Mirror of Justice

Some Memories of Kent Greenawalt

Professor Kent Greenawalt, longtime faculty member at Columbia Law School and eminent scholar in many areas--criminal law, jurisprudence, constitutional theory, free speech, and, of course, law and religion--has died. Many of us at Mirror of Justice knew him and his work well. Others will and should reflect on his greatly distinguished career, one combining service at high levels of government, projects of legal reform (particularly in criminal law), and great scholarly achievement in law and letters. I wanted to offer here some of my memories about Kent in my own life.

For me, Kent was a mentor and friend since I got to know him in the summer of 2006. In those days, he was the first and best advisor I had concerning subjects that I had just begun to study and learn about, someone who immediately invited me into his life when many others would not. He was reserved, gentle, patient, kind, but also deeply penetrating and critical (often of my work, and in the best ways) as we discussed ideas, projects, and papers together. I used to joke with him that my study at Columbia ought really to go by a separate degree name, Greenawalt Studies. That proved largely right. Some of the best teachers are the best because they make their students want to know about the teacher and their work--to learn through the mediating structure of the teacher. So it was for me with Kent. His interests became my interests, and I learned about criminal law and constitutional law through the medium of his articles, books, and our many conversations. I also learned and took from Kent a commitment to breadth and to writing in a variety of disciplines as inclination dictated.

One of Kent's signature course offerings was a seminar, whether in legal interpretation or the religion clauses or something else, at his home. He would provide tea, coffee, and crumpets of various kinds (usually huge, powdered donuts), and we all would sit around his living room overlooking the Hudson River, hunched over various easy chairs, couches, rugs, and the like, and talk together. It was an experience akin to what 16th century Italian salon exchanges must once have been like. I am not the first to observe that among his many gifts, Kent's particular excellence as a teacher was the capacity to listen exceptionally closely and deeply to what was being said. I think that one of the benefits of this virtue was the consequent capacity to slice the ideas being expressed into finer and finer shavings, so that each fragment could be examined and thought about on its own. In reflecting back on this way of thinking and teaching, it has occurred to me that it was particularly effective not only for understanding difficult ideas, but also for achieving mutual understanding and perhaps even partial agreement where there was initially only total disagreement--and even hostility. Kent reflected the virtues of keen listening in his scholarship and his scholarly exchanges as well. But I should add that it was also a different time in scholarship about subjects like the religion clauses than it now is, and I have wondered whether this method can work, or can work in the same way, today. 

As for his scholarly achievements, as I mentioned, I will leave that for others to reflect upon, with this one exception. It was an important part of Kent's intellectual contribution, developed over his scholarly life and across several disciplines, that law is best understood in a kind of ongoing inductive process–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions, revolving, deepening, and developing in a kind of concentric upward spiral that penetrated through to the truth, about how the law works itself out in the real world. "From the bottom up," as the title of one of his books of essays puts it.

It was a humane, cultivated, fair-minded, decent, deeply civilized method of scholarly inquiry befitting a man of the same high qualities. I was always struck by this approach to scholarly inquiry, perhaps even to life, attempting in various poor ways to model its virtues as I could, but never as the master did. It’s a method of writing and public engagement that I’ve been delighted to see in other humane and highly literate scholars and friends—in Paul Horwitz’s thought, for example (Paul, also a student of Kent’s, offers his remembrances here some of which are similar to mine but some of which are different), and Steve Smith’s work as well, different as these scholars are from one another and, in turn, from Kent.

In later years, after I became an academic, it was a great joy for me to have Kent speak at the Law and Religion Colloquium that I regularly co-teach with Mark Movsesian (on that occasion, actually, the Colloquium was co-hosted and co-taught with Michael Moreland and his students at Villanova). Kent continued to show our students what a true scholar all'antica was like, passing on his example of that elegant and worthy tradition to them. I knew that he had fallen ill in more recent years and regretted that we had not seen one another as often as I would have liked. I will miss him.

May he rest in peace.

Waldstein on "The Liberty of the Church"

Edmund Waldstein, O. Cist., has a piece at Church Life Journal called "The Liberty of the Church." (If you are not a regular reader/subscriber to the Journal, stop reading, go sign up, and then come back.) This is a topic that has been of interest to me for a while.

I suppose it's not news to Mirror of Justice readers that some church-state matters appear differently to me than they do to Pater Waldstein. He writes, in the piece, that "[b]rought to its ultimate conclusion, the demand for libertas ecclesiae is the demand for the stance known as 'integralism.'" In my view, it is not, for (inter alia) reasons set out in Dignitatis humanae.  As a friend put it to me in correspondence, "the issue is not whether the [Roman Catholic] Church is the true church. It is. The issue is the limited competence of pastors (of the true church) and the corresponding autonomy of temporal affairs."

In any event, check it out . . . 

"Public-Private Drift"

Here's a new paper of mine, Public-Private Drift, examining the growing proclivity to blend public law and private law in order to mold behavior and coerce it into certain ideological grooves. The paper explores the phenomenon in a variety of contexts today. Here is the abstract:

The public law/private law divide is back. Scholars with a broad range of theoretical commitments are attempting to rediscover or reestablish the division. This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks.

This paper’s perspective on the public-private debate is explanatory. It accepts that many people perceive or believe American law to be in some sense divided into public and private domains, without endorsing that perception or belief. It does so in order better to describe the coming of drift. Even if one were skeptical about the conceptual purity of public and private law, one might nevertheless believe that what is public and private is a question of more and less, of greater and lesser degrees, and that there can be periods of relative stability in these categories and relative disruption. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift.

The upshot is that drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves. Drift is, in sum, a reaction to social fragmentation that ironically and unhappily exacerbates the pathologies that provoke it in the first place.

Syllabus for my Course on Freedom of Speech and Freedom of Inquiry

Still a work in progress, but this is the rough plan for a new seminar I'm teaching this spring at Princeton on the subject, as part of the Initiative on Freedom of Thought, Inquiry, and Expression of the James Madison Program in American Ideals and Institutions.

One focus for the course concerns the connection between free inquiry and knowledge--what knowledge's value is, how it is gained, and how it is produced. More broadly, I'd like to explore in this course the goods that freedom of speech and inquiry are for, to borrow a line from John Garvey.

Suggestions most welcome. 

PRINCETON UNIVERSITY

Department of Politics

 POL 494: Freedom of Speech and Freedom of Inquiry

 

Instructor. Marc O. DeGirolami

Description. American law vigorously protects free speech. Free speech lies at the core of our politics and culture. But many argue for greater government regulation of speech, particularly for “hate speech” and other speech deemed “offensive.” Social media and speech at universities present additional challenges, some of which have involved Princeton itself. And what about “cancel culture” and other social controls on speech? Are these healthy limits or stifling constraints? This course explores the historic and philosophical justifications for protecting speech, focusing on the freedom of inquiry—the freedom to ask questions in pursuit of knowledge and truth. It also introduces students to the constitutional law of free speech. It asks students to think about speech’s value in historical perspective and today.

The course is sponsored by the James Madison Program’s Initiative on Freedom of Thought, Inquiry, and Expression, and by a grant from the Stanton Foundation.

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Readings. All readings are posted to the Canvas page with the following exceptions. Please purchase a copy of the following:

• John Stuart Mill, On Liberty (Dover Thrift Edition 2002)
• Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018)

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 5 pm but before midnight on the date on which they are due will be penalized a half letter grade. Papers will be penalized another half letter grade if they are received by 5 pm the subsequent day and another half letter grade the day after that.

SCHEDULE OF COURSE MEETINGS AND ASSIGNMENTS

Assignments are tentative and subject to revision as the course proceeds

Week 1, Thursday, February 2: Introduction to the Course, the Constitution of the United States, and the First Amendment Freedoms

Syllabus

U.S. Constitution (all)

Geoffrey Stone, “The Story of the Sedition Act of 1798: ‘The Reign of Witches,’” in First Amendment Stories (Garnett & Koppelman, eds. 2012)

Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal (2017) (Introduction, Part II, Part III, Part IV)

 

THEORY

Week 2, Thursday, February 9: English Antecedents and American Foundations

Thomas Hobbes, Leviathan, Part II, Chapter XXIX (“Of those things that weaken or tend to the dissolution of a Commonwealth”) (1651)

John Locke, Letter Concerning Toleration (1689)

James Madison,

Federalist 10 (1787)

Federalist 51 (1788)

Report on the Virginia Resolutions (1799-1800)

Judith N. Shklar, “The Liberalism of Fear,” in Judith Shklar, Political Thought and Political Thinkers (Hoffman, ed. 1998)

 

Week 3, Thursday, February 16: Classic Justifications and Critiques

Abrams v. United States (1919) (majority and dissent of Holmes, J.)

John Stuart Mill, On Liberty, Chapters 1, 2, 3 (1859)

James Fitzjames Stephen, Liberty, Equality, Fraternity (1873) (selection)

Herbert Marcuse, “Repressive Tolerance” (1965)

Robert P. George, Making Men Moral: Civil Liberties and Public Morality (1993) (Chapters 1 and 7)

 

Week 4, Thursday, February 23: Free Speech and Free Inquiry at the University, Part I—The Purpose of the University

Plato, Apology

Aristotle, Politics, Book 7.13; Book 8

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (2020) (Introduction, Chapter 3)

Alasdair MacIntyre, “The Very Idea of a University: Aristotle, Newman, and Us,” British Journal of Educational Studies (2009)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges are Failing Underprivileged Students (2019) (Introduction)

Jonathan Haidt, “When Truth and Social Justice Collide, Choose Truth,” Chronicle of Higher Education (2022). 

 

Week 5, Thursday, March 2: Free Speech and Free Inquiry at the University, Part II—Free Speech, Academic Freedom, and Cancel Culture

Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018) (selection)

Patrick Deneen, “Against Academic Freedom,” Irish Rover (2022)

Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (2020)

Justin McBrayer, “Diversity Statements are the New Faith Statements,” Inside Higher Education (2022)

Brian Soucek, “How to Protect Diversity Statements from Legal Peril,” Chronicle of Higher Education (2022)

Brian Leiter, “Diversity Statements are Still in Legal Peril,” Chronicle of Higher Education (2022)

Clifford Ando, “Princeton Betrays Its Principles,” Chronicle of Higher Education (2022)

Sarah Brown, “‘Public-University Curricula are Government Speech,’ Florida Says,” Chronicle of Higher Education (2022)

Katha Pollitt, “Cancel Culture Exists,” The Nation (2022) 

 

Week 6, Thursday, March 9: Free Speech Skepticism

Gerhart Niemeyer, “A Reappraisal of the Doctrine of Free Speech,” Thought: Fordham University Quarterly (1950)

Jamal Greene, How Rights Went Wrong (2021) (selection)

Anthony Leaker, “Against ‘Free Speech,’” Cato Unbound (2019)

Note, “Blasphemy and the Original Meaning of the First Amendment,” Harvard Law Review (2021)

Marc O. DeGirolami, “The Sickness Unto Death of the First Amendment,” Harvard Journal of Law and Public Policy (2019) (selection)

Richard George Wright, “Free Speech as a Cultural Holdover,” Pace Law Review (2019)

 

MIDTERM PAPERS DUE FRIDAY, MARCH 10, BY 5:00 PM

 SPRING BREAK

 

LAW 

Week 7, Thursday, March 23: The Content-Based//Content-Neutral Framework, Expressive Conduct

United States v. O’Brien (1968)

Texas v. Johnson (1989)

Frisby v. Schultz (1988)

Renton v. Playtime Theaters (1986)

 

Week 8, Thursday, March 30: Categorical Exceptions to the Freedom of Speech 

Chaplinsky v. New Hampshire (1942) (fighting words)

Brandenburg v. Ohio (1969) (incitement to violence)

Miller v. California (1973) (obscenity)

United States v. Alvarez (2012) (false statements of fact)

 

Week 9, Thursday, April 6: Offensive Speech, Hate Speech 

Cohen v. California (1971)

Snyder v. Phelps (2011)

Matal v. Tam (2017)

Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” Harvard Civil Rights Civil Liberties Law Review (1982)

Jeremy Waldron, The Harm in Hate Speech (2012) (selection)

Steven D. Smith, “Liberalism and Hate Speech,” Law and Religion Forum (2022)

 

Week 10, Thursday, April 13: Compelled Speech and Association

West Virginia State Board of Education v. Barnette (1943)

Wooley v. Maynard (1977)

Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018)

303 Creative LLC v. Elenis (2022) [listen to LegalSpirits Podcast on the case]

 

Week 11, Thursday, April 20: Government as Subsidizer and Employee Speech

Rust v. Sullivan (1991)

Christian Legal Society v. Martinez (2010)

Pickering v. Board of Education (1968)

Garcetti v. Ceballos (2006)

 

Week 12, Thursday, April 27: Issues in Social Media Speech and Regulation 

Packingham v. North Carolina (2017)

Biden v. Knight First Amendment Institute (2021) (Thomas, J., concurring)

Lee C. Bollinger & Geoffrey R. Stone, eds., Social Media, Freedom of Speech, and the Future of our Democracy (2022) (selection)

Adam J. White, “Google.gov,” The New Atlantis (2018)

Kate Klonick, “The Terrifying Power of Internet Censors,” N.Y. Times (2017)

Ken Klippenstein, Lee Fang, “Truth Cops: Leaked Documents Demonstrate DHS’s Plans to Police Disinformation,” The Intercept (2022)

Thomas Fazi, “The Human Cost of Twitter’s Censorship,” Compact (2022)

 

FINAL PAPERS DUE FRIDAY, MAY 18, BY 5:00 PM

The Insights of Joseph Ratzinger

Thanks to fellow MOJ contributors for their reflections following the death of Joseph Ratzinger.  He was a humble man of deep faith who served the church as a professor and theologian, Archbishop of Munich, prefect of the CDF, and finally as Pope Benedict XVI – the Bishop of Rome.  He was not a lawyer or legal theorist, but his remarkable intellect and keen insights touched on virtually every area of thought, including law and politics.

Two articles I wrote were inspired by Benedict XVI’s speeches and writings: Religion and the Purification of Reason: Why the Liberal State Requires More than Simple Tolerance (here) wherein I drew upon Benedict’s address in Westminster Hall and his Regensburg address, and Love, Truth, and the Economy (here), a lengthy discussion of Benedict’s social encyclical Caritas in Veritate.

Let me here make just two brief points.

First, as I discuss (pp.1021-1025) in the piece on Caritas in Veritate, Ratzinger sees the problem in modern liberal democracy as a problem of anthropology in that it conceives of human beings in wholly materialist terms.  This, in turn, leads to thinking of solutions to social problems in a mechanistic fashion. “The current structures are sinful, the future structures will be just.  We have to design and construct them the way one builds appliances” (here p. 196).  But the idea that if we design and calibrate the right legal mechanisms a paradise on earth will follow is a utopian fantasy.  There will never be a perfect world.  “It does not exist” (p. 197).  Instead, we must “recognize the perpetual endangerment of human affairs” (p. 197) which calls for a continuous moral renewal through the cultivation of virtue.

These lessons are important things for those of us who are law professors to bear in mind in interacting with our students. We should be mindful and confront the materialist thinking that functions as a premise for so much of modern law.  We should also remind students of the limits of law.  The reform of statutes and legal rules is important, but law will never be sufficient to the task of building a just society.

Second, Ratzinger’s most bracing public observation was his comment (here) that modern liberal society risks becoming a “dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own egos and desires.”  That liberal society often regards the articulation of truth as an intolerable burden, such that truth claims cannot be authoritative and must give way to expressions of will, manifests itself in many ways.  That a human being cannot be recognized as a human being because his or her early existence is a burden to someone else is perhaps the most common example of this phenomenon.

Ratzinger’s observation was salient when he first shared it in 2005.  In 2023, when newspapers report as “news” the absurdity that a “man” recently gave birth to a child that “he” conceived with sperm donated by a “woman” (here and here), and when individuals are threatened with jail time for “misgendering” (here and here), it is plain that the dictatorship is still ascendent.   It remains to us, law professors and others, to follow Ratzinger’s example of humility, to respond with sensitivity in dealing with individuals, as well as courage “speaking the truth in love” (Eph. 4:15).

 

Pope Benedict XVI on "Church, State & the Practice of Love"

Here is a short essay I wrote, for a conference at Villanova, a million (well, 15) years ago, on Pope Benedict's encyclical Deus caritas est and church-state relations:

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order. The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and - at present - the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups - and of the freedom of the Church?

Pope Benedict and the Law: From the MOJ archives

In addition to Marc's two recent and helpful posts, here are a few items from the MOJ archives that might be worth (re!)reading, as we reflect on the gift of the late Pope's life and work:

"Pope Benedict and the New Evangelization" (here)

"Another Garnett on Solidarity and Suffering" (here)

"'The Pope Is a Liberal'" (here)

"Pope Benedict on 'Following the Prevailing Winds'" (here)

"Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life" (here)

"Benedict XVI on Martin Luther" (here)

"A Mortgage on the Church" (here)

"Pope Benedict XVI on Religious Communities' Freedom and 'Equality Legislation'" (here)

"Pope Benedict XVI's Visit with Youth with Disabilities" (here)

"Forgiveness:  Pope Benedict's Legacy?" (here)

"Ambassador Glendon's Address to Pope Benedict XVI" (here)

"Catholic Legal Thought:  Live at the Dubliner!" (here)

"'Patricipation in the Eternal Reason of God'" (here)

Pope Benedict XVI's Legal Thought

Like all MOJ readers and bloggers, I am sure, I am reflecting on the life, work, example, thought, and witness of the late Pope Benedict XVI.  Of course, I am not qualified to provide anything resembling a worth-reading reflection on these matters -- I suggest reading a lot of Cyril O'Regan, for starters -- but I did want to remind readers of a very helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

Caritas in Veritate, paragraph 73

One more reflection from Benedict XVI from me today, this one from perhaps my own favorite of his writings, Caritas in Veritate. This is from the section on the challenges of technology:

Linked to technological development is the increasingly pervasive presence of the means of social communications. It is almost impossible today to imagine the life of the human family without them. For better or for worse, they are so integral a part of life today that it seems quite absurd to maintain that they are neutral — and hence unaffected by any moral considerations concerning people. Often such views, stressing the strictly technical nature of the media, effectively support their subordination to economic interests intent on dominating the market and, not least, to attempts to impose cultural models that serve ideological and political agendas. Given the media's fundamental importance in engineering changes in attitude towards reality and the human person, we must reflect carefully on their influence, especially in regard to the ethical-cultural dimension of globalization and the development of peoples in solidarity. Mirroring what is required for an ethical approach to globalization and development, so too the meaning and purpose of the media must be sought within an anthropological perspective. This means that they can have a civilizing effect not only when, thanks to technological development, they increase the possibilities of communicating information, but above all when they are geared towards a vision of the person and the common good that reflects truly universal values. Just because social communications increase the possibilities of interconnection and the dissemination of ideas, it does not follow that they promote freedom or internationalize development and democracy for all. To achieve goals of this kind, they need to focus on promoting the dignity of persons and peoples, they need to be clearly inspired by charity and placed at the service of truth, of the good, and of natural and supernatural fraternity. In fact, human freedom is intrinsically linked with these higher values. The media can make an important contribution towards the growth in communion of the human family and the ethos of society when they are used to promote universal participation in the common search for what is just.

From the conclusion of Pope Benedict XVI's 2006 Regensburg Address

To mark the occasion of his passing, and to remember this wonderful address. May he rest in peace. 

In the Western world it is widely held that only positivistic reason and the forms of philosophy based on it are universally valid. Yet the world's profoundly religious cultures see this exclusion of the divine from the universality of reason as an attack on their most profound convictions. A reason which is deaf to the divine and which relegates religion into the realm of subcultures is incapable of entering into the dialogue of cultures. At the same time, as I have attempted to show, modern scientific reason with its intrinsically Platonic element bears within itself a question which points beyond itself and beyond the possibilities of its methodology. Modern scientific reason quite simply has to accept the rational structure of matter and the correspondence between our spirit and the prevailing rational structures of nature as a given, on which its methodology has to be based. Yet the question why this has to be so is a real question, and one which has to be remanded by the natural sciences to other modes and planes of thought - to philosophy and theology. For philosophy and, albeit in a different way, for theology, listening to the great experiences and insights of the religious traditions of humanity, and those of the Christian faith in particular, is a source of knowledge, and to ignore it would be an unacceptable restriction of our listening and responding. Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss". The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.

"Constitutional Thomism: A Modest Proposal"

Over at The European Conservative, my friend Fr. S. Hendrianto, S.J., has posted an essay called "Constitutional Thomism:  A Modest Proposal", which -- among other things -- engages Adrian Vermeule's Common Good Constitutionalism project.  Here's a bit:

Constitutional Thomism is not concerned with governmental structures or constitutional interpretation so much as with the arrangement and distribution of offices. It focuses on examining the concept of a “best regime” ruled by a philosopher-king who holds office with practical wisdom while not devolving into a tyranny. Constitutional Thomism is compatible with modern constitutional democracy because both are centered on the art of statesmanship. Under Constitutional Thomism, statesmen rule through wisdom but do not force the citizenry to obey them. These statesmen must understand the instability, impatience, inattention, envy, and ignorance that plague the souls of their citizens, and counteract the restlessness of the soul. At the same time, the statesmen must also be able to lead their citizens to an understanding of the common good, not only in the temporal sense, but fullest sense—the seeking of God. By promoting the common good to their people, the statesmen will also foster statesmanship among the multitude. 

Merry Christmas! T.S. Eliot's "Animula," First Part

Merry Christmas, MOJ family! Here's the beginning of T.S. Eliot's "Animula" (little soul), about the child's life of wonder as it comes into and makes its early way in the world.

'Issues from the hand of God, the simple soul'
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.

Podcast on New Year's Day, New York Blue Laws, and the Establishment Clause

And speaking of culture warriors, usually around this time of year one sees the standard, angry Establishment Clause challenge to a Christmas tree or nativity scene positioned in the wrong place, or a Stabat Mater sung in the wrong school concert. I'm sure those are also being pursued, according to the culture warrior tradition.

But this year, there is a different kind of Establishment Clause complaint in New York. The wasted remnant of an old blue law, which has been dismembered bit by bit over the years, is not making bar owners' spirits bright. Eris Evolution, a hipster bar in Brooklyn whose name recalls the Greek goddess of misery and discord, would like to serve alcohol from 4-8AM on January 1. But it happens to be a Sunday this year. 

Mark and I chat about an EDNY district court opinion in the case denying an injunction to the bar, now up on appeal, in our last Legal Spirits podcast of the year. 

More "culture warrior" sloganeering, on religious exemptions

Paul Moses has a piece up at Commonweal, "Conscience, Contracts, & Covenants", about the recently argued 303 Creative case at the Supreme Court and about the more general question of religious-freedom-related exemptions from public-accommodations laws.  Obviously, the question is tricky, because it is implausible either that (a) justice requires that anyone who invokes "conscience" as a reason for violating a public-accommodations law should be exempted or (b) public-accommodations laws should be applied entirely without regard to the religious commitments of those who are affected.

Disagreeing with the U.S. Bishops' reservations about the recently passed Respect for Marriage Act, Mr. Moses quotes Pope Francis's Amoris laetitia, and then writes, "Francis wasn’t urging the bishops to be culture warriors. He was calling on the Church to do more to realize and express the beauty of a sacramental marriage, rather than to impose rules on others."  Again:  Far too often, the "culture warrior" epithet is directed at anyone who observes that unjust laws are being enacted or that various regrettable culture trends are in motion.  It is not "culture warrior"-ing for the bishops to defend religious exemptions, and it is a misreading of the Holy Father -- who, obviously, understands that Christians today cannot expect positive law alone to communicate persuasively the soundness of the Christian understanding of marriage -- to read him as ruling out such a defense.

Gehring's (and Kaveny's) "Culture Warrior" Canard

John Gehring has published, in NCR, a long piece describing the career and views of Leonard Leo.  (I am quoted in the piece.)  Leo, it turns out, is both a practicing Catholic and a political conservative, and he has been successful as an institution builder and fundraiser.  He's connected, in various ways, with the Becket Fund, the Federalist Society, Catholic University's business school, etc.  Some, including Gehring and several sources, are troubled by the fact that Leo's causes tend to be on the conservative side of various debates, and also by the possibility that he is "reshaping" Catholic University.  Such a reshaping would run counter, it appears, to what some regard as the natural order of things, namely, that higher education -- including Catholic higher education -- is and must be homogenously progressive.

A theme in the piece is the charge that Leo and others are "culture warriors", using organizations like The Federalist Society and "originalist" constitutional arguments in their partisan efforts.  Near the end, Prof. Cathleen Kaveny, who was on the faculty at Notre Dame Law School for about 15 years, is quoted:

"It's an approach that is far more evangelical and fundamentalist than Catholic," Kaveny said. "If Catholics approached the Bible the way these originalists view the Constitution, we would be fundamentalists."

A former law professor at the University of Notre Dame, Kaveny watched as the school transformed and she glimpses a potential similar effort at Catholic University with Leo's influence.

"At Notre Dame Law School, they narrowed the notion of Catholic hiring to mean hiring a certain kind of Catholic who is committed to the culture wars," Kaveny said. "They hired very committed and talented people, and the money followed. It took 30 years, but they played the long game. And it was successful."

Prof. Kaveny should know better than to make the familiar, but inapposite, comparison between originalism as an approach to the interpretation of a written piece of positive law and "fundamentalism" as an approach to Scripture.  She is certainly correct, though, that, during her tenure at Notre Dame Law School and mine, the institution hired a great many "committed and talented people", from the best programs and firms in the country, in no small part because the school, unlike nearly every other, declined to discriminate against practicing Catholics or people who might have clerked for Republican-appointed judges.  Indeed, Kaveny herself was brought to the faculty, and promoted, as part of the John Garvey-led (and successful) effort to use Notre Dame's Catholic character as a brand-enhancer and program-strengthener.  Of course, the claim that the "notion of Catholic hiring" was "narrowed" in the way she suggests is false -- the law faculty is easily the most balanced in the United States (and also in the University) -- as even a casual review of faculty hires over the last 25 years will confirm.

It's common, in publications like NCR, for "culture warrior" to used as a discussion-blocking epithet (though never against enthusiasts and activists on the political left).  It appears to mean little more than "someone who thinks that Roe v. Wade was wrongly decided and that religious freedom is an important human good", or "someone who takes notice of various cultural developments and trends."  Or, in a piece like Gehring's, it simply denotes "someone who is pursuing an understanding of the common good that does not align with my political team's."

"Mysterizing Religion"

A draft of a short paper for a recent symposium at Notre Dame Law School. Here's the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

"As the Eyes of Bats Are to the Blaze of Day": Aristotle on Tradition's Contribution to Knowledge

From Book II.1 of the Metaphysics:

"The investigation of the truth is in one way hard, in another easy. An indication of this is found in the fact that no one is able to attain the truth adequately, while, on the other hand, we do not collectively fail, but every one says something true about the nature of things, and while individually we contribute little or nothing to the truth, by the union of all a considerable amount is amassed. Therefore, since the truth seems to be like the proverbial door, which no one can fail to hit, in this respect it must be easy, but the fact that we can have a whole truth and not the particular part we aim at shows the difficulty of it.

Perhaps, too, as difficulties are of two kinds, the cause of the present difficulty is not in the facts but in us. For as the eyes of bats are to the blaze of day, so is the reason in our soul to the things which are by nature most evident of all.

It is just that we should be grateful, not only to those with whose views we may agree, but also to those who have expressed more superficial views; for these also contributed something, by developing before us the powers of thought. It is true that if there had been no Timotheus we should have been without much of our lyric poetry; but if there had been no Phrynis there would have been no Timotheus. The same holds good of those who have expressed views about the truth; for from some thinkers we have inherited certain opinions, while the others have been responsible for the appearance of the former."

"Religious Charter Schools are Legal in Oklahoma"

Excellent news out of Oklahoma:

In an official legal opinion, Oklahoma Attorney General John O’Connor says a state law that prohibits religious entities from operating a public charter school likely violates the First Amendment to the U.S. Constitution and “therefore should not be enforced,” based on rulings from both the U.S. Supreme Court and the Oklahoma Supreme Court.

AG O'Connor's opinion is sound, and rock-solid (and not simply because he has the good judgment to cite Nicole Stelle Garnett)

The opinion concludes:

Based on state court rulings, the attorney general’s opinion declared that allowing religiously affiliated participants to provide educational services to children by entering into a written agreement with a charter school “would not violate the Oklahoma Constitution” because “charter schools are entirely optional for parents” and “allowing the religious or religiously affiliated to participate would make the system neutral rather than hostile to religion.”

“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ … and then decide that any and every kind of religion is the wrong kind of diversity,” the opinion stated. “This is not how the First Amendment works.”

It has taken many years, but the correction in the Supreme Court's First Amendment doctrine relating to cooperation between governments and religious schools is both striking and welcome.  Contrary to what one reads in the typical Court-watching-journalist's commentary, the version of "strict separation" that is so often treated as canonical was a weird, ahistorical, and unwise blip, that distorted education-reform policy for a few decades but that has no basis in American history and practice and that -- thankfully -- has been, step-by-step, dismantled since the mid-1980s.  

Persons and people

Pope Francis:  "On abortion, I can tell you these things, which I’ve said before. In any book of embryology it is said that shortly before one month after conception the organs and the DNA are already delineated in the tiny fetus, before the mother even becomes aware. Therefore, there is a living human being. I do not say a person, because this is debated, but a living human being."  America Magazine, Nov. 28, 2022

Judge John T. Noonan, Jr.: "If a lawyer could not distinguish between real persons and fictional persons, he would not be capable of communication."  Persons and Masks of the Law 27 (1976)

Pope Francis:  "I am joyful when I am with people—always." America Magazine, Nov. 28, 2022

"China Wants to Sinicize its Catholics"

I am glad to see The Economist reporting on the continuing efforts by the Chinese Communist Party to oppress -- indeed, to coopt -- the Catholic Church in China.  In recent years, some Catholics identifying as "post liberal" have expressed a strange admiration for the . . . efficiency and goal-orientedness of Xi's PRC; these expressions are misguided.  Also misguided, I think, have been the various reported statements of admiration for the PRC by some of the Holy See's bureaucrats.  The introduction of the piece:

When the Vatican signed a deal with China in 2018 on the appointment of bishops, the pact was denounced by a former leader of the Catholic church in Hong Kong, Cardinal Joseph Zen. He said it would legitimise the Communist Party’s control over Chinese Catholics, and be like “giving the flock into the mouths of the wolves”. The flock has not yet been devoured, but the grip of the government’s jaw has been tightening. The authorities have accelerated a campaign to “sinicise” the church by making its buildings, art and rituals look more Chinese and, crucially, its followers more loyal to the party. Catholics in Hong Kong are in their sights, too.

Among other things, the piece discusses the plight of Hong Kong's heroic, and Catholic, pro-democracy advocate, Jimmy Lai.  (If you have not seen the movie about Lai, "The Hong Konger", you should.)

Opening Statement at Princeton Conference on Institutional Neutrality in Non-sectarian Universities

I'm posting here the text of my remarks opening our conference today at Princeton on institutional neutrality in nonsectarian universities..

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Good morning. I’m Robert George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions here at Princeton. It’s my honor to welcome you to today’s conference, which is being sponsored by the Madison Program’s Initiative on Freedom of Thought, Inquiry, and Expression, co-directed by my distinguished colleagues, Professors Keith Whittington and Bernard Haykel.

The question we have gathered to consider is whether, and if so when, non-sectarian state and private universities—or departments or units of such universities—may take public positions and put out public statements on controversial moral, political, and constitutional or other legal issues that are not directly related to the mission of the university.

For example, this past summer when the Supreme Court of the United States handed down its decision in the Dobbs case, reversing Roe v. Wade, should I—or would it have been appropriate for me, as Director of the Madison Program—to put out the following statement?

The James Madison Program of Princeton University applauds the Supreme Court of the United States for rectifying a longstanding constitutional and moral atrocity. The so-called constitutional right to abortion, which had been imposed on the nation by the Supreme Court nearly fifty years ago in Roe v. Wade, lacked any basis in the text, logic, structure, or original understanding of the Constitution of the United States. It was “an act of raw judicial power,” to quote Justice Byron White’s dissent in Roe, which deprived the American people of their right to work through constitutionally prescribed democratic procedures to protect innocent children in the womb from the lethal violence of abortion. The Supreme Court has, finally, relegated a tragic error to the ash heap of history alongside such similarly unjust and ignominious decisions as Dred Scott v. Sanford, Plessy v. Ferguson, Buck v. Bell, and Korematsu v. U.S.

Now, had I put out such a statement it would have accurately reflected my views along with those of many students, faculty, and staff associated with the Madison Program. But I did not put out any such statement. Nor did I for even a moment consider putting out any such statement. My understanding was that, while I may certainly speak for myself, and identify myself as a Princeton faculty member while doing so, it would be grossly improper for me to identify the University or one of its units—in this case the Madison Program—with a view of the rightness or wrongness of Roe v. Wade or the Dobbs decision, or the justice or injustice of abortion.

These are matters on which reasonable people of goodwill in our community of teachers and learners disagree. One is welcome at Princeton, and in the Madison Program or any other unit of the University, whether one is pro-life, as I am, or pro-choice as a great many others in our community are; whether one thinks of Roe v. Wade as a gross violation of human rights or as a vindication of human rights. It was my understanding that no one should be made to feel like an “insider” or “outsider,” in the University or any of its units, depending on one’s views about abortion and the moral status of unborn human life. No one should be counted as “orthodox” or “heretical,” in the Madison Program or in any other department or program of the University, for his or her views—whatever they happen to be.

We are a university—an academic institution—not a political party, or a church, or the secular ideological equivalent of a church. Although I have no objections, quite the contrary, to religiously affiliated universities, Princeton is not such a university, and has not been one for a long time. We are a nonsectarian institution. Our mission does not include the propagation of certain beliefs. At Princeton, or so I thought, our role is to provide, in the words of our President, Christopher Eisgruber, “an impartial forum for vigorous, high-quality discussion, debate, scholarship, and teaching.” To me, an “impartial forum” means that we as faculty members and students engage each other on controversial questions in a robust, civil, truth-seeking manner, without the University or a department or program’s thumb on the scales.

But perhaps I was wrong. Recently, we have seen leaders of some units of the University putting out statements formally committing the units they lead to particular positions on issues of precisely the sort on which reasonable people in our community disagree. In the wake of the Dobbs decision, for example, certain units put out statements like the one I could have put out but did not put out or even consider putting out—the only difference being that they condemned rather than praised the decision and praised rather than condemned the decision it overturned. Were they right to do so? Am I wrong to believe that neither they nor I should have committed our units of the University to a particular view? Am I misguided in thinking, along with President Eisgruber, that our duty is to provide “an impartial forum for vigorous, high-quality debates”? As I said to our Provost, I am happy to play by the rules, but I need to know what the rules are—and there must be one set of rules for everybody, not different rules for different people depending on the substantive political, moral, or other beliefs they happen to hold or which happen to be dominant in their units.

Let me be clear that our purpose in gathering today is not to debate abortion or Roe v. Wade or any other moral, political, or constitutional issue, but to ask whether the right policy for non-sectarian universities like ours is for them and their units to take official positions on such issues, or—in line with the University of Chicago’s Kalven Report—to refrain from doing so. Which policy, if either, supports or comports with—and which, if either, undermines or imperils—the university’s mission? To help us think our way through the issue, we will begin with a panel of distinguished scholars representing a spectrum of disciplines in the arts and sciences.

Gov. Pritzker and Cardinal Cupich

An . . . interesting piece, in the Chicago Sun-Times, about the text-relationship between Illinois Governor J.B. Pritzker and Cardinal Blase Cupich of the Archdiocese of Chicago.  There is, in my view, nothing inappropriate about these two leaders talking about shared interests and goals, and also about tactics for promoting and accomplishing them.  (One suspects that this text-relationship would prompt a five-part series in the New York Times about "theocracy" if it involved a Republican governor and a Catholic bishop, but put that aside.)  The unfortunate thing here is that the means they supported in pursuit of their goals were, in many instances, unwarranted and harmful.  Still, we should pray that Cardinal Cupich will (a) learn a lesson about reflexive deference and (b) be similarly communicative about, say, the Governor's support for rules permitting children to get abortions, at any point in pregnancy, without their parents' consent.  

"Liberalism, Christianity, and Constitutionalism" at Notre Dame Law School

The Notre Dame Law Review has put together a(nother) great symposium, on "Liberalism, Christianity, and Constitutionalism", which will be held tomorrow morning.  All South Bend-area folks, come by!

Symposium participants will include Professors Nathan S. Chapman of the University of Georgia School of Law, Kathleen A. Brady of Emory University School of Law, Richard W. Garnett of Notre Dame Law School, Andrew M. Koppelman of Northwestern Pritzker School of Law, Melissa Moschella of the Catholic University of America, Brandon Paradise of Rutgers Law School, Rev. Dr. Sergey Trostyanskiy, Amy Sepinwall of the Wharton School at the University of Pennsylvania, Steven Smith of the University of San Diego School of Law, and Paul Billingham of the University of Oxford.

The authors will discuss their written scholarship, which will appear in Volume 98, Issue 4 of the Notre Dame Law Review. Dr. Jonathan Chaplin of the University of Cambridge and Michael Moreland of Villanova University Charles Widger School of Law will be writing a response to the symposium.

• Panel One: 9 a.m. to 10:10 a.m.

• Panel Two: 10:20 a.m. to 11:20 a.m.

• Panel Three: 11:30 a.m. to 12:30 p.m.

Notre Dame Law Review/Religious Liberty Initiative Symposium Monday on Unconstitutional Conditions and Religious Liberty

I'm looking forward to participating in this symposium on "Unconstitutional Conditions and Religious Liberty" next Monday, where I'll present an early draft of a new paper, "Mysterizing Religion." Fellow MOJers Tom Berg and Michael Moreland will join me, together with many other insightful scholars.

More soon on the paper. If any of our readers are in town, please do say hello!

Can a politician successfully re-flip? The case of Tulsi Gabbard

As I've been predicting on social media for nearly two years, former Congresswoman and Democratic presidential aspirant Tulsi Gabbard has, to great fanfare, announced that she is leaving the Democratic Party. I expect her to win herself a second news cycle sometime after the mid-term election by announcing that she is joining the Republican Party. She says that the Democrats have become extreme and out of touch. (She'll get no argument from me about that, but this post is about her, not the Democrats.)

Ms. Gabbard began as a strong and outspoken social conservative. But as her political ambitions blossomed, she reversed course, embracing social liberalism with the zeal of the convert. Here's her explanation of herself when she was seeking the Democratic nomination for president:

"In my past I said and believed things that were wrong, and worse, they were very hurtful to people in the LGBTQ community and to their loved ones. Many years ago, I apologized for my words and, more importantly, for the negative impact that they had. I sincerely repeat my apology today. I’m deeply sorry for having said them. My views have changed significantly since then, and my record in Congress over the last six years reflects what is in my heart: a strong and ongoing commitment to fighting for LGBTQ rights.... I grew up in a socially conservative household where I was raised to believe that marriage should only be between a man and a woman.… While many Americans may be able to relate to growing up in a conservative home, my story is a little different because my father was very outspoken. He was an activist who was fighting against gay rights and marriage equality in Hawai‘i, and at that time I forcefully defended him and his cause When we deny LGBTQ people the basic rights that exist for every American, we’re denying their humanity denying that they are equal. We’re also creating a dangerous environment that breeds discrimination and violence. Because when we divide people based on who they are, or who they love, all we’re doing is adding fuel to the flames that perpetuate bigotry and hatred. I’m so grateful to my friends, my loved ones, both gay and straight, who have patiently helped me see how my past positions … were causing people harm. I regret the role that I played in causing such pain, and I remain committed to fighting for LGBTQ equality."

So, you see, it was all her dad's fault, and dad (the inference follows as night follows day) is a bigot who fought to create "a dangerous environment that breeds discrimination and violence." (That's dad under the bus.)

How about the question of the sanctity of human life and the basic dignity of unborn children? Where did the formerly pro-life Ms. Gabbard go on the issue of abortion? Here she is:

"The very real possibility of Roe v. Wade being overturned terrifies me. I am sick of women’s bodies being used as pawns so politicians can score cheap political points at the expense of their freedom and safety. I am wholly committed to abortion remaining safe, legal and rare. We must commit to defending a woman’s right to choose."

As a member of the House of Representatives, Gabbard had a 100% voting record with both Planned Parenthood and NARAL. That's right: 100%.

In the months to come, we'll be hearing a lot from Tulsi Gabbard, as she charts her political future and executes her plan. What we will be hearing will sound increasingly conservative--and socially conservative. Having now decided that her main chance is not with the Democrats, she'll have to appeal to mainstream Republican voters as well as to independents. Those mainstream Republican voters are not socially liberal, and many are solidly socially conservative. It will be fascinating to see how she flips back to the more socially conservative side, having flipped to the socially liberal side.

Re-flipping is not easy. A second flip will be a lot harder to pull off than the first flip was. For one thing, she can't blame dear old dad this time. Ms. Gabbard MIGHT, however, be able to pull it off. She's not only extremely ambitious (even by the standard of politicians), she's smart, articulate, tough, and winning. That's a formidable combination of qualities. You might recall the surgical strike with which she took out Kamala Harris in a 2020 Democratic primary presidential debate. If you do, you'll understand why I say she might well have a political career ahead of her, despite the challenges of re-flipping.