Monday, November 16, 2015
I've recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.
Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.
Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.
One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.
Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.
But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”
The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.
Saturday, November 14, 2015
Here's perhaps something of a light distraction from various present horrors. I have written about Anthony Trollope here before, one of the greatest and most unjustly neglected (at least in the United States) novelists of the Victorian period. But particularly for those interested in law and religion, may I recommend "The Warden"--the first of Trollope's Barsetshire Novels--as one of the greatest little novels I've read in years. A few notes on the plot:
The story concerns a will by one John Hiram, who establishes in the 15th century a "hospital" (really a kind of sanatorium) for the care of several bedesmen (needy pensioners). An Anglican churchman--the warden--is given the care of this hospital, with an attendant salary. But over the years, as the property increases in value, so does the warden's income, which by the time of the story sits at a very comfortable 800 pounds. The warden at the time of the telling, Septimus Harding, is a kind, gentle, caring, and honorable man who takes exceptional care of his charges. Nevertheless, a question arises about Mr. Harding's entitlement under the will to so generous an income. A reform-minded young man named John Bold (who also happens to be the suitor of Mr. Harding's daughter) begins to make inquiries--with the utmost good faith--about the nature of the original bequest. And this unleashes a bitter contest between the local archdeacon and the reformers (as well as other unscrupulous and nasty types) about the propriety of the income of the wardenship at Hiram's Hospital.
Part of what makes the novel so good is the delicacy with which the characters are drawn. Unlike in Dickens, where the characters are perhaps a bit too often either the purest angels or the rankest devils, Trollope's novel is populated with characters who have doubts about what is right. Mr. Harding himself is a deeply good man, but also one with sincere and real qualms about the justice of the matter. As Trollope puts it, Mr. Harding was far less concerned to be proved right at law than to be right.
Though their lives are entirely comfortable, many of the bedesmen are lured into joining a law suit when the promise of 100 pounds a year is dangled in front of them by an exploitative lawyer who strikes the appealing notes of self-righteousness in combination with legal entitlement. In the end, after his name is repeatedly dragged through the mud by the local press, the warden resigns and the bedesmen don't see a cent. In a touching scene at the end of the novel, as the warden is leaving the hospital, he says goodbye to a bedridden bedesman who is destined to die within the week, "poor old Bell":
"I've come to say goodbye to you, Bell," said Mr. Harding, speaking loud, for the old man was deaf.
"Are you going away, then, really?" asked Bell.
"Indeed I am. And I've brought you a glass of wine; so that we may part friends, as we lived, you know."
The old man took the proffered glass in his shaking hands, and drank it eagerly, "God bless you, Bell!" said Mr. Harding; "good bye, my old friend."
"And so you're really going?" the man again asked.
"Indeed I am, Bell."
The poor old bed-ridden creature still kept Mr. Harding's hand in his own, and the warden thought he had met with something like warmth of feeling in the one of all his subjects from whom it was the least likely to be expected; for poor old Bell had nearly outlived all human feelings. "And your reverence," said he, and then he paused, while his old palsied head shook horribly, and his shriveled cheeks sank lower within his jaws, and his glazy eye gleamed with a momentary light; "and your reverence, shall we get the hundred a year, then?"
How gently did Mr. Harding try to extinguish the false hope of money which had been so wretchedly raised to disturb the quiet of the dying man! One other week and his mortal coil would be shuffled off; in one short week would God resume his soul, and set it apart for its irrevocable doom; seven more tedious days and nights of senseless inactivity, and all would be over for poor Bell in this world; and yet, with his last audible words, he was demanding his moneyed rights, and asserting himself to be the proper heir of John Hiram's bounty! Not on him, poor sinner as he was, be the load of such sin!
There is so much more in this superlative story of law, rights, religion, justice, reform, tradition, personal frailty, and the complicated nature of human motivations and character. One of the very best.
Pope Francis: Here in the Vatican we are following the terrible news from Paris. We are shocked by this new manifestation of maddening, terrorist violence and hatred which we condemn in the most radical way together with the Pope and all those who love peace. We pray for the victims and the wounded, and for all the French people. This is an attack on peace for all humanity, and it requires a decisive, supportive response on the part of all of us as we counter the spread of homicidal hatred in all of its forms.
More here, at SCOTUSBlog. Justice Kennedy will do what Justice Kennedy will do. There's no need to restate here the argument that, under the Constitution correctly understood, states have the power to regulate abortion. Between this grant, and the Court's decision to hear the contraception-mandate cases, I think we can confidently expect (a) that abortion and the Supreme Court will loom large in the presidential campaign and (b) that we will have to endure inaccurate, unfair, opportunistic, and cynical ads, rhetoric, and commentary (again) about a "war on women."
Some commentators have been saying things lately along the lines of "last Term featured big wins for 'liberals'; this Term will likely be good for 'conservatives.'" Putting aside arguments we could have about the premises embedded in the use of those labels . . . I am not so confident that Justice Kennedy -- even though he was willing to rule that the insurance-coverage mandate exceeded Congress's Commerce Clause power -- will uphold the Little Sisters of the Poor's challenge to the contraception-coverage mandate nor am I confident that he will -- even though he has consistently upheld abortion regulations since the Casey decision -- allow the Texas regulations to stand. (He should, in my view; I'm just not confident that he will.)
Friday, November 13, 2015
GOP hopeful Marco Rubio had the opportunity at the fourth Republican debate Tuesday night to share his plan for an increase in the child tax credit (adding $2,500 to the current $1000 per child, refundable from tax liability including, importantly, payroll taxes). As a devotee of both CST and Ross Douthat's Grand New Party, I've long been a proponent of this, as a up-front investment in the sacrifices parents make toward future generations (of citizens/taxpayers). Douthat makes a more recent case for the credit here and here. Both Douthat and EPPC's Pascal-Emmanuel Gobry write that the tax credit--and the critique libertarian Rand Paul had of it at the debate--is emblematic of the broader GOP debate between libertarianism and reform conservatism.
As relational feminists have rightly argued, children are a "public good"; women's disproportionate care of children creates a "collective or societal debt" toward women (or increasingly, both parents). Without this sort of care-oriented restructuring of the tax code to support those raising children, ours is a system of free-riders. Allowing American parents to keep more of their own income is paying it forward, investing in parents' investment in their children. This seems to me a no-brainer for Catholics. And is certainly a more "conservative" [read: freedom-loving] approach than that offered by Democrats who seek rather to increase the child care tax credit, benefitting only those who contract out the care of their children to institutional daycare providers, excluding those who care for their young children themselves (or with the help of noninstitutionalized supports).
The Wall Street Journal's editoral page is strongly opposed to the increase, calling it a new entitlement that merely panders, but doesn't grow the economy: "Mr. Rubio has let himself be swayed by a coterie of non-economist conservatives who view the tax code as an engine of social policy." Seems to this non-economist that the work of parents is an essential piece of that which grows the economy--in the long term, of course, but without their sacrifice of caregiving for future generations, we would be without the human capital on which this knowledge/service economy depends. Further, for fiscal conservatives to simply dismiss the current stress on working parents--and the current market disincentives toward caregiving and anti-family distortions in the tax code--betrays a forgetfulness of the cultural supports upon which the market (and our republic) depends. John Kasich inelegantly attempted to make this point on Tuesday by referencing the work of "Catholic theologian Michael Novak" who, according to Kasich, argues that the market system needs to be "underlaid with values." He's right--and lifting the tax burden for parents is one of them.
By the way, the prolific Novak has a new book out this month, a topic for a future post.
November 13, 2015 | Permalink
Tuesday, November 10, 2015
At the Notre Dame Law Review's excellent symposium Friday (thanks Rick and others!), I presented these remarks using the idea of "partly acculturated religion" as a way of understanding some of the most controversial current free-exercise cases. I then gave the same talk the next day at a Yale Law/Divinity Schools' joint conference on law, religion and politics (thanks to Prof. Patrick Weil of Yale for the invitation there). A couple of samples from the talk:
Many of today’s most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it’s generally agreed that churches and clergy should be able to refuse to host or perform a marriage, because they fall within the private sphere. But religious activities that reach out to provide services to the broader public provoke much more controversy. Think of religious adoption agencies that decline to place children with same-sex couples—or evangelical anti-trafficking program that refuses to provide abortion referrals—or the religious social services that have sought exemption from the HHS contraception mandate.
To many critics, accommodation is plainly improper in such cases. They say that when a religious organization hires people outside the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has deemed unjust. Once an organization reaches out to others, it must follow all the rules no matter how much they burden religion....
My project is to argue for protection in these cases too, relying on the idea that they involve cases of “partly acculturated religion.” These faiths fall in between two poles.... They are “acculturated” in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds. But they’re “unacculturated” in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These organizations make a claim to be able to continue to provide services and still follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place.
I then present two arguments why the law should make meaningful efforts to accommodate partly acculturated religious activity:
First, equality among religions—a fundamental principle of the First Amendment. Service is an essential component of much religion, of course; but more than that, it is a perfectly legitimate way of being religious for an organization to reach out to serve or employ others will still maintaining adherence to its distinctive religious standards.... [The law] should avoid forcing all organizations into two rigid categories of unacculturated or acculturated.
Second, social capital and civic virtue. Partially acculturated religious organizations tend to create a great deal of social capital and volunteer energy in service of others, and if their works shrinks or ends because of legal conflicts, it will be a loss to society. The sociological and political-science writings of Robert Putnam and David Campbell, John DiIulio, Steven Monsma, and others support this claim.
I'll be developing this into a full-length article. Comments welcome--i.e. wanted!
An interesting quote, from this longer piece about Scruton's religion:
“Interestingly enough, in my experience, Catholic institutions are the only open-minded ones in terms of higher education. They are the only institutions that would openly offer cover and support to somebody as conservative as me, and without being dogmatic about it or agreeing with me or anything like that. Having some position in Oxford would have been impossible for me without Blackfriars.”
Dominic Selwood is on the case, in The Telegraph:
. . . For centuries, the English have been taught that the late medieval Church was superstitious, corrupt, exploitative, and alien. Above all, we were told that King Henry VIII and the people of England despised its popish flummery and primitive rites. England was fed up to the back teeth with the ignorant mumbo-jumbo magicians of the foreign Church, and up and down the country Tudor people preferred plain-speaking, rational men like Wycliffe, Luther, and Calvin. Henry VIII achieved what all sane English and Welsh people had long desired – an excuse to break away from an anachronistic subjugation to the ridiculous medieval strictures of the Church.
For many in England, the subject of whether or not this was true was not even up for debate. Even now, the historical English disdain for all things Catholic is often regarded as irrefutable and objective fact. Otherwise why would we have been taught it for four and a half centuries? And anyway, the English are quite clearly not an emotional race like some of our continental cousins. We like our churches bright and clean and practical and full of common sense. For this reason, we are brought up to believe that Catholicism is just fundamentally, well … un-English.
But the last 30 years have seen a revolution in Reformation research. Leading scholars have started looking behind the pronouncements of the religious revolution’s leaders – Henry VIII, Thomas Cromwell, Thomas Cranmer, Hugh Latimer, Nicholas Ridley – and beyond the parliamentary pronouncements and the great sermons. Instead, they have begun focusing on the records left by ordinary English people. This “bottom up” approach to history has undoubtedly been the most exciting development in historical research in the last 50 years. It has taken us away from what the rulers want us to know, and steered us closer towards what actually happened.
When this approach is applied to the Reformation, what emerges is a very different picture to the one we were taught in school. . .
As I've said often here at MOJ, it's always a good time to read Eamon Duffy.
MOJ friend John Inazu has an interesting column at The Hedgehog Review concerning his new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I had not known the denouement of the Flynt/Falwell affair. I am very glad that there are people like John about, pressing these kinds of positions so eloquently, though sometimes, perhaps in my more Rousseauian moods, I just don’t think “Plures Ex Uno” (or perhaps just “Plures” in disaggregation, haphazardly occupying the same geographic spaces, to say nothing of "Plures Ex Nihilo") has quite the same civic appeal as “E Pluribus Unum.” I’ll have something longer on this shortly. For now, though, enjoy John’s column. A bit:
“It is impossible,” said the French philosopher Jean-Jacques Rousseau, “to live at peace with those we regard as damned.” Falwell and Flynt certainly seemed to fulfill Rousseau’s dire prediction. Many of the rest of us do, too. From hostility to civil-rights protests in Missouri, to anti-Muslim protests in Oklahoma, to culture wars boycotts, we struggle to live with those whose views we regard as irrational, immoral, or even dangerous….
Even as some of us struggle to coexist, others feign agreement by ignoring or minimizing our stark differences. We hold conferences, attend rallies, and sign statements expressing unity and solidarity. But most of us do not actually think that our differences are so easily overcome. And most of us do not actually want to see a thousand flowers bloom. We can all name things we think the world would be better off without. This is especially true when it comes to questions of morality and ultimate conviction. We might prefer a society in which everyone agreed on what counted as a justifiable homicide, a mean temperament, or a good life, but that is not the kind of society in which we actually live.
There is another possibility that better embraces the reality of our deepest differences: confident pluralism. Confident pluralism insists that Rousseau was wrong: Our shared existence is not only possible, but necessary. Instead of the elusive goal of E pluribus unum (“Out of many, one”), confident pluralism suggests a more modest possibility—that we can live together in our “many-ness.” It does not require Pollyanna-ish illusions that we will resolve our differences and live happily ever after. Instead, it asks us to pursue a common existence in spite of our deeply held differences.
Friday, November 6, 2015
Michael Dorf's post on originalism and Brown two weeks ago touched off an interesting series of observations and arguments by Larry Solum, Paul Horwitz, Asher Steinberg, Michael Ramsey, and Richard Re, among others. (See also follow-up posts by Dorf and Solum.)
Dorf's post was about the need for originalist theory (or any other constitutional theory) not just to accommodate Brown as decided but to explain why Brown was right. In Dorf's words:
[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.
Underneath this claim about the relationship between constitutional theory and constitutional doctrine is a claim about our constitutional culture: "A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper."
Now as it happens, there are some who are worried that our legal culture's conception of constitutional interpretation is corrupt, perhaps irredeemably so. And at least one of them is on the Supreme Court. Consider for a moment the penultimate paragraph of Justice Alito's dissent in Obergefell v. Hodges:
Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.
Strong words. But don't let agreement or disagreement with Justice Alito's jurisprudence control your reception of this assessment.
Consider also a quotation from Erwin Chemerinsky's recent book, The Case Against the Supreme Court, that Ronald Collins highlights in his online interview of Chemerinsky: "For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society."
To use a word like "sacrosanct" to describe a case like Brown is to feed the false conception of the Justices as "high priests of the law."
Any sober assessment of Brown's contribution to dismantling the deep injustice of racial segregation in public schools cannot begin from the premise that Brown is right. No Supreme Court decision stands on its own bottom.
And it is far from clear that everyone who agrees that Brown is right are agreeing about the same thing, anyway. If people disagree about what they are actually saying is right when they say that "Brown is right," then starting from that premise won't get us too far. At least that's one lesson one might take from the deep judicial disagreement over the meaning of Brown in Parents Involved.
I am not arguing (not here, anyway) that Brown was wrong. I am not even making a claim about what Brown held. I am arguing that it is wrong to approach Brown as "sacrosanct." No Supreme Court decision is. Each decision is a group product of an institution composed of human beings, with all the limitations and promise this recognition carries with it.
How might this perspective help?
For one thing, it can help us see potential flaws in Brown. To pick one whose implications have previously been picked apart by others, Chief Justice Warren's opinion for the Court was unanimous. And that is a problem if the Court itself was not unanimous in its legal judgment.
Projection of false unanimity is a sign of weakness, not strength. It deprives the public on the "losing" side of the knowledge that the best arguments for their view were considered and rejected on the legal merits. It deprives the majority of the opportunity to strengthen its legal case by responding to dissenting legal arguments. And it adds to the perception that Supreme Court decisions are the product of will, not judgment.
This is not to say that Justices should never acquiesce in opinions with which they do not fully agree. I haven't thought enough about such acquiescence to have a view, and it is common enough in Supreme Court history to avoid out-of-hand dismissal. But identifying potential problems with the projection of false unanimity enables one to better appreciate what is and is not involved in the premise "Brown is right."
Finally, let us not forget that there were two Supreme Court decisions in Brown. Dorf's posts were about Brown I. The remedial decision a year later in Brown II is far from "sacrosanct." Its use of "all deliberate speed," for example, has been widely criticized. (Interesting aside relevant to Catholic legal theory: The phrase "deliberate speed" apparently originated with Francis Thompson's poem, The Hound of Heaven. See Jim Chen, Poetic Justice, 28 Cardozo L. Rev. 581 (2006), and this earlier MOJ post.)
Even though the Supreme Court decided a Brown I and a Brown II, there was only one Brown. This is the unanimous Brown (in both I and II). And it is the ambiguous Brown.
There is no sacrosanct Brown.