Mirror of Justice

Review of Deneen's "Why Liberalism Failed"

I have a review of Patrick Deneen's book, Why Liberalism Failed, at the Liberty Fund blog. A bit:

[L]aw is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.

Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.

Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.

Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.

What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.

Aquinas, Eisenhower, and Earl Warren walk into a bar ...

Okay, not quite. But the November 1955 edition of American Bar Association Journal brought together Thomas Aquinas, Dwight Eisenhower, and Earl Warren. The Angelic Doctor graced the cover while Eisenhower and Warren contributed speeches commemorating the 200th birthday of John Marshall. Here's the cover, along with the table of contents and links to Eisenhower's speech and Warren's speech: 

 

China's secularist dictatorship is . . . the best vehicle for implementing Catholic Social Thought? Stupid.

It's being reported that Bishop Marcelo Sánchez Sorondo said recently that (among other things) "those who are best implementing the social doctrine of the Church are the Chinese . . .  You do not have shantytowns, you do not have drugs, young people do not take drugs . . . [T]he economy does not dominate politics, as happens in the United States, something Americans themselves would say.”  

This is incredibly ignorant and foolish.  No, my point is not that it's foolish to see, say, democratic socialism as a sometimes effective vehicle for some aspects of the Church's social teachings, nor is it to deny the observation that China is, in some respects, different from what it was during John Paul II's pontificate, nor is it that the Church's social teachings are perfectly operationalized in democratic-market economies.  But . . . China?  Shame on him.  It is impossible to take seriously a Vatican office ("Pontifical Academy of Social Sciences") that propagates this kind of silliness -- actually, "silliness" isn't strong enough.  It's repulsive. 

Let's put aside the dumb and easily falsifiable claim about "shantytowns" or about China acting for "the good of the planet"; put aside too, for now, the facts about abortion, capital punishment, censorship, lawlessness, etc.  The Church's social teachings rest, foundationally, on a moral anthropology and a social ontology that are completely incompatible with either Chinese communism or "socialism with Chinese characteristics."      

 

Call for submissions: 2018 Prize for Outstanding Scholarship in Catholic Social Thought and Int'l Human Rights

Notre Dame Law School's Journal of Comparative and International Law and the University's Center for Civil and Human Rights are teaming up to award a prize for Outstanding Scholarship in Catholic Social Thought and Human Rights.  More information is available here.

A Letter to the Polish Prime Minister

H.E. Mateusz Morawiecki

Prime Minister

Republic of Poland

00-583 Warsaw
Al. Ujazdowskie 1/3

POLAND

                                                                                                                         February 2, 2018

Your Excellency:

I write as a friend of Poland and as someone who was deeply honored to receive from the Republic of Poland in 2010 at a ceremony in Warsaw the Odznake Honorowa za Zaslugi dla Ochrony Praw Czlowieka in recognition of my work in defense of human rights.

I wish to express my concern about proposed legislation that could restrict or have the effect of discouraging historical scholarship and freedom of speech concerning the Shoah and the death camps that the Third Reich placed on Polish soil.

I understand and, of course, share the legitimate concern of your government not to have Poland and the Polish people, who so nobly resisted the Nazis and who suffered so greatly under their tyranny, falsely accused of crimes they did not commit. Millions of non-Jewish Poles and others were murdered along with Polish Jews and Jews of other nationalities in the Shoah. No one’s victimization and suffering must be forgotten or minimized. And it is to the credit and glory of Poland and the Polish people that so many Poles are among the rescuers and resisters who are honored as “Righteous among the Gentiles” at Yad Vashem.

I'm sure you will agree, however, that it is also important for the truth to be told about the willing complicity of some non-Jews, including some who were Polish, in anti-Semitic acts, denunciations, and even the operation of the death camps. The freedom to tell the whole truth about the Shoah must be recognized and treated as sacrosanct. This unavoidably means tolerating some abuses of freedom of speech by people who will say things that are false and even unjust. To use the force of criminal law to prevent such abuses from ever occurring would inevitably have a chilling effect on historical debate and scholarship.

Please do not take my plain speaking on this issue to mean that I am presuming to lecture my Polish friends or assume a position of moral superiority. I am not. As an American, I recognize that along with many acts of virtue and heroism in my own nation’s history—acts for which Americans are justly proud—there are also horrible injustices and other evils that stain our nation’s conscience, including injustices in which some illustrious Americans whom we venerate for other reasons were personally implicated. We continue to this day to struggle, for example, with our history of slavery and racial injustice, a struggle deepened by the fact that some of our Founding Fathers (including George Washington, Thomas Jefferson, and James Madison) owned slaves.

I understand, appreciate, and share your government’s objection to the phrase “Polish death camps” as a description of the killing factories placed by the Third Reich on Polish soil. The phrase is all-too-easily interpreted as suggesting that Poland and the Polish people established and operated the camps. That is false and slanderous. Objecting to it is reasonable and setting the historical record straight is necessary. But it is critically important that freedom of speech be respected and that no legislation be put into place that could impede robust discussion and debate about the Shoah, including discussion of anti-Semitism and collaboration in Poland and elsewhere.

I commend your government for your willingness to open a dialogue with the government of Israel on this matter. I am confident that goodwill on both sides can produce an outcome that honors the interest shared by decent people of all nationalities and faiths in ensuring fairness and truth in the telling of the story of the Shoah.

Yours sincerely,

Robert P. George

McCormick Professor of Jurisprudence

Princeton University

"Groundhog Day" returning to theaters!

One of the best Catholic movies ever made, "Groundhog Day," is turning 25, and returning to theaters to celebrate.  Story here.

Another episode in religious liberty and contraceptives mandates --- indifference in Virginia's Senate

There's a long-running dispute about which reason is worse for why people sometimes get the law wrong: stupidity or willfulness. That does not exhaust the possibilities, though. And I recently encountered a third explanation while at a meeting of the Virginia Senate Committee on Commerce and Labor. That third explanation is indifference. 

I spent almost five hours Monday afternoon waiting to testify for two minutes against a state-level contraceptives mandate with no religious exemption. My basic points were: (1) this bill would invite religious liberty litigation that the Commonwealth would lose; and (2) there is no evidence (according to the Guttmacher Institute) that the federal contraceptive mandate has altered the rate of contraceptive use or mix of contraceptives used. The proposed law isn't just a solution in search of a problem (because of its failure to advance a government interest), but a problem in search of a problem (because of its invasion of religious liberty). 

Shortly before the bill's sponsor presented the bill to the Committee on Commerce and Labor, a substitute bill was introduced.  This one had a sort-of exemption for "religious employers," but the definition of "religious employer" was the narrow four-part definition that turned out to be inadequate even in the view of the Obama Administration at the federal level. If the bill had passed, we would still have seen the same litigation play out as at the federal level (although primarily under Virginia's religious freedom law rather than RFRA).

The bill's sponsor, Senator McClellan, contended that the point of the bill was simply to codify what was in federal law. I believe this contention was sincere. But Senator McClellan was wrong.

The scope of religious freedom protection from the federal contraceptives mandate has been a flashpoint of controversy over the last five years. And the result of that controversy has been expansion of the exemption for religious employers over time. Some of this expansion was voluntary; other aspects came as the result of litigation and the presidential election. Yet this state bill would have codified as a matter of state law a definition of "religious employer" that would have resulted in losing lawsuits for the Commonwealth. 

The committee carried the bill over to next year, effectively killing it for this year. But that came with a swipe against churches by one of the senators and a paean to contraceptive coverage by another.

The waters are choppy out there. True, if this law had passed, the fees from successful litigation would have been enough for some jet skis (and then some). But far better for the bill not to have passed. The resulting litigation would have been further evidence for my recent observation about religious liberty litigation these days: "If you're litigating, you're losing."