Saturday, March 18, 2017
Middlebury prof Laurie Essig has published an essay in The Chronicle that attempts to complicate the portrayal of the Charles Murray debacle as a regrettable blow to free speech. This strikes me as the paragraph that does the heavy lifting of her analysis:
The Murray event’s organizers encouraged us to debate his ideas and to counter his eugenicist arguments with evidence and pointed questions. To be fair, many at Middlebury, including the president and the political-science faculty, were worried about censorship and committed to the idea that we must be able to hear ideas we find disagreeable. For people who feel threatened in the current political climate, however, polite debate about disagreeable ideas is a luxury they can no longer afford. We live in dangerous times, when immigrants fear expulsion and hate crimes are on the rise. Personal vulnerability drowns out the fear of censorship.
Under what circumstances should polite debate be deemed a luxury we can no longer afford? If Essig had written that relying solely on polite debate and eschewing other forms of action may be a luxury we cannot afford at certain times, I'd agree wholeheartedly. But unless we're in an emergency situation when polite debate is not a wise investment of time, I struggle to think of a context in which polite debate must be rejected as an unaffordable luxury. Contrary to Essig's assertion that "[t]he right became its own precious snowflake when [Milo] Yiannopoulos talked about teenaged boys as sexual subjects who could consent to sex with adult men," I don't think that CPAC's withdrawal of an invitation to Yiannopoulos shows that conservatives also believe that certain beliefs are inappropriate for polite debate. There are legitimate questions surrounding the wisdom of an organization's decision to provide a platform to a particular speaker, but that does not mean that it's categorically wrong to engage in a polite debate about having sex with boys. There was nothing wrong with members of the Middlebury community condemning the decision to invite Charles Murray to campus; the problem is what happened after the invitation was extended and accepted.
Essig is right to point out that we have to be attentive to ensuring that those impacted by the views being expressed are equipped to participate meaningfully in the debate. The proper response to such concerns is to remove barriers to participation and empower traditionally marginalized members of the community; the proper response is not to dismiss polite debate as an unaffordable luxury.
Thursday, March 16, 2017
Last week, the deans of 25 Catholic law schools delivered a letter to Mick Mulvaney, Director of the Office of Management and Budget, objecting to the elimination of the Legal Services Corporation. With today's news, we have decided to release that letter publicly.
March 10, 2017
Director, Office of Management and Budget
725 17th Street, NW Washington, DC 20503
Dear Mr. Mulvaney:
We write as deans of Catholic law schools in the United States to urge you to maintain funding for the Legal Services Corporation (LSC), the largest funder of civil legal aid in our nation.
The LSC’s 43-year history reflects a bipartisan commitment to address our nation’s glaring access to justice problem. LSC-funded providers have provided a voice to millions of low-income Americans who could not otherwise have afforded legal representation in the midst of some of life’s most harrowing circumstances. The most frequent cases involve family law (e.g., protecting victims of domestic violence, guardianship proceedings), housing (e.g., landlord-tenant disputes, renegotiating loans to prevent foreclosure), helping military families with a variety of legal needs, and consumer issues (e.g., protecting the elderly and vulnerable from being victimized by unscrupulous lenders). These providers help people who live in households with annual incomes at or below 125% of the federal poverty guidelines, a category that includes almost one in five Americans.
We recognize the need for difficult fiscal decisions, and the LSC has already worked creatively and diligently to do more with less. From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85. In 2016, Americans spent millions more on Halloween costumes for pets than on LSC grants.
Further cuts to the LSC would exacerbate a justice gap that remains deeply problematic for a nation committed to the rule of law. According to the World Justice Project’s survey data, the United States ranks dead last (36th out of 36) among high-income countries on the question of whether people can access and afford civil justice. Though LSC-funded programs helped 1.8 million people in 2015, recent studies indicate that 80 percent of the civil legal needs of the eligible population are not being met.
The justice gap should concern all Americans, but we take a special interest in the problem as leaders of our nation’s Catholic law schools. Though we represent law schools of various sizes, with unique histories, serving distinct communities in different regions of the country, we share a commitment to make the justice system more accessible to the poor. This is not just a matter of good citizenship or professional duty, but Catholic identity. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58) Our legal aid clinics, pro bono programs, and many other school-specific initiatives bear witness to this commitment. Closing the justice gap also relies on support from state and local governments, law firms, foundations, and a broad spectrum of private philanthropy.
The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s core commitments. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system for citizens who could otherwise not afford legal representation, the LSC empowers individuals and families to contribute to the common good by giving them more control over their own lives. The LSC promotes justice by leveling the playing field for all Americans.
A growing body of research demonstrates that investment in civil legal aid yields significant economic benefits for state and local governments. To cite just three of the conclusions supported by recent research:
- Civil legal aid reduces repeat incidences of domestic violence, thus reducing public spending on medical care, special education and counseling for affected children, and police resources.
- Through representation in child welfare proceedings, civil legal aid saves public money by helping children leave foster care more quickly.
- Housing court representation by civil legal aid attorneys saves public money by reducing evictions, unjust foreclosures, and homelessness.
It also bears noting that our support for the LSC does not emanate from our agreement about politics. Over its history, the LSC has been the subject of debates that have led Congress to restrict the permissible scope and aim of funded programs. Included among the activities that the LSC may not fund are lobbying, criminal cases, habeas corpus actions, labor organizing activities, abortion-related litigation, the representation of non-citizens (subject to limited exceptions), class actions, prisoner litigation, welfare reform, and redistricting. While we may not agree with each other on the prudence of these limitations, LSC’s remaining statutory charge lies largely beyond partisan reproach.
Each one of us could share stories of how LSC-funded organizations in our communities have changed lives for the better, not by government handout, but by equipping a trained advocate to come alongside those whose interests are too frequently disregarded and act as their voice, their counselor, and their champion. The LSC’s work provides a daily reminder of government’s capacity to affirm the dignity and worth of every American.
As the late Justice Antonin Scalia stated in his remarks celebrating the organization’s 40th anniversary, the LSC “pursues the most fundamental of American ideals,” for “without access to quality representation there is no justice.”
We appreciate your consideration of our request.
Mark C. Alexander
Villanova University Charles Widger School of Law
Daniel F. Attridge
The Catholic University of America Columbus School of Law
Kathleen M. Boozang
Seton Hall University Law School
Ave Maria School of Law
Annette E. Clark
Seattle University School of Law
Phyllis L. Crocker
University of Detroit Mercy School of Law
Fordham University School of Law
Stephen C. Ferruolo
University of San Diego School of Law
Pontifical Catholic University of Puerto Rico Law School
St. Thomas University School of Law (FL)
William P. Johnson
Saint Louis University School of Law
Michael J. Kaufman
Loyola University Chicago School of Law
Lisa A. Kloppenberg
Santa Clara University School of Law
Gonzaga University School of Law
Duquesne University School of Law
Creighton University School of Law
Rev. Lawrence W. Moore, S.J.
Loyola University New Orleans College of Law
Nell Jessup Newton
Notre Dame Law School
Vincent D. Rougeau
Boston College Law School
Stephen M. Sheppard
St. Mary’s University School of Law
Andrew L. Strauss
University of Dayton School of Law
University of San Francisco Law School
Georgetown University Law Center
Robert K. Vischer
University of St. Thomas School of Law (MN)
Loyola Law School, Los Angeles
Institutional affiliations are listed for identification purposes only.
Robbie George and Cornell West have written an elegant yet powerful statement in response to the debacle at Middlebury, inviting folks from political left, right and center to join on. Middlebury professor Allison Stanger was among the first to sign. I've just signed on. Here's hoping you will too.
Sign the Statement: Truth Seeking, Democracy, and Freedom of Thought and Expression - A Statement by Robert P. George and Cornel West
March 14, 2017
The pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of the virtues of intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.
That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.
None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.
All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.
It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?
Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.
Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University.
Cornel West is Professor of the Practice of Public Philosophy in the Divinity School and the Department of African and African- American Studies at Harvard University.
If you would like to join Professors George and West as a public signatory to this statement, please submit your name and title and affiliation (for identification purposes only) via email to jmadison@Princeton.edu. Open to all to sign.
If you signed on to the statement but do not yet see your name listed here, please check back later. We're working diligently to manage the large volume of signatories to this statement.
It's a sad comment on the state of the federal judiciary when a non-lawyer journalist can give a more doctrinally persuasive analysis of the constitutionality of an executive order than can a federal judge. See Mollie Hemingway's analysis (here) of Judge Derrick Watson's opinion granting a TRO against the enforcement of the Trump administration's revised travel ban. Watson purports to apply the Supreme Court's test for Establishment Clause violations set forth in Lemon v. Kurtzman. As Hemingway observes, "[Judge] Watson says [the executive order] fails the first part of the [Lemon] test. Yet the idea that the executive order has no secular purpose is laughably wrong. One can disagree with the executive order or its goals without denying that those goals are secular." Having the self-awareness and the discipline to separate political disagreement with a law from legal critique of the law has, of course, been something that judges have struggled with, especially since the latter half of the twentieth century. Sadly, Watson's opinion does little to restore the public's confidence in the judiciary's comprehension of its vital but limited role in our constitutional order.
March 16, 2017 | Permalink
Wednesday, March 15, 2017
Nice news out of Villanova (press release here), where the Widger School of Law has named its Center for Law, Religion and Public Policy after Eleanor H. McCullen in recognition of $5 million in gifts from her husband, Joseph T. McCullen, Jr. Among her many remarkable achievements, Mrs. McCullen was the plaintiff in McCullen v. Coakley, the 2014 case in which the Supreme Court unanimously struck down a Massachusetts abortion clinic buffer zone statute. The naming of the Center in her honor is a wonderful tribute to a pro-life and free speech champion.
Tuesday, March 14, 2017
A couple of further thought in response to Rob, with whom I am greatly enjoying an exchange concerning perceptions of discrimination against Christians.
First, Rob writes that Christians are "lead[ing] the charge" against Muslims in some communities, citing conservative Christian support for so-called anti-Sharia laws and for the denial of zoning permits for the construction of mosques. I wonder if this is true. No doubt some conservative Christians do support these policies. But some say that those leading the charge today against immigrants, and those most hostile toward Muslims (and African Americans, and others, too), from the right tend to be non-Christians, not Christians. Rob suggests that the failure of some conservative Christians to advocate against, e.g., anti-Sharia laws might "smooth the way for the demonization of conservative Christians." Perhaps that is true, but the point assumes that politics rewards a kind of principled, rational consistency (I have disagreed with Tom Berg in a similar way before, regarding his view that politics rewards reciprocality and consistency). Conservative Christians, the argument seems to say, are likelier to be rewarded with non-demonization if they support the non-demonization of another group. But it seems to me that the real reasons for Christian demonization are located in very different places than these, and that the question of whether Christians will or will not be demonized as a political and/or cultural matter depends on much more powerful political and cultural forces. To name two: the cultural desires and aspirations of the secular left and of religiously disengaged conservatism.
Second, Rob says that Christians should be "specific and restrained" in pointing out discrimination against Christians. The reason is that "our too-easy embrace of that narrative [of discrimination and/or persecution]...can limit its power when we need it most." I don't think I agree with this point, but whether I could agree with it or not would depend upon facts I don't presently possess. The point being pressed by Rob could be called "the boy who cried wolf" hypothesis--the more frequently Christians point out episodes of discrimination and/or persecution against themselves, the more likely they are to be labeled "whiners" or some similarly dismissive appellation by their cultural and political opponents, and the less likely they will be to succeed when they invoke the charge of discrimination and/or persecution when it "really" happens. But why should one think that invoking discrimination is like this? To the contrary, why should one not think that the more one invokes the discrimination/persecution charge, the more powerful it becomes. And the less frequently one invokes it, the less plausible it seems (as, indeed, it seemed very implausible to the Washington State Supreme Court in the example Rob cites, notwithstanding what are to me the entirely persuasive arguments that Rob himself makes). You could call it the muscle hypothesis--the more you exercise, the stronger you get. There are many other examples of the power that the charge of discrimination can generate on behalf of a cause as a legal and political matter. Indeed, constitutional law (among other areas) is absolutely stuffed to the gills with them. If the objective is legal or political success, I'm not sure that I would accept the boy who cried wolf hypothesis as just self-evidently true, at least not without further evidence that this is, in fact, the likely outcome of "too many" claims of discrimination/persecution. In this instance, less may not be more. More may be more.
Monday, March 13, 2017
Just a word, since the insanity at my alma mater last month has been covered in almost every noted publication to date. As Professor Allison Stanger returned to the hospital yesterday with a concussion, we still await definitive action on the part of the administration. Thankfully, on March 6, 100 professors spoke out swiftly in favor of free inquiry, offering "core principles that seem to us unassailable in the context of higher education within a free society."
Having had Stanger as a senior at Middlebury in the 90s, these student (and outside) protesters don't know what they missed. She was as tough as nails and would have given any thinker (especially one positing spurious claims) a run for his money. Then again, watching a good portion of the (now removed) video of Charles Murray's talk presented in a protected Plan B setting leads me to think the students would have found in Murray some ammo for their current assault on 'privilege' (in which, at a hefty price tag, Middlebury so manifestly indulges). Too bad they couldn't just...listen. Rod Dreher's investigative reporting presents some evidence from the campus newspaper of what-was-going-on-at-Middlebury ahead of Murray's arrival.
To think Middlebury was the site of my own intellectual conversion, precisely because it was a place willing to invite (and employ!) diverse thinkers that challenged my own far left/secularist thinking: most notably professors Murray Dry, Paul Nelson, visiting professor Paul Carrese, and guest speaker Stanley Hauerwas.
But that was the 1990s.
The Heritage Foundation hosted a lovely live-streamed lunch-time panel today on the life and legacy of the late Michael Novak. Panelists included friends, collaborators, and students of the celebrated (if controversial) theologian who died last month. (As a participate in the Tertio Millenium Seminar in Poland, I number myself among his many grateful students--and was honored and delighted to spend time with him at Ave Maria and CUA over the last year.) Hosted by Ryan Anderson, panelists Catherine Pakaluk, Samuel Gregg, George Weigel and Mary Eberstadt offered intelligent and moving accounts of their friendship with Novak and his enduring legacy.
Catherine Pakaluk, a Harvard-trained economist and now assistant professor of economics at the Busch School of Business and Economics at CUA, made the case for Novak as a true economist, articulating similar themes in the beautiful tribute she scribed for NRO last month:
The economics curriculum at my university (and Penn was not unique in this) suffered acutely from the problem identified by James M. Buchanan in his 1964 article “What Should Economists Do?” What frustrated Buchanan, who went on to win the Nobel prize in economics in 1986, was that to most economists “our subject field is a problem or set of problems, not a characteristic human activity” (emphasis mine). He argued that this mistake would lead inexorably to the disintegration of “economics as a well-defined area of scholarship.” What he did not say but might have said is that a set of merely technological problems cannot inspire, cannot ennoble, and risks a sort of massive irrelevancy with respect to the great questions of human life. I raise this point because it seems to me that there is no better way to describe Novak’s work than to say that he never touched on a subject as anything other than “a characteristic human activity.”
It is worth noting that Novak’s formal education in philosophy, theology, and religious studies was much more like that of Adam Smith than like that of any modern-day economist. This has profound implications for higher education and may explain why Novak was such a fan of religious colleges, helping to found Ave Maria University and finishing his academic career at The Catholic University of America. We should expect, I hope, many initiatives in the coming years, especially at religious institutions, which seek to unpack the importance of philosophy and theology for economics and social science at large.
Catherine offers her own brilliant unpacking in a paper she wrote on the occasion of receiving the Acton Institute's 2015 Novak Award (which recognizes "outstanding scholarly research that examines the relationship between religion, economic freedom, and the free and virtuous society.") The paper, now available online (behind the paywall at the Journal of Markets and Morality, but more readily at academia.edu), is entitled, "Dependence Upon God and Man: Toward a Catholic Constitution of Liberty." Putting Catholic social thought in conversation with liberal thinkers such as Milton Friedman and Friedrich Hayek, Catherine seeks to develop what she calls a "'liberty of dependence'...a doctrine of freedom in society that isn't quite a manifesto of personal liberty as Hayek might have wanted it--but rather a manifesto of social freedom in which freedom for the individual is required so that he can be dependent and responsible."
As one who also has written of late on the theme of dependency as an essential and forgotten element of the human condition--and as one happy to call Catherine a dear friend--I heartily recommend this deeply philosophical and learned approach to political economy. Catherine is a mentor to many, an intellectual force for good, and a true gift to the Church. She is also the mother of eight very blessed children.
1) I wholeheartedly agree that the global persecution of Christians is a crisis that demands our attention. The survey that I referred to in my post asked respondents to compare Muslims and Christians in terms of discrimination experienced in the United States.
2) I agree with Marc that it is possible "[a] person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty." In the case of evangelical Christians evaluating religious liberty threats in our country today, I do think that the failure to recognize Muslims as a legitimate object of religious liberty concern will, over time, weaken religious liberty for all. Christian support for so-called "anti-Sharia" legislation is one example. As Christians lead the charge to deny zoning permits for mosques in some communities, is there a danger of creating precedent (legal or political) for denying permits for churches -- especially churches espousing disfavored beliefs about foundational commitments of the emerging political order -- in other communities? Does the failure of (some) Christians to speak up against the demonization of American Muslims -- and the day-to-day implications of that demonization in the daily lives of American Muslims -- smooth the way for the demonization of conservative Christians?
3) I don't believe that we should remain silent about discrimination against Christians until we reach some sort of "real persecution" tipping point, but we should be specific and restrained in pointing it out (as I have tried to be). The persecution narrative among American Christians gives us ample resources to resist oppression if and when it comes; our too-easy embrace of that narrative, though, can limit its power when we need it most.
I see things a little differently than Rob does in his latest post concerning discrimination against Christians. I hasten to add that I am neither an Evangelical conservative Christian nor have I ever listened to Christian rock. I also have not read the original piece to which Rob links. The disagreements run to a number of issues, and as to some I am not sure they are disagreements at all. But for purposes of this post, let me point out three:
- Objection from demandingness: Rob says that "[i]f millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground." I am not sure this argument is correct. A person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty. He or she could defend certain principles in certain contexts and not in others, and still help toward the defense of those principles. That person need not have to perceive all threats, as well as the relative strength of those threats, and make all possible defenses. But Rob seems to say that if one does not do this, then one is contributing to the weakening of religious liberty. That imposes a very high standard on people to perceive accurately the quality of all threats and defend religious liberty accordingly. Otherwise they are weakening religious freedom.
- Global context: Rob may not have been saying this, but I also do not agree that Americans should recognize that discrimination and persecution of Christians is, at least as a global phenomenon, of lesser importance or significance or urgency than discrimination against other religious groups. In fact, if anything it is secular Americans, not Evangelical Christians, who fundamentally misperceive where the most potent threats to religious freedom are aimed. Those threats are aimed at Christians in the Mideast. The American political regime that preceded this one consistently, almost willfully, misperceived that threat to religious freedom. Many American Christians seem not to perceive the atrocities that have been and are occurring to their co-religionists, and that my colleague, Mark Movsesian (among others), has documented. But I am not sure that I blame them for this. Here again, I revert to the first point of disagreement. It will be very difficult to protect religious freedom if every person has to accurately assess the relative strength of various threats to religious freedom and protect them in corresponding proportion. Whose metrics will be used? What happens when we disagree about the relative power of the threats? Is it not better to allow for different constituencies to emphasize and advocate for different problem issues? Is it not a more realistic approach that might result in the collective strengthening of religious freedom?
- Just Wait Until It's Worse!: Finally, I disagree with an implication of Rob's post: that until Christians in this country have it as bad as other constituencies, they need to recognize their own relatively insignificant lot and wait for things to get worse before they can really start to complain. Rob almost certainly did not mean to say this, but the argument he makes reminds me very much of the 'now that's real persecution' style of argument. It is of course true that people ought to be concerned with severe violations of religious freedom. But I do not think it is true that people ought to measure or evaluate the state of their own religious freedom only by comparison with its worst violations. There is inevitably a kind of recursion to the lowest common denominator in these kinds of arguments, a suggestion that until American Christians endure the same sorts of threats as others, they are just "whining." I must say that this argument (as I've written before) has always been mysterious and borderline perverse to me. Assuming the threats to religious liberty (as in point 1) to be of differential urgency, why is it necessary for those threats to become much, much worse before we will acknowledge their legitimacy?
UPDATE: Apropos, an interesting column by Damon Linker today on the very subject of "Why so many conservative Christians feel like a persecuted minority."