Saturday, March 18, 2023
"The Role of Tradition in Constitutional Law"
Here's the video of a panel with Professors Ernie Young, Kevin Walsh, and me, discussing what I think of as a long-existing, though now emerging, method of constitutional interpretation and law. We all brought different perspectives to the matter, and it was fun to talk together. The program is part of Professor Joel Alicea and Professor Walsh's Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University, Columbus School of Law. I enjoyed the conversation and questions very much.
March 18, 2023 in DeGirolami, Marc | Permalink
Monday, March 6, 2023
Inaugural Conference of the Center for Law and the Human Person at CUA
I am delighted to be participating in this conference at Catholic University of America, Columbus School of Law, next Tuesday, together with fellow MOJ-ers Profs. Mary Leary and Lisa Schiltz, as well as Prof. Carter Snead. The conference inaugurates the new Center for Law and the Human Person, directed by Elizabeth Kirk. The theme of the conference is "Rightly Ordered Law and the Flourishing of the Human Person."
The title of my talk is "Notes on a New Humanism in Legal Education." I'm told the conference will be recorded, but if you are in DC, please register at the link and do stop by and say hello! I'll have more to say about the substance of my talk soon.
March 6, 2023 in DeGirolami, Marc | Permalink
Tuesday, February 28, 2023
An important religious mission / freedom of association decision
The United States Court of Appeals for the Second Circuit has handed down an important decision, vindicating the First Amendment right of a pro-life pregnancy-resource center to hire-for-mission. You can get the opinion in Slattery v. Hochul here. I was pleased that the court cited, quoted, and relied upon a paper of mine, from a while back, which was written as a tribute to my former boss, Judge Richard S. Arnold. That paper relied, in turn, on an earlier one, called "The Story of Henry Adams's Soul: Education and the Expression of Associations." Here's the abstract:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyaltiesthat is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.
February 28, 2023 in Garnett, Rick | Permalink
Tuesday, February 21, 2023
Garnett on "Why Liberalism and Constitutionalism Need Christianity"
Here's a short essay, based on a talk at Notre Dame Law School a few weeks ago, on Liberalism, Constitutionalism, and Christianity. A bit:
[T]he suggestion is that “liberalism” and “constitutionalism” rely for their success, both in theory and in fact, not only on the separation and limitation of the powers of the political authority, but also on the existence and the health of authorities and associations outside, and meaningfully independent of, the state. As I and many others have argued, our tradition of constitutionalism was made possible, and might still depend today, on the independence of the church from secular control, an independence that it is fair to say Christianity first proposed and insisted upon.
The “distinction,” as Pope Benedict XVI put it, “between what belongs to Caesar and what belongs to God (cf. Mt 22:21)” is “fundamental to Christianity.” It is this core tenet of Christian political theology—the differentiation between “church” and “state,” along with the freedom of the former and the limits on the latter—on which, it seems to me, both liberalism and constitutionalism depend. This differentiation, the late pope contended, “came into the world first through Christianity. Until then,” he observed, “the political constitution and religion were always united. It was the norm in all cultures for the state to have sacrality in itself and be the supreme protector of sacrality.” Christianity, however, “deprived the state of its sacral nature.”
Again: constitutionalism and liberalism—and liberal constitutionalism—need Christianity. Indeed, the “separation” between church and state that has long been treated, with more or less care, as a foundation of the American law of church and state is better regarded as a limit imposed by the former on the latter than vice-versa. Correctly understood—and, to be sure, it often is not—this “separation” stands as a safeguard against governments tempted to assume for themselves the power to direct religious life. It is a limit on government and such limits, again, are essential to liberal constitutionalism. Our Constitution separates church and state to curb the ambitions and reach of governments. In and through our constitutionalism, “Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God’s.” The differentiation between religious and political authority means that Christianity is not merely a recipient of constitutional protection; it is a safeguard for the enterprise of constitutionalism.
February 21, 2023 in Garnett, Rick | Permalink
Sunday, February 19, 2023
Q&A: Andrew Walker and Robert George on Natural Law
Some time back, Andrew Walker, PhD, of Southern Theological Seminary in Louisville posed to me some questions on natural law. I'm here posting those questions and my answers. (More recently, Dr. Walker has published a collection of essays by distinguished Protestant scholars engaging my work: Social Conservatism for the Common Good: Protestants Engage Robert P. George.)
Andrew Walker: First, what is your definition of natural law and natural law theory?
Robert George: Natural law is the body of reasons (including moral reasons) for action and restraint accessible in principle to human reason even apart from special revelation. The first principles of practical reason and basic precepts of natural law direct our choosing and acting towards ends that are intelligibly choiceworthy not merely as means to other ends but as ends-in-themselves. Natural law theorists call these ends “basic human goods.” They are the constitutive aspects of human well-being and fulfillment. Moral norms, from the most general to the most specific, are identified by reflection on the integral directiveness of the first principles of practical reason.
AW: To what extent is natural law learned versus innate and intuitive?
RG: Reasons for action (like reasons for belief) are neither innate nor intuitive. They are grasped in intellective acts. They are the fruit of insights which, like all insights, are insights into data supplied by experience. It is, for example, in the experience of true friendship--where friends genuinely will the good of the other for the sake of the other--that we grasp the intelligible point of friendship making possible the sound judgment that the activity of friendship is inherently fulfilling of ourselves as human persons--that friendship is indeed intrinsically and not merely instrumentally valuable.
AW: If there is a natural law, why do even natural lawyers disagree on its content?
RG: For the same reasons people disagree about matters in other fields of philosophy or, more generally, in other domains of inquiry. There is nothing special in this respect about moral philosophy, as opposed to logic, aesthetics, philosophy of mind, etc.; or about natural law theory, as opposed to utilitarianism, Kantian (or “deontological”) ethics, virtue ethics, or even moral skepticism; or about philosophy generally, as opposed to history, sociology, literary studies, and even the natural sciences.
AW: What’s the distinction between that which comes naturally versus natural law? Are you saying we should follow and obey what comes naturally to us?
RG: The word “natural” has various meanings, and the term is used differently for different purposes or in different contexts. There is no magic in the term, and it certainly has proven to be misleading on some occasions. The natural law is natural, as opposed to being conventional. It “exists” or “obtains” as a body of reasons that are in no way artefactual. These reasons are accessible to unaided--and in that sense “natural”--human reason, but they are not human creations. By contrast positive law, which may be morally good or bad, just or unjust, is a cultural artifact. It is man-made. When it is just--when it is properly fashioned--it will be in line with and even in a sense (actually, in one of two distinct senses) be derived from natural law; but it is nevertheless conventional. As natural law thinkers from Cicero to Aquinas to Martin Luther King have all pointed out, the positive law of any community stands under the judgment of the natural--the moral--law. That is what makes it possible for us to speak of, and identify and condemn, unjust laws.
AW: Do you see any future in which Western civilization self-corrects from its move away from natural law and returns to sanity? Or, are we destined for civilizational collapse?
RG: This one is above my pay grade. Ask God. Whatever the future holds, it is our job to do what’s right--what the natural law and divine law require. As the late and very great Richard John Neuhaus never ceased reminding us, our job is not to produce the final victory--that’s up to God and will come in his time and on his terms. Our job is to be faithful. Ever faithful.
AW: A consistent criticism from Protestants when it comes to natural law is that natural law is not persuasive on its own terms — that it needs revelation for its authority. What’s your response to this criticism?
RG: It’s sure persuasive to me. I doubt that people who don’t “find it persuasive” will find the proposition that God exists, has authority over us, and has revealed his will or law to be very persuasive.
AW: Do natural theorist like you see your project as one opposed to revelation?
RG: No. Nor do I know of any other natural law theorist, past or present, who sees the project as one opposed to revelation. As Pope John Paul II taught, “faith and reason are the two wings on which the human spirit ascends to the contemplation of truth.” That teaching holds true, in my opinion, whether the truths we are contemplating or seek to understand are in the domain of ethics or in other domains of inquiry in which Christian faith offers guidance.
AW: Can you give a succinct explanation of the difference between New Natural Law theory and Classical Natural Law theory? Are the schools of thought in competition or complementary to one another?
RG: Actually, there’s not much “new” about the “new natural law theory.” It’s a misnomer, though we seem to be stuck with it. In any case, it is distinguishable on some points from neo-scholastic theories of natural law. People in both camps claim the mantle of Aquinas, though all should treat the question of what Aquinas held or didn’t hold as a secondary matter. What is primary is the question what is true. The most important point of debate, I believe, is how the intellect gets hold of the first and most basic principles of practical reason. Are they understood in non-inferential acts of understanding in which one grasps the point of, say, pursuing intellectual knowledge (of say, pure mathematics, or Shakespeare, or the history of agriculture), or friendship, or aesthetic appreciation, or other intrinsically worthwhile activities for their own sake? (That’s what the so-called “new natural law” theorists hold.) Or are they provided by methodologically antecedent theoretical inquiry (as opposed to practical reflection) into, say nature or human nature? (That’s what neo-scholastic natural law theorists hold.) If the former, then the first principles of practical reason and most basic precepts of natural law are, truly, first principles--like the principle of non-contradiction. They are underived and stand in no need of formal derivation. They are, as Aquinas said, per se nota and indemonstrabilia. If the latter, they are derived. From what? Methodologically antecedent theoretical knowledge.
AW: What emerging concerns do you see in culture and public policy that further implicate natural law?
RG: The natural law is the moral law insofar as it can, in principle, be known by unaided (“natural”) human reason. Thus, it pertains to all moral questions, even when it is supplemented, clarified, etc. by divine revelation. These, of course, include questions of justice, human rights, and the common good.
AW: A Protestant objection to Catholic moral theory is what we perceive as a reticence to cite Scripture in moral argument. Is that a fair criticism?
RG: I admire and wholeheartedly endorse the Protestant love of the Bible and the use Protestants, far more than Catholics, make of scripture in their devotions and in their spiritual lives. This is a gift that Protestant Christianity gives to the universal Christian church. Over the course of the last half-century--since the Second Vatican Council--Catholics have become more Bible-oriented, and that is to the good. But we Catholics can and should make even more progress on this front--deepening our love (and understanding) of God’s word. Protestants, especially Protestant intellectuals, have made similar progress in appropriating more fully the great tradition of philosophy--from Plato and Aristotle to the present--and making use of its insights and tools to illuminate the landscape and even better understand the Christian faith. This should not be regarded as a “Catholic thing.” Here’s an area where growth can and should be sought among Protestants. I personally know that there is a strong desire for it out there. My own philosophical writings are read and appreciated and wrestled with as much by Protestants (especially Evangelicals--black and white) as by Catholics.
February 19, 2023 | Permalink
Thursday, February 16, 2023
Jim Stoner on "Catholicism and Constitutionalism: An American Perspective"
You can watch, here, an engaging and interesting lecture that Prof. Stoner delivered at Notre Dame today, thanks to the Center on Citizenship and Constitutional Government and Prof. Phillip Munoz.
February 16, 2023 in Garnett, Rick | Permalink
MacIntyre on Reconceiving the Contemporary University
From "Reconceiving the University and the Lecture," in Three Rival Versions of Moral Enquiry 230-31.
The preliberal modern university was a university of enforced and constrained agreements. The liberal university aspired to be a university of unconstrained agreements and hence its abolition of religious and moral tests, and hence also, so I have argued, its present endangered state. Such reformers as those who propose some version of the Great Books curriculum ignore the fundamental character of our present disagreements and conflicts, presupposing possibilities of agreement of a kind which do not at present exist. What then is possible? The answer is: the university as a place of constrained disagreement, of imposed participation in conflict, in which a central responsibility of higher education would be to initiate students into conflict. In such a university those engaged in teaching and enquiry would each have to play a double role. For, on the one hand each of us would be participating in conflict as the protagonist of a particular point of view, preserving and transforming the initial agreements with those who share that point of view and so articulating through moral and theological enquiry a framework within which the parts of the curriculum might once again become parts of the whole. The second task would be to enter into controversy with other rival standpoints, doing so both in order to exhibit what is mistaken in that rival standpoint in the light of the understanding afforded by one's own point of view and in order to test and retest the central theses advanced from one's own point of view against the strongest possible objections to them to be derived from one's opponents. So systematically conducted controversy would itself contribute to systematically conducted moral and theological enquiry, and both would inform that teaching in which students were initiated into both enquiry and controversy.
On the other hand, each of us would also have to play a second role, that not of a partisan, but of someone concerned to uphold and to order the ongoing conflicts, to provide and sustain institutionalized means for their expression, to negotiate the modes of encounter between opponents, to ensure that rival voices were not illegitimately suppressed, to sustain the university -- not as an arena of neutral objectivity, as in the liberal university, since each of the contending standpoints would be advancing its own partisan account of the nature and function of objectivity -- but as an arena of conflict in which the most fundamental type of moral and theological disagreement was accorded recognition.
February 16, 2023 in DeGirolami, Marc | Permalink
Wednesday, February 15, 2023
Garnett & Garnett on Religious Charter Schools in Oklahoma
Along with Prof. Nicole Stelle Garnett (Notre Dame), I have a short piece up at the First Things website, discussing the recent application of a Catholic program for status as a charter school in Oklahoma. Big doings are afoot! Here's a bit:
The premises of St. Isidore’s application are clear and straightforward. The First Amendment to the Constitution guarantees the “free exercise” of religion and so prohibits anti-religious discrimination by governments. As Chief Justice John Roberts put it in last summer’s Carson v. Makin decision, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Accordingly, the justices ruled, it was unconstitutional for Maine to exclude “sectarian” schools from a program that helped pay the private school tuition of kids who live in rural areas without government-run schools. By the same token, the Oklahoma attorney general’s letter correctly reasons, a state may not open up a charter school program—one that permits private entities to accredit and operate a wide variety of schools—but exclude otherwise qualified schools simply because of their religious character or affiliation.
Note that St. Isidore’s argument is not that secular, civil governments in the United States may or should operate religious enterprises. After all, the First Amendment also protects religious freedom by outlawing religious establishments. Under our Constitution, religious and political institutions and authorities are distinct. They may and often do cooperate, to be sure: Governments have long funded religious agencies’ healthcare and social welfare services, asylum resettlement and anti-human trafficking efforts, and schooling and research. What our “separation” of church and state means, though, is that secular governments do not decide matters of religious doctrine or interfere with churches’ religious affairs.
In practice and on the ground, however, charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really “state actors.” And so the conclusion follows neatly from Carson: Once a state decides to engage and cooperate with non-governmental actors to educate its residents, it cannot single out for exclusion actors whose motives or methods are “religious.”
February 15, 2023 in Garnett, Rick | Permalink | Comments (0)
Sunday, January 29, 2023
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.
January 29, 2023 in DeGirolami, Marc | Permalink
Sunday, January 15, 2023
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 . . .
January 15, 2023 in Garnett, Rick | Permalink
Tuesday, January 10, 2023
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.
January 10, 2023 in DeGirolami, Marc | Permalink
Monday, January 9, 2023
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.
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
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)
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)
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
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
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
January 9, 2023 in DeGirolami, Marc | Permalink
Sunday, January 1, 2023
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).
January 1, 2023 | Permalink
Saturday, December 31, 2022
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?
December 31, 2022 in Garnett, Rick | Permalink
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)
December 31, 2022 in Garnett, Rick | Permalink
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.
December 31, 2022 in Garnett, Rick | Permalink
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.
December 31, 2022 in DeGirolami, Marc | Permalink
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.
December 31, 2022 in DeGirolami, Marc | Permalink
Friday, December 30, 2022
"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.
December 30, 2022 in Garnett, Rick | Permalink
Sunday, December 25, 2022
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.
December 25, 2022 in DeGirolami, Marc | Permalink
Friday, December 23, 2022
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.
December 23, 2022 in DeGirolami, Marc | Permalink
Thursday, December 22, 2022
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.
December 22, 2022 in Garnett, Rick | Permalink | Comments (0)
Thursday, December 15, 2022
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."
December 15, 2022 in Garnett, Rick | Permalink | Comments (0)
Tuesday, December 6, 2022
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.
December 6, 2022 in DeGirolami, Marc | Permalink
Sunday, December 4, 2022
"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."
December 4, 2022 in DeGirolami, Marc | Permalink