Mirror of Justice

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Friday, June 19, 2015

Pascal's Birthday (and a Summer Series on his Work)

Today is the anniversary of the birthday of the formidable mathematician and thoroughly unsystematic philosopher, Blaise Pascal. For a collection of posts for fun on his work (which I'll try to continue throughout the summer, and which was inspired by Michael's wonderful post on Jansenism's "long tail"), see this, this ("On Legitimacy"), this ("On Intention"), and this ("The Wager").

June 19, 2015 in DeGirolami, Marc | Permalink

Thursday, June 18, 2015

Reed v. Town of Gilbert: Another 9-0 Roberts Court Law and Religion Case

The Supreme Court holds unanimously in Reed v. Town of Gilbert that an Arizona municipality's sign code violates the Speech Clause.

I have a little more here, including a note that, though it isn't a Religion Clauses case and though there were a couple of concurrences in the judgment only in Reed, this case continues the Roberts Court's uniform voting pattern in law and religion-related cases of either 9-0 or 5-4. For more discussion of this question, see this paper.

June 18, 2015 in DeGirolami, Marc | Permalink

Monday, June 15, 2015

"Towers of Solid Ivory"

When I first read the last lines of Alasdair MacIntyre's book, After Virtue, I was not quite sure what Professor MacIntyre meant by awaiting another St. Benedict. But I suspected that what he intended was somebody who would have the genius to create a new institution in the way Benedict had. That is, I thought that the reference to Benedict was intended to suggest neither withdrawal from the fields of law and politics nor a kind of spiritual focus on the arts or the theater or poetry, but the possibility of the creation of a new institutional power (or of the renewal of an existing institutional power) one of whose primary functions would be wise and temperate resistance to the dominant socio-cultural order. The institution of the Benedictine monastery, more than the figure of Benedict himself, was the point.

Patrick Leigh Fermor's description of life at the Benedictine Abbey of St. Wandrille de Fontanelle, in his short gem, A Time to Keep Silence, captures this institutional feature of monastic life. Two things in particular struck me in these passages: first, the rigor of the Benedictine life--its difficulty. This is not just "focusing on the family," so to speak, or expressing one's religious sensibilities through art rather than politics. It is, instead, a profoundly different way of life than most people lead. Second, the idea that a subsidiary, but still important, feature of Benedictine life was intellectual--the highest, purest, and most impregnable peak of the ivory tower.

After the first postulate of belief, without which the life of a monk would be farcical and intolerable, the dominating fact of monastic existence is a belief in the necessity and the efficacy of prayer; and it is only by attempting to grasp the importance of this principle--a principle so utterly remote from every tendency of modern secular thought--to the monks who practise it, that one can hope to understand the basis of monasticism. This is especially true of the contemplative orders, like the Benedictines, Carthusians, Carmelites, Cistercians, Camaldulese and Sylvestrines; for the others, like the Franciscans, Dominicans or the Jesuits--are brotherhoods organised for action. They travel, teach, preach, convert, organise, plan, heal and nurse; and the material results they achieve make them, if not automatically admirable, at least comprehensible to the Time-Spirit. They get results; they deliver the goods. But what (the Time-Spirit asks) what good do the rest do, immured in monasteries far from contact with the world? The answer is--if the truth of the Christian religion and the efficacy of prayer are both dismissed as baseless--no more than any other human beings who lead a good life, make (for they support themselves) no economic demands on the community, harm no one and respect their neighbours. But, should the two principles be admitted--particularly, for the purposes of this particular theme, the latter--their power for good is incalculable. Belief in this power, and in the necessity of worshipping God daily and hourly, is the mainspring of Benedictine life. It was this belief that, in the sixth century, drove St. Benedict into the solitude of a cave in the Sabine gorges and, after three years of private ascesis, prompted him to found the first Benedictine communities. His book, The Rule of St. Benedict--seventy-three short and sagacious chapters explaining the theory and codifying the practice of the cenobitic life--is aimed simply at securing for his monks protection against the world, so that nothing should interfere with the utmost exploitation of this enormous force. The vows embracing poverty, chastity and obedience were destined to smite from these men all fetters that chained them to the world, to free them for action, for the worship of God and the practice of prayer; for the pursuit, in short, of sanctity....

These values have remained stable while those of the world have passed through kaleidoscopic changes. It is curious to hear, from the outside world in the throes of its yearly metamorphoses, cries of derision leveled at the monastic life. How shallow, whatever views may be held concerning the fundamental truth or fallacy of the Christian religion, are these accusations of hypocrisy, sloth, selfishness and escapism! The life of monks passes in a state of white-hot conviction and striving to which there is never a holiday; and no living man is in a position, after all, to declare their premises true or false. They have foresworn the pleasures and rewards of a world whose values they consider meaningless; and they alone have as a body confronted the terrifying problem of eternity, abandoning everything to help their fellow-man and themselves to meet it.

Worship, then, and prayer are the raison d’être of the Benedictine order; and anything else, even their great achievements as scholars and architects and doctors of the church, is subsidiary. They were, however, for centuries the only guardians of literature, the classics, scholarship and the humanities in a world of which the confusion can best be compared to our own atomic era. For a long period, after the great epoch of Benedictine scholarship at Cluny, the Maurist Benedictine Abbey of St. Germain-des-Prés was the most important residuary of learning and science in Europe. Only a few ivy-clad ruins remain, just visible between zazou suits and existentialist haircuts from the terrace of the Deux Magots. But in scores of abbeys all over Europe, the same liberal traditions survive and prosper. Other by-products of their life were the beautiful buildings in which I was living, and the unparalleled calm that prevailed there. At St. Wandrille I was inhabiting at last a tower of solid ivory, and I, not the monks, was the escapist. For my hosts, the Abbey was a springboard into eternity; for me a retiring place to write a book and spring more effectively back into the maelstrom. Strange that the same habitat should prove favourable to ambitions so glaringly opposed.

June 15, 2015 in DeGirolami, Marc | Permalink

Monday, June 8, 2015

Executive Power and Religious Belief: A Thought on Zivotofsky v. Kerry

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and legal scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia says in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

In dissent, Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on a quite expansive reading of Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that has characterized its years in power.

June 8, 2015 in DeGirolami, Marc | Permalink

Wednesday, June 3, 2015

Supreme Court Decides Head Scarf Title VII Case Against Employer

I have a brief recap of this minor decision over here. The Twitter version:

Motivations, not knowledge, make the engine of antidiscrimination laws hum.

June 3, 2015 in DeGirolami, Marc | Permalink

Tuesday, May 19, 2015

A Bit of Pessimism on the New Pessimism

This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:

[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.

I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful. 

The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:

There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.

The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure? 

These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.

May 19, 2015 in DeGirolami, Marc | Permalink

Friday, May 15, 2015

Conference on Kent Greenawalt

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.

May 15, 2015 in DeGirolami, Marc | Permalink

Friday, May 8, 2015

Rights and Accommodations

Thanks to Susan for blogging about the conference she is attending. I'm sure it will be a very interesting and diverse set of presentations.

I did have one question about what Susan reported as one of EJ Dionne's "provocations." It's the one wherein Dionne distinguishes between "rights" and "accommodations" and "what we are trying to do in a pluralist society, i.e. find ways to accommodate conflicting interests," without "constitutionaliz[ing]" them.

I assume that the focus of the program Susan attends is on the sorts of questions that tend to fall into the "free exercise of religion" basket. And I quite agree that it would be nice not to have to constitutionalize so much, to have so many "rights." It would be far more socially attractive voluntarily to undertake a few more self-imposed burdens of civic tolerance. Unfortunately, that battle has been lost for quite some time with respect to the Establishment Clause, beginning circa 1947 and continuing right on through the 20th century, so much so that many commentators just think of the Court's current, heavily constitutionalized Establishment Clause as the perennial state of affairs. Yet it would be unfortunate in a discussion about "rights" and "accommodations" to lose sight of the other side of the religion clause coin. Perhaps free exercise is simply catching up.

May 8, 2015 in DeGirolami, Marc | Permalink

Thursday, May 7, 2015

Epstein on Fathers and "Parenting"

Interesting and usefully contrarian observations from the essayist Joseph Epstein about the relationship of fathers and children in past, "pre-psychological" generations and how psychological-age fatherhood (following in the train of its female counterpart) now is involved in a rather culturally specific activity or project of "parenting." Not all of what Epstein describes as long-lost is to be regretted. But this bit was stimulating:

I have a suspicion that this cultural change began with the entrée into the language of the word parenting. I don’t know the exact year that the word parenting came into vogue, but my guess is that it arrived around the same time as the new full-court press, boots-on-the-ground-with-heavy-air-support notion of being a parent. To be a parent is a role; parenting implies a job. It is one thing to be a parent, quite another to parent. “Parenting (or child rearing) is the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Parenting refers to the aspects of raising a child aside from the biological relationship,” according to the opening sentence of the Wikipedia entry on the subjectRead further down and you will find dreary paragraphs on “parenting styles,” “parenting tools,” “parenting across the lifespan,” and more, alas, altogether too much more.

Under the regime of parenting, raising children became a top priority, an occupation before which all else must yield. The status of children inflated greatly. Much forethought went into giving children those piss-elegant names still turning up everywhere: all those Brandys and Brandons and Bradys; Hunters, Taylors, and Tylers; Coopers, Porters, and Madisons; Britannys, Tiffanys, and Kimberlys; and the rest. Deep thought, long-term plans, and much energy goes into seeing to it that they get into the right colleges. (“Tufts somehow feels right for Ashley, Oberlin for Belmont.”) What happens when they don’t get into the right college, when they in effect fail to repay all the devout attention and care lavished upon them, is another, sadder story.

I began by talking about “fashions” in fatherhood, but I wonder if fashions is the right word. I wonder whether cultural imperatives doesn’t cover the case more precisely....

The culture of the current day calls for fathers to put in quite as much time with their children as mothers once did. In part this is owing to the fact that more and more women with children either need or want to work, and in part because, somehow, it only seems fair. Today if a father does not attend the games of his children, he is delinquent. If a father fails to take a strong hand in his children’s education, he is deficient. If a father does not do all in his power to build up his children’s self-esteem—“Good job, Ian”—he is damnable. If a father does not regularly hug and kiss his children and end all phone calls with “love ya,” he is a monster. These are the dictates of the culture on—shall we call it?—“fathering” in our day, and it is not easy to go up against them; as an active grandparent, I, at least, did not find it easy.

Cultural shifts do not arrive without reason. Kids today, it is with some justice argued, cannot, owing to crime in all big cities, be left alone. They need to be more carefully protected than when I, or even my sons, were children. Getting into decent colleges and secondary and primary schools and, yes, even preschools is not the automatic business it once was. The competition for what is felt to be the best in this realm is furious; thought (and often serious sums of money) must go into it. Children are deemed more vulnerable than was once believed. How else to explain all those learning disabilities, attention deficits, and other confidence-shattering psychological conditions that seem to turn up with such regularity and in such abundance? The world generally has become a more frightening place, and any father with the least conscience will interpose himself between it and his children for as long as possible. One can no longer be merely a parent; one must be—up and at ’em— relentlessly parenting.

As a university teacher I have encountered students brought up under this new, full-time attention regimen. On occasion, I have been amused by the unearned confidence of some of these kids. Part of me—the part Flip Wilson’s debbil controls— used to yearn to let the air out of their self-esteem. How many wretchedly executed student papers have I read, at the bottom of which I wished to write, “F. Too much love in the home.”

Will all the attention now showered on the current generation of children make them smarter, more secure, finer, and nobler human beings? That remains, as the journalists used to say about the outcomes of Latin American revolutions, to be seen. Have the obligations of fathering made men’s lives richer, or have they instead loaded men down with a feeling of hopeless inadequacy, for no man can hope to be the ideal father required in our day? How many men, one wonders, after a weekend of heavily programmed, rigidly regimented fun fathering with the kids, can’t wait to return to the simpler but genuine pleasures of work? Only when the cultural imperative of parenting changes yet again are we likely to know.

May 7, 2015 in DeGirolami, Marc | Permalink

Monday, April 27, 2015

Unde Origo Inde Salus

A wonderfully interesting post on the cultural and religious life of Venice by my colleague and partner in crime, Mark Movsesian. A bit from his post:

I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.

And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.

And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent.  Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”

See the rest of Mark's post for the meaning of the title of this one.

April 27, 2015 in DeGirolami, Marc | Permalink