Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, October 12, 2016

How Rights Are Like Taffy

I have this short reflection over at the Liberty Law blog, which picks up a little bit on some things I've thought about at MOJ before. This is my own contribution of sorts to the symposium at the Law and Religion Forum that we are hosting on Professor Phillip Muñoz's fine paper, "Two Concepts of Religious Liberty," and the set of posts it has generated. A bit:

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

October 12, 2016 in DeGirolami, Marc | Permalink

Monday, October 10, 2016

Response to Tom

I appreciate Tom's response to the quoted paragraphs I posted from Legutko's book. I did intend them to be in conversation with Tom's post, just as I have made arguments at Mirror of Justice in the past in conversation with his posts regarding many of the points he makes below. We may not agree about a few things, but we do agree about others. I'll just mention a few of the agreements (one of which is a tentative agreement) before noting a possible disagreement.

Tom and I agree that churches and religious institutions have made social contributions in the past and continue to make them today. Tom and I also agree that churches and religious institutions should be permitted to continue to make these contributions notwithstanding their standing athwart various moral, cultural, and political values supported by the broader secular society.

I think, but am not as sure, that we also agree that any time churches and religious institutions must justify the sorts of contributions they make to the broader secular world, there is a danger that in so justifying themselves, they may feel pressure to compromise as to certain of their core beliefs. That can occur not only, as Tom writes, under such circumstances as when "Catholic colleges drop...major religious elements in order to be eligible for federal funding." It can also occur more subtly, as when a religious institution vying for a particular contract knows that it is less likely to obtain that contract unless it soft-pedals, or moderates, its views on particular political, moral, or cultural issues of interest both to it and to the broader secular polity. It might happen in the context of tax and other fiscal exemptions. Under circumstances which, as Tom said, religious freedom is not an accepted premise, but a premise that needs to be justified by religious institutions' contributions to secular society, it seems only reasonable to suppose that an increasingly secularizing society will want to see justifications that match up with its own premises concerning the public good. That might very well be dangerous both for religious freedom and for the continuing survival of the religious organizations' contributions to the social sphere. And that, I believed, was one of the points made in the paragraphs I quoted--that the twin dangers of conciliation and capitulation must be minded. One stratagem to circumnavigate this problem might be for the religious organization to focus its energies on ostensibly "nonpolitical" or "noncultural" issues. I doubt it is an effective stratagem, however. More importantly, though there may be a difference in pursuing secular aims and justifying one's aims in secular terms, keeping these two projects conceptually pure may be rather challenging over time.

Tom and I may disagree about what he has described as "the middle" and the sorts of arguments that are likely to persuade it. Those disagreements have been rehearsed in other posts, but they are relevant here, too. In fact, I took it to be a premise of Tom's post that as American society becomes more secular, the middle itself will shift, and therefore the sorts of arguments that will be persuasive to it will shift, too. Those arguments will need to be made, more and more, in the language of secularism and within the accepted premises of what makes for a "social contribution" and what does not, and less and less in a language which takes it as a premise that religious freedom is intrinsically good. Tom and I may also disagree, in that case, about the likelihood of the dangers of conciliation and capitulation that face religious institutions as those changes persist.  

October 10, 2016 in DeGirolami, Marc | Permalink

Thursday, October 6, 2016

Legutko on Berg on "Conciliatory and Capitulatory Strategies"

Below, Tom writes: "In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make."

I've been reading Ryszard Legutko's book, The Demon in Democracy: Totalitarian Temptations in Free Societies. Here's something in conversation with Tom from Legutko in his final chapter, "Religion," at 164-66:

Hostility to Christianity in modern liberal democracies raises the question of how religion should manifest itself in public life.

The simplest answer--close to what some Protestant movements embodied--is that religious life and political life should be separated. Religion is essentially a private matter, a family matter, and sometimes a community matter, but definitely not a state matter. There are quite a lot of people today who are public figures, professionals, politicians, and it is rarely that we know what religion, if any, they profess, and even if we knew, this would be irrelevant in the assessment of their public performance. Such a strict separation of the religious and the public realms is very much in tune with today's ideology of modernity. And it is all the more convincing that it confirms the assumption--considered obvious but, in fact, doubtful--that the freedom of religion is guaranteed in Western democracies, and that Christians, being denied a public presence, should have no reason to complain.

This strategy--let us call it conciliatory--should be distinguished from another one--let us call it capitulatory. The difference between the first and the second is at the beginning one of degree, but ultimately one of essence. The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.

One can, of course, defend both strategies, conciliation and capitulation, and the standard argument of defense is the following: an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.

No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue. But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion. Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for religion to find a place in a society where it would be free from the pressure from liberal-democratic orthodoxy and where it would not risk a conflict with its commissars. Even the issues thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity....

October 6, 2016 in DeGirolami, Marc | Permalink

Monday, October 3, 2016

A Pre-Election Post

Courtesy of Mr. Gregsbury, a wonderfully awful politician in Chapter 16 of Charles Dickens's Nicholas Nickleby. The scene is one where Gregsbury is answering to the complaints of his constituents, who accuse him of various episodes of flip-flopping for pecuniary advantage and other sorts of craven behavior that has betrayed the interests of the people. Gregsbury's reply to these charges, and the narrator's comment on it:

"My conduct has been, and ever will be, regulated by a sincere regard for the true and real interests of this great and happy country. Whether I look at home or abroad, whether I behold the peaceful industrious communities of our island home, her rivers covered with steamboats, her roads with locomotives, her streets with cabs, her skies with balloons of a power and magnitude hitherto unknown in the history of aeronautics in this city or any other nation--I say, whether I look merely at home, or, stretching my eyes farther, contemplate the boundless prospect of conquest and possession--achieved by British perseverance and British valour--which is outspread before me, I clasp my hands, and turning my eyes to the broad expanse above my head, exclaim, "Thank Heaven I am a Briton.""

The time had been when this burst of enthusiasm would have been cheered to the very echo; but now the deputation received it with chilling coldness. The general impression seemed to be, that as an explanation of Mr. Gregsbury's political conduct, it did not enter quite enough into detail, and one gentleman in the rear did not scruple to remark aloud, that for his purpose it savoured rather too much of a "gammon" tendency.

October 3, 2016 in DeGirolami, Marc | Permalink

Tuesday, September 27, 2016

On the Egregious USCCR Report, "Peaceful Coexistence"

I have an extremely critical post on it over at Liberty Law. From the end:

[T]he crown jewel in this disaster is Commission Chairman Martin Castro’s one-paragraph statement at page 29. It has to be read to be appreciated, and so let me only discuss the chairman’s choice of epigraph. The words are attributed to John Adams, but they are actually a provision in the Treaty of Tripoli passed in large part in order to negotiate with Muslim national powers in Africa for protection against pirates.

They are: “The government of the United States is not, in any sense, founded on the Christian religion.”

There are at least two problems in beginning this way. The first is that it shows Mr. Castro to be ignorant of Adams’s actual views when it came to, for example, Christian establishments of religion in the early republic. Of all the platitudes he could have chosen, he landed on a spectacularly inapt one.

The second, and larger, difficulty is that it suggests that for all the commission’s talk of  nondiscrimination, it harbors hostility to one religion specifically: Christianity. The commission should be upfront about it, and simply state that its real object is to repudiate the country’s Christian heritage and to target Christianity for special legal disability. It would have saved all of us a lot of time and frustration.

Indeed, it is especially irritating for me to write this post because I wasted my time traveling to Washington, D.C., three years ago to testify before the U.S. Commission on Civil Rights. My testimony is at page 213 of the report and following, and I’m grateful at least to see the statements of Commissioners Peter Kirsanow and Gail Heriot. But I repent of my decision to testify. I’ll think twice and three times before ever doing it again.


September 27, 2016 in DeGirolami, Marc | Permalink

Wednesday, September 7, 2016

DeGirolami, "Religious Accommodation, Religious Tradition, and Political Polarization"

I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). It's likely to generate disagreement from those on all sides of this issue. Though my subject is not the same as Professor Muñoz's, the two are related in several ways, and I'll have a post or two about the connections soon. Here's the abstract:

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.

This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.

First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.

Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.

September 7, 2016 in DeGirolami, Marc | Permalink

Tuesday, September 6, 2016

Online Symposium on Munoz's "Two Concepts of Religious Liberty"

Over at the Law and Religion Forum, my colleague Mark Movsesian and I are hosting an online symposium over the next month or so on Professor Vincent Phillip Muñoz's paper, "Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion." Phillip's complete paper was recently published in the American Political Science Review, but he summarizes it nicely in this opening post. Here's a bit to give a general flavor of the argument:

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of religious free exercise on account of their created nature and their pre-political obligations to God. That is why it is a natural (as opposed to an acquired) right....

That the founders understood worship according to conscience to be an inalienable natural right can be seen in the founding-era state declarations of rights, the founders’ philosophical defenses of religious liberty—including Jefferson’s Virginia Statute for Religious Liberty and Madison’s Memorial and Remonstrance—and in influential political sermons of the time....The inalienable character of the individual’s authority over worship meant that the state could never legitimately acquire sovereignty over religious exercises per se.

Religious exercises, accordingly, remain beyond the jurisdiction of government. This means that state officials lack legitimate authority to directly prohibit, mandate, or otherwise regulate religious exercises as such....[T]his lack of sovereignty also means that judges—who, too, are agents of the state—lack authority to balance elements of the inalienable natural right to religious liberty against other state interests. The act of balancing itself assumes jurisdiction: The “balancer” places competing rights and interests on a scale. Even if the scale is tilted toward religious freedom (as it is under the Sherbert Test), the act of weighing assumes an authority that the founders deny. Judges may not exercise such authority because the state itself lacks jurisdiction over religious exercises as such....

Largely because of Sherbert, we tend to think that any belief or action motivated by religion falls within the First Amendment’s protections. The founders’ understanding is more nuanced and more limited. The founders distinguished core inalienable elements of religious free exercise from what we might call religious “interests.”

The inalienable core includes the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to use Madison’s language from Article 4 of the Memorial and Remonstrance. These core elements of religious worship remain beyond the state’s direct jurisdiction. Religious “interests” include activities of faith that fall within the state’s otherwise legitimate sovereignty. When exercising its legitimate authority and pursuing otherwise legitimate civic ends, the state may burden religious “interest.” It also may relieve burdens on religious “interests” through discretionary exemptions....

If the Free Exercise Clause only protects against direct state restrictions on and regulations of religion, what protections does it really offer?

[My response is] that the founders’ understanding does not protect against “indirect” religious burdens—that is, laws and regulations such as a military draft that do not target or mention religion as such but, when implemented, burden some religious individuals or institutions. I must acknowledge that, in the context of our modern regulatory state, the founders’ natural rights understanding may not seem adequate to protect against all the different ways the state encroaches on the lives and interests of religious individuals. This observation, I note, is what led Justice William Brennan to eschew the framers’ approach and adopt the Sherbert Test over fifty years ago.

Whether the founders’ approach is adequate for our times, however, is a different question from what the founders’ approach is. In the larger context of human history, moreover, denying the state authority over religious exercises is a monumental achievement in the service of human freedom. We often speak of “limited government.” We do not often remember that the fundamental limit the founders imposed on government was to deny it religious authority. That American governments still do not typically attempt to directly prohibit, prescribe, or regulate religious exercises is a testament to the founders’ achievement. We need only to look to the Middle East to appreciate what the founders bequeathed us....

Church-state scholars are so accustomed to assuming that the right of religious liberty means exemptions that we tend to fail to consider the obvious alternative: that the state may not prohibit or otherwise regulate religious exercises as such. The founders did not share our presumptions. At the level of constitutional design, rather than having judges protect religious liberty via the superintendence of allegedly burdensome state action, they sought to demarcate that a relatively narrow but profoundly important area of human life remained outside of the sovereignty of the state.

Stay tuned for responses from Gerard Bradley (Notre Dame), Donald Drakeman (Cambridge), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown), with a final reply by Phillip thereafter.

September 6, 2016 in DeGirolami, Marc | Permalink

Thursday, August 25, 2016

Law and Tradition in America: My Reply

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I've enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson's challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.


August 25, 2016 in DeGirolami, Marc | Permalink

Friday, August 19, 2016

Stoner's Response, "Legal Realism, Legal Revolution"

The final response to my essay on law and tradition has been posted over at Liberty Law, and it is superb: Professor James Tradition ProjectStoner's Legal Realism, Legal Revolution. Jim's work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism--and in particular about the erroneous and all-too-common characterization of constitutional law as "judge-made law." It's wonderful to have his contribution. A bit from the end of Jim's piece:

Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.

“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”

DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.

Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.

August 19, 2016 in DeGirolami, Marc | Permalink

Monday, August 15, 2016

Levinson on Law and Tradition (a Skeptical View)

Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It's a pleasure and an honor to be in conversation with him. I'm already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson's essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument....

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)

August 15, 2016 in DeGirolami, Marc | Permalink