Mirror of Justice

A Tribute to Alan Charles Kors, recipient of the 2023 Philip Merrill Award of the ACTA

Here is the text of my tribute to Alan Charles Kors, Professor of History, Emeritus at the University of Pennsylvania, delivered at the 2023 Philip Merrill Award dinner of the American Council of Trustees and Alumni. -- Robert P. George

        Alan Charles Kors is our Moses.

         For forty years—more than forty years—we have been wandering in the desert, trying to make our way to the promised land—a land of free inquiry, truth-seeking scholarship, and non-indoctrinating teaching. Alan has led us. Inspired us. Encouraged us. Exhorted us. Supported us. And, when we have been a stiff-necked people, reproved us and rebuked us.

         He has led us and inspired us by example as well as by precept. Was there ever a more truly independent thinker? A more determined truth-seeker? A bolder or more courageous truth-speaker? A more dedicated and honest teacher?

         Certainly not in our time.

         And where would the higher education reform movement be without our Moses? Although we have not—yet—made our way to the promised land, without Alan’s work and witness—without his willingness to sacrifice and even make himself an object of anger and animosity—we would likely not be making our way at all. We probably would have been drowned in the all-too-red sea of toxic ideologies that have afflicted academia since the hostile takeover of much of it several decades ago.

         No one in this room needs reminding that those ideologies are more toxic today than they ever have been. Academia and the broader intellectual culture are full of ideas (or what pass in these sad times for ideas) so inane, so obviously irrational, that they would have been regarded as the stuff of low comedy as recently as five years ago. But there is a strong, vital movement fighting back. They—we—are building valuable infrastructure within existing institutions and building new academic and para-academic institutions to replace those that are too far gone to save and reform. Organizations like ACTA, the NAS, FIRE, Heterodox Academy, and the Academic Freedom Alliance are doing the Lord’s work. They will be joined soon by the new American Academy of Sciences and Letters. Programs and institutes and whole schools dedicated to academic freedom, integrity, and excellence are springing up all over the country at institutions large and small, religiously-affiliated and non-sectarian, private and public.

         Although it remains distant, we are, finally, beginning to glimpse the promised land.

        I doubt that Alan or I or perhaps anyone in the room here tonight will have the blessing of actually entering the promised land. If anyone deserves to live long enough to enter it, it is Alan; but I will leave that question between God and him, the two of them having a rather complicated relationship. But I thank God that Alan and I and all of you are getting a glimpse. We know that over the horizon there is indeed a promised land, and it can and will be reached and entered. A Joshua of our movement will finally lay siege to the decadent Jericho that is contemporary academia. Although its ramparts seem robust, its walls are, in truth, thin and weak. The trumpets will sound, and those walls will come tumbling down.

         And when our intellectual descendants enter that land flowing with the milk of intellectual freedom and the honey of scholarly excellence and academic integrity, they will shout and sing of Alan Charles Kors, the visionary, tenacious Moses who led his people through the grimmest of deserts, never abandoning faith in the highest intellectual standards and noblest moral ideals, never giving up hope, even when our little band of reformers seemed weakest and most vulnerable. “For,” if I may quote Deuteronomy, “no one has ever shown the mighty power or performed the awesome deeds that he did in the sight of all Israel.”

"The Death and New Life of Law and Religion" at St. Thomas

I'll be giving a talk tomorrow with this title at the University of St. Thomas's Murphy Center, organized and directed by Prof. Greg Sisk. Please stop in if you are in town. I'll post the text of the talk sometime next week. Further details at the link.

"Establishment as Tradition"

I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its "establishments," apart from whatever "establishments of religion" may be forbidden in our polity; and traditionalism's civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

Lepanto

 

 

Some good news in a sacred-sites case

The Becket Fund has the news, here, that the federal government has agreed to settle a sacred-sites case and "make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site." Some church-state law professors filed an amicus brief in support of the tribes' position, which you can read here.

Podcast on Tom Berg's "Religious Liberty in a Polarized Age"

Mark Movsesian and I have a new podcast, part of our Legal Spirits series, on Tom Berg's new book, Religious Liberty in a Polarized Age (Eerdmans). Congratulations to Tom on the book! In the podcast, we ask Tom a few questions about the thesis and argument, but also (in my case, at least) review some old disagreements that first emerged at Mirror of Justice about a decade ago concerning the difference in perspective between irony and tragedy. Thanks to Tom for doing it. Listen in!

Garnett on Baylor, Title IX, institutional pluralism, and religious freedom

Along with Nathan Berkeley, I have a short piece up at National Review, about the ongoing campaign of some members of Congress against Baylor University.  Here, in a nutshell, is what's going on:

In a September 5 letter to the U.S. Department of Education, five members of Congress led by Representative Adam Schiff (along with Representatives Greg Casar, Joaquin Castro, Mark Takano, and Veronica Escobar) objected to “Baylor University’s claim to an exemption from Title IX’s regulations prohibiting sexual harassment . . .” and urged “the Department to clarify the narrow scope of this exemption.” Title IX prohibits discrimination based on sex in education programs that receive federal financial assistance.

In addition to calling for greater scrutiny of the scope of Baylor’s religious exemption, they also challenged the school’s fundamental eligibility for a Title IX exemption in light of allegations that “[Baylor] is no longer controlled by a religious organization.” The ideology driving this inquiry threatens Baylor’s religious freedom and that of many other religious institutions in America.

And, here is a bit of our take:

While showing genuine respect across differences must be a commitment we all make in our pluralistic society, people should not be able to use their identity to impose moral demands on the religious institutions they voluntarily enter into. And yet, that is precisely what Congressman Schiff and his colleagues are demanding on behalf of dissenting students.

Like so many American elites, these congressional representatives are so preoccupied with ensuring diversity within institutions that they fail to see the immense value in safeguarding diversity among institutions. Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity in this vital sector. In numerous ways, as one of us argued recently, our highly diverse society needs a diverse array of colleges and universities.

The mission of Baylor University is “to educate men and women for worldwide leadership and service by integrating academic excellence and Christian commitment within a caring community.” In a world increasingly awash with identity claims, Baylor’s identity matters, too.