the Democratic Party. It became clear to me that what were needed were fewer direct government anti-poverty initiatives and greater efforts to support and rebuild institutions of civil society. I saw happening in the hills and hollows of central and southern West Virginia and eastern Kentucky what had been happening in places like inner city Detroit. And well-intentioned policies seemed to be making the situations worse rather than better. Trying honestly and dispassionately to think my way through things, I found myself increasingly impressed by what I was reading by “conservative” writers such as Irving Kristol, Daniel Patrick Moynihan (who, when he wasn’t holding a pen in his hand, remained a liberal Democrat), and James Q. Wilson. To my surprise, I found greater insight and wisdom in The Public Interest than in the New York Times or Dissent. It was a bit unnerving—since I did not know where this train was taking me—but also exhilarating. I was being persuaded by arguments, and I was beginning to think critically and for myself. The desire to “be sophisticated” and to “fit in” with my peers and other “enlightened” people no longer mattered to me. I was free.
On reflection, my religious beliefs strengthened and became both more orthodox and more ecumenical. That might seem paradoxical from a liberal secularist viewpoint, but won’t seem at all odd to people who know what the Catholic Church actually teaches in, for example, the documents on religious liberty, ecumenism, and the world’s religions of the Second Vatican Council. My pro-life convictions also strengthened, as my understanding of the arguments on competing sides deepened, and I found myself embracing a more conservative set of ideas on other moral and social issues, as well. Thinking about abortion and infanticide (Michael Tooley had published his famous article linking and defending the two practices just before I arrived at Swarthmore), I eventually came also to reject euthanasia and the death penalty. The last of these positions did not endear me to my new conservative allies, but I had long since stopped caring about anything other than whether the weight of reason and argument supported a position or failed to support it. The idea that one would hold a belief, or not consider changing a belief, out of partisan or tribal loyalty no longer had purchase with me. . . .
February 28, 2014 | Permalink
My contribution (and it's just one of a bunch) to the SCOTUSblog symposium on the upcoming Hobby Lobby case is here. Here's a bit:
The Religious Freedom Restoration Act does not reflect a mistaken or naïve view that religiously motivated conduct is always praiseworthy or that religious actors always prioritize the common good. Sometimes, generally applicable laws need to remain generally applicable. Sometimes, fair and practicable accommodations are not possible. Sometimes, parties invoking RFRA will and should lose. But, sometimes they should win – whether they are institutions or individuals and whether they are engaged in worship, social service, or art-supplies sales. The Act says, for all of us, that religious freedom matters, that it matters to policy winners and losers alike, and that if we can accommodate religious believers’ practices and objections, then we should.
That question was in the subject line of an e-mail I received this afternoon from the Jesuit magazine America. The reference, it turned out, was to an article, in the new issue, by John Langan, S.J., who is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University. The article--which is titled See the Person: Understanding Pope Francis' Statements on Homosexuality--will be of much interest to many MOJ readers (and bloggers). As Larry Solum says: Highly Recommended! The article is available here.
A related piece in the same issue--an editorial, titled When the Law is the Crime--is here, arguing vigorously that "supporters of traditional marriage must denounce unjust discrimination against homosexuals." An excerpt:
"It is especially disturbing that such legislation is immensely popular in predominately Christian countries like Uganda, where 40 percent of the population is Roman Catholic and the Catholic bishops have sent mixed signals about the legislation. When the bill was first considered in 2009, Archbishop Cyprian Lwanga of Kampala, speaking on behalf of the Catholic bishops’ conference, said it was 'at odds with the core values' of Christianity. When the bill was reintroduced in 2012, however, the Uganda Joint Christian Council, which includes Catholic, Anglican and Orthodox bishops, expressed support for the bill. Archbishop Ignatius Kaigama of Jos, Nigeria, meanwhile, has praised President Goodluck Jonathan for his 'courageous and wise decision' to sign the new law in that country."
Thursday, February 27, 2014
Gov. Brewer has vetoed what the Wall Street Journal calls a "service refusal" bill (an earlier WSJ headline had said "religious liberty"; the New York Daily News refers to it as a "controversial anti-gay" bill). In my view -- and, frankly, whatever the ultimate merits of the bill (which would have modified the state's RFRA-type bill, which is modeled on the federal RFRA, which was strongly supported by Sen. Kennedy and signed into law by Pres. Clinton) -- it is depressing to note the extent to which the proposal was mischaracterized and misrepresented, in many cases by commentators who should have known, and I suspect did know, better.
Here is a letter, authored by Prof. Douglas Laycock and signed by a number of other law-and-religion scholars (including Tom Berg, Doug Sisk, and me), which explains what the law would have, and would not have, done. As the letter points out, the bill would have "amend[ed] the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs." Later:
SB1062 does not say that businesses can discriminate for religious
reasons. It says that business people can assert a claim or defense under RFRA, in any kind
of case (discrimination cases are not even mentioned, although they would be included),
that they have the burden of proving a substantial burden on a sincere religious practice,
that the government or the person suing them has the burden of proof on compelling
government interest, and that the state courts in Arizona make the final decision.
Again, the bill has been vetoed, no doubt in response to the outcry -- itself driven largely by the mischaracterizations of the bill -- from business groups (and the N.F.L.). The debate about religious accommodations is changing strikingly.
Pepperdine Law School put on a wonderful conference a few weeks ago on "Love and the Law" (i.e. Christian love or agape). There were many terrific presentations, including from MOJers Mike Moreland, Michael Scaperlanda, Lucia Silecchia, and Rob Vischer (and Patrick Brennan would have been there too but for the terrible weather in the East). My own presentation was on "Love and Intellectual Property" (here is a very slightly expanded version of the text of the short remarks; it should also appear soon on the webpage of conference papers). I briefly explored the relation between creativity as a gift, gratitude for the gift, and appropriate limits on intellectual property rights in the creation. Here's a one-paragraph taste:
So the first thing Christian love might add is an additional, and distinctive, motivation to create and share. Intellectual creation may reflect eros—pursuing the beautiful or true—but it is also agape, sharing a gift. But if gift and gratitude issue in love, this inspires one not simply to create—which might still be consistent with restricting access solely to maximize profit. Love should also inspire the creator to share in ways such that all can benefit. In short, love has the potential to unite the motivation for creation and an obligation to benefit others through it.
Wednesday, February 26, 2014
The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2014 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.
To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.
The dates for the 2014 summer workshops are July 7-9 on economic freedom and July 14-16 on religious freedom. Participants in the workshops will each receive an honorarium of $1500.
The workshop moderators will be Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom, and Marc DeGirolami (St. John’s University) and Zachary Calo (Valparaiso University) on religious freedom.
The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.
Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are also available.
To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by April 30, 2014.
The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.
Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice.
At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom?
The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.
Tuesday, February 25, 2014
"But in the end the White House decided not to move my nomination forward. There were two reasons. First, taxes. In 2009 and 2010, the years of my divorce, I filed my taxes late — four weeks and 10 days, respectively. Second, I was not willing to commit to never criticizing the administration, nor to restricting my publishing agenda to topics that were unlikely to be controversial. There is just no point trying to be a public intellectual if you can’t speak your mind. This requirement was conveyed and discussed through phone calls; I have no written record to prove it. But that was how it went."
I compare this with my own experience. I was appointed to the U.S. Commission on Civil Rights by the first President Bush and to the President's Council on Bioethics by the second President Bush. No one in either administration ever even came close to suggesting that I "commit to never criticize the administration." Had such a thing been suggested, I would have refused to make such a commitment, just as Danielle did. I'm proud of her for setting an example of integrity.
But I cannot help but ask: What is with this administration??? Why this fear of criticism? Why this paranoia? And what about the people who are serving as its appointees on the NEH and other boards? Did they agree not to criticize the administration? If so, and if they are professors, I believe their deans, provosts, or presidents---or at least their campus newspapers---should ask them whether they agreed to muzzle themselves as a condition for their appointments. Such self-censorship by an academic on the NEH board or on a federal commission would be disgraceful. But if it was a condition of Danielle Allen's appointment, then it was likely a condition of the appointment of others, as well, don't you suppose? Shame on those who accepted the conditions.
"It profits a man nothing to give his soul for the entire world. But for Wales?"
Monday, February 24, 2014
I have an op ed piece in today's Philadelphia Inquirer on violations of religious freedom and other human rights in Vladimir Putin's Russia.
My analysis is based largely on what I've learned about Putin's actions while I've been serving on the U.S. Commission on International Religious Freedom. These thoughts are, however, my own and do not reflect the views or positions of the Commission.
"In 2012, after Putin's return to the presidency, he oversaw a further campaign against freedom. He supported and signed laws raising fines against protesters one hundred fold; fining or jailing foreign-funded NGO leaders who refused to stigmatize themselves as "foreign agents"; and broadening the definition of high treason, potentially making participation in international organizations punishable by up to 20 years in jail."
"In July, Putin signed a blasphemy law imposing fines and imprisonment for "disrespect" or "insult" of religious beliefs. He also approved legislation barring public advocacy of "alternative lifestyles." Yes, other countries are creating a hostile climate for freedom of expression of traditional moral views about sexuality and marriage - and this deserves condemnation - but two wrongs don't make a right. Societies must protect every individual's right (and the right of every religious or advocacy group) peacefully to express their beliefs about sex and marriage and other issues."
"Behind these restrictions is a premise - that respect for human rights threatens Russia's cultural unity or national security. But when the government dishonors fundamental rights, there can be no unity or security, only more chaos and division, and, eventually, violence and terror."
"When it comes to national security, Putin understands the need to fight not just terrorists, but also their ideology. But the Russian strongman needs to learn that the way to defeat bad ideas is with good ones in a public square that admits the peaceful expression of competing ideas. If Russia is to prevail, it must protect basic civil liberties - from freedom of religion or belief to expression, association, and assembly. It must create and maintain a free marketplace of ideas."
The full op ed piece is available here:
February 24, 2014 | Permalink
For the last couple of years, Kevin Walsh and I have been working on an article about judicial critique of constitutional theory and the separation between constitutional theory and constitutional adjudication. Our new piece is called Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory, and we hope to have some further discussion about it in the coming days and weeks. Here is the abstract:
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?
This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
Sunday, February 23, 2014
Slate writer William Saletan is, by a considerable margin, the sharpest and best informed bioethics journalist on the liberal side of the spectrum. He fully supports abortion, of course. But he would like to be able to oppose what he describes as "the pro-choice position on infanticide." Here, in a piece titled "After-birth Abortion: The Pro-Choice Case for Infanticide," Saletan is wrestling with himself on the issue . . . and losing. He says that the academic left's supporting infanticide is a "crazy" idea. The trouble is, given his own pro-abortion premises, he can't quite come up with a decent argument against it. He would like to believe that "something profound changes at birth." But, as he quotes a pro-choice critic of that idea saying, "there is nothing magical about passing through the birth canal."
Truer words were never spoken. There is nothing magical about passing through the birth canal. So unfortunately for people like Mr. Saletan, you can't have it both ways. Which side are you on, boys? Which side are you on?
February 23, 2014 | Permalink