February 25, 2014
"But in the end the White House decided not to move my nomination forward. There were two reasons. First, taxes. In 2009 and 2010, the years of my divorce, I filed my taxes late — four weeks and 10 days, respectively. Second, I was not willing to commit to never criticizing the administration, nor to restricting my publishing agenda to topics that were unlikely to be controversial. There is just no point trying to be a public intellectual if you can’t speak your mind. This requirement was conveyed and discussed through phone calls; I have no written record to prove it. But that was how it went."
I compare this with my own experience. I was appointed to the U.S. Commission on Civil Rights by the first President Bush and to the President's Council on Bioethics by the second President Bush. No one in either administration ever even came close to suggesting that I "commit to never criticize the administration." Had such a thing been suggested, I would have refused to make such a commitment, just as Danielle did. I'm proud of her for setting an example of integrity.
But I cannot help but ask: What is with this administration??? Why this fear of criticism? Why this paranoia? And what about the people who are serving as its appointees on the NEH and other boards? Did they agree not to criticize the administration? If so, and if they are professors, I believe their deans, provosts, or presidents---or at least their campus newspapers---should ask them whether they agreed to muzzle themselves as a condition for their appointments. Such self-censorship by an academic on the NEH board or on a federal commission would be disgraceful. But if it was a condition of Danielle Allen's appointment, then it was likely a condition of the appointment of others, as well, don't you suppose? Shame on those who accepted the conditions.
"It profits a man nothing to give his soul for the entire world. But for Wales?"
February 24, 2014
Human Rights in Putin's Russia
I have an op ed piece in today's Philadelphia Inquirer on violations of religious freedom and other human rights in Vladimir Putin's Russia.
My analysis is based largely on what I've learned about Putin's actions while I've been serving on the U.S. Commission on International Religious Freedom. These thoughts are, however, my own and do not reflect the views or positions of the Commission.
"In 2012, after Putin's return to the presidency, he oversaw a further campaign against freedom. He supported and signed laws raising fines against protesters one hundred fold; fining or jailing foreign-funded NGO leaders who refused to stigmatize themselves as "foreign agents"; and broadening the definition of high treason, potentially making participation in international organizations punishable by up to 20 years in jail."
"In July, Putin signed a blasphemy law imposing fines and imprisonment for "disrespect" or "insult" of religious beliefs. He also approved legislation barring public advocacy of "alternative lifestyles." Yes, other countries are creating a hostile climate for freedom of expression of traditional moral views about sexuality and marriage - and this deserves condemnation - but two wrongs don't make a right. Societies must protect every individual's right (and the right of every religious or advocacy group) peacefully to express their beliefs about sex and marriage and other issues."
"Behind these restrictions is a premise - that respect for human rights threatens Russia's cultural unity or national security. But when the government dishonors fundamental rights, there can be no unity or security, only more chaos and division, and, eventually, violence and terror."
"When it comes to national security, Putin understands the need to fight not just terrorists, but also their ideology. But the Russian strongman needs to learn that the way to defeat bad ideas is with good ones in a public square that admits the peaceful expression of competing ideas. If Russia is to prevail, it must protect basic civil liberties - from freedom of religion or belief to expression, association, and assembly. It must create and maintain a free marketplace of ideas."
The full op ed piece is available here:
Posted by Robert George on February 24, 2014 at 04:49 PM | Permalink
"Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory"
For the last couple of years, Kevin Walsh and I have been working on an article about judicial critique of constitutional theory and the separation between constitutional theory and constitutional adjudication. Our new piece is called Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory, and we hope to have some further discussion about it in the coming days and weeks. Here is the abstract:
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?
This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
February 23, 2014
Saletan on "After-birth Abortion"
Slate writer William Saletan is, by a considerable margin, the sharpest and best informed bioethics journalist on the liberal side of the spectrum. He fully supports abortion, of course. But he would like to be able to oppose what he describes as "the pro-choice position on infanticide." Here, in a piece titled "After-birth Abortion: The Pro-Choice Case for Infanticide," Saletan is wrestling with himself on the issue . . . and losing. He says that the academic left's supporting infanticide is a "crazy" idea. The trouble is, given his own pro-abortion premises, he can't quite come up with a decent argument against it. He would like to believe that "something profound changes at birth." But, as he quotes a pro-choice critic of that idea saying, "there is nothing magical about passing through the birth canal."
Truer words were never spoken. There is nothing magical about passing through the birth canal. So unfortunately for people like Mr. Saletan, you can't have it both ways. Which side are you on, boys? Which side are you on?
Posted by Robert George on February 23, 2014 at 08:44 AM | Permalink
February 21, 2014
Humility in Jackson's "The Federal Prosecutor"
Cecelia's post on prosecutors as ministers of justice reminded me of Robert Jackson's 1940 speech, "The Federal Prosecutor." Her focus on the humility that a prosecutor must possess in order to recognize he or she has prosecuted the wrong person echoes Jackson's identification of the need for everyday prosecutorial humility at the very end of his talk:
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
As this excerpt reveals, humility is but one of the character traits that a prosecutor must possess. And more generally, it is impossible to read Jackson's speech or to think about the problems examined in Cecelia's post without coming away with the sense that, to paraphrase The American President, "Being [a prosecutor in] this country is entirely about character."
"Our Secular Future"
Rusty Reno has a thoughtful, and bracing, piece up at America, called "Our Secular Future." Check it out. A taste:
Americans are rightly proud of our tradition of religious liberty. The founders recognized that religious convictions cut very deeply into the soul, making people capable of great sacrifices—and often stimulating bitter conflicts and terrible persecutions. Thus we have the First Amendment and its definition of the first freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
We need to recognize, however, that our approach to religious freedom has in fact changed a great deal in the more than 200 years of national history. These changes reflect shifts in the overarching religious consensus in the United States. By my reading of the signs of the times, this consensus is changing yet again. The shift foretells a renegotiation and redefinition of the nature and scope of religious liberty—one that I fear will not favor religious believers . . .
"The Dark Power of Fraternities"
Caitlin Flannagan's article at The Atlantic, "The Dark Power of Fraternities," is necessary reading for anyone connected with higher education--whether as a parent, a student, a teacher, an administrator, an alumnus, or any combination of these or other connections. The article should be of interest to MOJ readers for many reasons, including its discussion of the morally ambiguous roles of lawyers. It is not a "hit piece," but it does hit fraternities and universities hard, even while acknowledging that fraternities serve many good purposes.
Euthanasia for Children in Belgium: WWJD?
Mary Jo Anderson has written a wonderful essay on Belgium's recent approval of a law permitting children to "choose" euthanasia, on the Crisis Magazine website, Mocking Compassion: Euthanasia Beyond Belgium. She points out something that should make it simple for Christians to cut through all the tortured reasoning about 'compassion' and 'choice' and 'suffering' that swirls around in euthanasia debates. She writes:
Christians can take their cue on the question from Malcolm Muggeridge: “Jesus healed the sick, raised Lazarus from the dead, gave back sanity to the deranged, but never did He practice, or include, killing as part of the mercy that occupied His heart. His true followers cannot but adopt the same attitude.”
February 20, 2014
On the Religion Law list of legal scholars, as you might imagine, considerable attention has been given in recent days to the contraception mandate cases pending before various courts. During those discussions, I posted a message designed to challenge that largely skeptical audience to entertain the possibility that women and men of intelligence and good faith could reasonably depart from the conventional wisdom in academia that artificial contraception is essential to human progress and gender equality. With that in mind, I suggested that a counter-cultural community grounded in such values should be, not just grudgingly tolerated, but liberally allowed the breathing room to thrive in a diverse and free society.
Because I received so many encouraging private messages, from across the political spectrum and from those on both sides of the contraception debate, I am setting out that message below:
Following up on yesterday’s conversation, let me approach the question of Catholic resistance to the contraception mandate as a plea for something more than grudging tolerance of different opinion but rather a request for a more “liberal” acceptance of a community with an alternative view of the good life. At the outset, I emphasize that my primary purpose here is not to persuade you that this alternative view is better. I am not even arguing today that those who advocate for ready and cost-free access to artificial contraception should refrain from advancing that policy preference through political means. My aim of the moment is much more modest, which is to contend that in a free and diverse society, public policy should leave ample breathing room for a community with a counter-cultural understanding on these important questions.
I appreciate that contraception is widely viewed throughout the academy as an unalloyed positive social good, even a “revolutionary” and necessary step for women’s equality. Indeed, it would not be an exaggeration to describe the pro-contraception position as the privileged narrative in the academy. The contrary view is seldom heard in the halls of the typical law school and not much respected on the irregular occasion that it is voiced. Those who resist the use of artificial contraception are regarded at best as being quaint or in need of consciousness-raising and are seen at worst as retrograde believers in a subservient role for women as incessant baby-makers. Through this post, I want to challenge this group of open-minded scholars to entertain the possibility that women and men of sound mind and good heart, many of “feminist” inclinations, can reasonably and even joyfully embrace an alternative worldview that embraces sexuality as a gift but excludes artificial contraception.
The perspective that I sketch here, inartfully, is that shared with me by many friends, colleagues, and former students—Catholic women who accept the Church’s teaching on sexuality and contraception, not as a rigid doctrinal imposition, but as a gift. And these are successful professional women, who have satisfying careers as lawyers or law professors, which they have integrated with fulfilling personal and family lives. For on-line examples of these voices, although I do not know these women personally, I suggest these links: http://catholicmoraltheology.com/catholics-contraception-and-feminisms/ and http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception
For the orthodox Catholic women that I have known in professional settings, they have not experienced the ready availability of artificial contraception as liberating. Rather, they have seen the assumption that all women use (or should use) artificial contraception as serving to fuel the hyper-sexualized environment on college campuses, leading to the familiar “hook-up” culture and its devaluation of human sexuality and degradation of women. Rather than seeing contraception as enhancing equality, these women have seen the presumption of contraceptive use as encouraging men to behave irresponsibly and to treat women as sexual conquests. In sum, by resisting the contraception narrative, these women have set a different path for romantic relationships. They believe they have achieved healthier relationships with men.
When these professional women marry, they engage in discourse and planning with their husbands about children, a dialogue that cannot be avoided because contraception is not used to make it possible to avoid the question. Contrary to the absurd suggestion that women who do not use artificial contraception typically have ten to twenty children, these women know that family planning and artificial contraception are not synonymous, and they insist that modern women have not lost all capacity for self-control. While they may choose to have larger families than the norm in some circles, the professional Catholic women that I know who joyfully follow Church teaching have families with children ranging in number from a single child to about half a dozen, with most in the two or three range.
Now let us suppose that a particular Catholic community—a Catholic university, let us say—wishes to build an oasis in which young men and women have an alternative to the contraception culture that dominates most of society. This university builds single-sex dormitories and adopts what we’ll label “parietals” that call for person of the opposite sex to leave a student’s dorm room after a certain time each night. Every student admitted to the university (and every faculty or staff member employed by the university) is well aware of the Church’s teaching and of the university’s considered policies in accordance with that teaching.
Knowing that their students are real people and not angels, the Catholic university leadership understands that not all young men and women on campus will succeed in living what they believe is a healthier and more satisfying lifestyle. But a critical mass of students (and faculty and staff) will so succeed within a supportive environment, quite different from that which prevails at most universities. And not wanting to be oppressive, university leaders certainly will not invade the privacy of students (which itself would be a violation of human dignity) by searching their rooms to ensure that no one brings artificial contraception on campus. But the university will in no wise facilitate or encourage artificial contraception.
For these reasons, as a faithful witness to the community and as an encouragement to students to live faithfully, this Catholic university will not permit artificial contraception to be dispensed on campus and will not associate itself in any way with those who market or distribute such artificial contraception. Not wanting to give any scandal or tarnish in any way the Church’s message about the sacred beauty of human sexuality, the university refuses to cooperate or be complicit with distribution of artificial contraception.
Now shouldn’t a genuinely “liberal” and free society not merely tolerate but leave ample breathing room for a community that adopts an alternative view of what it means to thrive as human beings? Shouldn’t we strive for a public policy respectful of diversity that does not suffocate these countercultural views by all-embracing mandates? Shouldn’t we be alarmed by a governmental orthodoxy that cannot allow this community to march to a different drummer?
Journal of Law and Religion
I am delighted to annlounce that Volume 29, Issue 1, of the Journal of Law and Religion is now available. All of the articles are available online through the JLR's Cambridge Journals Online website, here. All articles will be accessible without charge for the first two months. Print copies should ship to subscribers in the coming week.