Monday, November 16, 2015
I've recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.
Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.
Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.
One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.
Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.
But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”
The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.
Saturday, November 14, 2015
Here's perhaps something of a light distraction from various present horrors. I have written about Anthony Trollope here before, one of the greatest and most unjustly neglected (at least in the United States) novelists of the Victorian period. But particularly for those interested in law and religion, may I recommend "The Warden"--the first of Trollope's Barsetshire Novels--as one of the greatest little novels I've read in years. A few notes on the plot:
The story concerns a will by one John Hiram, who establishes in the 15th century a "hospital" (really a kind of sanatorium) for the care of several bedesmen (needy pensioners). An Anglican churchman--the warden--is given the care of this hospital, with an attendant salary. But over the years, as the property increases in value, so does the warden's income, which by the time of the story sits at a very comfortable 800 pounds. The warden at the time of the telling, Septimus Harding, is a kind, gentle, caring, and honorable man who takes exceptional care of his charges. Nevertheless, a question arises about Mr. Harding's entitlement under the will to so generous an income. A reform-minded young man named John Bold (who also happens to be the suitor of Mr. Harding's daughter) begins to make inquiries--with the utmost good faith--about the nature of the original bequest. And this unleashes a bitter contest between the local archdeacon and the reformers (as well as other unscrupulous and nasty types) about the propriety of the income of the wardenship at Hiram's Hospital.
Part of what makes the novel so good is the delicacy with which the characters are drawn. Unlike in Dickens, where the characters are perhaps a bit too often either the purest angels or the rankest devils, Trollope's novel is populated with characters who have doubts about what is right. Mr. Harding himself is a deeply good man, but also one with sincere and real qualms about the justice of the matter. As Trollope puts it, Mr. Harding was far less concerned to be proved right at law than to be right.
Though their lives are entirely comfortable, many of the bedesmen are lured into joining a law suit when the promise of 100 pounds a year is dangled in front of them by an exploitative lawyer who strikes the appealing notes of self-righteousness in combination with legal entitlement. In the end, after his name is repeatedly dragged through the mud by the local press, the warden resigns and the bedesmen don't see a cent. In a touching scene at the end of the novel, as the warden is leaving the hospital, he says goodbye to a bedridden bedesman who is destined to die within the week, "poor old Bell":
"I've come to say goodbye to you, Bell," said Mr. Harding, speaking loud, for the old man was deaf.
"Are you going away, then, really?" asked Bell.
"Indeed I am. And I've brought you a glass of wine; so that we may part friends, as we lived, you know."
The old man took the proffered glass in his shaking hands, and drank it eagerly, "God bless you, Bell!" said Mr. Harding; "good bye, my old friend."
"And so you're really going?" the man again asked.
"Indeed I am, Bell."
The poor old bed-ridden creature still kept Mr. Harding's hand in his own, and the warden thought he had met with something like warmth of feeling in the one of all his subjects from whom it was the least likely to be expected; for poor old Bell had nearly outlived all human feelings. "And your reverence," said he, and then he paused, while his old palsied head shook horribly, and his shriveled cheeks sank lower within his jaws, and his glazy eye gleamed with a momentary light; "and your reverence, shall we get the hundred a year, then?"
How gently did Mr. Harding try to extinguish the false hope of money which had been so wretchedly raised to disturb the quiet of the dying man! One other week and his mortal coil would be shuffled off; in one short week would God resume his soul, and set it apart for its irrevocable doom; seven more tedious days and nights of senseless inactivity, and all would be over for poor Bell in this world; and yet, with his last audible words, he was demanding his moneyed rights, and asserting himself to be the proper heir of John Hiram's bounty! Not on him, poor sinner as he was, be the load of such sin!
There is so much more in this superlative story of law, rights, religion, justice, reform, tradition, personal frailty, and the complicated nature of human motivations and character. One of the very best.
Tuesday, November 10, 2015
MOJ friend John Inazu has an interesting column at The Hedgehog Review concerning his new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I had not known the denouement of the Flynt/Falwell affair. I am very glad that there are people like John about, pressing these kinds of positions so eloquently, though sometimes, perhaps in my more Rousseauian moods, I just don’t think “Plures Ex Uno” (or perhaps just “Plures” in disaggregation, haphazardly occupying the same geographic spaces, to say nothing of "Plures Ex Nihilo") has quite the same civic appeal as “E Pluribus Unum.” I’ll have something longer on this shortly. For now, though, enjoy John’s column. A bit:
“It is impossible,” said the French philosopher Jean-Jacques Rousseau, “to live at peace with those we regard as damned.” Falwell and Flynt certainly seemed to fulfill Rousseau’s dire prediction. Many of the rest of us do, too. From hostility to civil-rights protests in Missouri, to anti-Muslim protests in Oklahoma, to culture wars boycotts, we struggle to live with those whose views we regard as irrational, immoral, or even dangerous….
Even as some of us struggle to coexist, others feign agreement by ignoring or minimizing our stark differences. We hold conferences, attend rallies, and sign statements expressing unity and solidarity. But most of us do not actually think that our differences are so easily overcome. And most of us do not actually want to see a thousand flowers bloom. We can all name things we think the world would be better off without. This is especially true when it comes to questions of morality and ultimate conviction. We might prefer a society in which everyone agreed on what counted as a justifiable homicide, a mean temperament, or a good life, but that is not the kind of society in which we actually live.
There is another possibility that better embraces the reality of our deepest differences: confident pluralism. Confident pluralism insists that Rousseau was wrong: Our shared existence is not only possible, but necessary. Instead of the elusive goal of E pluribus unum (“Out of many, one”), confident pluralism suggests a more modest possibility—that we can live together in our “many-ness.” It does not require Pollyanna-ish illusions that we will resolve our differences and live happily ever after. Instead, it asks us to pursue a common existence in spite of our deeply held differences.
Thursday, October 29, 2015
I want to call a bit of notice to Professor Samuel Moyn's very interesting and elegantly executed new book, Christian Human Rights (2015), which traces the specifically 20th century Christian roots of contemporary (secular?) human rights. Moyn begins really in 1937 and devotes special attention to Pope Pius XII's 1942 Christmas message, "The Internal Order of States and People," in which Pius announced both the "dignity of the human person" and that man "should uphold respect for and the practical realization of...fundamental personal rights."
I've just started to dig in to the book, but I wanted to highlight a few passages from the introduction to illustrate some of the accents and grace notes of the book. There is, for example, this line: "The trouble, after all, is not so much that Christianity accounts for nothing, as that it accounts for everything." (6) Part of Moyn's project is remedial with respect both to those "secular historians" who have "nervously bypassed" "the Christian incarnation of human rights, which interferes with their preferred understandings of today's highest principles" and those other scholars, "overwhelmingly Christians themselves," who go about defending the Christian tradition of human rights "in a highly abstract way" and by recourse to "long ago events" stretching back to the very beginnings of Christianity.
There is also this, on the idea of tradition (admittedly, a subject of some interest to me):
No one could plausibly claim--and no one ever has--that the history of human rights is one of wholly discontinuous novelty....But radical departures nonetheless occurred very late in Christian history, even if they were unfailingly represented as consistent with what came before: this is how "the invention of tradition" most frequently works. (5)
The citation is to Hobsbawm's essay (in his edited volume of essays) on The Invention of Tradition (in which Hugh Trevor Roper's typically and enjoyably acid essay on Scottish tartans is one of my very favorites in the 'tradition-as-fraud' genre). Yet I hope it is not too tart of me to wonder whether this phenomenon might just as easily be called "the invention of novelty," novelties being, of course, the stuff on which scholars make their living. Perhaps a little of both?
More seriously, perhaps what these lines in Moyn's insightful book really suggest is that what is really needed is a true and clear-eyed account of the idea of tradition and its importance for law and legal institutions generally, one that is committed neither to lionization nor demonization.
Tuesday, October 20, 2015
My friend, Jim Stewart, is, for my money, one of the most interesting new scholars of complicity writing today. Jim is an international criminal law scholar by and large, and one particular area of his expertise is in the law and policy of "corporate pillage" in the international community, and in Africa in particular.
Still, in this very short transcription of his remarks at the American Society of International Law's Annual Conference on the subject of "complicity in business and human rights," I was struck by the possible range of application of this quote, even quite far afield from Jim's own special area of study:
Complicity goes to the heart of our attempts to live decently in a world that is characterized by, first, great interconnectedness born of globalization, and second, enormous dysfunction. Complicity is especially important as a legal and ethical concept that delineates how we as individuals, businesses, and states should comport ourselves to lead decent lives in this very imperfect interconnected world. And because our points of connection are likely to intensify with the technological advance that drives globalization, complicity is likely to take on a new importance for international law moving forward....
I believe that just having these sorts of discussions about complicity is a net gain for the world. In her book On Violence, Hannah Arendt points out that the absence of a robust pacifist discourse in the world bodes ill for the ways in which we are likely to use force. By the same token, the absence of a robust discourse about complicity undermines our chances of living decent lives in the world as presently constituted. For that reason, discussions about complicity are to be welcomed, even and perhaps especially, where they involve differences of opinion, deep skepticism, and outright critique.
Professor Robert Delahunty is blogging for the next period over at CLR Forum. He'll be exploring, inter alia, the themes in Euripedes' play, "The Suppliants," and what the work tells us about an alternative canon of thought concerning just war theory, humanitarian intervention, and the burial and other treatment of the war dead. Here is a fragment of his first post:
Part of the explanation for the dominance of just war theory is the pedigree that scholars have assigned to it. In most standard accounts, such as Alex Bellamy’s excellent Just Wars: From Cicero to Iraq (2008), the tradition of just war thinking begins with the Roman politician, orator and thinker Cicero, is Christianized by St. Augustine, is then reconfigured by St. Thomas Aquinas, and afterwards is handed down through the early modern Spanish scholastics and their secular successors, including Hugo Grotius and Emer de Vattel to the modern period. In this narrative, the tradition waned in the “positivist” period of international law in the nineteenth century, but was revived in the aftermath of the First World War....
[But] [t]here is another important, but largely neglected, stream of Western thought about just war that flows outside the current canon. I would hesitate to say that these other writings constituted a “tradition,” but they certainly equal the current just war canon in terms of antiquity, depth, and the distinction of their authors. This body of thought and reflection is found primarily in works of literature and history, rather than in theology, philosophy, jurisprudence, or statecraft. In this counter-canon (to call it that), the Roman historian Sallust would loom as large as Cicero does in the current canon, and Shakespeare would be as important as Aquinas or Grotius. In this series of postings, I will argue that the Athenian tragic poet Euripides, writing in the late fifth century BC, deserves inclusion in any canon of great Western writers on the subject of justice in war.
I am not, of course, arguing that one can find the term “just war,” or any near equivalent, in the writers of drama and history whom I have in mind. (For that matter, it is not so easy to find occurrences of the term in any ancient writers, including Cicero.) What I am saying is that the concept of a just war can be identified there, and that the application of that concept is studied in ways that can be of profound interest. To be sure, dramatists and historians pursue their studies in ways that are necessarily different from those of philosophers or lawyers, whose function it is to frame general rules. The former are essentially concerned with individual situations, and their presentation of the issues is concrete and unsystematized. To use Wittgenstein’s distinction, they show rather than say. But the very complications that are added by fixing on the unique and unrepeatable can deepen and enrich our reflections on the morality of war.
My friend Sam Bray has a wonderful (and, to me, persuasive) new article on constitutional interpretation, Necessary AND Proper and Cruel AND Unusual: Hendiadys in the Constitution. May it augur many more articles and new scholarship on the importance of figures of speech and long-standing, customary manners of expression in legal texts. Here is the abstract:
Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.
This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.
To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
Thursday, October 15, 2015
On another errand, I came across this wonderful tract from Justice Story's Commentaries on the Constitution (section 1867) concerning religion and the First Amendment, and in particular religion's relationship to republican government. I wonder (as, of course, a person of the south ostensibly living among people of the north): are we, as a nation today, more like the people of the north or of the south?
Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty. He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. "When," says he, "the Christian religion, two centuries ago, became unhappily, divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people of the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one." Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times.
Friday, September 18, 2015
Just a note about two items from the Center I direct with my colleague, Mark Movsesian.
First, the indefatigable Gerald Russello, who edits The University Bookman and is a frequent and insightful commenter about all manner of interesting issue (in addition to being a partner at a large law firm in New York), will be blogging with us for the next month. Here's his first post, Scribes and Holidays.
Second, our first event of the season, a conversation with Judge Richard Sullivan (SDNY) about religious freedom and the Supreme Court, will occur on October 27 and will be hosted by our excellent alumna, Mary Kay Vyskocil, at the offices of Simpson, Thacher & Bartlett in New York. Here's an announcement with further details. If you are interested in attending, please let me or Mark know, as space is limited.
Sunday, September 6, 2015
This story reports on the arrival in Washington, D.C. of a new museum, the "Museum of the Bible," whose collection will include "pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis."
Notwithstanding this scattershot miscellany, the story seems determined to find a controversial separationist church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is "dominated by monuments to men." Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., "To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap"; "The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”
But perhaps all of this is too much fuss over a development that secular critics of the museum might
welcome. Artifacts that get their own museums are often on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs--affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced "the death of the Cathedral." "Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum."
As for the American religion that needs defending against the assaults of the likes of the museum, that's nearly perfectly summarized in the first paragraph of the story (though the final word "instead" seems out of place):
In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.
FURTHER NOTE: My colleague, Mark Movsesian, had this comment: "The Museum of Biblical Art, a lovely, small museum in New York, sponsored by the American Bible Society, was forced to close this summer, notwithstanding some excellent exhibits, including one on Donatello. One big problem the museum had, according to Slate, was the “pesky aroma of Christianity,” which apparently put off New York art lovers."