Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 26, 2023

Article Posted on the Respect for Marriage Act

Doug Laycock, Carl Esbeck, Robin Wilson, and I have posted "The Respect for Marriage Act: Living Together Despite Our Deepest Differences," on SSRN (forthcoming in the University of Illinois Law Review). First paragraph of the abstract:

The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.

During the RMA's consideration, the four of us provided an analysis to senators arguing that the religious-liberty protections in the Act were substantial and that the Act offered a chance, even a model, for a pluralistic approach that, by protecting both sides, can help put at least some limit on fear and the attendant political-cultural polarization. This Article expands greatly on that analysis.

April 26, 2023 in Berg, Thomas, Current Affairs, Religion | Permalink

Tuesday, April 25, 2023

"The horror of the Same Old Thing"

From Chapter 25 of Lewis's The Screwtape Letters:

The horror of the Same Old Thing is one of the most valuable passions we have produced in the human heart--an endless source of heresies in religion, folly in counsel, infidelity in marriage, and inconstancy in friendship. The humans live in time and experience reality successively. To experience much of it, therefore, they must experience many different things; in other words, they must experience change. And since they need change, the Enemy (being a hedonist at heart) has made change pleasurable to them, just as He has made eating pleasurable. But since He does not wish to make change, any more than eating, an end in itself, He has balanced the love change in them by a love of permanence. He has contrived to gratify both tastes in them in the very world He has made, by that union of change and permanence which we call Rhythm. He gives them the seasons, each season different yet every year the same, so that spring is always felt as a novelty yet always as the recurrence of an immemorial theme. He gives them in His Church a spiritual year; they change from a fast to a feast, but it is the same feast as before.

Now, just as we pick out and exaggerate the pleasure of eating to produce gluttony, so we pick out this natural pleasantness of change and twist it into a demand for absolute novelty...The demand is valuable in various ways. In the first place it diminishes pleasure while increasing desire. The pleasure of novelty is by its very nature more subject than any other to the law of diminishing returns. And continued novelty costs money, so that the desire for it spells avarice or unhappiness or both. And again, the more rapacious this desire, the sooner it must eat up all the innocent sources of pleasure and pass on to those the Enemy forbids. Thus by inflaming the horror of the Same Old Thing we have recently made the Arts, for example, less dangerous to us than, perhaps, they have ever been, 'low-brow' and "high-brow' artists alike now being daily drawn into fresh, and still fresh excesses of lasciviousness, unreason, cruelty, and pride...

But the greatest triumph of all is to elevate this horror of the Same Old Thing into a philosophy so that nonsense in the intellect may reinforce corruption in the will. It is here that the general Evolutionary or Historical character of modern European thought (partly our work) comes in so useful. The Enemy loves platitudes. Of a proposed course of action He wants men, so far as I can see, to ask very simple questions; is it righteous? is it prudent? is it possible? Now if we can keep men asking 'Is it in accordance with the general movement of our time? Is it progressive or reactionary? Is this the way that History is going?' they will neglect the relevant questions. And the questions they do ask are, of course, unanswerable; for they do not know the future, and what the future will be depends very largely on just those choices which they now invoke the future to help them make. As a result, while their minds are buzzing in this vacuum, we have the better chance to slip in and bend them to the action we have decided on. And great work has already been done. Once they knew that some changes were for the better, and others for the worse, and others again indifferent. We have largely removed this knowledge. For the descriptive adjective 'unchanged' we have substituted the emotional adjective 'stagnant.' We have trained them to think of the Future as a promised land which favoured heroes attain--not as something which everyone reaches at the rate of sixty minutes an hour, whatever he does, whoever he is.

April 25, 2023 in DeGirolami, Marc | Permalink

Tuesday, April 18, 2023

Prof. Dan Philpott on a "Christian Case for Reparations."

Here is the abstract from a new paper by my friend and colleague Dan Philpott:

National healing for the persistent wounds of racism, America’s original sin, can be advanced through a national apology, reparations and forgiveness. The frequent practice of apologies and reparations around the world in the past generation provide precedent for such measures. Christianity’s teaching of reconciliation and accompanying notions of sin, repentance, forgiveness, and atonement provide a strong moral basis for these measures and resonate with the rationales through which the United States’s greatest champions of civil rights and equality have fought against racism and slavery. Because racism and slavery were supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body. Questions of who pays, who receives, and what form reparations take are important ones and can be answered adequately. Through collective apology, reparations, and forgiveness, the United States would enact and renew its national covenant, acting in the tradition of Abraham Lincoln, Frederick Douglass, and Martin Luther King, Jr.

I'm inclined to agree with Prof. Philpott that, in some cases, when wrongs were "supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body."  I am not convinced, though, that the "important" "[q]uestions of who pays, who receives, and what form reparations take" are "answered adequately" in the piece.  See for yourself!

April 18, 2023 in Garnett, Rick | Permalink | Comments (0)

Saturday, April 15, 2023

Into God: An Intellectual Retreat with St. Bonaventure

I have not posted here much as I've been getting settled with the CIT Project at CUA's Columbus School of Law, but I would like to extend an invitation to those in the MOJ community (in one way or another, read on) to an intellectual retreat in June:

Into God: An Intellectual Retreat
for Catholic Law Professors and Fellow Wayfarers

2 p.m. Thursday, June 22, 2023 to 12:30 p.m. Saturday, June 24, 2023
Columbus School of Law, The Catholic University of America, Washington DC 

What is this gathering?  This is an initiative for theological formation and good old-fashioned fellowship in faith.

Who is invited? The plan is for most of those attending to be law professors and most to be Catholics, but not all participants will be both, and some will be neither. If you are interested in coming, email me at [email protected]. So ... if you are a law professor, but not Catholic ... or if you are Catholic, but not a law professor ... or if you are neither Catholic nor a law professor (for example, if you are an aspiring law professor of a sort who would like to learn more about St. Bonaventure's theology and spirituality and meet people with a similar interest), please do not hesitate to email me about your interest in attending. I am trying to maintain a nucleus of Catholic law professors, but I am also hoping for a broader gathering. 

Where?  This intellectual retreat will take place at Columbus School of Law, The Catholic University of America, Washington, D.C. We will provide meals and other refreshments. As needed for out-of-town guests, we can also coordinate accommodations  near campus and transportation back-and-forth between accommodations and campus.   

What will we be doing? All registered participants will receive a copy of Into God: Itinerarium Mentis in Deum of St. Bonaventure, translated and annotated by Fr. Regis Armstrong, OFM Cap. (CUA Press 2020) (see excerpts of reviews below). You will read before our gathering. When we come together as a group, Fr. Regis Armstrong (Emeritus Professor, CUA, Theology and Religious Studies) and Dr. Joshua Benson (CUA, Theology & Religious Studies) will lead sessions guiding us through St. Bonaventure's Itinerarium. We will have time for discussions, free time, meals, individual prayer, and communal worship

What should I do next? If you are interested in attending, please email me at [email protected]. Please email also if you are interested in something like this but can't make it this year and want to be in the loop for similar things in the future. 

Ciao e buona ventura,




Reviews of Into God: Itinerarium Mentis in Deum of Saint Bonaventure
"This is the work of a mature scholar who is arguably the most eminent contemporary scholar of matters Franciscan in the English speaking world...will be an essential reference point for the explication of this text."―Lawrence S. Cunningham, University of Notre Dame

"At a time when many are striving to find hope in the midst of uncertainty, Fr. Regis Armstrong's brilliant translation of Into God allows us to share in St. Bonaventure's closeness to the Lord. I recommend this book to scholars and all who seek the confidence and consolation of the Lord's promise to be with us always."―Cardinal Sean O'Malley, OFM, Cap., Archbishop of Boston

"Established on the author's lifetime study of patristic and Franciscan sources, Regis Armstrong's Into God capitalizes on his erudition, his skill in contemporary translation equivalency, and his heartfelt penetration of one of the world's greatest spiritual classics. Into God, through close textual and word analysis and commentary with extensive references, opens up the vista of Bonaventure's inheritance in Augustine, Pseudo-Dionysius, Gregory the Great, monastic theology, the Victorines, and Alexander of Hales. This pathway breaks from the dominance of the philosophical straightjacket that had confined the Itinerarium to subsidiary patterns of thought and reveals the Franciscan master in the breadth and depth of his learning as he adopted his biblical and theological inheritance to the search for meaning in the religious and lay followers of St. Francis of Assisi. Anyone who desires to integrate a deep spirituality with the best of the Christian tradition in scripture, theology, and philosophy can do no better than to start with this accessible, classic, and seminal exposition."―Joseph P. Chinnici, OFM, Franciscan School of Theology at the University of San Diego

"A feat! A translation in real English so the everyday reader may enjoy this difficult text. But, also in endnotes a detailed spiritual and theological commentary. A breakthrough on Bonaventure's sources and his use of them."―Therese-Anne Drurart, The Catholic University of America

"Bonaventure's Itinerarium Mentis in Deum is universally recognized as one of the classics of mystical literature. In it the Franciscan master distilled a wide variety of strands of Western mysticism ―Augustinian, Cistercian, Victorine―into a new form of spiritual teaching shaped by the life and example of St. Francis and the early Franciscans. The Itinerarium has been read, translated, and studied for centuries, but Regis Armstrong's new translation and extensive commentary makes this masterpiece available to the contemporary reader in a new and exciting form. This book is a splendid gift to everyone interested in the mystical life."―Bernard McGinn, University of Chicago Divinity School

"Fr. Regis Armstrong has given us the new standard reference for Bonaventure's Itinerarium Mentis in Deum in English. Impressively, Armstrong achieves his hope 'to address three diverse audiences; average readers, including undergraduate and graduate students; religious women and men eager to cultivate their contemplative lives; and scholars.' The arrangement of the text, the clarity of the translation, and the usefulness of the annotations mean that a wide range of readers can pick up Into God and learn from the seraphic doctor's classic text."―Review for Religious

"This translation and commentary will be especially helpful in the classroom and, as already suggested, scholars too can benefit from Armstrong's careful attention to the text and its meaning. This translation of a classic text is destined to become a classic in its own right. We owe a great debt of thanks to Regis Armstrong for all that he has accomplished for Franciscan scholarship over the years."―Archivum Fraciscanum Historicum


April 15, 2023 in Walsh, Kevin | Permalink

Wednesday, April 5, 2023

"The Rise of the Nones"

I had the distinct pleasure of traveling to St. John's University School of Law a couple of weeks ago to participate in the spring symposium sponsored by the Center for Law & Religion, the St. John's Law Review, and the Journal of Catholic Legal Studies. The topic was the role of the so-called "Nones," that is, those without a religious affiliation, in religious liberty cases and debates.

Together with Michael Heise at Cornell, our empirical study of religious liberty decisions, including decisions by judges without a religious affiliation on Establishment Clause cases, will later be published in the St. John's Law Review (for which an earlier draft is now available on SSRN here.)

For those who could not attend and are interested, the Center at St. John's has now published a podcast with Mark Movsesian, Steve Collis, and I. You can access it below:


April 5, 2023 in Sisk, Greg | Permalink

Prof. Gerard Bradley on Prosecutorial Discretion and Judgment in the Trump Case

My friend and colleague, Prof. Gerard Bradley -- a former Manhattan prosecutor, as it happens -- shared with me a short essay on the recent indictment in New York of Donald Trump.  Here it is:

Abuse of Discretion: The Trump Indictment

    • Gerard V. Bradley*

It’s now official: Donald Trump is the first ex-President to face criminal charges.  The People of New York, by a majority vote of twenty-three residents randomly summoned for grand jury duty, lodged a thirty-four count indictment against him.  The misconduct alleged consists of falsified records of ten or so payments, made throughout 2017 by Trump entities to Michael Cohen.  All of them were apparently reimbursements to Cohen for “hush money” he gave Stormy Daniels to keep her quiet about a sexual tryst that Mr. Trump says never happened.  Paying the money is no crime.  Entering the payment on the Trump company’s books as a business or legal expense, could be.  The grand jurors accused Mr. Trump of doing just that, “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof”.

Many politicians and pundits denounce the charges as “politically motivated”.

My worry is that the denunciations are “politically motivated”. Although there is a circumstantial case suggesting that the Manhattan District Attorney Alvin Bragg might have a political agenda, the simple fact is that there is no evidence of what his motivations actually are.  Denunciations of him are meant to fan political conflict. They do. They also further divide, and more bitterly, an already rent body politic.

The politicized criticism is not only mischievous.  It is unnecessary. The Trump indictment is a grave abuse of a prosecutor’s discretion. It should be denounced for that reason. The partisan gamesmanship can stop.

Now, one plausible motive for charging Trump could be that Mr. Bragg believes that Trump’s willingness to falsify records to cover-up an adulterous affair renders him unfit to serve (again) as this nation’s chief law enforcement officer.  Let’s suppose for a moment that this judgment is sound. It still should play no role in Bragg’s decision to prosecute Trump. Bragg’s overall opinion about Trump’s fitness to be the nation’s top cop is entitled to no more authority or amplification than anyone else’s opinion.  Bragg should never use the powers of his office to handicap the next Presidential election.    

One could ask whether Mr. Bragg would seek to indict any other businessman who falsified records for the same amount or any amount for the same tawdry reason, that Trump allegedly did. One could ask as well whether the Manhattan District Attorney’s Office does typically prosecute cases similar to Trump’s.

The problem with this thought experiment is that there are no true comparators.  Donald Trump is not singularly rich or famous, though he is both. But no grand jury target could be more prominent than he is.  None has a more vociferous constituency.  And Trump is, well, Trump: he has relentlessly tried to intimidate the District Attorney and to discredit his investigation – in colorful and often crass terms. 

This mix of factors rightly makes Trump a priority target of law enforcement.  The prominence of any individual should be considered when a prosecutor decides who to charge. It is imperative that prosecutors not only believe that no one is above the law.  They must try to make that truth evident to all. The central ethical justification for prosecuting Trump is the same as for prosecuting anyone: to vindicate the rule of law by imposing just punishment. But the main practical effects are two. One is to hold this powerful man accountable, so that rest of us do not conclude that we are suckers for following the law, to show that playing by the rules is not just for chumps. This is especially true for crimes like those for which Trump was indicted, matters involving the integrity of business records.  Many are tempted to play fast-and-loose with those laws from time to time. The other effect is deterrence; when the rest of us see that the rich get their deserved comeuppance, we are more likely to fall in line too.

Even so: the Trump indictment is a gross abuse of the DA’s awesome but necessary power of prosecutorial discretion.

First, the alleged criminal behavior at the heart of the Trump indictment – falsified invoices and vouchers and checks issued to make good on them – amounts to a misdemeanor in New York, punishable at the same level of severity as shoplifting.  Considered in itself, even someone exemplary (like Trump) would not be prosecuted for falsifying these records.  And Trump was not: the statute of limitations ran out years ago on the misdemeanor charge because the DA did not pursue it. The business records at stake are, moreover, those of a privately held, family company. No one within the company made money off the scheme either; there was no skimming or side-payments to insiders. The public interest in prosecuting this false business entry is slight, at most.

Second. Trump is charged with thirty-four felonies.  The enhancement from misdemeanor is based on a novel legal theory that evades the statutory limitations bar.  That theory is not only untested.  It is unsound. To date, New York prosecutors have upgraded misdemeanor business records frauds into felonies by linking them to acts which are crimes under New York law.  The indictment ties each of the thirty-four specific misdeeds to Trump’s (alleged) attempts to aid in the commission or conceal the commission, of another crime. Nowhere does the indictment say what those further crimes are. But it is almost certain that the proof at trial will reveal them to be federal offenses.

The animating public harms in the indictment are thus not peculiar to New York.  They have to do with the federal election of 2016 and campaign finance laws. Those laws and the common goods they protect are serious matters.  Federal prosecutors should and do enforce those laws. In Trump’s case, Bragg is prosecuting a misdemeanor as a felony when the actor intended (by hypothesis) to conceal the commission of an act that New York does not regard as a crime.  

A case of this magnitude and political consequence is not the occasion to field-test creative interpretations of the criminal law.

Third.  The experimental legal theory coupled with the cratered credibility of the state’s chief witness – Trump “fixer” Michael Cohen – calls into question whether he could properly be convicted on the constitutional standard – proof beyond a reasonable doubt.   This is not mainly a question about whether Manhattan jurors will in fact convict Trump.  Many potential jurors would probably convict hm on no evidence at all.  It is instead a question of honest professional judgment about the quality and quantity of the People’s proof.  It is a question to be answered in one’s best professional judgment ex ante; that is, before proceeding to the grand jury or at least before asking the grand jurors to vote for an indictment. 

As a matter of ethics, a conscientious prosecutor must seriously consider, even in the case of a repulsive defendant, the risk that a jury will convict on less than the quantum of evidence that the Constitution requires.  Persuading a majority of twenty-three grand jurors on the basis of a non-adversarial presentation that there is reasonable cause to accuse someone of a crime is easy. Getting a conviction by the unanimous vote of a jury after a contested trial where the burden of proof is “beyond a reasonable doubt” is hard.

It is almost unfathomable that Bragg’s prosecutors could be sure of their proof.  Combining the second and third factors makes for an especially adventurous prosecution, one that has succeeded in obtaining an indictment without the requisite professional confidence that a conviction is warranted.

Here the titanic political repercussions of indicting an ex-President running to regain the office come into play.  Any prosecutor charging Donald Trump should be all the more confident about the proof and that the legal theory being used are beyond reproach.  Alvin Bragg appears to think it works the other way around: take your best shot at the big game when you get it, even if your best shot is not professionally a sound one.

Fourth. Bragg’s is not the only game in town. There are several other potential Trump prosecutions in the pipeline. They all concern acts which more directly reflect Trump’s fitness to be President. Georgia authorities are investigating whether President Trump criminally interfered in that state’s electoral college returns in 2020.  Specially appointed federal prosecutor Jack Smith (who, coincidentally, began his career as a Manhattan ADA), is looking at possible criminal wrongdoing in Trump’s retention of presidential papers at Mar-a-Lago and, more importantly, in his involvement in the January 6 riot.  The simultaneous pursuit of criminal charges in other jurisdictions is a sound, everyday consideration for prosecutors deliberating about pursuing an investigation and indictment. Usually, local prosecutors like Alvin Bragg stand down when the federal government is so seriously pursuing more serious charges against someone the local DA is targeting.

 “Politically motivated” turns out to be a red herring.  If the Manhattan DA had solid proof that Donald Trump had committed almost any other felony – say, possession of child pornography or selling drugs or defrauding investors of millions – few would criticize his politics, even though he would be the same progressive Democrat that he is today.   The “politically motivated” charge arises precisely because so many people sense that this prosecution of Donald Trump is dubious. It is dubious, an abuse of discretion that ought to be redressed.  That criticism stands on its ground.  It does not need incendiary ballast, which boils our already hot politics.

What then is to be done?

If Trump’s were a more typical defendant and his case an ordinary one of gross unprofessional judgement, the answer might conclude right here: criticism. One would make the case that the prosecutor made a serious error and that the indictment should be dismissed -- and move on. But Trump’s case is not typical.  This abuse of discretion has ignited a political firestorm, one which threatens to seriously damage our country’s common good.  For that reason, in this extraordinary case, all lawful avenues of correction should be considered.

Trump has been indicted in the name of the People of New York.  In reality, the charges are the production of one man, the District Attorney of one county – Alvin Bragg.  One remedial avenue is set out in New York’s Executive Law, section 63(2).  It introduces the entire population if New York into the picture.  This law authorizes Governor Kathy Hochul is to “supersede” Alvin Bragg, to take the Trump case away from him and to assign it to the office of the state Attorney General.  Both Hochul and the Attorney General (Letitia James) are Democrats, of course.  But we should not indulge without evidence the temptation to conclude that their actions in taking over Trump’s case, would be “politically motivated”.

April 5, 2023 in Garnett, Rick | Permalink | Comments (0)

Monday, April 3, 2023

Scholars' Comment Opposing Rescission of Education Dept.'s Student-Religious-Group Protection

(I'm returning to post on the blog after a significant hiatus caused by a bunch of other commitments!)

       The U.S. Department of Education has proposed to rescind a provision it adopted in the Trump Administration protecting student religious groups at public universities from being denied access to facilities and other benefits available to other student groups. For the notice-and-comment process, I took the lead in drafting a comment letter from a blue-ribbon group of scholars*/ opposing the rescission. The rescission would leave student religious groups protected under another (but more uncertain) regulation that applies to nonreligious groups as well. But we argue that the distinctive protection for religious groups is fully justified by the First Amendment. Summary quote:

The religious-group protection categorically prohibits a public IHE [institution of higher education] from denying a group access because of its sincerely held beliefs or practices, including leadership and membership criteria. But that categorical protection has strong support in First Amendment principles and current Supreme Court case law, for two major reasons. First, unconstitutional discrimination against religion comes in many different forms, and litigation has shown that almost any public IHE policy that denies a student religious group access discriminates in one of these ways. Second, the First Amendment also categorically guarantees religious organizations autonomy to set criteria for leadership and membership, and public IHE policies denying religious groups access regularly violate that guarantee.


*/ Doug Laycock, Michael McConnell, Rick Garnett, John Inazu, Michael Paulsen, Asma Uddin, and yours truly. 

April 3, 2023 in Berg, Thomas, Current Affairs, Religion | Permalink

Saturday, April 1, 2023

"Do You Wish To Know? Notes on a New Humanism in Legal Education"

Here is the text [UPDATE: and the video] of a talk I was delighted to give a few weeks ago for the inaugural conference of the Center for Law and the Human Person at Catholic University School of Law, ably directed by Elizabeth Kirk. A bit of a manifesto, I'm afraid, which I offer here now on the 19th anniversary of Mirror of Justice, a forum that has meant a great deal to me.


Do You Wish to Know? Notes on a New Humanism in Legal Education

March 14, 2023

A center for law and the human person is a center devoted to considering questions about humanity, about human nature, about what is good and bad for human beings. About what their ultimate ends are. About who humans are and what they should do.

Such a center, I will claim, is not only about these central questions concerning humanity, but also about the disciplines that have come to be known as the humanities, and the way that the humanities contribute to the formation of fully human beings—in the case of the center, fully human beings who also happen to be lawyers.

What would such a center pursue as part of its core humanistic mission?

Here there are some major challenges that such a fledgling center would confront. There is some bad news. Familiar bad news, perhaps, but bad news nonetheless worth reviewing. The humanities—the study of language (ancient and modern), history, philosophy, literature, the arts, and, on some understandings, religion and theology—are in free fall. The numbers of undergraduates majoring in these fields is shrinking dramatically. Dramatically, in fact, does not do the shrinking the barest justice.

Such is the lack of interest in the humanities that many colleges are eliminating humanistic study altogether. These include Catholic colleges, like Marymount University in Virginia, which recently announced the cutting out of humanistic learning. But not only Catholic colleges. Colleges, religious and secular, are doing away entirely with majors in these subjects, and they are also reducing humanistic study drastically. If these reports are credited, there simply is no longer even the minimal student interest in them necessary to sustain departments or self-standing courses.

And this is not an issue only for what are regarded as less elite institutions. An article in The New Yorker just a few weeks ago observed that over the last decade, humanities majors have dropped at an average rate of 50% at schools like Ohio State, Arizona State, Tufts, Notre Dame, Columbia, and Harvard. In fact, Harvard’s numbers are particularly striking. In 2012, the number of humanities majors at Harvard was 20%. In 2022, it was 7%. The numbers are forecasted to fall even more after that. Good economic times, bad economic times, and everywhere in between, the numbers continue to decline.

The explanations are many and sufficiently plentiful that one can insist on whichever reason one might prefer. Some say that the advent of technology like iPhones and social media (Twitter, TikTok, Instagram, and so on) has made the activity of the reading of humanistic books superfluous or uninteresting. There is surely some truth to this, a truth from which I do not exempt myself. I know (to my shame) that I am reading fewer books today than I read even ten years ago. I am consumed with my own phone. As a recent NY Times piece on what is wrong with the humanities put it, “The answer to any question, ‘What is Wrong…” is or ought to be, ‘I am wrong.’” The line was Chesterton’s, actually.

It has also been claimed that the language of centuries past is increasingly inaccessible or impenetrable to today’s generations of students, who prefer and are accustomed to a different way of communicating more suited to current circumstance. Again, there is also some truth here. I have found that a good meme can do as much to make, say, Marbury v. Madison memorable as can close attention to its elegant but difficult text.

Others say that economic concerns predominate. College is extremely expensive, and only becoming more so. Most students are required to take on crushing loans. Those loans put great pressure on students to find employments that are immediately remunerative, so that they can then proceed to even more well-paying work later.  The humanities are not seen as safe bets in an environment of such pressure. Employers are not looking for history or language majors. The skills taught by history professors in history departments are not seen as marketable. They do not distinguish a candidate as desirable, as they once did.

In a related development, witness the meteoric ascent of STEM fields. At Princeton University, where I am visiting this semester, a gigantic new engineering program is being constructed—a colossus that will dwarf the existing educational structures and that will, I am told, drive a massive expansion in Princeton’s student admissions in the coming years. Just as humanities majors have precipitously declined, so, too, have Computer Science majors and other applied science majors exponentially grown. The current Secretary of Education, Miguel Cardona, has emphasized repeatedly that colleges and universities must “meet the needs of the economy,” and those needs are connected overwhelmingly to education in STEM fields, not the humanities.

And universities, here and abroad, have become, as Adrian Pabst puts it in a recent piece in the New Statesman, “managerially controlled and market driven.” College and university administrators (some of whom, I hasten to add, are lovely, lovely people, Dean Payne), whose rise in numbers and power within the universities has often been remarked, tend to see the function of the university in these terms as well. They are liable to ask questions like (as one administrator did recently ask me), “Why are you assigning Plato in your free speech and free inquiry class? What does that offer the students?” What, indeed, when a STEM-exclusive education can produce marvels such as ChatGPT, which, some say, makes humanistic study even more useless and anachronistic than it was already.

And, of course, a final explanation for the collapse of humanistic learning is internal. Humanities professors themselves increasingly disdain or even are ashamed of the learning and the knowledge that form the core of their own disciplines. Classical languages departments at the most elite universities have begun to do away with requirements in the very languages that constitute their discipline. A Latin major with no Latin. English departments rename themselves something else—anything else—mortified by the learning that constitutes their own field. As one Harvard English professor put it in the New Yorker piece, “One of the tragedies of the British Empire is that everyone read Dickens, so we must read him too.” Not exactly a ringing endorsement of Dickens, though that is about the best that one can hope for in the way of defense. Small wonder that large numbers of students flee such disciplines. This is the death of learning, as the title of a recent book by John Agresto puts it, “not by murder, but by suicide.”

I do not intend to pick among these explanations or spend much more time surveying reasons. Probably they all have some explanatory role. I want instead to think about effects. About what this collapse means. After all, one might reasonably ask, so what? What difference does it make that many fewer students are interested in these subjects? Disciplines come and go in the history of human thought. Astrology was once studied in universities. Alchemy was, too.

Academic disciplines can become extinct, and there need not be any regret at their dying. Or they can transform themselves into something else. Psychiatrists today are trained to be chemists where once they were trained to be psychoanalysts. English departments can become social media studies departments. And, at any rate, the appetite for the study of Assyrian or Linear B or even the Romance Languages probably never was all that high to begin with. Perhaps it should not be.

The death spasms of the humanities are only to be regretted, and efforts to resuscitate them undertaken, if we can conclude that there is something of worth in them, that they continue to contribute something of value. That requires a defense of some kind. An apology, one might say, for the humanities. So…do they? The author of the New Yorker article that I mentioned observed: “scholars have begun to wonder what it might mean to graduate a college generation with less education in the human past than any that has come before.”

That author might have consulted a law professor or two for answers. After all, we get lots of undergraduates right after their college years, so that if there are effects of the moribund humanities to see, we might be likely to see them.

Continue reading

April 1, 2023 in DeGirolami, Marc | Permalink