July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History (ADDENDUM Appended)

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Everybody might agree that these values are good in the abstract. Almost everybody might further agree that each of these values should have some salience and force in particular cases of legal conflict, as and when they apply. And yet it is only when the values are cashed out in particular cases of conflict that we can truly see how powerful they are. Because these values often clash, and because we nevertheless value each of them in the abstract, this is an important reason *not* to make judgments about their relative power in advance of consideration of particular conflicts.

This is the model of the Bill of Rights in the US Constitution, as I see it. It sets out certain semi-permanent ideals in abstract form (semi-permanent because subject, of course, to Amendment). But it does not declare in advance of a particular case of conflict which of these abstractions wins. The reason to refrain from making absolute and abstracted judgments about which value should take precedence over others is that different people will reasonably judge differently in particular occasions of conflict. "Reason" will admit a plurality of responses in many such cases. The tragedian does not want to cut off the possibility that a value that has salience in one context will have less (or none) in another.

But all of that means that for the tragedian, the true arena of contestation about principles happens in the realm of the particular, where combatants dispute that a particular principle applies at all, or if they agree that it might, they nevertheless assign very different weight to the values (in fact, the metaphors of "weight" or "balancing" import erroneous assumptions about the commensurability of the values at issue, something I struggle with getting over in the book). So when you write about constitutional "commonalities," I can certainly agree: there are such commonalities, and they are especially evident in the abstractions of principle enshrined in the Constitution or derived therefrom. It's just that the power of those abstractions can only be truly measured by examining their fate in particular cases of conflict. And there, once so considered, the abstractions interact with and often run up against the sort of deeper commitments that pervade the contestants' views of the human good and the moral life. The abstractions are always interpreted and applied against that backdrop, and it is there that their strength is truly manifested and tested. In the end, I think that the tragedian's approach is entirely consistent with our constitutional system and structure.

2. Political Suasion and the “Open-Minded Middle”

Tom argues that moral appeals—appeals to principle and to humility—can have the effect of changing people’s minds about the human good and the moral life. He points to the example of Dr. Martin Luther King, Jr. I have no quarrel at all with the view that such appeals can sometimes be effective in changing people’s minds about important moral issues.

Two points here, however. First, I wonder whether in the main this is the proper function of constitutional law, or whether a more modest moral function is in order. Tom jumps immediately to the morally clear-cut issue of race, but there are many other issues of constitutional weight, including many of the issues of religious freedom that we discuss at Mirror of Justice, whose moral resolution is far less clear-cut. Is it the role of constitutional law to resolve those difficult and contested moral issues by appeal to a single moral principle? For the tragedian, the answer is no, because there are competing moral visions with different anchors in constitutional text and history that ought not to be destroyed by the constitutionalization of any single and exclusive moral principle. For the tragedian, the text, structure, and social and doctrinal history of the Constitution set the outer limits of the permissible. But for many of the pressing issues of our day, the Constitution does not and should not resolve moral controversy.

Second, and moving away from constitutional law to the issue of political suasion, I agree again with Tom that sometimes moral arguments of principle can have the effect that he describes. And, as I have said before, I admire the efforts of many to press such arguments. But I wonder about Tom's appeal to the “open-minded middle” as the principal audience for such arguments. I have before expressed doubts about the psycho-political underpinnings of the theory on which Tom relies, as I have about the stability and depth of the commitments of the popular constituency that Tom is targeting. At the very least, this is an empirical debate. Is it really true that, once one has defined exactly who belongs to the “open-minded middle,” that those folks are swayed by the sorts of arguments Tom and others have been pressing with such grace and power? Even if it is true, how important are such arguments to moving the open-minded middle in this or that direction? Is the open-minded middle more like a herd, moving hither and thither as powers quite apart from moral argument are exerted on them? And even if moral argument does have some persuasive power, do emotion, the desire to go along and get along, and other political and legal forces wield much more?

I do not have the answers to these questions. But I wonder whether one would need to have some answers to them before being confident about moral suasion of the open-minded middle.

 3.   History

Last little point. Tom questions at the end of this post whether there is a “necessary” connection between a tragic approach and a historical sensibility that is attuned to past historical settlements as a guide for decisionmaking. I agree with Tom that there is no necessary connection. Indeed, other scholars who have written positively about the tragic view (Paul Horwitz is one, for example) do not adopt the sort of historical approach that I do. And some scholars who are oriented toward historical approaches to constitutional interpretation do not take on the tragic points of view.

But I do think that even if there is no necessary connection between tragedy and a historical approach, and even if there is nothing absolutely binding about historical settlements on a tragic account, there is a natural connection between the two that suggests something about the presumptive value of the latter in an account of the former. Without getting too deep into this side-issue for purposes of tragedy and irony, here’s a small part of the argument I make in the book about the value of doctrinal and social history:

Against the background of [tragedy], an acknowledgement of the wisdom of precedent represents a recognition of the multiplicity of ways in which courts have struggled with the irreconcilable conflicts of religious liberty. It is a link with the legal past. Legal precedent is the blending and accretion of ‘reason-in-custom’—constituted by the engagements of common lawyers grappling with the common details of innumerable predicaments and particular conflicts. A commitment to doctrinal history…is an associational acknowledgment of common struggle with problems often incapable of systematic resolution, for this is the only way that a core range of conflicts of religious liberty is decided. It is the method of the common law filtered through the lens of the tragic theses….

The past lies in us and is constitutive of who we are….This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present—if they are that which we know, and their memory is that which we have—then the objects of these negotiations deserve attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories.

4. ADDENDUM: In What Ways is Irony Superior to Tragedy?

I wanted to append this addendum because while on most days I probably am more of a tragedian than an ironist, I think irony has a great deal of merit and is in some ways superior to tragedy.

In fact, there are probably a number of such ways. But I think one of the most important ways in which irony may be superior is that it is more hopeful about human nature and the possibility of human reconciliation than is tragedy. Though I do not think tragedy is without resources in this respect, this is a major virtue not only of irony but of the good will in which it issues in good men like Tom.

One last thought. Probably there is truth in both views, at different times and in different ways. The interesting thing about these archetypal views is that neither ‘wins’ or ‘loses’ decisively. They are hearty perennials that survive cycles of spring and winter over the course of the generations!

Posted by Marc DeGirolami on July 12, 2014 at 12:19 PM in DeGirolami, Marc | Permalink

July 10, 2014

The Connection of Separationism and Radically Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).

Posted by Marc DeGirolami on July 10, 2014 at 02:22 PM in DeGirolami, Marc | Permalink

July 06, 2014

Originalist Fusionism

Soon I will return to spar a bit with Tom about irony and the barbarian hordes in the thoughtful middle.

But first, here's something for the originalism debates. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim--i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project--bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman's and Joel Alicea's work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 -- Hylton v. United States -- which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax's constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and "what to do when the best evidence of contemporary usage points in two directions."  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources -- dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the "foreign Lexicons" of "consolidated" as opposed to "confederated" governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith's definition of a tax in The Wealth of Nations "was probably contemplated . . . by [the] Convention."  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers' intentions.  The reason for this focus is best summarized by Justice Paterson: "the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain."  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: "when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question 'What were the framers actually trying to accomplish in using this language?' rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?" And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith's new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism's complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes: 

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for "some new movement to emerge devoted to the true criterion for constitutional interpretation," and he refers to an unpublished paper of his dealing with a "maker-meaning nexus." I haven't read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins's writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

Posted by Marc DeGirolami on July 6, 2014 at 10:20 AM in DeGirolami, Marc | Permalink

July 01, 2014

Two Items on Hobby Lobby

Here are two items discussing the case--a decision that is, consistent with Patrick Brennan's and Tom Berg's observations, quite narrow in scope: first, a podcast that Mark Movsesian and I recorded explaining the holding and offering some thoughts about future issues; and second, a comment on the Liberty Fund site.

I look forward to reading other contributors' reflections.

Posted by Marc DeGirolami on July 1, 2014 at 12:50 PM in DeGirolami, Marc | Permalink

June 27, 2014

Pope Francis's Remarks on Religious Freedom for Our Conference (DeGirolami trans.)

I took a shot at translating Pope Francis’s remarks on religious freedom, which he addressed to the participants at our conference on international religious freedom (an official translation will be issued later). I have tried to be faithful to the text, sacrificing a bit of readability. I have done this in part because some partial translations I’ve seen are not true enough to the original, even if the resulting translation here still leaves some open spaces in meaning (which, at any rate, should not be filled by the translator). Here is the original in Italian. I’ve also got a few comments at the end of the translation.

I welcome you on the occasion of your international conference, dear brothers and sisters. I thank Professor Giuseppe Dalla Torre for his courteous words. 

Recently the debate about religious freedom has become very intense, asking questions of both governments and religious denominations. The Catholic Church, in this respect, refers to the Declaration Dignitatis Humanae, one of the most important documents of the Ecumenical Council Vatican II.

In effect, every human being is a “seeker” of truth about his own origins and his own destiny. In his mind and in his heart arise questions and thoughts that cannot be repressed or suffocated, inasmuch as they emerge from the deeps and are by nature connected with the intimate essence of the person. These are religious questions and they demand religious freedom to manifest themselves fully. These questions seek to shed light on the authentic meaning of existence, on the ties that connect it to the cosmos and to history, and they mean to pierce the darkness by which the human condition would be surrounded if such questions were not asked or if they remained answerless. The Psalmist says: “When I see your heavens, work of your fingers/ the moon and the stars that you have fixed, / what then is man that you would remember him, / a son of man that you would care for him?” Psalms 8: 3-4.

Reason recognizes in religious freedom a fundamental right of man that reflects his highest dignity, that of the capacity to seek the truth and to adhere to it, and recognizes in that right an indispensable condition in order to deploy his own potentialities. Religious freedom is not only the freedom of a thought or of a private sect. It is freedom to live according to ethical principles consequent to discovered truth, whether privately or publicly. This is a great challenge in the globalized world, where weak thought—which is like a disease—lowers the general ethical level, and in the name of a false notion of tolerance ends by persecuting those who defend the truth about man and that truth’s ethical consequences.

Legal regimes, national or international, are called to recognize, guarantee, and protect religious freedom, which is a right that inheres intrinsically in the nature of man, in his dignity as a free being, and is also an indicator of a healthy democracy and one of the principal fonts of the legitimacy of the state.

Religious freedom, implemented in constitutions and in laws and translated into coherent behaviors, favors the development of relationships of mutual respect among the different faiths and their healthful collaboration with the state and political society, without confusion of roles and without antagonisms. In place of the global conflict of values, coming from a nucleus of universally shared values, a global collaboration in view of the common good becomes possible. 

By the light of the acquisitions of reason, confirmed and perfected by revelation, and of the civil progress of peoples, it is incomprehensible and worrisome that, even today, in the world there remain discriminations and restrictions of rights for the sole reason of belonging to and professing publicly a certain faith. It is unacceptable that true and actual persecutions exist for reasons of religious membership! And wars too! This wounds reason, attacks peace, and humiliates the dignity of man.

It is a motive of great pain for me to observe that Christians in the world suffer the largest number of such discriminations. Persecution against Christians today is even more powerful than in the first centuries of the Church, and there are more Christian martyrs than in that era. This is happening more than 1700 years after the edict of Constantine, which granted freedom to Christians to profess their faith publicly.

I hope profoundly that your conference illustrates with depth and scientific rigor the reasons that today oblige the legal order to respect and defend religious freedom. I thank you for this contribution. I ask you to pray for me. From my heart I wish you the best and I ask God to bless you. Thank you.

Some brief thoughts (and I hope others will add theirs as well):

1. A note on the fourth paragraph with Patrick Brennan’s good questions in mind (Patrick was getting the English translation from a different source). According to my translation, the Pope did not say that “every person has a right to seek the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.” The full paragraph fragment in Italian is:

La ragione riconosce nella libertà religiosa un diritto fondamentale dell’uomo che riflette la sua più alta dignità, quella di poter cercare la verità e di aderirvi, e riconosce in essa una condizione indispensabile per poter dispiegare tutta la propria potenzialità. La libertà religiosa non è solo quella di un pensiero o di un culto privato. E’ libertà di vivere secondo i principi etici conseguenti alla verità trovata, sia privatamente che pubblicamente.

The phrase in question, as well as the entire paragraph fragment, is, I think, more faithfully translated as “discovered truth” rather than “the truth one has found” ; “discovered truth” refers back to the same truth that is being sought for in the previous section of this paragraph.

2. Note the reference to the “global clash of values” in paragraph six–a specific comment on our conference–and the Pope’s statement that such a clash can be overcome. That struck me as relevant to the discussion that Tom Berg and I have been having herehere, and here.

3. Nevertheless, in spite of his optimism about the prospects for religious freedom, the Pope expresses great distress about the plight of Christians in the world today, as can be seen in the paragraphs toward the close of the speech.

Posted by Marc DeGirolami on June 27, 2014 at 02:01 PM in DeGirolami, Marc | Permalink

June 25, 2014

Irony and Tragedy: Practicalities

This is the second of two posts responding to Tom's post below about irony and tragedy. In the first, I tried to lay out what I perceive as some of the conceptual differences between a tragic and an ironic approach generally with some application to more theoretical issues in the interpretation of the religion clauses. In this one, I try to address some of the challenges that Tom poses about the resources (or lack thereof) that tragedy might draw on for practical purposes.

Tom argues that irony has various practical advantages over tragedy inasmuch as it provides a resource for issuing challenges and for striking deals. He raises the arguments that he and others have been making on behalf of religious exemptions as examples of the critique from irony. And he suggests that a tragic view may not offer the same kind of practical resource because it often denies that the values advocated by one side in a conflict are commensurable with the values championed by the other side.

These are all fair points. Tom is right that tragedy opens up the domain of incommensurable values. Tom is also right that the tragic view will be far less amenable as a resource for the sorts of critiques that he argues have been important.

But I wonder very much whether the ironic critique is…true.


I doubt that each side in these conflicts is really making the same sort of liberty claims or equality claims against the other, and so I doubt that the ironist’s argument in chief can make much headway. The opposing sides are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life. Liberties of various kinds (religious, sexual, and so on) are valuable not in the abstract, but because they allow people to access and live out a particular moral life, and because they enable them to be the kind of people that they aspire and hope to be. The same thing may be said of communities of people.

And once one scratches below the surface of the similarity between the identitarian claims being made on each side of so many of these disputes--whether those that Tom describes, or those involving the contraceptives mandate, or those at issue in a case like Wisconsin v. Yoder, or those at stake in Lee v. Weisman, or Hosanna-Tabor (I discuss the tragic conflicts in the three preceding cases at length elsewhere), or Town of Greece, and so on--one sees the vast expanse of very different living traditions and moral lives stretching outward and away from one another. The other side’s success inevitably detracts from the larger moral vision. So while it may be true, as Tom says, that the opponents are uttering the same words (liberty, equality, identity, etc.), they are speaking totally different languages.

That is why (to repeat), while I am in deep admiration of Tom’s and others’ policy work in this area, I believe that the greatest success that could come of it is a temporary, unsettled, and evanescent truce. Already that would be an enormous achievement indeed. But my tragic instincts tell me that such settlements are nothing more than unstable political deals. They say little about the underlying values or their commensurability.

As an aside, that is also why I have been somewhat skeptical about the political strategy of sympathetic reciprocity for which Tom has argued so eloquently. The sympathy extended by opposing parties in these battles extends no further than their true or real commitments will allow. It does not reach very far if all one has to bargain with is the surface parallelism of a liberty claim, or an equality claim. Politics ain’t beanbag, and you don’t reach a deal (let alone a semi-permanent modus vivendi) by pointing out surface ironies to the other side.

Does this also mean that tragedians are without political resources to deal with conflict? I don’t think so, though I do believe that the arguments they need to make are even more difficult than those of the ironist. They need to persuade people that commitments to truly conflicting values are characteristic of many rich and admirable human lives. They need to persuade people that protecting a range of distinctive moral outlooks and ways of life is something desirable in a plural democracy like ours. They need to turn the permanent conditions of value conflict somehow to their advantage—to convince people that a state of social disharmony and disagreement about the deep issues is a far better thing than a state of harmony and agreement. Difficult work, to be sure. But work that reflects the tragedian’s sense of the problems.

Thanks again to Tom for engaging with me on these questions over the years, and now here.

ADDENDUM: John Inazu let me know about this interesting (and recent!) comment by Stanley Hauerwas, in which he writes: "Niebuhr's political realism can, at best, give you an account of common interests." 

Posted by Marc DeGirolami on June 25, 2014 at 12:57 PM in DeGirolami, Marc | Permalink

Irony and Tragedy: Concepts

Thanks to Tom for his post and his very good questions. Tom and I have been having this discussion for a good while and it is a pleasure to talk together again. Several years ago, Tom put together a wonderful conference on Niebuhr, Christian realism, and law at the University of St. Thomas. I wrote a paper for that conference that I never published on the differences between tragedy and irony, and Tom’s post made me look back at it.

My thoughts about Tom’s post are in two posts. The first post concerns the conceptual difference between tragedy, comedy, and irony as I understand the terms. The second post addresses some of the more concrete practical challenges and questions Tom poses.

This post is long, as is the next one. For the impatient reader, the quick version is that I am a tragedian and not an ironist because I believe that tragedy better describes the nature of conflict in the world, or at least in that corner of the world that Mirror of Justice contributors sometimes think about, the law of religious freedom. Deep and true conflict, and not simply the appearance of conflict that awaits the ironist’s clever harmonization, is our condition. The tragic perspective helps us to appreciate the true breadth of the chasms that separate us—chasms that, in our day, are expanding. And that is why, much as I appreciate the virtues of the ironist, and much as I admire the efforts of Tom, Rick, Doug Laycock, Robin Wilson and others to reach the sorts of agreements Tom mentions, I believe that those agreements are at best temporary, pragmatic settlements. That is not to denigrate them at all: indeed, I believe that Niebuhr himself took little more than a series of pragmatic micro-deals to be the concrete political expression of his ironic Christian realism. Negotiating conflict sensibly is no small feat. But, to the extent they have been achieved (which is, regrettably, not often enough), those agreements are not larger victories of principle. They do not tell us much at all about the commensurability of the clashing values. And their fragility and evanescence is some evidence that tragedy, not irony, is the deep force at work. Though I do believe that the tragic view has something to say about conflict resolution—something different than what the ironist says—the reason to be a tragedian is not to resolve conflict but to perceive as completely as possible the nature and depth of our divisions. They are very great.

Concepts.  What are we talking about in using these terms? Let me focus first on Niebuhrian irony, and then contrast it with a tragic view.

A. Irony. Niebuhr is not often given to defining irony in precise terms within his general political outlook but here is something helpful from Robin Lovin in his volume on Niebuhr and Christian realism:

Given the complexities of the human situation, a moral ideal alone cannot dictate what we ought to do and will not settle the outcomes of history . . . . Realism implies recognition of the limits of purely moral solutions to political problems and calls for attention to the realities that shape social, political, and economic conflicts.

The ironic position that characterizes Christian realism thus contrasts with what Niebuhr describes as political idealism: “Idealism conceives the self primarily as reason and reason primarily as God . . . . Consequently, [idealism] finds a premature security for the freedom of man in the inner coherence of reason[.]” I Nature and Destiny of Man: Human Nature 76, 112 (1943). Since the relationship of irony and religious liberty is unmanageably large, it will help to narrow the focus to certain of Niebuhr’s reflections in the book that Tom has already mentioned—his relatively late collection of essays about the United States, The Irony of American History. There, irony is presented as an intermediate position: it “depends upon an observer who is not so hostile to the victim of irony as to deny the element of virtue which must constitute the ironic situation; nor yet so sympathetic as to discount the weakness, the vanity and pretension that constitute another element.” IAH 153.

If we extrapolate from these passages, the difference between an ironic and a comic approach to religious liberty might be that the ironist knows better than to place his full confidence in his own ideas of constitutional perfection and to trust instead to the local and particular “resources of community,” including “religious humility”:

Such resources of community are of greater importance in our nation today than abstract constitutional schemes, of which our idealists are so fond. Most of these schemes will be proved, upon close examination, to be indifferent toward the urgencies and anxieties which nations, less favored than we, experience[.] IAH 139-140.

In a very fine essay, Tom himself has shown how the insights of Niebuhrian irony might be used to critique the dominant views of religious liberty. First, Niebuhr advanced an early argument against the elevation of formal neutrality as the single value of religious liberty, an argument that other critical scholars developed in later decades. Second, Niebuhr identified the danger of political cynicism that derives from strict separationist approaches to religious liberty—a danger which, Niebuhr claimed, the separationists cannot see precisely because of their ironic situation. Third, Niebuhr challenged the belief that a fully secularized “naked public square” would necessarily lead to a more developed and rational culture of public deliberation. This, too, is a theme that has been repeatedly debated by religious liberty scholars in later years. In all of these ways and others, Niebuhr’s ironic Christian realism offers an influential and lasting critique of the predominant approaches to theorizing about religious freedom.

Yet the distance between the ironic and the comic is not as great as may first appear.  There is a distinct sense in the ironic that history is a series of steps toward gradual, unmistakably increasing wisdom and illumination, provided that one approaches that progress with a properly diffident frame of mind. Thomas Shaffer once described irony as “what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.” The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining. 

Niebuhr shares this perspective. Tom has already mentioned Niebuhr’s view that the “Christian view of history passes through the sense of the tragic to a hope and an assurance which is ‘beyond tragedy.’” “Irony,” Niebuhr writes, “prompts some laughter and a nod of comprehension beyond the laughter; for irony involves comic absurdities which cease to be altogether absurd when fully understood.” IAH 2. There is a clever detachment about the ironic disposition, a knowing, worldly wink that bespeaks savvy and a fullness of understanding acquired through long experience. Ironic cleverness implies the holding of better, more accurate information, as well as comprehending judgments about those who are not in the inner circle.

Niebuhr’s metaphor of “passing through” tragedy to reach irony in turn is reflected in a certain type of political program that counsels cautiously optimistic calculations. The name for this political program has often been “pragmatism” or “prudentialism,” and it has achieved a certain reputation in modern law and politics. Niebuhr describes this political outlook as bringing with it a sense of both hope and reassurance. Pragmatism is notoriously difficult to define (this is believed by some to be its virtue—see this paper Kevin Walsh and I have written), but here I want to emphasize two of its features in legal interpretation: (1) pragmatism subscribes to an all-things-considered methodology that, as Dan Farber and Suzanna Sherry have put it, “weigh[s] text and history, precedent and policy, principle and consequences” until the result somehow reflects “a blend of statesmanship and workmanlike lawyering”; and (2) pragmatism celebrates the serenity—that is, Niebuhr’s “assurance”—that follows from the therapeutic relinquishment of the aspiration to any master theory. Thus, Niebuhr can say that the ironic element in American history can be “overcome” if one is able to come to an honest reckoning with “the limits of all human striving”—achieving a kind of careful balance of idealism and realism. IAH 133. Niebuhr’s image is that of the masterful gamesman—the patient chess player engaged in a perpetual contest with “the recalcitrant forces of human destiny”—a battle which the gamesman is destined to win.

The power that stems pragmatism’s natural tendency to descend into thoroughgoing relativism is, for Niebuhr, an undercurrent of universal moral obligation—an altruistic and self-abnegating love for humanity—that is exemplified in the Christian gospel. As Lovin puts it, “The New Testament completely sets aside the requirements of self-interest and the coincidental convergences of group interests, to envision an ultimate harmony of life within life.” One consequence of this type of Christian side-constrained pragmatism is the belief that human history does not itself make claims on political morality. While the ironic cast of mind appreciates concrete situational predicaments, Christian realism is not especially attuned to the normative force of history. Instead, it measures any historical belief or practice against the moral claims of a universalized trans-temporal, cross-cultural standard. The human faculty of “conscience,” Niebuhr says, “is an expression of the Christian feeling that history must move from the innocency of Adam to the perfection of Christ.” Niebuhr, The Christian Church in a Secular Age (1986) (emphasis mine). In Niebuhr’s hands, the ironic position ultimately strives for a Christian harmony beyond history as well as tragedy—a perfection which is in some way predestined.

B. Tragedy. It is the sense of the inevitability of worldly conflict that most sharply separates the ironic from the tragic view. The ironist augurs the end of comic theory. But he is still beguiled by the comic quest. The ironist recognizes that the way in which the comic theorist pursues his end is self-deluding; but in place of monistic reductions, the ironist substitutes pragmatism or “what works” or “keeping one’s eye on reality,” or in the case of Christian realism, what is perceived to be an expression of agape.     

The tragic theorist rejects this substitution, pressing instead a very different sort of metaphysical speculation: in this life, it is of the essence of the plural values that vie against one another in hotly contested areas like the law of religious freedom that they resist the incursion and domination of other rival values. Each of them struggles in perpetuity to avoid absorption and subordination by the others. And this means that decision making in this area will forever be burdened by tragic outcomes, results that sacrifice important values whose loss cannot be compensated by the triumph of other values. In this life, there is, against Niebuhr, no “recalcitrant force” to be “overcome”; there is no ironic serenity to be enjoyed. Whatever choice is made, whatever decision is arrived at, will render our practical approaches defective, incomplete, and fundamentally lacking.

Confronted with this swirl of conflict, the tragedian and the ironist part ways. In the law of religious freedom, the tragedian will be guided by the belief that the historical force of tradition and legal precedent has an intrinsic value because it represents the collected wisdom of the past in managing the tragedies of the conflicts of religious liberty. Whether he decides for the believer or for the state, the tragic judge will ensure that his opinion presents as thorough an accounting of the rivalrous claims as can be accommodated. And, as I put it in the book, he will face backwards—toward the litigants and the history that precedes them—for guidance in moving forward.  

The ironist will place no intrinsic weight on the claims of history. Ever the clever and detached pragmatist, the ironist will argue that constitutional traditions, and the social customs on which they are founded, deserve deference only and to the extent that they are more likely to conduce to the “right” or “best” result in any given case than any alternative approach. The tragedian will reject this conclusion, denying that cases are decided “rightly” or “best” solely in virtue of their greater or lesser achievement either of an underspecified (in Niebuhr’s case, at least) Christian ethic of love or, in the case of secular pragmatists, of an unspoken cost/benefit welfarist criterion of “what works.”

In sum, the tragic position is that a sense of history is intrinsically valuable for religion clause jurisprudence because it offers perhaps the only moderately reliable point of reference against which the tragedies of the conflicts of religious liberty may be managed. As I say in the book, the past is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and loss. In contrast, the ironist believes that conflict is an opportunity for a pragmatic or “second-best” approach, the presumption being that some “first-best” account is out there, somewhere, elusive, always tantalizingly just beyond the grasp of our ironical interpretive mistakes and institutional limitations—an answer that would deliver us from suffering. That is why the recognition of irony is, for the Christian realist, second-best to God’s perfection. For the tragedian, precedent and custom are sources of renewal and refreshment in the face of the law’s irrepressible pragmatic and a-historical instrumentalism. But for the ironist, instrumentalism is more centrally the point. Custom and precedent are tools to be utilized for strategic contrivance and maneuver. “So it must be,” says the ironist, “this side of heaven.”

And on that side? I should pause briefly to consider whether a belief in both tragedy and Christianity could be compatible. One danger of tragedy as an approach to legal and political theory is that it might unravel into despair or quietistic resignation, either of which would be difficult to reconcile with any Christian ethic. My friend Patrick Brennan has his doubts. But it need not be so. I hope it is not so.

Whether it is characterized as fatalistic or providential, a tragic view of the idea of religious liberty and legal theory more generally might well be consonant with certain strains of Christian thinking—that of Pascal, for example, or, on certain readings, Augustine. As I have written before, the tragic view of our time in this world and of our experiences in this life is distinctively Christian at least in this way. It expresses something true about the difference between this life and the next. It reflects better the conflicts of human aspirations and the limits of human reason in attaining them than can a comic or an ironic view. It marks better the difference and the distance between humanity's conflictual universe and God's harmonious universe. And it accounts better for the reasons for valuing the plurality of human institutions and attachments that Christians, with good reason, hold dear than can a comic or an ironic approach. But I will have to reserve further reflection on that issue for another time. I still have Tom’s questions to address in the post to follow.

Posted by Marc DeGirolami on June 25, 2014 at 10:47 AM in DeGirolami, Marc | Permalink

June 24, 2014

Reflections on "International Religious Freedom and the Global Clash of Values"

Following up on my post below, I thought to add a few thoughts about some of the themes that emerged from the presentations on international religious freedom at our conference in Rome.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding--both principled and pragmatic--of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers--between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp--a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom and that Rick has written about so well.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.

Posted by Marc DeGirolami on June 24, 2014 at 02:08 PM in DeGirolami, Marc | Permalink

Pope Francis Opens Our Conference With Remarks on Religious Freedom

My colleague, Mark Movsesian, has the report. I will have a bit more on the substance of the conference shortly (and then on to Tom!).

Suffice it to say that it was a great honor to meet Pope Francis and to hear his thoughts about the condition of religious liberty around the world. When the Pope's talk is translated, I will make it available here. And here is an English-language video report on our audience and the Pope's statement about religious freedom and our conference.

Posted by Marc DeGirolami on June 24, 2014 at 11:43 AM in DeGirolami, Marc | Permalink

June 16, 2014

Drakeman, "What's the Point of Originalism?"

A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism--three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).

While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.

First, the titular question. The idea here is that "the point"--or at least one point--of originalism is to persuade the public of the court's decisions, and more generally of the court's legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.

Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don't. Opinions are not constitutionally mandated. The Constitution speaks in terms of "the judicial power" and judicial "offices." But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation--devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).

Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. Of course, a counterpoint would be that for much of the Supreme Court's history and in many important cases that are embraced by the public, it has not been originalist. But at any rate, he is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism's value. I think that sort of account of originalism's worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.

Posted by Marc DeGirolami on June 16, 2014 at 06:44 AM in DeGirolami, Marc | Permalink