Tuesday, March 3, 2015
An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:
In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....
The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him.
CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).
Monday, March 2, 2015
My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.
Wednesday, February 25, 2015
I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:
Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. 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. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”; “I am the lily of the valley”; “I am the true vine.”
Monday, February 16, 2015
On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate.
The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.
Please join us if you’re in the neighborhood. Details are here.
UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."
Tuesday, February 10, 2015
My friend Sam Bray has a marvelous essay just published in The Green Bag on doctrines that do many things and doctrines that do only one. Here's the beginning of the piece:
Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. The same distinction appears in legal doctrines. Some doctrines do one thing and are meant to do it very well. Others do many different things. They serve multiple functions, though perhaps all imperfectly. Cooks and cookbook authors debate the relative merits of single- function tools and multi-function tools. So do legal scholars. It often happens that a scholar will criticize a legal doctrine because it serves multiple purposes and is therefore incoherent.
And later, in defense of multipurpose tools:
One [advantage] is about skill. The use of a multi-function tool may be taxing. Yet use can lead to skill, and skill to expertise, and expertise to mastery, a kind of hard-won excellence that is rarely possible with a single-function tool. Perhaps this is why those who are most adept at chopping, dicing, and mincing garlic often deride garlic presses, calling them “ridiculous and pathetic,” even “abominations.” Some disagree. But it does tend to be the case that those who have greater experience and expertise prefer the chef’s knife, while those who have less of each tend to prefer the garlic press. Such tendencies suggest that any assessment of these tools also requires an assessment of the person who wields them: a tool that serves multiple functions can be mastered only by someone who is capable of achieving that mastery. And the same is true for mastering a doctrine that serves multiple functions. A person with skill in granting and fashioning a constructive trust may prefer the more general doctrine, with the possibility that one function will shade slightly into another, without the sharp and artificial choice imposed by the single-function tools. But that sharp and artificial choice may be appealing to one less skilled.
And on how people with distinct roles in the law are drawn to specific sorts of tools:
Nor is it an accident that the critics of multi-function doctrines tend to be scholars, and those who use and defend them tend to be judges. In making the choice between single-function doctrines and multi-function doctrines, the interests of the bench, the bar, and the academy do not align. Judges are generalists. And attorneys are specialists who write for generalists. But scholars are specialists who write for other specialists. Those roles affect the preferences each actor has. A generalist judge might want a smaller number of doctrines, each serving multiple functions – a set of doctrines that can be resorted to again and again, even if each is used in different ways and for different purposes depending on the case. Specialists, especially those who do not write to persuade generalists, may seek an ever greater refinement of the rules, so that each rule fits its function exactly. The evidence is the enthusiasm that so many scholars have shown for critiquing multi-function doctrines and urging their replacement with single-function doctrines. But the bench has resisted this. Judges have shown no interest in these scholarly projects of deconstruction.
In the end, Sam writes, the choice of a tool is one thing, but the choice of what to make for dinner is something else. I quite agree. Why would anybody ever cook with garlic?
Sunday, February 8, 2015
Here's something kind of fun. I was reading the Civil Rights Cases (1883) again and came across this line early in Justice Harlan's dissenting opinion: "It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul." The lines are quoted without attribution, but they come from a 1574 statutory interpretation case, Eyston v. Studd, decided by the King's Bench.
But they reminded me of something in Plato's Phaedo. So I went back and took a look (the dialogue at this point is between Socrates and Simmias):
And what do you say of the pleasures of love-should he [the philosopher] care about them?
By no means.
And will he think much of the other ways of indulging the body-for example, the acquisition of costly raiment, or sandals, or other adornments of the body? Instead of caring about them does he not rather despise anything more than nature needs? What do you say?
I should say that the true philosopher would despise them.
Would you not say that he is entirely concerned with the soul and not with the body? He would like, as far as he can, to be quit of the body and turn to the soul.
That is true
In matters of this sort philosophers, above all other men, may be observed in every sort of way to dissever the soul from the body.
That is true.
Whereas, Simmias, the rest of the world are of the opinion that a life which has no bodily pleasures and no part in them is not worth having; but that he who thinks nothing of bodily pleasures is almost as though he were dead.
That is quite true.
Friday, January 30, 2015
Sunday, January 25, 2015
From David Copperfield, Chapter LII ("I Assist at an Explosion"), in which Mr. Micawber is expatiating on the various villainies of Uriah Heep in his genially orotund way:
Again, Mr. Micawber had a relish in this formal piling up of words, which, however ludicrously displayed in his case, was, I must say, not at all peculiar to him. I have observed it, in the course of my life, in numbers of men. It seems to me to be a general rule. In the taking of legal oaths, for instance, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, or so forth; and the old anathemas were made relishing on the same principle. We talk about the tyranny of words; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well. As we are not particular about the meaning of our liveries on state occasions, if they be but fine and numerous enough, so the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them. And as individuals get into trouble by making too great a show of liveries, or as slaves when they are too numerous rise against their masters, so I think I could mention a nation that has got into many great difficulties, and will get into many greater, from maintaining too large a retinue of words.
Noted not so much for the substance, with which I cannot quite agree. Our own difficulties have absolutely nothing to do with a little too much gusto in an unnecessarily expansive vocabulary. And there is some irony in Dickens offering this sentiment at the close of a book in excess of 800 pages. But though the substance of the criticism is common enough (indeed, all too common today--one hears something like this complaint about academic writing all the time), one rarely hears it expressed so well.
Friday, January 23, 2015
Wednesday, January 21, 2015
What Does It Mean to Say that a Religious Accommodation Should Not "Detrimentally Affect Others"? And a Couple of Other Holt v. Hobbs Thoughts
Not too much to add to Rick's analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:
1. Rick quotes Justice Ginsburg's one-paragraph concurrence, which states that she only joins the Court's opinion "on th[e] understanding" that the accommodation here "would not detrimentally affect others who do not share petitioner's belief." I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose "significant burdens on identifiable third parties" (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that "detrimentally affect" anybody who doesn't share the claimant's religious beliefs. I don't believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a "detrimental effect" under that approach? Might symbolic harms count? I don't see why they wouldn't. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources ("the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration"). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not "detrimentally affected" by the inequality of treatment that results from Holt's accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.
2. Following from that point, the heart of these statutes (as Rick also notes) is to provide "very broad protection for religious liberty" or "expansive protection for religious liberty," as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects "unquestioning deference" but it acknowledges the "respect" that is due the prison administrators' "expertise"). Should not Hobby Lobby, in which there was no such presumptive deference or "respect" accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.
3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.