Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, October 26, 2016

"Swiss Christian nursing home must allow assisted suicide"

Story here.  A bit:

A Swiss court has ruled that a Christian nursing home must either permit
assisted suicide on its premises or give up its charitable status.

The nursing home, which is run by the Salvation Army, the UK-based
Christian charity, lost a legal challenge to new assisted suicide rules.

The regulations, introduced about a year ago, compel charities caring for
the sick and elderly to offer assisted suicide when a patient or resident
requests it.

The nursing home objected on the grounds that the law violated the core
religious beliefs of the Salvation Army and that it represented an affront
to freedom of conscience.

But the Federal Court rejected the complaint of the home, which is
situated in the canton of Neuchatel, and ruled that individuals have the
right to decide how and when they would like to end their lives.

According to a report on Swiss Radio In English, the judges said the only
way the home could avoid its legal obligations to permit assisted suicide
was to surrender its charitable status. . . .

Expect more of this, and on our side of the Atlantic, too.  The court's basic "move" is one that I think we can expect regulators and legislators to adopt (and activists to demand) in a variety of contexts where religious institutions' religiously motivated practices and commitments conflict with policy, especially in the bioethics and antidiscrimination contexts.

October 26, 2016 in Garnett, Rick | Permalink

Alfred the Great

For those thinking back fondly to the days when a nation's leaders spent time translating Augustine and Boethius, note that Alfred the Great died on this date in 899 (there's a nice short piece on Alfred here by A Clerk of Oxford). Alfred is, of course, one of the great figures in English legal history on account of his compilation of laws in the domboc. For an interesting discussion of Alfred's use of Christian sources in the prologue to his legal code, see this article by Michael Treschow, which ends on this hopeful note:

If Alfred was for the Victorians a mirror or icon of their own self-regard, of their empire, of their civic piety, he is becoming for us a mirror of our suspiciousness, of our mistrust of public virtue and piety, indeed of our disdain of anything that claims to be good. But let us be wary of any easy or hasty reduction of Alfred’s image to an opportunistic, even Machiavellian, guise. This prologue’s public use of piety reads as no mere calculated display. Reverence for the king of Wessex is beside its point. Its real work is to present Scripture that it may search the hearts of its readers and direct them to serve not themselves but live in charity with their neighbour — especially in the practice of public life. It allows that the good of the state is a harmony of love and justice. It allows that the state can seek to be gracious through obedience to basic principles of revealed truth.

October 26, 2016 in Moreland, Michael | Permalink

Glendon on Tradition

For those on MOJ and beyond thinking about tradition and the law, I can't commend to you enough Mary Ann Glendon's fine collection of her own essays, Traditions in Turmoil, published in 2006.

From the Author's Preface: "Nearly all of these essays [] were written when demographic turbulence was at its height...[when] legal, social, and religious [traditions] were in a state akin to which students of complex adaptive systems call 'the edge of chaos.'" And then: "The edge of chaos is a scary place, but it is also charged with potency." More:

As a living tradition moves forward, it is laden with the accumulated accidents and inventions of the men and women who have gone before--a cargo of useful ideas and practices that await development, and a jumble of outworn artifacts that might well be left behind. Future generations will judge whether our own period of stewardship has burdened or enriched their inheritance, whether we have advanced or hindered the conditions for human flourishing. 

The clarifying lens from within which Glendon writes many of the book's essays, that I hope will be brought to bear on the new and important work at the Tradition Project, is that provided by Jesuit philosopher, Bernard Lonergan. Glendon ends the book's Preface with this:

It seems to me that no one has better suggested the spirit in which citizens, scholars, and members of a pilgrim Church should confront the challenges of traditions in turmoil than the philosopher Bernard J. F. Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new possibility. But what will count is a perhaps not numerous center; big enough to be at home in both the old and new; and painstaking enough to work out one at a time the traditions to be made." That is the spirit in which I have tried to work, and I hope it is reflected in these essays.

Professor Glendon read Lonergan with the great Father Flanagan at Boston College when she first began teaching at BC Law in the 1980s. The experience deeply influenced Glendon's own uncanny and inspiring ability to distinguish carefully points of progress--"insight"--from within times of decline, and to hold both in her learned and fertile mind simultaneously.  

The first essay of the collection, "Tradition and Creativity in Culture and Law," was the 1992 Erasmus Lecture, published in the November issue of First Things that year. And it's a great place to start. A sneak peak: 

The idea that tradition is antithetical to creativity of the human sort is what I propose to examine and challenge along with its usual underlying assumptions that tradition is necessarily static, and that the essence of creativity is originality. To anyone with a scientific bent, my project will seem to be an exercise in the obvious. For in the history of science, as Stephen Toulmin, Thomas Kuhn, and others have made clear, nearly every great advance has been made by persons (typically, groups of persons) who simultaneously possess two qualities: a thorough grounding in the normal science of their times, and the boldness to make a break with the reigning paradigm within which that normal science takes place. My concern, however, is the progress of antitraditionalism in the human sciences, where what counts as an advance, or creativity, is more contestable, and where many eminent thinkers now devote much of their energy to attacking the traditions that have nourished their various disciplines.


I shall confine my attention here to the field with which I am most familiar, namely the law, though this may vex the spirit of Erasmus, who seems to have had a rather low opinion of lawyers, calling them “among the silliest and most ignorant of men.” Erasmus might have been amazed, however, if he could have known the degree to which lawyers themselves, and especially teachers of lawyers, would one day come to exhibit disdain for their own craft, and to disavow openly the ideals of their traditions. I say tradition s , for, where Americans are concerned, there are three of them involved: the common law tradition that we inherited from England, the tradition of American constitutionalism, and the craft tradition of the profession.

Do read the whole thing. But a jump to the Lonerganian conclusion: 

[T]he fact remains, as Aristotle pointed out long ago, that dialectical reasoning is the only form of reasoning that is of much use in “the realm of human affairs,” where premises are uncertain, but where, though we can’t be sure of being right, it is crucial to keep trying to reach better rather than worse outcomes. It is time for lawyers and philosophers alike to recognize that common law reasoning is an operating model of that dialectical process, and that its modest capacity to guard against, and correct for, bias and arbitrariness is no small thing. Over time, the recurrent, cumulative, and potentially self-correcting processes of experiencing, understanding, and judging enable us to overcome some of our own errors and biases, the errors and biases of our culture, and the errors and biases embedded in the data we receive from those who have gone before us. As Benjamin N. Cardozo once put it, “In the endless process of testing and retesting, there is a constant rejection of the dross.”

And so, by a long and circuitous route, I come back to the proposition with which I began: that human creativity is inescapably dependent on what has gone before. This is not a very remarkable proposition. Perhaps what ought to seem remarkable is only the extent to which so many practitioners of the human sciences seem to want to ignore it.


October 26, 2016 in Bachiochi, Erika | Permalink

Justice Clarence Thomas on the duty not to despair

I've long thought--along with many others--that Justice Clarence Thomas is one of the most under-appreciated Justices in the history of the Supreme Court of the United States.

Lately, his twenty-fifth anniversary of joining the Court has brought forth a range of commentaries. Not all are worth reading for insight into Justice Thomas as much as they are for insight into authors, editors, and their imagined audiences.

Typical of the under-appreciative genre is Jeffrey Toobin's short New Yorker column: Clarence Thomas's Twenty-Five Years Without Footprints. It might have been more revealing of the editors' evident lack of perspective if they headlined it Invisible Justice. But as Ann Althouse explains, this headline is bad enough.

USA Today's story is better and more detailed, though the headline seems somewhat negative: After 25 years, Clarence Thomas still dissents. Most people may think Justice Thomas's persistent dissent a bad thing, but I happen to find it encouraging.

When go along to get along is not an option, the alternative is alienation. A peculiar form of alienation that we risk, and that Justice Thomas's persistence bucks us up against, is the sense that legal reasoning just doesn't matter to the Supreme Court in certain cases. It's the kind of alienation I--and many others--experienced in the months surrounding Obergefell v. Hodges.

This kind of alienation, whether experienced on the right, left, top, or bottom, corrodes our constitutionalism. But Justice Thomas's patient persistence provides a constructive counter-example. 

If you want to understand Clarence Thomas better, a good way to start is by taking his own words seriously. My Grandfather's Son is a great read. But you don't have to wait to get your hands on the book. Just browse on over to the website for one of my favorite podcasts, Conversations with Bill Kristol.

Kristol's conversation with Justice Thomas is worth listening to or viewing. But that can also take time you may not have, in which case you should read the transcript. Here's an exchange that stood out to me as of potential interest to MOJ readers:

KRISTOL: I talk to young people, as you do, and a lot of ones, especially who are more on my side of the political spectrum are sort of depressed these days – and the last term of the Court and what – the constitutional moment seems to have passed, and are we ever going to get back to real constitutionalism, limited government, and a good understanding of the separation of powers and the Constitution in our country? I don’t know. I’m not sure I do a very good job of reassuring them. I do usually cite the dissents that then get vindicated years or decades later, whether it’s Justice Harlan or Justice Scalia or you.

What do you say? Obviously, you’re doing your job as a Justice, so you’re worrying most about getting it right, but are you encouraged, and how do you encourage young people? What is your sort of general view of the current state of constitutional self-government in America? Not so much the Court, but the broader question, you know? You’ve thought a lot about this and spoken a lot —

THOMAS: You know, I don’t know if I’m the – I don’t know. I’m more concerned about other things – the academy, the culture, the state of education.

KRISTOL: Do you feel sometimes that we’re swimming awfully upstream here against awfully big institutions and forces?

THOMAS: I think we are required to swim upstream no matter what it is; I think it’s a matter of principle no matter – My grandfather was that sort of person, that no matter what others were doing or how bad it looked, we had things we were supposed to do.

I think we are required to do what is right despite how bad things look. I don’t know whether or not, I think it was when I was a kid – I’m Catholic, and one of the great sins was to despair. I think that it’s hard to get up in the morning as a despairing person.

You have to be hopeful. You know, I just look around as I was riding to the studio to do this and coming across Pennsylvania Avenue. When I came here in 1979, the prime interest rate in the country was around 20 percent. We were immersed in the Iranian hostage situation. You had inflation that was double digit. It was the era of malaise – I always say “mayonnaise.” I was riding a bus down Pennsylvania Avenue, commuting to Capitol Hill where I worked. Those days Pennsylvania Avenue was open all the way through, and I couldn’t afford to drive a car or anything in.

And the world changes; things change in your life. Was I in a position to despair then? Absolutely. Things weren’t really looking good. But you are obligated not to despair. Now, about our country? Yeah, things may not look good, but we are obligated not to despair. Do I know what the outcome is going to be? No.

Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people – you do it because it’s right. I think we are obligated to do that. Do I hope that, at some point, it becomes the, sort of the prevailing view? Yes. But I have no guarantee, and I don’t do it on the condition that I win.

October 26, 2016 in Walsh, Kevin | Permalink

Tuesday, October 25, 2016

Call for Papers: "Public Life and Religious Diversity"

This conference, scheduled for Fall 2017 at Oxford, should be of interest to MOJ readers.  I hope some MOJ bloggers and readers will submit proposals!

Panels – call for papers

We invite proposals for presentations in the following panel sessions:

  • Andrew March, chair: Private and public ethics. Possible topics include: controversies about forms of establishment, the limits of legislation, exemptions for economic, cultural, and social institutions.

  • Stephen Macedo, chair: Religious diversity and education. Possible topics include: controversies about separation and integration in education, curriculum debates, the nature and limits of public authority, and student and parental freedom.

  • Lisa Fishbayn and Sylvia Neil, chair and discussant: Gender, sexuality and religion. Possible topics include: controversies over reproductive rights, marriage, sexual culture, religious feminisms, religious justifications of discrimination.

  • Jocelyn Maclure, chair: Accommodation of religious diversity in democratic polities. Possible topics include: religion as justification of legislation, exemptions, legal recognition; questions of democratic majoritarianism.

We also welcome proposals for papers that aim to explore new research avenues related to religious diversity and public life. Possible topics include: the ethics and politics of interfaith relations; concepts of religious moderation, extremism, fundamentalism, radicalization; public ethics in contexts of antagonism or separation

October 25, 2016 in Garnett, Rick | Permalink

The Martyrs of the English Reformation

On this date in 1970, Paul VI canonized 40 martyrs of the English Reformation, including Anne Line, 10 Jesuits, and an Augustinian friar (John Stone). Among the Jesuit martyrs are Edmund Campion, Henry Walpole (a lawyer who appears to have been brought to conversion by witnessing the execution of Campion in 1581), Robert Southwell, and Thomas Garnet. John Finnis and Patrick Martin have argued ("Another Turn for the Turtle," Times Literary Supplement, April 18, 2003) that the martyrdom of Line inspired Shakespeare's poem "The Phoenix and Turtle." A bit from their piece:

[Henry] Garnet, the Jesuit superior in England, reported Ann’s execution to Rome with priestly words of consolation and edification. This poem’s way of proceeding is different. More reticent, artificed, opaque and resonant than our discussion may suggest, it makes no display of Catholic belief, or even of common Christian hope for life beyond death: there is resting “to eternity”. But the poem’s Reason, while insistent that Love—pre-eminent to Jesuit teachers, as Faith to the Protestant—“hath reason” even where “reason hath none”, does not permit itself Garnet’s confidence: that Ann Line died a saint to (or through) whom, not for whom, one should sigh one’s prayers. “Death is now the Phoenix’ nest”: no retailing here of pagan-Christian phoenix allegories of rebirth and immortality. There is loss which, though not annihilating, is irreversible: from “now” on, “Truth may seem but cannot be . . . Truth and beauty buried be”.

And in a recent review in the TLS by Anna Whitelock of a book by John Guy on the later years of the reign of Elizabeth I, Whitelock notes the role of the Queen herself in all of this--gruesome reading, but a caution against whitewashing English history:

For many readers it will doubtless be Guy’s vivid account of Elizabeth’s cruel methods against Catholics or suspected traitors and the climate of terror amid economic crisis and political and social discontent that is most striking and unfamiliar. Guy convincingly argues that Elizabeth sanctioned, and even encouraged, the activities of the notorious Catholic-hunter and rackmaster Richard Topcliffe, who tortured suspects in a “strong room” in his house in Westminster. Indeed, “strong archival evidence exists that she knew him personally, thoroughly approved of his activities and received reports directly from him rather than through intermediaries”. The smoking gun which proves her acquiescence in some of Topcliffe’s worst atrocities lies buried in Burghley’s papers. When the Jesuit priest Robert Southwell was arrested in 1592, Topcliffe wrote to tell Elizabeth how the prisoner was shackled to the wall in his “strong chamber” and had responded to interrogation “foully and suspiciously”. Topcliffe sought the Queen’s permission to “enforce” the prisoner “to answer truly and directly”, by stretching him out against the wall using “hand gyves” (iron gauntlets). Although the Queen’s reply to Topcliffe’s letter was not written down, the fact that he proceeded with the torture methods he had described and with no further warrant as the law required, is in Guy’s view “chilling proof that she gave her consent in the full knowledge of what he was about to do. Topcliffe would not have dared to act as he did had the Queen forbidden it, and she was far from squeamish”. Moreover, when, after a two and a half years of solitary confinement in the Tower of London, Robert Southwell was finally brought to the gallows at Tyburn, Elizabeth specifically ordered that he be forced to endure extra suffering, and after being hanged, Southwell should be cut down while fully conscious and disembowelled. This was no one-off. Ten years earlier, she had issued similar orders when William Parry, a failed assassin, made the journey to Tyburn. After just one swing of the rope he was cut down from the gallows on Elizabeth’s order and while he was still fully conscious, had his heart and bowels ripped from his body with a meat cleaver. Finally, after he had let out a “great groan”, his head and limbs were severed from the corpse and the head set on London Bridge as a warning to others of the “terrible price of treason”. So much for Good Queen Bess.

October 25, 2016 in Moreland, Michael | Permalink

Tradition as part of what it means to be fully human

Tradition is difficult to pin down. The tension between tradition and reason that Michael and Marc have probed a bit in their recent posts is just one of many tensions between tradition and something else. Consider, for example, the tension between tradition and text; or tradition and innovation.

Also, tradition might be thought to be valuable for different purposes. For instance, we might value tradition because it provides access to an original source of revelation, say, or something else that is to be handed down unchanged. Or we might value tradition, instead, because what has survived to be passed along has features that have enabled it to stand the test of time. We might not know just what those features are while still attributing a tradition's endurance to beneficial features iwe don't fully appreciate (like the practice of leaving rocks in fields that Marc mentioned).

During the first meeting of the Tradition Project, one of the contributions to the conversation over these various features of tradition that I found most helpful was the identification of tradition as part of what it means to be human. We are all born into a world we don't and can't fully understand. We are all going to die. And we are all trying to live a meaningful life in between our birth and our death. Tradition helps us to do that. And it does so in ways that reason alone cannot. 

This organizing idea of tradition as an aspect of the human condition raises the question of what it means to be human. One of my takeaways from the Tradition Project is that to be human is to be both more and less than we think we are when we reason. Yes, we have reason. But we are also animals, on the one hand, and open to transcendence, on the other. As sensual, rational, and spiritual beings, participation in traditions is part of what it means to live a fully human life.

October 25, 2016 in Walsh, Kevin | Permalink

Remembering Fr. Araujo

This past weekend marked the first anniversary of the death of our friend and colleague, Fr. Robert Araujo.   I'm pleased to report that an edited volume of essays -- Priests, Lawyers, and Scholars -- about his work and the themes he explored is in progress.  Stay tuned!


October 25, 2016 in Garnett, Rick | Permalink

Monday, October 24, 2016

A Thought For Michael on Tradition and Reason

Thanks to Rick and Michael for their posts about our gathering this past weekend. It is certainly my and Mark's hope that the conference will produce fruitful reflection about the various ways in which tradition can be conceptualized and about how it interacts with law and politics.

Just one brief thought in reaction to Michael's fine post about tradition and reason. I agree with him that the pitting of reason and tradition against one another is a mistake, but a very common one. The more difficult question is how best to describe the relationship between them. Here's something I wrote on this question a while back (in preparation for the conference, and for just the question Michael poses), but which is much more in the nature of a speculation than an answer: 

If I dress with a coat and tie every time I teach a class, that is not enough for my sartorial selections to be traditional. It is still not enough if it can be shown empirically that others before and after me have made the same choices. What makes the choice traditional is the social or cultural meaning of my dressing this way. The choice of dress evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the long-standing practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, and so on [MOD edit: or because the choice signals something to students about the authority of those past choices]). I dress in this way intentionally to retransmit the past to the present because I believe there is value both in the choices of the past and in their continuity. This self-consciously and normatively chronic quality is probably not the only element comprising the traditionalist view; but it is an important one.

Some might say that the existence of any substantive reasons deprives the practice of dressing with a coat and tie of its traditionalism, because traditionalism implies that a belief or practice is transmitted mindlessly or without any reason. But this strikes me as altogether wrong. In an old essay, Samuel Coleman once gave the following example:

Turkish farmers leave the stones on their cultivated fields. When asked why, they say that is the way it has always been done and that it is better that way. In point of fact, it is. When U.N. agronomists, after considerable exhortation, persuaded some young Turks to remove the stones from their fields, their crops suffered. Apparently the stones help condense and retain the dew in the arid climate, but this was unknown. It may have been known to the originators of the custom, for there is evidence that it was known in biblical times. This apparent fact had been forgotten, while the practice persisted.

Was the practice of laying stones not a tradition when the reason for it was known and passed on? Did it become a tradition only when the reason was forgotten? Is it now no longer a tradition because of the adventitious intervention of the U.N.? The practice itself, as understood by the practitioners of it, is unchanged. No, says Coleman, “we would avoid all sorts of muddle if we did not speak of traditions being transmuted into non-traditions by confirmation of the proposition believed or the practice followed.” There can be, and often is, reason in tradition.

October 24, 2016 in DeGirolami, Marc | Permalink

Tradition and Reason

I was among the participants in the inaugural meeting this past weekend of the Tradition Project sponsored by the Center for Law and Religion at St. John’s University School of Law (with thanks to the hard work and hospitality of Mark Movsesian and Marc DeGirolami). It was a rich conversation over a couple of days on the place of tradition in law and politics, both in our formal sessions and in our social gatherings. A few initial thoughts about the project, with more to come as I continue to think about what we discussed.

One topic I kept coming back to was the supposed dichotomy (or at least tension) between “tradition” and “reason” one encounters in discussions of tradition (recalling Edmund Burke’s line about “wisdom without reflection”). On a crude formulation of this view, one either does “what has always been done” in a reflexively deferential way or subjects all decisions to a hard, calculating test of reason. That seems to me a poor way to understand the possible place of tradition in law.

The better view, I think, is to appreciate that rationality (including legal reasoning) is inescapably embedded in a tradition, even when the “tradition” is an emancipation from tradition itself. In the discussion I moderated on the American religious tradition, we read, among other things, pieces by Nathan Hatch and John McGreevy illustrating the ways in which American Christianity has a long tradition of rejecting certain forms of tradition (not least Catholicism) and placing an emphasis on “thinking for oneself.” This, in turn, has shaped in historically complex ways how the American religious, political, and legal traditions interact.

I’ve mentioned before (here) how much I think John Henry Newman’s treatment of tradition and argument might help us tackle some of these problems. Apart from straightforward demonstrations of, say, mathematics and logic, we come to arguments with a background constellation of beliefs and practices—a “tradition.” Achieving clarity about the traditions (even if one of emancipation from tradition) we bring to legal arguments is an important first step that the Tradition Project has undertaken.

October 24, 2016 in Moreland, Michael | Permalink

Sunday, October 23, 2016

"The Tradition Project" Meeting

On Thursday and Friday, I had the pleasure and privilege of participating in a roundtable conference kicking off "The Tradition Project" (more information about the project is available here and here), which is a research project of the Center for Law and Religion at St. John's University and is being coordinated by MOJ-friend Prof. Mark Movsesian and our own Marc DeGirolami.  

What a treat!  For other reports on this gathering, see Paul Horwitz's post at Prawfsblawg and Rod Dreher's detailed reports at his own blog (here and here).  There were (in addition to a keynote lecture by Prof. Michael McConnell) a series of Liberty-Fund-type discussions on, e.g., the idea of "tradition," the American religious tradition, the American political tradition, tradition and the common law, and tradition and the Constitution.

For me, flying home from the event, two questions kept re-presenting themselves:  First, is "tradition" -- or, more accurately, is a "tradition" -- something that we inherit and pass on, or something that we, in a sense, "inhabit" -- is it an heirloom, or the air we breathe?  Second, do traditions have authority (and if so, why?) or is more that they are valuable and useful resources, that would be foolish to turn down absent some good reasons for thinking they are not, for some reason or in a particular case, valuable and useful?

Other MOJ-ers were at the gathering, and I'll look forward to their thoughts! 

October 23, 2016 in Garnett, Rick | Permalink

Friday, October 21, 2016

Lyman Johnson on corporate legal theory

At the Washington & Lee symposium honoring his work, Lyman Johnson offered a luncheon keynote reflecting on what he found when he entered the world of corporate law teaching thirty years ago. Corporate law was experiencing enormous upheaval, particularly via the hostile corporate takeover movement.  This movement received the support of the Chicago law-and-economics school, a reductionist interpretation that drained the corporate institution of its humanity and left it as a nexus of contracts.  This view did not account for real harms to employees, local communities, and others.  The Delaware judiciary, unlike federal actors, could not avoid weighing in, and the judges used traditional tools (including fiduciary duties) to stabilize the corporate landscape.  Lyman has spent much of his career explaining, teaching, and criticizing these materials.

His scholarship is premised on the belief that people everywhere crave meaningful work as a key element of human flourishing.  In his remarks, he highlighted ongoing themes of his scholarship, including corporate purpose and the relationship of religious faith to corporate law.  He believes that a pluralistic approach to corporate purpose is preferable to the economically reductionist view of shareholder wealth maximization.  He has helped point out that shareholder wealth maximization is not legally required.  Directors must enhance monetary goals for the purpose of benefiting shareholders, but that is not maximization. We should favor a diverse business ecosystem over a business monoculture.  This debate remains crucial, as reflected by a Wells Fargo employee's recent lament that the company's culture was "soul crushing."

Lyman wondered why criticism of corporations comes primarily from the left.  Conservatives (of which he is one) should care deeply about corporate culture and the elevation of profit over other considerations.  At the corporate theory level, people are regarded simplistically as individuals, not as fully formed persons who can behave sacrificially, not just selfishly.  There is a profound dissonance between what we expect of ourselves in life generally and what is demanded in business.  The belief in a shareholder wealth maximization norm has a prescriptive and pedagogical function, shaping corporate culture in powerful ways as rampant self-aggrandizement is rewarded.

The dominant corporate law paradigm does not pay much attention to the corporate body in favor of focusing only on shareholders and directors.  He believes we need to reclaim the corporation itself as a subject of study for corporate law.  Like other groups, corporations can have commitments that are not equivalent to the commitments of its individual members.  The corporation should be respected as a distinct person.  It would be helpful to have a rule requiring the corporation to state its purpose clearly, providing an understanding to all stakeholders of its corporate identity.

He closed by underscoring the value of collaboration in our work, praising the contributions of his friend and frequent coauthor, David Millon.

October 21, 2016 in Vischer, Rob | Permalink

Corporate Governance and Purpose at Washington & Lee

Today I'm at Washington & Lee for a corporate law symposium in tribute to the scholarship of David Millon and (my St. Thomas colleague) Lyman Johnson.   Both Lyman and David have together expanded our understanding of corporate purpose and social responsibility, and Lyman especially has done tremendous work exploring the religious dimension of corporate law (a subject I'll explore this afternoon).  The opening panel addresses theoretical perspectives on the corporation.

Matt Bodie (St. Louis U Law) kicked things off by recounting how Lyman and David have created a countervailing ethos to the dominant shareholder primacy theory, focusing more on norms than on straight law.  They keep posing the question, what norms should be operative when we think about the corporation?  Matt wants us to move beyond norms and think about real shifts in power within the corporation, giving employees some of the traditional rights of corporate governance.  Shareholder primary is based on more than a norm -- it's a function of power given that shareholders have voting rights, so a stakeholder theory grounded in norms rather than power won't go very far.  Neither labor law nor contract are mechanisms by which employees will participate meaningfully in corporate governance -- e.g., voting rights, board participation. He also suggests that employers should owe certain fiduciary duties to employees.

Eric Orts (Wharton) expressed gratitude for Lyman and David serving as champions of humanism in the corporate law field and alerting us to the dangers of adhering to a single outlook (economics).  He explained how David's work helped bring attention to the wealth distribution effects of corporate law -- we cannot focus solely on its wealth maximization effects.  David has also argued that limited liability acts as a kind of subsidy to corporations, which raises questions about the corporation's contributions to society.

Alan Palmiter (Wake Forest Law) presented his paper, "Corporate Governance as Moral Judgment."  Science tells us that we have no idea how we make moral judgments; such judgments are not based on rationality.  As Lyman and David have encouraged, socially responsible investment and boards' focus on sustainability are increasing, but changes are likely not induced by rational arguments.  We make moral judgments instinctively and emotionally, then our reasoning is motivated by those judgments.  As Jonathan Heidt argues, intuitions come first, strategic reasoning second. So how do we shift corporate focus?  Perhaps by shifting perceptions of risk, adding moral vectors (e.g., caring or sacred), and introducing moral modelers.

Leo Strine (Chief Justice, Delaware Supreme Court), citing Berle and Orwell, noted that, if we want the world to be what we want it to be, we have to be clear-eyed about what it is. He objects to Hobby Lobby and Citizens United as bad corporate law decisions that do not do anything to alter the existing concentration of power with equity holders. He respects the consciences of Hobby Lobby's owners, but not to the extent that they should be empowered to override the publicly mandated benefit packages of their employees. He encourages us to think about power.  When we cite companies like Hobby Lobby and Cracker Barrel, we're still supporting the maximization of the interests of equity holders -- we're not broadening traditional corporate law to consider other stakeholders.  The money that is in the system makes it very difficult to address important externalities through regulation. If we want to change the world of corporate law, we need to do more than raise the consciousness of independent directors; we need to push for real solutions.  E.g., he's a fan of statutes creating benefit corporations. 

October 21, 2016 in Vischer, Rob | Permalink

Wednesday, October 19, 2016

Don't forget: You can follow MOJ on Twitter!

Why settle for just the blog when you can join the MOJ tweeps, too!  

October 19, 2016 in Garnett, Rick | Permalink

Tuesday, October 18, 2016

On the Wikileaks "Catholic Spring" emails

As MOJ readers probably know, among the DNC emails hacked and leaked by Wikileaks (story here and here and here) are some exchanges among Clinton insiders that, among other things, call for a "Catholic Spring" and that express pretty clear disdain for "conservative" Catholics.  Our own Robby George commented on these exchanges, in the Wall Street Journal, here.

A number of politically-left-leaning Catholics have pushed back against the idea that there's anything particularly troubling or anti-Catholic about these emails, including Michael Sean Winters (here), Anthony Annett (here), E.J. Dionne (here), and -- one of the participants in the exchange -- John Halpin (here).  These and other commentators contend that, for example, the emails " tell a far more interesting tale about the struggles inside the Catholic Church in the period before the ascendancy of Pope Francis" (Dionne), that they simply reflect a "react[ion] in a private email to the arguments of leading conservatives who often misuse Catholicism to defend their agenda" (Halpin), that their discussion of a "Catholic Spring" should be seen as highlighting "the genuine need for a corrective balance" and "a call for something very much like the agenda of Pope Francis" (Annett), and that one participant's charge that "the right-wing attempt to co-opt Catholicism for the Republican Party [has] been a bastardization of the faith" is, well, right.

Certainly, it is not news that politically-left-leaning Catholics believe that politically-right-leaning Catholics are focusing too much on abortion at the expense of other issues, are insufficiently critical of the Republican Party (or insufficiently attached to the Democratic Party), are "co-opting" the Catholic Social Tradition and various bishops for "right-wing" purposes, etc.  In my view, these beliefs are unwarranted (or, at least, held with a confidence and fervor that the facts do not justify).  Nor, really, is it news that political-left operatives and activists like the people involved in this email exchange regard many of the teachings and practices of the Catholic Church with bemusement, if not contempt.  (See, e.g., Halpin: "They must be attracted to the . . . severely backwards gender relations.")  It's not news that Catholics are divided not only about the political implications of the faith but, more fundamentally, about what (and who decides what) "the Faith" is.

So, since it's all old news, maybe Winters is right that the "Catholic email scandal is no scandal" (indeed, maybe it's a no-doubt-unintended compliment!).  In my view, though, it should be troubling -- to "progressive" Catholics as well as others -- that political operatives like John Podesta, who has been associated with Clinton campaigns and administrations for decades, admits that his organization set up (with funding from the Koch Brothers . . . I mean, George Soros) groups with the purpose of promoting a "revolution" -- a "Catholic Spring" -- "in which Catholics themselves demand the end of a middle ages dictatorship and the beginning of a little democracy and respect for gender equality in the Catholic church."  This is not a call for dialogue among Catholics about how best to live out the faith; it's strategy-and-tactics about how to co-opt and marginalize an opposing force.

This is not, contrary to the suggestions of some, simply a call for the full spectrum of the Catholic Social Tradition to be proposed to our politics, in the public square.  The exchange was not just an intra-Catholic discussion about the possibility of changes in Church practices under Pope Francis, or a thoughtful corrective to the selective misuse or blinkered use by some "conservatives" of Catholic Social Teaching.  The nature of the "revolution" to be hoped for, funded, and supported is to make the Catholic Church more like the Center for American Progress imagines itself to be (I say "imagined" because contemporary progressives' attachment to "democracy" is, well, complicated.)   

Just as a reminder:  Here's Sandy Newman, sounding pretty much like Paul Blanshard or Loraine Boettner:

There needs to be a Catholic Spring, in > which Catholics themselves demand the end of a middle ages dictatorship and > the beginning of a little democracy and respect for gender equality in the > Catholic church. Is contraceptive coverage an issue around which that could > happen. The Bishops will undoubtedly continue the fight. Does the Catholic > Hospital Association support of the Administration's new policy, together > with "the 98%" create an opportunity? > > Of course, this idea may just reveal my total lack of understanding of the > Catholic church, the economic power it can bring to bear against nuns and > priests who count on it for their maintenance, etc. Even if the idea isn't > crazy, I don't qualify to be involved and I have not thought at all about > how one would "plant the seeds of the revolution," or who would plant them. > Just wondering . . .

"The economic power it can bring to bear against nuns and priests who count on it for their maintenance, etc."  No, this isn't just a call for Catholic Social Thought in the public square.  It's ignorant, and it should be offensive . . . to "progressives" and "conservatives" alike.

October 18, 2016 in Garnett, Rick | Permalink

Monday, October 17, 2016

Christianity Today: Speaking Truth to Trump

From Christianity Today (full article here):

What Trump is, everyone has known and has been able to see for decades, let alone the last few months. The revelations of the past week of his vile and crude boasting about sexual conquest—indeed, sexual assault—might have been shocking, but they should have surprised no one.

Indeed, there is hardly any public person in America today who has more exemplified the “earthly nature” (“flesh” in the King James and the literal Greek) that Paul urges the Colossians to shed: “sexual immorality, impurity, lust, evil desires, and greed, which is idolatry” (3:5). This is an incredibly apt summary of Trump’s life to date. Idolatry, greed, and sexual immorality are intertwined in individual lives and whole societies. Sexuality is designed to be properly ordered within marriage, a relationship marked by covenant faithfulness and profound self-giving and sacrifice. To indulge in sexual immorality is to make oneself and one’s desires an idol. That Trump has been, his whole adult life, an idolater of this sort, and a singularly unrepentant one, should have been clear to everyone.

And therefore it is completely consistent that Trump is an idolater in many other ways. He has given no evidence of humility or dependence on others, let alone on God his Maker and Judge. He wantonly celebrates strongmen and takes every opportunity to humiliate and demean the vulnerable. He shows no curiosity or capacity to learn. He is, in short, the very embodiment of what the Bible calls a fool.

Some have compared Trump to King David, who himself committed adultery and murder. But David’s story began with a profound reliance on God who called him from the sheepfold to the kingship, and by the grace of God it did not end with his exploitation of Bathsheba and Uriah. There is no parallel in Trump’s much more protracted career of exploitation. The Lord sent his word by the prophet Nathan to denounce David’s actions—alas, many Christian leaders who could have spoken such prophetic confrontation to him personally have failed to do so. David quickly and deeply repented, leaving behind the astonishing and universally applicable lament of his own sin in Psalm 51—we have no sign that Trump ever in his life has expressed such humility. And the biblical narrative leaves no doubt that David’s sin had vast and terrible consequences for his own family dynasty and for his nation. The equivalent legacy of a Trump presidency is grievous to imagine.

October 17, 2016 in Sisk, Greg | Permalink

Saturday, October 15, 2016

Why Dems should worry about the state of the GOP

Michael Gerson's op-ed on the "pathetic" state of the GOP is spot-on.  I won't attempt an excerpt - you should read the whole thing.  The GOP's collapse as a principled, idea-driven party this election cycle should be cause for concern to liberals, not just conservatives.  Our political culture is so much more focused on winning than on governance, though, that it seems many on the left will continue to see the sorry state of the opposition as cause for glee rather than deep concern.

Our country needs a strong center-right party, and I am hopeful that one will emerge from the ruins. But we have to be candid in acknowledging the ruins before building again. I'm not making a point about the candidates' relative merits (though I have my own views on that topic as well). My point is that the country is better off with a strong center-right party that champions the ideals, priorities, and virtues that have been associated with the GOP over the past few decades. Even those who are on the left should recognize that we're stronger as a nation with an opposition party that pushes back with a different but principled perspective. If the GOP nominee would have been a person who upheld that tradition, Hillary would not be coasting to victory right now. Political parties are important counterweights that make the opposition's ideas better, align ultimate policy more closely with public opinion, and help avoid overreach in governance. That's obviously not happening this year.  And there really isn't any comparison between the candidates on this front: Hillary is nowhere close to my first choice, but she hasn't played the same type of corrosive role in upending the Dems' traditional positions and priorities that Trump has within the GOP.  Trump seems incapable of carrying on an idea-driven conversation for more than 30 seconds, and that will result in a Clinton administration implementing ideas that have faced little or no reasoned opposition on the national stage.  That's bad news for her presidency and for the country. 

October 15, 2016 in Vischer, Rob | Permalink

Friday, October 14, 2016

The Pioneer Institute releases study on Common Core and Catholic schools

In collaboration with the American Principles Project, the Boston-based Pioneer Institute has released the study, "After the Fall: Catholic Education Beyond the Common Core," written by scholars Anthony Esolen, Dan Guernsey, Jane Robbins, and Kevin Ryan. The purpose of the study, as stated in the Executive Summary, is to take "a critical look at the issues and principles behind the Common Core movement and, in particular, the standards’ effect on and suitability for Catholic schools." It's a robust 40 page version of the 2013 letter more than one hundred Catholic scholars addressed to the nation's bishops concerning the implementation of Common Core in diocesan schools (coordinated by Robbie George and Gerry Bradley). More than half of the dioceses, including Boston, have adopted Common Core. 

The study presents and then refutes the most popular arguments in favor of the program in Catholic schools and then proposes an authentically Catholic alternative:  liberal arts education.  The study beautifully and effectively exhorts Catholic schools to retrieve their inheritance of virtue-based character education and the "soul-shaping and soul-expressing power" of great literature, among the many merits of classical Catholic education. 

From the study's preface, by Ambassadors Raymond L. Flynn and Mary Ann Glendon:

Realizing that combining humanities and the arts with religious instruction aids spiritual development, Catholic schools have traditionally provided a classical liberal-arts education that generations of grateful parents and students have prized. Through tales of heroism, self-sacrifice, and mercy in great literature such as Huckleberry Finn, Sherlock Holmes, and the works of Charles Dickens, Edith Wharton, Dante, and C.S. Lewis, they seek to impart moral lessons and deep truths about the human condition. The moral, theological, and philosophical elements of Catholic education that are reinforced by the classics have never been more needed than they are in this era of popular entertainment culture, opioid epidemics, street-gang violence, wide achievement gaps, and explosive racial tensions.


Common Core, on the other hand, takes an approach that is contrary to the best academic studies of language acquisition and human formation. It drastically cuts the study of classical literature and poetry, and represents what Providence College English Professor and Dante scholar, Anthony Esolen, calls a strictly utilitarian view of mankind, “man with the soul amputated.” It is devoid of any attention to “the true, the good, the beautiful.” It eliminates the occasions for grace that occur when students encounter great works that immerse them in timeless human experiences. Instead, it offers stones for bread in the form of morally neutral “informational texts.” The basic goal of Common Core is not genuine education, but rather the training and production of workers for an economic machine. We see this in the reduced focus on classic literature, and in the woeful mathematics standards that stop short of even a full Algebra II course – giving students just enough math for their entry-level jobs. The goal is “good enough,” not academically “excellent.”


All students ought to read Dante, Shakespeare, and Flannery O’Connor; those who do are better for it, regardless of whether they plan to become philosophers or welders. All students ought to study, or at least be given the opportunity to study, mathematics that allow them a sustained and detailed scientific investigation of creation. But Common Core seems to view “overeducating” students as a waste of resources, or, as its proponents say, “human capital.” In what looks like an effort to define human beings as mere objects or beasts, it aims to provide everyone with a modest, utilitarian skill set...


As the influence of religion diminishes, for the sake of our civilization itself, it becomes more urgent than ever to find ways to provide children with the fundamental intellectual, spiritual, and moral ideals necessary for humans to flourish. But Common Core moves in the opposite direction. Sterile informational texts and workforce training will not help children to learn how to be good human beings. And no free society can survive for long without cultivating character and competence in its citizens and public servants.


Common Core’s shift away from the moral and cultural patrimony of Western Civilization comes at a most unfortunate time, when increasing marginalization of religion in our society is taking a severe toll on the moral culture that sustains our American democratic experiment. Religion plays a pivotal role in sustaining our freedoms, upholding the rule of law, creating a culture of compassion for the disadvantaged, and fostering social cohesion. Even the professed atheist Jürgen Habermas recognized that Western culture cannot abandon its religious heritage without endangering the great social and political advances grounded in that heritage.


Kevin Ryan and Mary Ann Glendon sit on the Board of Trustees and Advisory Board, respectively, of my children's school--the first classical Catholic school in the Boston area, founded in 2013. St. Benedict's, and other schools like it, are a true education in freedom, and parents are catching on:  we will outgrow our current site this coming year. As the Pioneer Institute study shows, and Hillsdale education professor Jeff Lyman discussed in a presentation to the school community last night, once a student's natural faculties are perfected in the study of the liberal arts, that student can go on to learn anything -- even contributing in a meaningful way to the "workforce" (the be all and end all of Common Core)! But, far more essentially, the student educated in the classical Catholic tradition will learn what it means to be a human being with an eternal destiny--and, as such, how to live a virtuous life and thereby contribute to the common good. The timing of this study, in light of the abject moral failings of our presidential candidates, could not be better. 

October 14, 2016 in Bachiochi, Erika | Permalink

Learned Hand's "Spirit of Liberty" Address

As we contemplate the days ahead, it's well worth rereading this great judge's brief remarks on liberty, delivered in 1944 in New York's Central Park, where more than a million people, including 150,000 newly naturalized citizens, gathered for "I Am an American Day." Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

Here's the whole thing: 

We have gathered here to arm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.


What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

October 14, 2016 in Bachiochi, Erika | Permalink

Thursday, October 13, 2016

George Weigel on "Changing the Game"

From Weigel's recent piece at First Things:

[T]he sickness in our political culture is serious and it reflects the pathogens that have been at work for some time in the general culture.

What are they?

• A raw individualism that conceives “freedom” as radical personal autonomy because it thinks of the human person as a twitching bundle of desires, the satisfaction of which is the full meaning of “human rights” and the primary task of government.

• A lack of commitment to the common good, which shows up in everything from bad driving habits to declining volunteerism to tax cheating to declaring a pox on politics and sitting out elections.

• The vulgarization of popular culture and entertainment, which has so deeply wounded our politics that they’ve become another form of reality TV, producing a spectacle that should shame us into a collective examination of our consciences as consumers.

• The confusion of “success” with sheer wealth by individuals, businesses, and corporate boards, which empties economic life of its vocational nobility and inculcates a counter-ethic of beggar-thy-neighbor competition that’s a grave danger to markets and a threat to the capacity of free enterprise to help people lift themselves from poverty.

• A grotesque misunderstanding of “tolerance” and “fairness,” rooted in an even more comprehensive delusion about what makes for human happiness, which isn’t “I did it my way.”

The list could be extended ad nauseam, but perhaps the basic structure of our situation is in sharper focus. We must rebuild American political culture so that, at its presidential apex, it is far less likely to produce such a mortifying choice as the one created by this election cycle. That requires the rebuilding of our public moral culture. And that is a task for several generations, which must begin now, at the retail level.

A tall order.  But this sounds right.

October 13, 2016 in Garnett, Rick | Permalink

Multi-faith letter calling on leaders to reject the (lousy) USCCR letter on religious liberty

Thanks to the good folks at the Religious Freedom Institute for organizing this multi-faith letter to President Obama, Rep. Ryan, and Sen. Hatch, urging them to "renounce publicly the claim that 'religious freedom' and 'religious liberty' are 'code words' or a 'pretext' for various forms of discrimination.  There should be no place in our government for such a low view of our First Freedom—the first of our civil rights—least of all from a body dedicated to protecting them all."  Amen.  Read the whole thing (it's not long).

UPDATE:  The USCCB's press release about the letter is here.

October 13, 2016 in Garnett, Rick | Permalink

Wednesday, October 12, 2016

Please pray for Prof. Leslie Griffin (UNLV)

Prof. Leslie Griffin, who has done a lot of law-and-religion scholarship (among other things!), is in very serious condition after being attacked during an afternoon run.  The story is here.  Please keep her in your prayers.

October 12, 2016 in Garnett, Rick | Permalink

The future of the pro-life movement (now) and PLAGAL at Dartmouth (1995)

A recent piece by Ruth Graham at Slate identifies several reasons to be hopeful about the future of the pro-life movement. The energy and hopefulness of the newest generation of pro-life leaders brought me back to thinking about my college experience at Dartmouth. I was reminded, in particular, of an early event that we hosted when restarting the Dartmouth Coalition for Life. It was a presentation by Philip Arcidi of the Pro-Life Alliance of Gays and Lesbians (PLAGAL). And it was a successful event. Through the wonders of the Internet, I found an archived PLAGAL newsletter dated December 20, 1995 that describes our event. Here's what it says:

When Philip Arcidi spoke for PLAGAL at Dartmouth on November, 28th, he greeted one of the most diverse audiences we've encountered at a college campus: pro-lifers and self-titled pro-choicers; some straight, some gay, and some lesbian. All were curious about the synergy between the pro-gay and pro-life point of view. An atmosphere of civility and mutual respect prevailed, with many of the best questions coming from our sisters and brothers in the gay community.

The Dartmouth Pro-Life Coalition, which invited PLAGAL, is an energetic campus presence, an impressive alliance of thoughtful men and women. Arcidi joined a couple of them in a long conversation with a lesbian doctor who performs abortions. The dialogue was refreshingly civil, but the doctor's perspective was unsettling -- and inconsistent. Our Dartmouth allies, adept at thinking on their feet, asked her if she'd abort a preborn girl if the parents wanted a boy. No, she couldn't. When the child is no longer an abstraction, abortion advocates find it hard to trivialize his or her right to exist.

Hard to believe that was over 20 years ago, as I still remember in particular the conversation mentioned at the end of the newsletter excerpt. But exciting to imagine the possibilities for improvement that the next 20 years might bring.

October 12, 2016 in Walsh, Kevin | Permalink

"Christ is Our Model" ... Plus This Other Thing Too

Protestant fundamentalist anti-Catholicism ain't what it used to be; it's far less prominent in the Protestant vision today. But you sometimes run across current versions, and I just ran across a passage that made me laugh out loud. It's a criticism of a younger evangelical speaker/blogger, Jen Hatmaker, and the supposed theological dangers she poses. One such danger, the critic says, is that Hatmaker has called Pope Francis one of her heroes and

also has a quote from Mother Teresa prominently displayed on the opening page of her personal website. The quote itself is not wrong, but it is not wise to point other Christian women to any Catholic leader as an example of Christ-likeness. Christ is our head, He is our model. [That's true.--TB] To say nothing of the fact that the Roman Catholic church is an apostate counterfeit of the true Church.

I love the writer winding up that paragraph by just tossing in the last sentence.

Actually the post then raises a worthwhile reminder on a separate issue: how people can get smug when they reduce Christian faith to doing good works, i.e. "works-righteousness piety." But I digress.

October 12, 2016 in Berg, Thomas, Religion | Permalink

How Rights Are Like Taffy

I have this short reflection over at the Liberty Law blog, which picks up a little bit on some things I've thought about at MOJ before. This is my own contribution of sorts to the symposium at the Law and Religion Forum that we are hosting on Professor Phillip Muñoz's fine paper, "Two Concepts of Religious Liberty," and the set of posts it has generated. A bit:

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

October 12, 2016 in DeGirolami, Marc | Permalink