Mirror of Justice

Video Games and First Amendment Ideology

Mike Dorf has an excellent post at Dorf on Law on the video games case, but I want to modify his terminology (and I am sure he would agree with most of what I say here). Mike describes the position of Justice Breyer favoring the constitutionality of violent video game regulation as "breaking conservative" and Justice Scalia and Kennedy's position arguing that such regulation was unconstitutional as "breaking liberal." This terminology is quite common and has been for more than half a century, but I do not think it is useful. The underlying assumption is that favoring the First Amendment position is liberal and opposing it is conservative.

But, on this view, Cass Sunstein and I are conservatives. I could accept the view that we are not "liberals." But I think of us as progressives, not conservatives. Sunstein and I and many others do not believe the First Amendment is a barrier (with exceptions) to campaign finance regulation, commercial speech regulation, pornography regulation, attempts to protect privacy and human dignity and the like. We do believe in strong protections for political speech (Sunstein's emphasis) and dissent (my emphasis). As my colleague, Aziz Rana observes, it has long been part of the progressive tradition to nurture a particular kind of culture.

At the same time, I do not believe Scalia and Kennedy "broke liberal." There is a well-known split on the right between Libertarianism and Burkean Conservativism. I would say that Scalia and Kennedy broke libertarian. In results, Kennedy is far more libertarian than Scalia (consider the latter's views on the state's regulation of sexuality and sexual speech).

From my perspective, the free speech approach of the Court is bleak, but it is nice that the liberals sometimes "break progressive" in some of the campaign finance cases, and Alito's Burkean conservatism overlaps the progressive view in cases involving depiction of animal cruelty and demonstrations at military funerals calculated to inflict emotional distress.

cross-posted at religiousleftlaw

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(Conservative) Optimism and Pessimism

This is a well written and interesting extended review by John Gray of David Brooks's apparently avidly consumed book, The Social Animal.  I've admired some of Gray's work very much, particularly his superb treatment of Isaiah Berlin (which is in some ways as much Gray as Berlin).  It is sometimes supposed that "progressivism" correlates with optimism, and "conservatism" with pessimism, but this review is interesting in part because it pits two strains of contemporary conservatism against one another -- Brooks's optimistic, cog-sci, evolutionary-psychology-can-save-us, let's-mine-the-unconscious-for-political-wisdom variety (which Gray, interestingly, associates with Sam Harris's book, The Moral Landscape: How Science Can Determine Human Values), against Gray's pessimistic, declinist, no,-we're-actually-not-so-much-more-advanced-than-Freud-that-we-can-dispense-with-reading-him brand.  Here's the conclusion of Gray's piece:

Brooks cites Michael Oakeshott’s observation that in politics we “sail a boundless and bottomless sea; there is neither harbor for shelter nor floor for anchorage, neither starting place nor appointed destination.” It is a refreshing reminder of what conservative thinking might once have been. But Brooks would have done better to cite another passage from the same volume, where the skeptical British philosopher notes that

there seems little to stand in the way of the appearance of a vulgar counterpart to this literature of political inquiry. . . . A little book on How to Restore old Cottages may be flanked on the bookstalls by one on How to Restore old Monarchies; an article on “A face-lift for the kitchen: new and exciting materials” in a Do It Yourself magazine will be followed by others on “Dos and Don’ts in making a Revolution,” “How to win an Election.”

Oakeshott comments that “writings of this kind (with perhaps less obvious titles) have been available for more than a century.” It is doubtful, though, whether Oakeshott envisioned a book like The Social Animal: an instruction manual for politicians, the chief virtue of which is that it is practically useless.

This appealing emptiness will not ensure the book’s longevity, however. Soon enough, Brooks’s manual of positive thinking will be consumed and discarded. History will move on and yesterday’s gurus will be remaindered and forgotten. But if Brooks’s book will hardly be remembered, the reverence with which it has been received tells us something important about how we have come to be ruled. The Social Animal is an exemplar of political discourse as we know it today; the chief function is to distract attention from intractable realities, which governments and those they govern prefer not to think about.

Augustine and The Tree of Life

Terrence Malick's masterpiece The Tree of Life is a stunningly beautiful film, but be forewarned that it doesn't have a straightforward plot insofar as it's about...well, everything from the origin of the universe through the evolution of life on Earth to the end of matter, with a lingering pause on a Catholic family in 1950s Waco, Texas. The otherwise gushing reviews from critics have largely missed the film's Augustinian themes: nature and grace ("The nuns taught us there were two ways through life, the way of nature and the way of grace."), interiority and the second-person dialogue with God that echoes Augustine's Confessions ("I didn't know how to name You then. But I see it was You. Always You were calling me."), love (“The only way to be happy is to love. Unless you love, your life will flash by.”), and the surd of human sinfulness in a "Pear Tree"-like incident. Terrence Malick is an eccentric genius, but he's made the most overtly theological major American motion picture since Bruce Beresford's Tender Mercies in 1983.

Tragedy and the Strong Reading of Precedent: A Response to Tom

I'm grateful to Tom as well as Michael for highlighting my work.  It isn't often that a junior person is blessed with as acute, thoughtful, and learned an audience as what I had at the ALRR.

Tom raises what I take to be one of the most powerful criticisms of my book project.  I want to step back for a moment in order to address Tom's question properly.  I adopt a specific variety of value pluralism for religious liberty questions.  That approach is skeptical about accounts of religious liberty which rely on one or even several discrete values to work out religion clause conflicts.  Some of these single value accounts acknowledge the costs of their view; others do not.  But even those accounts which admit the possibility of loss or cost when some values are chosen over others (Tom's letter b) nevertheless believe that it is possible and profitable to justify in a systematic way ex ante which values ought to win in any given conflict.  And they use that specification to construct comparatively hard rules that lead to certain outcomes -- certain in both senses of the word: (1) specific outcomes that elevate the selected value to overriding status; and (2) predictable outcomes, because people come to know that, say, the Establishment Clause is guided by a norm of state neutrality which will control in all cases.

The question that Tom asks is, how do the clearly important and worthwhile aims of predictability of outcome and legal stability figure into an account which does not start from the position that values can be systematized or rank ordered?  I agree with Tom that these rule of law values are deeply important, and I think it would count very much against any approach that it sacrificed stability and predictability.  Another way to ask this might be to wonder whether it is possible to disaggregate (1) and (2) above -- is it really true that the only way to achieve stability and predicability in the law is by elevating a single value (or small set of values) to master status?  Or can we achieve many of the advantages of (2) without (1)?

I think that we can, by adopting a comparatively strong and binding approach to precedent.  We can give rule of law values their due and adopt the position that value pluralism is the order of the day when it comes to religious liberty conflicts, by keeping a close eye on precedent and hewing to a minimalist and gradualist view of legal change.  That common law sensibility will get us many of the advantages of predictability and stability without making the mistake of believing that we can conclusively systematize the values often in play.  In fact, over time, a judicial culture which adopts a tragic view as well as a strong reading of precedent will, I believe, create a predictable and stable system.  But its stability and predictability will derive not from theoretical system, but from a close examination of the particular facts for similarity or difference with past decisions.

Admittedly, and as was pointed out to me gently at the ALRR, my approach might seem inelegant from a theoretical perspective.  Indeed, to the extent that my view is persuasive, it persuades exactly because it is theoretically unsystematic and (for some) dissatisfying.  I will quote from one of Tom's excellent pieces on a related subject: "[T]here is a fairly widespread view . . . that if judges cannot find a coherent single principle – or at least a rather small and manageable set of principles – on a subject, they should exit entirely and let the politically accountable branches decide such questions prudentially."  Berg, Religion Clause Anti-Theory.  I guess I don't agree with that widely shared view, and I suppose if I were forced to choose between simple and predictable single-value rules that mutilate the conflicts of religious liberty for the sake of cohesion and an inelegant approach that permits judges to aspire to analyze the conflicts as they actually are, I would go for the latter.  But the reality is that this is a false choice because my approach depends to a great extent on the constraining quality of precedent to shape judgment -- not by giving judges a quick and easy rule to apply, but by focusing their attention on fact specific inquiries within which multiple values (though certainly not an infinite number of them) compete for dominance.  We can have (2) without (1) -- and courts often decide cases believing just this (and...if I had to predict the way Hosanna-Tabor will be written, it will reflect something like my approach!).

Thanks again, Tom, for the terrific and difficult question, which I've only sketched an answer to here.

Desire vs. convention

There has been lots of debate within the gay and lesbian community about whether the embrace of marriage represents a loss of something significant for the community.  One article on the debate contained a quote from Laurie Essig that concisely captures the sentiment:

"In the past, we queers have had to beg, cheat, steal and lie in order to create our families. But it's exactly this lack of state and societal recognition that gave us the freedom to organize our lives according to desire rather than convention."

Social convention may not always provide the best framework for organizing one's life, but I'm pretty sure that desire is an even more dangerous candidate for that function.

Communio Issue on Caritas in Veritate

I returned from my summer travels to find the winter 2010 issue of Communio in my mailbox. It is devoted to Caritas in Veritate, with some valuable articles. I particularly appreciate Nicholas J. Healy', Jr.'s article, "Caritas in Veritate and Economic Theory," in which he discusses three common objections to the idea expressed in the encyclical that "gratuity and reciprocity are essential to economic practice and theory."

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Another Recurring Theme in the Law and Religion Roundtable ...

... was the idea that Religion Clause doctrine ought to reflect multiple principles and considerations: various doctrinal principles like liberty, equality, and separation, as well as other considerations like history, pragmatic effect, etc.  Both Marc deGirolami and Alan Browstein presented significant projects from this perspective.  Both of them recognized, I think, that multi-factor approaches give up a degree of predictability (and discretion-constraining force?) compared with approaches that emphasize one or two factors.  But they emphasized that such approaches (a) take into account more relevant values and also (b) make plain the costs that are involved when judges choose some values over others (as they must) in any particular case.

Conference participants said very good things about both projects but also raised some good questions for the authors.  Here's a question for Marc:  I get the sense that in your calculus of factors among which judges must inevitably (and "tragically") choose in a given case, you don't give a lot of weight to the factor of having a predictable, clear rule for future cases.  Why shouldn't that be an important consideration?  Or am I wrong that it doesn't figure in or emerge from your approach?

Tom

Amicus Brief in Ministerial-Exception Case: Institutional Church-State Separation and the History of Disputes over Clergy Selection

Rick Garnett, Carl Esbeck (Missouri Law), Kim Colby (Christian Legal Society), and I filed this amicus brief last week in Hosanna-Tabor Lutheran School, the pending Supreme Court case about the "ministerial exception" from antidiscrimination laws.  Two of the brief's important points are:  (1) There is a core meaning of "separation of church and state" that ensures separation and distinction between the institutions of church and state and autonomy for the church (and for the state, actually) in its core functions.  (2) This arrangement of freedom/autonomy/separation for religious institutions is inseparable from the long history of disputes over government efforts to take a role in the selection of clergy -- from the investiture controversy to today's ministerial-exception issue.  (We also have something to say about why teachers at religious schools should, in a great many cases, be treated as "ministers.")

We think that the separation-of-institutions argument may appeal to justices, and others, across the spectrum of views on the contested issues of church and state.  We're encouraged in that by the fact that our brief has as signatories the National Association of Evangelicals, the strict-separationist Baptist Joint Committee on Religious Liberty, and Professor Eugene Volokh, who is no automatic vote for the religious institutions' side in Religion Clause cases.  (Ours and other briefs in the case so far are posted here.)

Here's an excerpt from the summary of argument:

The ministerial exception, at issue in this case, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Reasonably constructed and applied, the ministerial exception not only helps civil decision-makers to avoid becoming entangled in essentially religious questions; it also, and even more importantly, protects the fundamental freedom of religious communities to educate and form their members. Although this may prevent individuals in some cases from suing for discrimination, it rests on the overriding principle that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law‘s corrective reach. The civil authority lacks competence to intervene in such matters, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdictional power.

Tom

Why Does Obama Make It So Darn Hard to Defend His Foreign Policy on Moral Principle?

Over the past few months, I’ve crossed party lines, readily upset conventional assumptions, and taken heat from friends and allies to express qualified but genuine support for President Obama’s foreign policy in many respects, especially with respect to the use of American military force.  I have spoken in favor of Obama’s military intervention in Libya to prevent a civilian massacre, his willingness to hold strong (up until now) on the American military presence in Afghanistan to build opportunities for a new generation there (especially as to the prospects for women and children in that country), and his bold leadership in presiding over the raid to remove Osama bin Laden as the world’s most notorious figure of terrorism.

In each case, I’ve been willing to voice my support because I thought President Obama had not only made the right decision but had done so for reasons of principle.  Recognizing that reasonable people could disagree, I nonetheless believed that these difficult choices were consistent with Catholic teaching about the regrettable but sometimes necessary use of military force and also with the highest ideals for American moral responsibility in the world.

So why does President Obama make it so darn hard to continue to defend that foreign policy? 

On Afghanistan, Obama now has chosen to withdraw American troops on a scale and at a rate that overrides the better-informed advice of military leadership and that makes success in that country, on any measure and even in a limited manner, far less likely.  Obama’s speech announcing the draw-down of troops from Afghanistan lacked any specific rationale for his actions beyond platitudes.  He appeared to many observers as trying to have it both way, gesturing to the left with a (partial) end to a long war, while dodging criticism from the right that he was simply retreating.  As a result, we now have an Afghanistan policy that makes no sense militarily, economically, or otherwise—too big to simply prevent it from becoming again a base to international terrorism but too small to give a chance to rebuilding a society.  One cynically wonders whether Obama’s decision to withdraw 30,000 soldiers from Afghanistan by the particular date of September 2012 is designed to serve any purpose other than to coincide with the Democratic National Convention in September 2012.

On Libya, Obama has adopted the truly laughable (see Stephen Colbert video excerpt posted here) argument that the United States in launching cruise missiles, flying high altitude bombing strikes, and unleashing drone aircraft against the Gaddafi regime has not engaged in “hostilities” within the meaning of the War Powers Resolution.  Even setting aside the fact that American forces were placed at risk in this episode (remember that at least one American aircraft crashed in Libya, with both servicemen fortunately being quickly rescued) and that American personnel appear to have been on the ground in an advising capacity to Libyan rebels, no one is buying the argument that America is not engaged in hostilities.

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As Senator Bob Corker puts it:  “If dropping bombs and firing missiles on military installations are not hostilities, I don’t know what is.  The president’s actions on Libya are nothing short of bizarre."  More importantly in its moral implications, as Notre Dame Professor Mary Ellen O’Connell reminds us, if the United States is not engaged in “hostilities” in Libya, then our country’s armed “forces are engaged in unlawful killing. The U.S. has deployed manned and unmanned aircraft to fire missiles and drop bombs—the type of weapons only permissible for use in armed conflict hostilities.”

There were two principled paths that Obama could have taken on Libya, but he chose neither.  First, he could have shown real leadership by making the moral case to the American people for continued participation in the NATO action in Libya, rather than leaving that task to his former opponent, Senator John McCain.  On this path, Obama would have forthrightly sought congressional approval (as have Obama’s predecessors, including President George W. Bush, in every similar past case).  Second, Obama could have argued that the War Powers Resolution is an unconstitutional intrusion on presidential powers and forthrightly said he would not comply with its requirements (again, a position taken by Obama’s predecessors of both parties).  Right or wrong on the substance, either position had the merit of integrity.  Instead, Obama appears to want to avoid any responsibility by pretending nothing really is happening (just move along, nothing to see here).

Sadly, I now am beginning to believe that Obama’s foreign policy is driven by political expediency rather than motivated by moral principle.  I worry that our foreign and military policy will fail to have a plausible moral justification while simultaneously sending a dangerous message of weakness and lack of resolve to the rest of the world.  And I am beginning to wonder whether I and others (especially those of us not of the President’s party) who have supported these foreign policy steps have been played for chumps here.  Tell me, am I wrong?

Greg Sisk

The Dynamo, the Virgin, and Justice Breyer

I see that this website has an interview with Justice Breyer where he lists and comments on several books that have influenced him.  The list is interesting and, at least to me, somewhat surprising.  I would not have expected The Education of Henry Adams to appear on it.  Indeed, I wonder about Justice Breyer's view that the book is about the survival of democracy, let alone the view expressed by the interviewer that Adams in The Education "was both sceptical and optimistic about the constitutional system . . ."  I'm not sure that's how I read, say, this memorable bit from the penultimate chapter, "A Law of Acceleration":

At the rate of progress since 1800, every American who lived into the year 2000 would know how to control unlimited power. He would think in complexities unimaginable to an earlier mind. He would deal with problems altogether beyond the range of earlier society. To him the nineteenth century would stand on the same plane with the fourth--equally childlike--and he would only wonder how both of them, knowing so little, and so weak in force, should have done so much. Perhaps even he might go back, in 1964, to sit with Gibbon on the steps of Ara Coeli.

Meanwhile he was getting education. With that, a teacher who had failed to educate even the generation of 1870, dared not interfere. The new forces would educate. History saw few lessons in the past that would be useful in the future; but one, at least, it did see. The attempt of the American of 1800 to educate the American of 1900 had not often been surpassed for folly; and since 1800 the forces and their complications had increased a thousand times or more. The attempt of the American of 1900 to educate the American of 2000, must be even blinder than that of the Congressman of 1800, except so far as he had learned his ignorance. During a million or two of years, every generation in turn had toiled with endless agony to attain and apply power, all the while betraying the deepest alarm and horror at the power they created. The teacher of 1900, if foolhardy, might stimulate; if foolish, might resist; if intelligent, might balance, as wise and foolish have often tried to do from the beginning; but the forces would continue to educate, and the mind would continue to react. All the teacher could hope was to teach it reaction.