The latest draft of my bibliography for punishment and prison is available here.
The October 27th issue of the Nation has a terrific article: The Government’s War on Whistleblowers by Normon Solomon and Marcy Wheeler.The story powerfully details retaliation by both the Bush and Obama administrations against both whistleblowers and the reporters who tell their stories. In great detail, the Nation shows retaliation against New York Times reporter James Risen who won a Pulitzer Prize for reporting the existence and details of a secret domestic wiretapping program. The story was followed up by a bestselling book.
Both recent administrations have sought to prove that Jeffrey Sterling, formerly with the CIA, was the whistleblower who provided Risen with the information. One of the obvious problems with the pursuit of Risen and Sterling is that it was initiated by the very people who were criticized in the reporting and the policies criticized have been continued by the Obama Administration. If a prosecution were contemplated at all, the need for an independent prosecutor was obvious from day one.
But the methods pursued by the government are independently indefensible. The Obama Administration opposes the confidentiality of journalist’s sources in court. More devious, it secured three subpoenas to get Risen’s credit reports, travel records, credit-card records, and bank records in an effort to determine who the source might be without regard for Risen’s privacy. You might imagine that this could have a chilling effect on reporters and their sources.
Risen’s case is not alone. In just one case, the Nation reports that Holder’s DOJ secured the phone records of twenty phone lines affecting 100 journalists in order to find the source for a single story. That this could occur highlights the bankruptcy of Fourth Amendment law and First Amendment law. But it also underscores the Administration’s thin skinned insensitivity to the importance of a free press, an arrogant desire to keep the public in the dark, and an apparent desire to terrorize those who would publish information the Administration does not want us to see however much it purports to say that it “welcomes the debate.”
It would be wrong to assume that this campaign of terror is ineffective. David Barstow, a New York Times reporter, puts it well:
“I’ve felt the chill firsthand. Trusted sources in Washington are scared to talk by telephone, or by e-mail, or even to meet for coffee, regardless of whether the subject touches on national security or not. My fellow investigative reporters commiserate about how we are being forced to act like drug dealers, taking extreme precautions to avoid leaving any digital bread crumbs about where we’ve been and who we’ve met.”
We would do well to recognize that the Obama Administration stands in the tradition of Richard M. Nixon and Spiro T. Agnew. It is no friend of the press. Indeed, the harm it has imposed on the press, public information, and American democracy is incalculable.
One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as fundamental to the American scheme of justice. If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage.
Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pre-trial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on prospective jurors.
Even in small town Ithaca, New York where I live, there are sensational cases in which the risks that a jury has been contaminated are all too real. Some argue that searching questions of jurors can cure pre-trial publicity. If you believe that I have a bridge to sell you. Many jurors lie to get on juries, and many lie to stay off juries. Sometimes jurors maintain the have heard no publicity about a case only to remember later that they had heard damaging information about the defendant.
So what to do? One possibility, of course, is to gag the press. This is commonly done in England and Germany – in one case to protect the right to a fair trial, in the other to protect the dignity of the accused who is presumed to be innocent. In the U.S., however, even if such restrictions could get through the legislative process, a court challenge on free press grounds would be immediately successful.
But there is another way. In virtually all jurisdictions, attorneys are prohibited from making particular kinds of public or private statements outside the judicial process. For example, in New York attorneys are not permitted to comment in ways that cast doubt on the character, credibility, or reputation of a suspect in a criminal investigation, and they are not permitted to reveal the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person’s refusal or failure to make a statement, or the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented. They are not even permitted to express any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration.
The purpose of these rules, of course, is avoid contaminating the jury pool and to promote a trial by an impartial jury rather than by a raft of sensational publicity. But these rules are ineffective. Why? They do not work because police are not lawyers and they are not bound by these rules of professional responsibility. So the police commonly feed incriminating information to the press, and the cycle of adverse pre-trial publicity is commonplace.
This suggests an obvious solution: place the same restrictions on police that are placed on lawyers. This would not prevent the police from informing reporters that a suspect had been apprehended, the name of the suspect and other information about him or her. Of course, the police could indicate the nature of the charges that would be brought and matters of public record. But police could not give incriminating information to the press. When police are permitted casually to release incriminating information to the press, we may enjoy the gossip, but we cannot responsibly claim we treat defendants fairly. To put it another way, if fair trials are the hallmark of a civilized society, we do not live in a civilized society.
In his book, Save the World on Your Own Time, Stanley Fish takes the position that faculty may not advocate political or moral views in the classroom. Indeed, he claims that if “an idea or policy is presented as a candidate for allegiance –aided by the instructor, students are asked to decide where they stand on the matter - then the classroom has been appropriated for political purposes.”
If the primary purpose of the professor is to persuade the students to his or her point of view, then Fish has a point. But Fish goes further. He thinks the personal determination of professors and students as to what they believe should be no part of a university classroom life (though he thinks it permissible to evaluate particular pieces of discourse advocating policy positions).
In teaching the First Amendment for many decades, along with many, if not most, law professors, contrary to Fish, I have long asked students how they would decide important cases. Many professors will do this and hide the ball as to their own views. I tend to advocate positions in the classroom. The views I advocate are those the students are likely to disagree with and most of the time those views are those I actually hold. Generations of students have rejected my views. Would I like to persuade some? Sure. But that is far from my primary goal.
My predominant purpose is to challenge students to think about how to argue for the positions they at least tentatively hold and to make them think that First Amendment issues are more challenging than they had previously thought. At the same time, I tell students they should listen carefully to the arguments of those who resist the positions I take because law school is calculated to develop the ability to argue both sides of difficult questions and to take both sides into account in developing your own positions. John Stuart Mill was not speaking purely out of his imagination when he suggested that this process is well calculated to further the pursuit of truth.
Fish’s notion of professionalism is impoverished. If implemented, it would undermine the teaching of many political theorists, philosophers, and law professors, just to mention a few. More generally, it would make it far more difficult to prepare students for civic life in a democratic society.
Columbia University President Lee Bollinger has a more sophisticated conception of what should happen in university classrooms, but I have some reservations about his position as well. In a lecture on academic freedom before the Association of the Bar of New York nearly ten years ago (see here), Bollinger rightly said, “We should not accept the argument that professors are foreclosed from expressing their opinions on the subject in the classroom,” and he also said “We will not tolerate intimidation of students in the classroom for appropriately expressing reasonable and relevant points of view.” There is, of course, a risk when a faculty member takes a position on a moral, political, or legal issue that some students will be reluctant to speak out. That is why faculty members who do take such positions need to encourage opposing views and try to promote debate among the students on such issues. Fish seems to view this as the blind leading the blind. I think this fails to appreciate the extent to which persons with different backgrounds and experiences have something to contribute on controversial issues.
Bollinger, I believe, would part company from Fish here as well. He believes the academic community most values qualities of mind that have “the imaginative range and the mental courage to take in, to explore, the full complexity of the subject. To set aside one’s pre-existing beliefs, to hold simultaneously in one’s mind multiple angles of seeing things, [and] to actually allow yourself to believe another view as you consider it.” This to my mind is an extremely attractive type of mind to promote. And Bollinger does not suppose that it is or should be the goal of every course in the university. Bollinger understands that a crucial function of a university is to transmit human understanding and new knowledge to the next generation.
But there is a little bit of Fish in Bollinger. He suggests that the “question is not whether a professor advocates a view but whether the overall design of the class . . . is to explore the full range of the complexity of the subject.” Bollinger, of course, knows that no class can possibly explore the full complexity of the subject, but I take him to be suggesting a kind of “fairness doctrine” for courses. Let all sides be heard or as many sides as possible. This kind of prescription risks sacrificing depth for breadth in pursuit of the mental qualities Bollinger prizes. Perhaps, however, the prescription is simply designed to prevent a professor from simply exploring his or her own point of view in a course. But here I would also contend there should be a place in the university for courses in which professors teach their own point of view. Imagine seminars in which Rawls, Dworkin, or Nozick had advanced materials designed to pursue in depth their own political theories. Bollinger might say that would capture the full range of the complexity of the subject, but if the professor can define the subject to fit his or her own views, Bollinger’s game is up.
It seems to me that seminars of this character are enormously valuable. Similarly, I know of conservative and liberal professors in law, philosophy, and government who would do a far better job of exploring their own positions in depth that they would in trying to adopt the neutral pose of on-the-one-hand-on-the-other-hand-let-me-hide-the ball. And students might well benefit from examining and questioning the in depth analysis those professor really believe in.
If Fish has an excessively narrow one-size-fits-all view of the profession, Bollinger appears to tip the scales too heavily toward promoting certain qualities of mind. There is room for the kinds of professors and classes Fish and Bollinger have in mind, but there should be room for much more in a first class college or university.
The Vatican report issued Monday, October 13, is a preliminary document, intended to mark the halfway point of a synod convened to discuss the family. Documents like that aren't supposed to excite passions. They're supposed to be sleepy, soporific, committee-crafted documents meant to reveal little. They are not usually earthquakes that rattle the foundations of the Church.
This document, however, is different. It is, as John Thavis wrote, an earthquake. It is worth extended study, and since it is meant to be a template for further discussions, it will undoubtedly be carefully scrutinized in the months ahead. I shall certainly return to it in my future writing. For I truly believe that nothing since the close of the Second Vatican Council 50 years ago has the potential of this document to change "business as usual" in the Catholic Church.
I'd like to indicate four areas where I think this document breaks new ground:
(1) The report opens by powerfully asserting a dynamic understanding of the human person and the human condition. That is the meaning of the declaration in paragraph five that "anthropological and cultural change today influences all aspects of life." The word "anthropological" is particularly important. That is a term of art reserved in Catholic moral writing for what is understood about human nature. By speaking of "anthropological change," the report suggests that our awareness of the human person is capable of growth and change as history and the sciences reveal new vistas for discovery.
This may seem self-evident but in fact it marks a crucial shift in Catholic thought about the human person. Pope John Paul II"s concept of the person, as articulated especially in his writings on the theology of the body, was remarkably static. It assumed the existence of a single, biologically-determined human nature, good for all times and places and proposed a one-size-fits-all set of moral laws to be applied across time in every case.
The synod report moves away from this fixed and unalterable concept of the person. And this will change how we reason about human sexuality. If we adopt the static view of John Paul II it becomes impossible to incorporate into moral analysis the latest scientific insights on, say, the nature of same-sex attraction. A dynamic understanding of the person, on the other hand, which keeps the door open to future learning, may be open to revisiting and revising teaching that has become outdated -- not because the underlying values have changed but because our awareness of what it means to be human has shifted.
(2) The document seeks to give primary place to the person and his or her journey towards faith in God. Faith is a process according to this document, and it is a process guided and shepherded by an awareness of Jesus. And Jesus is seen as welcoming: "Jesus looked upon the women and men he met with love and tenderness, accompanying their steps with patience and mercy."
The report demands that the Church meet people in the same way Jesus encountered them: in all the messiness of their scattered lives. Jesus, after all, promised the gift of living water to a Samaritan woman who had been married five times and was even then cohabiting with a man outside of marriage (John 4: 4-26).
This insight is then brought to bear on the question of reconciling the divorced and remarried with the Church. To appreciate the new path this document has embarked upon, John Paul II's pontificate again serves as a point of comparison. Take, for instance, his speech to the Roman Rota in the year 1994. These annual speeches are deliberately intended as instructions issued by the Pope to the Vatican Supreme Court charged with hearing petitions for marriage annulments. Judges, John Paul II gravely warned, must avoid "the temptation to lighten the heavy demands of observing the law in the name of a mistaken idea of compassion and mercy." What mattered to John Paul II, above all, was the defense of the abstract principle of the marital bond.
The synod report, in other words, shifts the premise of the debate on the subject of the divorced and remarried. Where John Paul II and Benedict XVI were concerned above all else with abstractions -- rules, principles, policies -- Pope Francis is concerned with the concrete reality of individual human beings trying to do their best in their faith journeys. People who have been divorced, who have remarried, who are now living in successful second marriages, should be "listened to with respect and love." Many of them may even have been divorced "unjustly."
(4) The synod report breaks fresh ground again in the way it discusses frankly the "reality... of cohabitation." To be sure, the report stresses the singular importance of what it calls an "institutionally-recognized relationship." Marriage should be the culmination that couples should strive to attain.
But the document also acknowledges, in a way never done before, that cohabitation might be a fruitful step in the direction of spiritual growth. It might, the document states, be "seen as a germ," a seed that might grow in the direction of a permanent, life-long marital union. How would Jesus respond to people living together outside of marriage? He would, the document insists, act like "the light of a beacon in a port." He would not condemn or drive such people away, he would attract them with the example of his life. We should imitate Jesus when we consider those who are in cohabitation relationships.
(4) And, of course, I must comment on the synod's treatment of gays. This part of the document represents a stunning reversal of the hostility we've seen in many quarters of the Catholic Church. Omitted from this document is even a hint of the Catholic Catechism's denunciation of same-sex attraction as an intrinsic disorder. In its place, we find: "Homosexuals have gifts and qualities to offer the Christian community; are we capable of welcoming these people... ?" "Often they wish to encounter a Church that offers them a welcoming home." Will they be attracted or repulsed by what they find?
What is most surprising about the document's discussion of gays is found in paragraph 52, where it states, regarding same-sex unions: "It has to be noted that there are cases in which mutual aid to the point of sacrifice constitutes a precious support in the life of the partners."
"Mutual aid" and "sacrifice" -- these are words that Catholic moral teaching reserves to marriage. Pope Pius XI, in his encyclical Casti Connubii (1930), described marriage as promoting the "mutual aid" of the spouses. Marriage, John Paul II was fond of repeating, must imitate the "sacrificial love" of Jesus, who died for the sins of humanity.
This document, in other words, changes the terms of the debate. And on the subject of same-sex attraction, debate is precisely what the document is inviting. Thus paragraph 51 states that "the question of homosexuality leads to a serious reflection on how to elaborate realistic paths of affective growth."
The synod's report, in other words, is an invitation to reform the likes of which we have not seen for half a century. I hope to be a full participant in this debate, and certainly I encourage others to join the discussion.
Three True Stories
Renee Delisle was one of over 3500 homeless people in Santa Cruz when she found out she was pregnant. The Santa Cruz Sentinel reported she was turned away from a shelter because they did not have space for her. While other homeless people slept in cars or under culverts, Renee ended up living in an abandoned elevator shaft until her water broke.
Jerome Murdough, 56, a homeless former Marine, was arrested for trespass in New York because he was found sleeping in a public housing stairwell on a cold night. The New York Times reported that one week later, Jerome died of hypothermia in a jail cell heated to over 100 degrees.
Paula Corb and her two daughters lost their home and have lived in their minivan for four years. They did laundry in a church annex, went to the bathroom at gas stations, and did their studies under street lamps, according to America Tonight.
Fact One. Over half a million people are homeless
On any given night, there are over 600,000 homeless people in the US according to the US Department of Housing and Urban Development (HUD). Most people are either spending the night in homeless shelters or in some sort of short term transitional housing. Slightly more than a third are living in cars, under bridges or in some other way living unsheltered.
Fact Two. One quarter of homeless people are children
HUD reports that on any given night over 138,000 of the homeless in the US are children under the age of 18. Thousands of these homeless children are unaccompanied according to HUD. Another federal program, No Child Left Behind, defines homeless children more broadly and includes not just those living in shelters or transitional housing but also those who are sharing the housing of other persons due to economic hardship, living in cars, parks, bus or train stations, or awaiting foster care placement. Under this definition, the National Center for Homeless Education reported in September 2014 that local school districts reported there are over one million homeless children in public schools.
Fact Three. Tens of thousands of veterans are homeless
Over 57,000 veterans are homeless each night. Sixty percent of them were in shelters, the rest unsheltered. Nearly 5000 are female.
Fact Four. Domestic violence is a leading cause of homelessness in women
More than 90% of homeless women are victims of severe physical or sexual abuse and escaping that abuse is a leading cause of their homelessness.
Fact Five. Many people are homeless because they cannot afford rent
The lack of affordable housing is a primary cause of homelessness according to the National Law Center on Homelessness and Poverty. HUD has seen its budget slashed by over 50% in recent decades resulting in the loss of 10,000 units of subsidized low income housing each and every year.
Fact Six. There are fewer places for poor people to rent than before
One eighth of the nation’s supply of low income housing has been permanently lost since 2001. The US needs at least 7 million more affordable apartments for low income families and as a result millions of families spend more than half their monthly income on rent.
Fact Seven. In the last few years millions have lost their homes
Over five million homes have been foreclosed on since 2008, one out of every ten homes with a mortgage. This has caused even more people to search for affordable rental property.
Fact Eight. The Government does not help as much as you think
There is enough public rental assistance to help about one out of every four extremely low income households. Those who do not receive help are on multi-year waiting lists. For example, Charlotte just opened up their applications for public housing assistance for the first time in 14 years and over 10,000 people applied.
Fact Nine. One in five homeless people suffer from untreated severe mental illness
While about 6% of the general population suffers from severe mental illness, 20 to 25% of the homeless suffer from severe mental illness according to government studies. Half of this population self-medicate and are at further risk of addiction and poor physical health. A University of Pennsylvania study tracking nearly 5000 homeless people for two years discovered that investing in comprehensive health support and treatment of physical and mental illnesses is less costly than incarceration, shelter and hospital services for the untreated homeless.
Fact Ten. Cities are increasingly making homelessness a crime
A 2014 survey of 187 cities by the National Law Center on Homelessness & Poverty found: 24% make it a city-wide crime to beg in public; 33% make it illegal to stand around or loiter anyplace in the city; 18% make it a crime to sleep anywhere in public; 43% make it illegal to sleep in your car; and 53% make it illegal to sit or lay down in particular public places. And the number of cities criminalizing homelessness is steadily increasing.
By Bill Quigley. Bill teaches law at Loyola University New Orleans. You can reach Bill at email@example.com
In a recent symposium in the Illinois Law Review, Jason Mazzone maintains that many, if not most, Constitutional Law articles in laws reviews are principally advocacy pieces. He contends that these articles are not scholarship. He insists that law professors should engage in the same kind of research and writing employed in other departments. See here. (For interesting commentary by Paul Horwitz, see here). In so arguing, Mazzone puts forward the most recent echo (though he does not go quite as far) of the insouciant claims of Stanley Fish, who insists that professors in universities should confine themselves to politically neutral academic discourse.
I think it worth observing that advocacy pieces in Constitutional Law have counted as scholarship in American law schools, and the narrow conception of scholarship recommended by Mazzone and Fish borrowed from other disciplines has long been rejected in American law schools, not to mention some other humanities and social science departments. Mazzone and Fish apparently would not allow such articles to be counted for tenure in law schools. Would legal education be better off if law professors did not write what in many respects many, if not most of them, are best equipped to write? It seems obvious to me that the clash of advocacy scholarship has sharpened our understanding of legal issues. John Stuart Mill was on to something when he thought that advocates were more likely to see the benefits of a particular position. In the end, I do not see the advantage of imposing the author's crabbed conception of scholarship and inquiry as the one-size-fits-all mode of writing in the legal academy.
Having said that, I am not claiming that advocacy pieces are the only or even the best approaches to the understanding of law or legal issues. Law reviews have always had articles featuring the on-the-one-hand-on-the-other-hand handwringing neutral sounding discussions of legal issues, and the move toward interdisciplinary scholarship has made law reviews far more interesting and important. Moreover, many advocacy pieces are shoddy. They often sport the kind of bad advocacy that avoids confrontation with the most serious challenge to the positions they take. Nonetheless, law schools have rightly declined to dismiss advocacy pieces merely because they argue for apparently preconceived positions, let alone because they dare to depart from neutral academic discourse.
It is also worth observing that the call of Stanley Fish for politically neutral discourse highlights one of the great failures of American education. Universities ought to be a place where student citizens come to learn how to debate the great issues facing the United States and the world. But where would they go to do this? In most departments, they can learn facts that bear on such issues, but the curriculum itself does not present adequate opportunities to explore the policy issues presented.
The university is infected with positivism, and normative issues are for the most part unexplored. Political Science is a discipline thoroughly infected with the positivist disease. The exceptions within the discipline are Constitutional Law (which does not come close to addressing the broad range of policy issues) and Political Theory. The theory is valuable, but it approaches policy issues from a high level of abstraction that is under inclusive with regard to the levels of abstraction analysis needed to approach many issues. The same applies to Philosophy Departments that themselves are situated in a discipline that is not well equipped to explore the interaction between theory and practice. Public policy schools tend to be dominated by cost-benefit analysis; economic departments by narrow economic analysis.
A law school is one place in the university where a broad range of policy questions can be addressed. Of course, one weakness is that most of these questions are addressed by resort to a model of adjudication, but that is not the exclusive model employed and the adjudicatory model quite frequently engages in an exploration of relevant policy factors. In short, law schools fill a vacuum in scholarly writing and in the education of citizens wrongly left open in the general university.
This brings me back to Fish and Mazzone. The imposition of their imperialistic conceptions would deprive the university of a type of scholarship and teaching that is vitally needed in a democratic society.
Conservative Catholics are involved in a fascinating and heated debate with each other. The debate is about the compatibility (or not) with America as they sometimes style it or liberal democracy as they sometimes conceive of it. One group traceable to John Courtney Murray sometimes called older, orthodox, accommodationist, or neo-conservative maintains that Catholicism is fully compatible with American style democracy. Their position is that the American Constitution is founded on natural law/natural rights principles and is opposed to a relativistic view. Their quest is to fill in the neutrality of liberal democracy, to return us to limited government, laissez faire economics, and a strong foreign policy. They are pro-life, pro-family, and supportive of traditional marriage.
The so-called radical school denies the compatibility of Catholicism and liberal democracy. It rejects the individualism, the excesses of capitalism, and the imperial tendencies while sharing the pro-life, pro-family, and traditional marriage views of the other conservatives.
Catholic conservatives are on the defensive. It should be obvious to a stone that gay rights are here to stay and that those who fight against it will be marginalized. Both groups are right to worry that relativism, individualism, and pure selfishness are too prominent in American culture (though blaming these tendencies on “liberalism” strikes at a straw man). The conservative radicals join the political left, not to mention Pope Francis, in worrying about the hedonism, materialism, exploitation, and imperialism embedded in capitalist culture. It is helpful that many traditional Catholics (liberal on most economic issues- conservative on many social issues – this is why they do not like being called conservatives) have something to share with the political left and speak out in articulate ways about these issues.
Both groups of conservatives seem to believe that liberal Catholicism is doomed. It is a strange time to believe that. After all, the current Pope does not stress social issues and has even invited an open debate about the issues that concern liberal Catholics. Moreover, there is a smugness about this in comparing liberal Catholics to liberal Protestants which they also see as terminally ill. In fact, 60% of Anglo-Americans born in the Catholic Church are no longer Catholics and a surprisingly strong percentage of those who have left are not liberal. Indeed, the decline among Anglo-Catholics is about the same as that of liberal Protestants. As is well known the size of the American Catholic Church has been supported by Latino immigration and that group tends to be more conservative on social issues. So the American church looks to become more conservative than it is today (though it is hard to predict how much the church overall will move in response to the culture).
Nonetheless, on most social issues favored by conservatives, they are right to fear that they have lost a substantial part of the culture war. They probably will have some room for maneuver on abortion for some time. But consider the rest of the views: pre-marital sex, masturbation, divorce, contraceptives, same sex relations and the like. According to Catholic doctrine, doctrine strongly held by the conservatives, these are always wrong. The conservatives are right to worry that they are on the margin of American culture. Indeed, despite the doctrine, the conservatives are far from being a majority, not even in their own church – and it’s a good thing too.
For an excellent introduction to the debate among Catholic conservatives, see http://www.theamericanconservative.com/dreher/ghosts-chuck-colson-richard-john-neuhaus-first-things/
I have yet to read Ronald Dworkin’s book, Religion Without God, but I go into in with three observations. First, as a matter of ordinary usage, our understanding of religion does not require a belief in a transcendent God. If it did, Buddhism as ordinarily understood would not count as a religion. Second, it makes no sense to me to offer legal protection to those who are motivated by religion to live in a certain way, but not to those who as a matter of moral conscience (free of any religious tradition) feel obligated to live their life in a certain way. Third, it is likely that Dworkin’s perspective may offer the most challenging alternative to a theological perspective I find persuasive.
Hans Kung and Charles Taylor argue that it is a reasonable for an agnostic or a person with doubts to act on the assumption that God exists. Given a choice it is better to believe that the universe is meaningful rather than meaningless, that we are part of something larger than ourselves, that our life has a purpose rather than one simply chosen, that we are disciples of a loving God. In his book, Dworkin argues that there is a moral reality and that human life has objective meaning and importance. He also maintains that the universe is of intrinsic awe and wonder. He contends that these beliefs are central to religion and to secular humanists. He believed that recognition of this should dampen the culture wars between the religious and the humanists.
In the book, Dworkin makes a point he made in his earlier Justice for Hedgehogs. Morality reality is independent of God and cannot be changed by God. If God decreed that the gratuitous torture of babies was not immoral, God would be wrong. I agree, and Dworkin uses the point to strengthen the ties between the religious and the humanists.
Going into the book, however, I remain a follower of Kung and Taylor. I think my own life goes better if I try to act as if a loving God (not an angry hell-threatening God) exists that I am called to follow, if I work within a religious tradition in which thinkers over the ages have addressed life issues from a moral perspective (though I would not say this of all religious traditions), and if I encounter others who inspire me in the ways they try to live religious lives (not that there are no humanists to be inspired by).
At least the pull of a religious tradition is significant for me. In any event, I look forward to reading Dworkin’s last book.
“One of the reasons why so few people are to be found who seem sensible and pleasant in conversation is that almost everybody is thinking about what he wants to say himself rather than about answering clearly what is being said to him. The more clever and polite think it enough simply to put on an attentive expression, while all the time you can see in their eyes and train of thought that they are far removed from what you are saying and anxious to get back to what they want to say. They ought, on the contrary, to reflect that such keenness to please oneself is a bad way of pleasing and persuading others, and that to listen well and answer to the point is one of the most perfect qualities one can have in conversation.”
“Our self-esteem is more inclined to resent criticism of our tastes than of our opinions.”
“We all have strength enough to endure the troubles of others.”
“We often pride ourselves on even the most criminal passions, but envy is a timid and shamefaced passion we never dare acknowledge.”
“Greater virtues are needed to bear good fortune than bad.”
“Neither the sun nor death can be looked at steadily.”
“Our promises are made in proportion to our hopes, but kept in proportion to our fears.”
“What makes us so unstable in our friendships is that it is difficult to get to know qualities of soul but easy to see those of mind.”
“Everybody complains of his memory, but nobody of his judgment.”
“To be known well, things must be known in detail, but as detail is almost infinite, our knowledge is always superficial and imperfect.” [This is virtually identical to a key proposition found in Jain epistemology and provides one part of the justification of a relativistic and pluralist theory of knowledge.]
“Nothing is less sincere than the way people ask and give advice. The asker appears to have deferential respect for his friend’s sentiments, although his sole object is to get his own approved and transfer responsibility for his conduct; whereas the giver repays with tireless and disinterested energy the confidence that has been placed in him, although most often the advice he gives is calculated to further his own interests or reputation alone.”
“We are so used to disguising ourselves from others that we end by disguising ourselves from ourselves.”
“The glory of great men must always be measured by the means they used to acquire it.”
“The virtues lose themselves in self-interest like rivers in the sea.”
“Spiritual health is no more stable than bodily; and though we may seem unaffected by the passions we are just as liable to be carried away by them as to fall ill when in good health.”
“Virtue would not go so far without vanity to bear it company.”
“Nothing is so contagious as example, and our every really good or bad action implies a similar one. We imitate good deeds through emulation and evil ones because of the evil of our nature which, having been held in check by shame, is now set free by example.”
“Not many know how to be old.”
“We should often blush at our noblest deeds if the world were to see all their underlying motives.”
“It is far easier to stifle a first desire than to satisfy all the ensuing ones.”
“In order to succeed in the world people do their utmost to appear successful.”
“Alone among the moralists, La Rochefoucauld offered something like a theory of human motivations. In fact, his views about unconscious motivation and unconscious cognition are probably more valuable than anything found in twentieth-century psychology. To some extent it is true, as Jean Lafond says, that ‘a certain verbal exuberance together with the exaggeration required for an original assertion turns the psychology into mythology.’ Yet…some systematic views can be extracted from what first appear as a random collection of diamond-like maxims.”
—Jon Elster, from the section on “the French Moralists” in a work that evidences his singular capacity to see with remarkable clarity both the forest and the trees: Alchemies of the Mind: Rationality and the Emotions (Cambridge University Press, 1999). The four writers he treats in the part of the book—Montaigne, Pascal, La Rouchefoucauld, La Bruyère—“mark the beginning and the end of the greatest era in French intellectual and cultural history.” (Whether or not he intended it as such, we might read this, in part at least, as an indirect comment on the overweening infatuation with postmodern French philosophers among more than a few academic intellectuals.)
Saturday’s Wall Street Journal is always a treat: great features and bizarre opinions. Last Saturday, Peggy Noonan departed from her weekly diatribes against President Obama to make the new discovery that it was not enough for Republicans to attack the Democrats. The Republicans had to stand for something. Incredibly, she stopped there leaving me with the impression that she has no clue what positive message could unify the divided Republicans. On the other hand, Donald Kagan put forward an education policy that could unify Republicans, but that policy is indefensible.
It is not all wrong, however. Kagan argues that an education should be designed not just for instrumental purposes, but to produce a virtuous people and good citizens. He rejects the idea of a value free education. In my view, as I have argued in prior writing, the notion of a value free education was always bankrupt, if not oxymoronic. Teachers are always role models; they model behavior; and in enforcing classroom rules, they instill views of how people with good character behave. Think also of sports coaches in schools across the country. There is nothing value free about what they do.
Kagan also rightly agrees with Jefferson who thought the purpose of education was to communicate the special virtues of republican representative democracy (including equality), the dangers that threatened it, and the responsibility of its citizens to esteem and protect it. Although Kagan does not mention it, Jefferson thought that it was the responsibility of citizens to criticize the country if it did not live up to the virtues of representative democracy even to the point of revolution.
This failure allows Kagan to take some firm steps into outer darkness. He argues that it is the responsibility of education to teach its student to be patriotic, meaning to love, support, and defend the country. Obviously there is a difference between cultivating an appreciation for a sense of justice, and insisting on loving and defending a country – even if it becomes unjust. Of course, American will have deep ties to their country regardless of what is taught in the schools. The tendency already is for Americans to be deeply chauvinistic. But citizens should be taught to love justice and that their love of country needs to be earned by a polity that strives to live up to the virtues of a representative democracy. There is no moral responsibility to support injustice.
Some readers of this blog might be interested in this D'var Torah (literally "word of Torah" or homily) that I delivered this past Thursday, the first day of Rosh Hashanah, at the Merion Tribute House Service in Merion, Pennsylvania:
Rosh Hashanah is the anniversary of . . . . the anniversary of what?
We often think of Rosh Hashanah as the anniversary of the creation of the world, or maybe of the first day of creation. “Hayom harat olam,” – “today is the birthday of the world” – in the words of the liturgy after we blow the shofar during Musaf.
But it’s not so simple. Of course it’s not so simple. In the Talmud, Tractate Rosh Hashanah, the Rabbis debate when the world was created. Some support the first of Tishri – today. Others arguing for the first of Nissan – the month of Passover. But the prevailing midrashic view, captured in Leviticus Rabbah, is that Rosh Hashanah – today – is actually the anniversary of the creation of the first human being on the sixth day of creation. (Put aside the irony that although the first Rosh Hashanah fell on a Friday, in the fixed calendar by which we now abide, the first day of Rosh Hashanah – today – can never fall on a Friday.)
So, if Rosh Hashanah marks the anniversary of the creation of humanity, then, in fact, the anniversary of the beginning of creation falls on the 25th of Elul, almost a week earlier. So maybe we should sing, not “Hayom harat olam,” but “Hayom harat Adam.” Or maybe that’s the point – the microcosm of Adam is the macrocosm.
But let’s move on. According to the midrash, humanity was created at the very end of the sixth day of creation. Or maybe after the very end. The Rabbis wonder why Genesis tells us that on the seventh day, “God finished the work that God had been doing and rested.” What part of the work – the work of creation – was left to finish on what should have been a day of rest? One view is that on Shabbat, God created rest itself. But another view, almost heretical, is that God created humanity at the very last possible instant on the sixth day, so late that, in human halakhic terms it was already Shabbat. Of course, God, being God, can measure time so precisely that from God’s view it was still Friday. But the fact remains that, in halakhic terms, God finished the work of creation by creating humanity on Shabbat.
God, the great procrastinator.
Or let’s try another image. God the long-childless but yearning woman, who gives birth after all hope seemed to have been lost, when it is by all accounts too late. Our Torah reading today, after all, is not about either the first day or the sixth day of creation, but about – among other things – the birth of Isaac to Sarah, the quintessential long-childless (“barren” in the traditional if problematic jargon) woman visited by a miracle so remarkable that she laughs. And the Haftarah is about Hannah, another long-childless woman, who’s prayer for a child has become the paradigm of silent prayer for us all. For these women, birth comes at the last minute – or after the last minute. It is possible only because God’s time is not our time.
And so God too was a once-“barren” but eventually fertile woman, giving birth on what human timekeeping would consider Shabbat, the day of rest, only because God’s time is not our time.
After all, the word “harat,” as in “Hayom harat olam,” is etymologically connected to pregnancy and birth, as in “herayon” and “horeh.” And, as I emphasized in a drash here in this room during Yom Kippur of 2002, God’s attribute of Malkhut – kingship – which features so centrally on these Yamim Noraim, is associated in the Kabbalistic mind with God’s most immanent connection to the universe and with the Shekhinhah, God’s feminine side.
God was a “barren” woman, which is not a pejorative term here, particularly after those six remarkably productive days of creation. An incredible achievement. But this childless woman was still without what she so desired – what Sarah no longer could hope for and what Hannah desperately prayed for – an offspring made in her own image.
And they all lived happily ever after.
Religion is in terminal decline in many European countries, so I was surprised to learn that 59% of the German population are registered Christians. I am surprised it is as high as it is, but it has been declining sharply this year. And that is directly because church and state are not separate. Like many European countries, Germany requires church members to pay an income tax levy on behalf of the churches.
$13.2 billion dollars were collected on behalf of Christian churches last year, and that is not pocket change. But, as reported in an article by Chase Gummer in the Wall Street Journal earlier this month, the churches wanted more. Capital gains had been taxable, but tax enforcement had been ineffective. The churches pressed for measures to make enforcement more efficient. But they should have been more careful about what they wished for. In response to the new measure, the number of Germans leaving the Protestant and Catholic churches is twice as much as last year and the highest in twenty years!
Jose Casanova, a prominent sociologist of religion, has argued that the failure to separate church and state in Europe has been a significant factor in its decline. James Madison would not have been surprised at that. Moreover, the German tax is not supported by all Christians in Germany. The evangelical so-called free churches rely on donations rather than taxes for their financial support. One pastor said this is crucial to the building of a “living congregation” and for freedom in how to worship. Another Protestant pastor, said, “The tax has nothing to do with the gospels.”
Wesleyan University has ruled that on campus fraternities must become co-ed over the next three years or forfeit access to meeting spaces and on campus housing. See here. Many will argue that this move violates freedom of association. Indeed Peter Smithhiser, head of the North-American Interfraternity Conference has insisted that the move violates fundamental First Amendment principles. In fact, the First Amendment does not apply because Wesleyan is a private university. But let us leave that to the side.
Even assuming the First Amendment applies, it applies in complicated ways. In Christian Legal Society v. Martinez, the Supreme Court held that the Hastings law school could deny privileges to student organizations that did not admit all students (the so-called all comers policy). Given Martinez, although the policy is not precisely an all comers policy, it seems clear to me that Wesleyan can condition access to on campus housing on the condition that the organization stop discriminating on the basis of gender. Cf. Alpha Delta Chi-Delta v. Reed, 648 F.3d 790 (9th Cir. 2012)(state university can deny privileges to organizations that discriminate on the basis of religion even religious organizations).
Whether the university can deny access to meeting spaces is less clear. In Martinez and Reed, the organizations denied university privileges still had access to meeting spaces. There is a difference in the amount of discretion afforded to government when it denies subsidies and when it effectively drives organizations off campus. Neither Martinez nor Reed authorize the latter level of sanction.
That leads to the question whether the First Amendment to association includes the right to discriminate on the basis of gender. If not, the university could exclude the offending fraternity from using university spaces. The answer to that question depends, however, on facts we do not have. Roberts v. Jaycees held that Minnesota could compel a men’s association to admit women when neither the right to intimate association nor expressive association was infringed. To know how Roberts would apply depends at least upon the size of the organization, the expressive mission of the organization and whether it would be compromised by the admission of women (though the Court in Roberts seemed to look the other way), and the extent to which the organization offered commercial networking advantages otherwise not available to women. On the latter point, it is worthy of note that Wesleyan sororities do exist, but are off campus and not addressed by the campus rules.
But let’s assume the sororities are on campus. Could Wesleyan forbid gender discrimination by fraternities without forbidding gender discrimination by sororities? One might justify the distinction on the ground that discrimination against women (including violence against women on campus) is not just a thing of the past. There is a stronger case for permitting members of oppressed groups to gather together in associations than those that exclude the members of oppressed groups. I wished we lived in a country where the law would take that distinction to heart. We don’t.
Later this year the Supreme Court will hear an interesting case involving threats and rap lyrics. In Elonis v. United States, Elonis was convicted under a federal statute prohibiting threats to injure the person of another across state lines. Among other things Elonis posted this on his Facebook page about his ex-wife: There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. How does this get to the Supreme Court?
The jury was instructed to determine whether a reasonable person would find it to be a threat. The First Amendment claim is that the jury should have been instructed to find that Elonis intended to threaten his ex-wife, and these words were akin to rap lyrics – thus possibly filled with hyperbole. (One of the briefs has an extended lesson on the nature of rap lyrics – a lesson probably much needed by the opera buffs on the Court).
As the case has been reported (see Slate and SCOTUS), I too think the instructions are defective, but not for reasons just given. There is a third perspective beyond subjective intent and the perspective of a reasonable person. That is the perspective of the person allegedly threatened. For example, in this case the ex-wife was terrified, but so far as I can determine, the jury was not required to find this. In my view, the perspective of a reasonable person is insufficient. Suppose a reasonable person would find a threat, but none was intended and none received. This should not be regarded as criminal conduct.
But I maintain that any two of the three factors should give rise to criminal charges without the protection of the First Amendment. Suppose the two subjective factors exist, but not the objective factor. If the perpetrator intends to threaten and the victim perceives a threat, what difference does it make that a reasonable person would not recognize this to be a threat? Closer is the question of what to do when a threat is intended and a reasonable person would perceive it as a threat but the intended victim does not. I would regard this as an unprotected attempt to threaten.
This brings us to what in theory might be the case here. The speaker does not intend to threaten, but a reasonable person would recognize the words to threaten and the victim would recognize the words to be threatening. I suggest that a person who directs language reasonably thought to be a true threat and experienced as a true threat can reasonably be subject to criminal charges. There will be those who will wring their hands over the “chilling effect.” But some chilling effects are desirable and one of them is to avoid language which might reasonably be perceived as a true threat directed at a targeted person.
Interesting as this case may be, Elonis will lose in the end however the case is resolved by the Court. Even if thirty rap music experts take the stand in his favor, I find it wildly improbable that a jury will find he did not intend to threaten his wife: "I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." If that is not threatening, what would be? If the rap lyrics theory says this type of language directed at an individual does not show intent, so much the worse for the rap lyrics theory.
I have a solution to the Hobby Lobby case with which no one will agree. I have previously argued that the government action at issue imposed a serious religious burden on the owners of Hobby Lobby because they were being compelled to engage in activities to which they were morally opposed. Moreover, the government instead could have treated closely held business corporations whose ultimate owners unanimously objected on religious grounds the same way that religious corporations are treated. In that case, women would be fully insured for contraceptive devices. On the other hand, less restrictive alternatives ordinarily cannot be implemented immediately and I am told that administrative changes in regulations cannot be applied retroactively.
So it has been in Hobby Lobby. As I understand it, the change in the regulations have not yet been implemented, and when they are they will not be applied retroactively. See (here). As a matter of political reality then, there is no less restrictive alternative in the short term and no less restrictive alternative for women in the interim before the regulations are implemented.
My solution to Hobby Lobby therefore is that the Court should have remanded for a determination as to how long it would reasonably take to pass and implement the new administrative regulation or regulations. Under this approach Hobby Lobby would have been ordered to provide insurance for the period necessary to provide the less restrictive government alternative because women’s access to contraceptives is a compelling state interest. If the government did not provide the less restrictive alternative in the time provided, Hobby Lobby would no longer have to provide insurance. Given the importance of the interest and the character of the alternative, it is likely the government would provide the alternative as it is on the verge of doing.
There will not be long lines of people supporting this. Aside from those who believe that business corporations should have no religion rights even if closely held, those who think there is no serious religious burden, and those who, on the other hand, think that Hobby Lobby’s religion rights should not be interfered with in any way, there will be those who think courts should not look at the political feasibility of the less restrictive alternative into account. I do not think courts should so look when the government has willfully violated the law, but anyone who thinks the government deliberately violated the Religious Freedom Restoration Act is drinking ideological kool-aid. In addition, there may be many cases where the imponderables are beyond judicial ken. But the notion that courts should never consider the politics of the less restrictive alternative is sure to lead to injustice – as it has in Hobby Lobby.
Intervarsity Christian Fellowship an evangelical student organization with 949 chapters on 616 campuses was “derecognized” last week by the California State University system. The offense leading to the derecognition was that the ICF required its leaders to have Christian beliefs. This constituted discrimination on the basis of religion. I am no fan of ICF or of evangelical Christianity, but this sanction against ICF strikes me as indefensible.
It generally makes great sense for the University system not to recognize organizations that discriminate on the basis of religion. Ordinarily, such discrimination is rightly against public policy. The Sierra Club ought to be able to select its leaders by taking their environmental views into account, but refusing leadership to Catholics, Jews, or Muslims makes no more sense than it would for the Sierra Club to discriminate on the basis of race. But ICF ought to be able to select its leaders on the basis of their conformity with the religious mission of the organization. Both the Sierra Club and the ICF ought to be able to pick leaders in terms of their missions. It is certainly arguable that the recognition by the University of a religious organization (and the subsidies associated with it) violates the Establishment Clause. But the Court has rejected similar arguments in cases involving student groups and vouchers. Regrettably, from my perspective, the Ninth Circuit has held that a state university can refuse to recognize a religious group that discriminates on the basis of religion. Alpha Delta Chi-Delta v. Reed, 648 F.3d 790 (9th Cir. 2012). My views have been rejected. It’s not the first time.
More difficult, for me, is the question whether ICF should be able to exclude those involved in same sex sexual relations (or gays altogether) from its leadership since ICF believes such relations are sinful. Here I think the University need not recognize an organization that discriminates on the basis of sexual orientation though it ought not be able to exclude the organization from campus. Recognition involves various University subsidies, but non-recognized organizations can have access to university classrooms for meetings. In the case of gays, non-recognition without exclusion to my mind strikes a reasonable balance.
When claims for RFRA exemptions from the contraceptive mandate first popped up, I thought that the issues they raised were, on the whole, humdrum. That’s not to say that the cases were easy. But they did involve, or so I believed, largely settled principles. The difficulty was in accommodating those principles to each other on these facts. So as the debate progressed, I was most interested in how both sides described their run-of-the-mill legal dispute in apocalyptic terms, as either a fight for the very principle of religious liberty or a battle against religious tyranny. In an earlier unpublished essay, I argued that each side seemed committed to understanding the dispute, not in the “retail” terms of free exercise disputes, but as jurisdictional conflicts more akin to arguments about the “wholesale” line between the proper scope of church and state. The Supreme Court’s majority opinion in Hobby Lobby – whatever one thinks of the result – was admirably low-key in focusing on the mundane question of whether the original contraceptive mandate was the least restrictive means to achieve a compelling government interest. But that hasn’t stopped the combatants from continuing to wax epically and balefully, and continuing to tussle even in the narrower space left by the Court’s opinion.
Three things might be going on.
In a prior post, I argued that the Hobby Lobby decision properly accommodated the relevant interests because of the availability of a less restrictive alternative. Under that alternative, closely held business corporations would be treated for these purposes in the same way as religious corporations. As the Court put it, that sort of treatment “achieves all of the government’s aims while providing greater respect for religious liberty.” The Court said that the “effect of the HHS-created exemption on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Relying on that language, I concluded that the women at Hobby Lobby would not be harmed by the decision.
I was too fast. I continue to believe that the effect on women under the accommodation would be precisely zero, but that assumes the accommodation is in effect. Changes in administrative regulations, however, are not achieved by the stroke of a pen. The wheels of government administration grind slowly. The accommodation mentioned by the Court has not been in effect and when it finally goes into effect the new regulation will not be retroactive. This means that the effect of the Hobby Lobby decision on women is not zero. They are being denied the insurance afforded by the Affordable Care Act because of the decision. Women will be protected in the future when the accommodation goes into effect, but the women of Hobby Lobby have been thrown under the bus.
In general, I think it may be important in some circumstances for courts to take into account the political realism of less restrictive alternatives. For example, if the Court had declared that a less restrictive alternative was available for Congress to implement, I think it would be relevant to recognize that the Congress is not about to do anything on this subject. I know that most commentators would regard such a determination as unjudicial. But I do not believe the Court is required to be blind to obvious political reality.
On the Facebook page for the group, Union for Radical Political Economics, which I recently joined, I read a wonderful 1930 essay from Keynes: “Economic Possibilities for Our Grandchildren” (I’m not sure if this title is from Keynes himself). Keynes asks an uncommon question for members of his profession: “What can we reasonably expect the level of our economic life to be a hundred years hence?” I found his reflections on this question (in part II) pleasantly surprising and it prompted me to entertain the possibility that his membership in the Bloomsbury Group speaks in part to why he summoned the intellectual courage to indulge in such speculation, particularly insofar as it takes us beyond (capitalist) economics. It took some daring if only because, in his words,
“… [T]here is no country and no people, I think, who can look forward to the age of leisure and of abundance without a dread. For we have been trained too long to strive and not to enjoy. It is a fearful problem for the ordinary person, with no special talents, to occupy himself, especially if he no longer has roots in the soil or in custom or in the beloved conventions of a traditional society. To judge from the behaviour and the achievements of the wealthy classes today in any quarter of the world, the outlook is very depressing! For these are, so to speak, our advance guard – those who are spying out the promised land for the rest of us and pitching their camp there. For they have most of them failed disastrously, so it seems to me – those who have an independent income but no associations or duties or ties – to solve the problem which has been set them.”
Keynes’ essay moved me to think of the possible direct and informal influences on his thought that may have arisen from participation and fellowship in the Bloomsbury Group, a select circle of rather intelligent and creative individuals whose class status and social background provided them a tantalizing taste of what freedom from “economic necessity” (in the capitalist sense) might mean for individual and collective self-realization. Of course axiomatic concern for such freedom earlier motivated Marx’s critique of capitalism, as Jon Elster makes clear in his brilliant essay, “Self-realisation in work and politics: the Marxist conception of the good life.” In other words, membership in the Bloomsbury Group is provocatively emblematic (as both cause and effect) of that which afforded Keynes both the time and inclination to reflect seriously in a utopian key (the phrase used here in a non-pejorative sense*) of life beyond capitalism, to imagine what it means for “man” (anthropologically speaking) to fully (i.e., existentially if not metaphysically) confront and ponder the real possibility of how to use “his freedom from pressing economic cares,” that is, to initiate careful consideration of “how to occupy the leisure, which science and compound interest will have won for him, to live wisely and agreeably and well,” which I suspect will undermine most of the current claptrap of what we think is involved in the pursuit and attainment of “happiness.” However precipitous its fall from grace and despite the somewhat harsh retrospective judgments by its own members of the Bloomsbury Group’s shortcomings, it’s worth speculating on the memorable praxis of this remarkable group of individuals who, to some significant extent at least, used their privilege, even if unintentionally, to concretely demonstrate what it might mean to live “beyond” or after capitalism.
Indeed, Keynes and the Bloomsbury Group calls to mind an earlier instance of a similar cause and effect relation of such interpersonal group dynamics on the thought of another original thinker, in this case, the anarchist philosopher William Godwin (1756 –1836). It seems Godwin drew inspiration for his model of the plausibility of anarchist society and its conspicuous reliance on sophisticated individual judgment as a vehicle of rationality and benevolence from “the context of the social circles in which he lived, worked and debated.” These radical social circles in turn “were part of a larger middle class community which drew on a range of philosophical and literary traditions in developing critical perspectives on contemporary social and political institutions.” (Mark Philp) To be sure, Godwin drew upon the philosophes and British radicals, as well as the periphery of the early Liberal tradition (e.g., Paine), but especially the “writings, sermons, and traditions of Rational Dissent” when composing An Enquiry Concerning Political Justice (first edition, 1793, later editions to 1798), but his belief in the veracity of his critique and vision was grounded in the daily life of the social circles of metropolitan radicalism in which he worked and spent his convivial and leisure activities. While this social and intellectual culture soon succumbed to government repression, it provides the intimate empirical evidence Godwin needed to confirm his belief (shared with Condorcet) in the “perfectibility” (which is distinct from perfectionism) of man and the necessity of an anarchist society as the soil of germination for same. Godwin was not a political activist (although he knew members of radical groups and organizations) but a philosopher, but the radical social circles in which he lived tempers our understanding and seasons our judgment of the more extravagant utopian tendencies of his great work, at the very least they demonstrate radical principles were incarnate in a group praxis, even if Godwin had insufficient appreciation of the greater and deeper socio-economic and political conditions that gave birth to and nourished such radical sentiment: “Given the assumptions and conventions of his background and his social circles” writes Philp, “his position could be rationally defensible.” Godwin’s seemingly naïve faith in the power of private rational judgment received strong empirical or experimental confirmation, in other words, in his experience of these social and intellectual circles. In Philp’s words,
“…[Godwin’s] membership [in] a literate and intellectual culture which cannot be identified politically, socially or intellectually with either aristocratic privilege or with the potentially violent and disruptive London poor. It is in this group that we find the politically unattached intellectuals and writers who had greeted the French Revolution and who had called for reform at home on intellectual and humanitarian grounds.
[While this group is] “diffuse and made up of heterogeneous social and intellectual currents…there seems to be no doubt that in the last quarter of the eighteenth century, there existed in both London and the provinces significant number of critical, literate, professional men and women who held often very radical views on social, political and religious issues who regularly met together for the purposes of discussion in a number of overlapping social and professional circles. [….] Godwin moves in the company of artists, portrait painters, engravers, grammarians, industrialists, writers, editors, publishers, antiquarians, librarians, actors, theater managers, playwrights, musicians, novelists, poets, classical scholars, scientists, dons, lawyers, mathematicians, doctors, surgeons, and divines—and this list is not exhaustive. We should also recognize that members of these groups sustained a commitment to radical thinking throughout most of the last decade of the century.”
“As both [Roy] Porter and [Marilyn] Butler stress,” the middling class radicalism of these men and women was not simply the product of a Dissenting background, the French Revolution, and the influence of the philosophes, for it required the warp and woof of a cultural experience of that type of sociability that formed the “basic fabric of late-eighteenth century intellectual life:”
“Once he had concluded his morning’s work Godwin’s day was free and he generally spent it in company—talking and debating while eating, drinking and socialising. His peers’ behavior was essentially similar; they lived in a round of debate and discussion in clubs, associations, debating societies, salons, taverns, coffee houses, bookshops, publishing houses, and in the street. And conversation ranged through philosophy, morality, religion, literature and poetry, to the political events of the day. Members of these circles were tied together in the ongoing practice of debate. These men and women were not the isolated heroes and heroines of Romanticism pursuing a lonely course of discovery; they were people who worked out their ideas in company and who articulated the aspirations and fears of their social group. Their consciousness of their group identity was of signal importance….”
It is the daily life of this social round which fleshed out the skeletal structure of Godwin’s anarchist ideal of a natural society that is fundamentally “discursive,” in other words, a society defined by “intellectually active and communicative agents, a society where advances are made through a dialectic of individual reflection and group discussion.” Reason and argument were the lifeblood of the radicalism that flourished in this kind of sociability:
“The rules of debate for this group were simple: no one has a right to go against reason, no one has a right to coerce another’s judgment, and every individual has a right—indeed, a duty—to call to another’s attention his faults and failings. This is a highly democratic discourse, and it is essentially non-individualist: truth progresses through debate and discussion and from each submitting his beliefs and reasoning to the scrutiny of others.”
The values of openness, rationality, and discussion or conversation that distinguished this sociability were likewise suffused with the norms and values that animated the literature of sensibility from this period:
“Sensibility provided a means for exploring new regions of emotional and social experience, and in so doing it helped generate an identity for an emerging social class. Sensibility was not a philosophical perspective based on a withdrawal from the social world and a solipsistic reflection on sensation; rather, it was a celebration of that social world and an appeal to the emerging self-understanding of members of that world. Sociability and sensibility combined with a burgeoning market for literature of all kinds to produce a public realm in which art, literature, science, philosophy, and morality appeared as commodities to be consumed, discussed and improved. [….] The experiments in the possibilities of experience conducted in the literature of sensibility, the rationalism which with they laid open every dogma to criticism and the deep concern with the arena of politics from which many of this class were debarred by virtue of their religion or their incomes can all be seen as essential components of this socially, intellectually and politically critical and ambitious group. But these ambitions were less individual than group-oriented: it is as a group that they see themselves as the foundation for a new and equitable social order.”
I think it profoundly important to consider the indispensable role of “the group,” to tease out and trace the myriad causes and effects of such circles of convivial community and ethically robust sociability that we discover in the life and work of a Godwin or Keynes, particularly when we sit at our solitary desks and computers and imbibe on the more nourishing and exhilarating products of their fertile minds.
References & Further Reading:
It is September. The days grow a little shorter. There is that hint of fall crispness in the air. And, of course, it is back-to-school season.
And if it is back-to-school time, then it must also be time for that very sad, very sorry, and utterly needless ritual that we all wish would stop happening. I am talking about the Catholic schools that continue to fire gay teachers. These annual firings are tragic, pointless, and inflict great harm. The discharged teachers, of course, are the most seriously injured, but so are all the people associated with the schools -- students, graduates, parents, and staff. The Catholic school system is diminished in the eyes of the public. And the church as a whole is made to suffer.
Motherhood and mortgages -- these are the classic symbols of quiet suburban domesticity. Yet they were also the triggering events that led to the firing of lesbian teachers in Detroit and St. Louis, respectively. Barbara Webb is 33 years old and a trained chemist. She could have pursued "lucrative private-sector opportunities" but felt the calling to teach and to awaken young minds to the joys of science. In a world that is shaped increasingly by science and technology, she seems like the sort of teacher every school district would want.
And, in fact, she was quite successful at her chosen career. In her nine years at Marian High School in Bloomfield Hills, Michigan, she "taught advanced placement and honors chemistry," "coach[ed] volleyball and softball, and moderat[ed] student government." She has been in a same-sex marriage for two years and became pregnant this summer by "nontraditional" means. She has asserted that her pregnancy was the reason for her discharge: "That you can't hide a pregnancy from the public is why I was terminated."
Students and graduates have expressed support. As one student put it, "I think the bigger thing everyone is feeling is that we have been taught this whole time to live a Christian life and be accepting of other people and yet we go and fire one of our favorite teachers?"
News accounts suggest that support for Barbara Webb is growing. A change.org petition has been launched in support of her cause. I've signed it. I hope others do too.
Some 500 miles to the southwest, in St. Louis, a similar set of tragic events are playing themselves out. Over the summer, it seems, a young married couple did what newlyweds routinely do all over the nation: They applied for a home mortgage. Olivia Reichert and Christina Gambaro, however, are in a same-sex union, and they are employed by Cor Jesu High School.
When the school learned of the mortgage application, the two teachers were terminated. Anger at Cor Jesu's decision has been steadily growing since. Students and alumnae have organized Facebook pages and engaged in other acts of protest. Graduates from as long ago as the 1970s have spoken out against the administration's decision. And alumnae have threatened what is always the most effective form of protest: They have promised to withhold contributions.
That these events are occurring in Detroit and St. Louis should perhaps not be surprising. Both archdioceses are led by veteran culture warriors who have long expressed hostility to same-sex marriage. In April 2013 Archbishop Allen Vigneron advised Detroit Catholics who supported same-sex marriage that they should not receive Holy Communion -- a position effectively answered by Francis de Bernardo of New Ways Ministry.
Archbishop Robert Carlson, who now heads the St. Louis archdiocese, has a culture-war pedigree that stretches back many years. While serving as Bishop of Sioux Falls, South Dakota, in the early 2000s, he reportedly told Sen. Tom Daschle to stop identifying himself as Catholic -- something Daschle refused to do. As the archbishop of St. Louis, Carlson has spoken out against same-sex marriage as recently as this summer. Infamously, Carlson also testified under oath this past June that as the chancellor of the Twin Cities archdiocese in the early 1980s, he failed to report allegations of sex abuse to the police and wasn't even sure the acts were criminal.
Both archdioceses are experiencing demographic crises. Vigneron and Carlson both assumed their present offices in 2009. Vigneron has seen infant baptisms plunge by around 30 percent during his tenure as archbishop. The numbers under Carlson are not as catastrophic, but they are bad enough: Infant baptisms are down a little more than 12 percent in a territory that is growing in population. Do you think that these two men might come to realize that a faith of inclusion, not exclusion, might help reverse these trends? I hope so.
What I wish both Marian High School and Cor Jesu might also recognize is that our knowledge of same-sex attraction has shifted dramatically over the last couple of decades. Indeed, it is now fair to say that a scientific consensus has emerged that holds that same-sex attraction is a naturally occurring and totally benign variation in human sexuality. In light of this new consensus, the prudent course for school administrators is to withhold harsh judgment of these teachers' obviously rich and fruitful relationships. Certainly, they should not have been terminated from their positions.
Significantly, Catholic leaders in other nations are now adopting this cautious, do-no-harm approach. I have in mind particularly Bishop Nunzio Galantino, the newly appointed secretary-general of the Italian Bishops' Conference, who has called for the acceptance of gays "without taboo." The American Catholic laity seem to agree with Galantino: Over half of American Catholics now support same-sex marriage. Modesty, prudence, the realization that science now counsels acceptance and support of gay relationships, not their suppression, should suggest that these firings must stop. Now. At once.
Many years ago I wrongly argued that truthful prescription drug advertising deserved First Amendment protection. I did not then know that the commercial speech doctrine would be tortured to protect the advertising of tobacco. It is hard to believe that the merchants of death and suffering deserve constitutional protection for the hawking of their harmful products.
Commercial advertising was outside the protection of the First Amendment for almost two hundred years before the Court changed course. It was outside the protection primarily because despite specious arguments to the contrary, commercial advertising taken as a whole is non-political. Proposing commercial transactions generally is not asking for political conduct. But despite the intention and content of individual advertisements, commercial advertising taken as a whole has negative political effects of constitutional dimension.
The Constitution is a mixture of Lockean Liberalism and Civic Republicanism. It endorses rights as a part of moral reality, but the nature of those rights depends upon their purpose or purposes. The Constitution’s Civic Republicanism assumes a certain kind of citizen – a citizen with a good measure of concern for fellow citizens and a concern for the common good. No legitimate political community can thrive without the kind of cultural glue such citizens provide. A culture of mass advertising runs against those civic concerns. A culture of mass advertising promotes self-interested materialism and hedonism, not fellow feeling and concern for the common good. As the voice of capitalism, commercial advertising pushes against the kind of virtues needed in a political community. As the prominent neo-conservative, Irving Kristol once said, those virtues include “a sense of distributive justice, a fund of shared moral values, and a common vision of the good life sufficiently attractive and powerful to transcend the knowledge that each individual’s life ends only in death.” (See here). It was precisely because commercial advertising undercut those virtues that Kristol could muster only “two cheers for capitalism.”
Commercial advertising manipulates persons to believe that the flourishing of their lives depends upon Crest, Nike, an Audi or whatever. People, of course, can ordinarily buy products as they choose, but the notion that protecting advertising in favor of those products as a First Amendment concern is far-fetched.
This does not mean that individuals cannot advocate hedonism and corruption without constitutional protection. But commercial advertising, to borrow an observation of Cass Sunstein, is neither taken nor received as a political or cultural communication. Even if an individual advertisement were so crafted, it is not the function of courts to decide on an ad hoc basis which rare ad is political and which is not. And we should not forget, as Ed Baker stressed, commercial advertising is now the product of profit driven corporations embedded in a market. Those advertiseements are for the most part dictated by the market – far removed from the human liberty we experience in what Habermas calls the life world.
The framers of the Constitution thought that the protection of human liberty depended on a culture where the citizens’ me-first attitudes were qualified by a measure of commitment to the common good. We now live in a time where our representatives are prepared to let the poor live without adequate food, clothing, shelter, medical care, and employment. When our people are daily immersed in a sea of commercial advertising, we should not be surprised that self-serving hedonism becomes a powerful part of the culture.
According to the Center on Responsive Politics, outside spending in the 1992 elections was $19.6 million; in the 2000 elections it was $51.6 million; in the 2012 elections it was $1 billion. It is hard to believe that the Supreme Court decisions had nothing to do with this. According to the Court, this is not problematic: Buying access and influence is part of what it means to have a responsive democracy. If you believe helping the wealthy is the same as advancing the public interest, this is all well and good. But some of the same people who believe that the original understanding of the Constitution should control interpretation need to recall that the framers sought to guarantee a Republican form of government and that form of government was designed to resist various forms of corruption in particular the corrupting influence of factions. Instead of a Republican form of government, we are saddled with a government in which moneyed elites jockey for power with bribes masquerading as free speech.
There may have been a time when it was appropriate to respect government decisions because its decisions represented the will of the people. No more.
I attended a meeting of the Claremont Institute last week and watched a panel on the future of the Republican Party. I suspect that every person in the room other than me was a card carrying conservative. The mission of the Claremont Institute after all is to teach the brightest conservatives the principle of the Constitutional founders. The panels of the Claremont Institute debate how conservatives should think about the founding and the issues of the day. Three of the presentations stood out to me. Bill Kristol presented a talk about the factors that made it likely the Republicans would control the Senate and the factors suggesting that Republicans would win the next Presidential election. But he also presented the factors suggesting the Democrats would prevail. Of course, Kristol wants Republicans to win, but the talk in terms of substance could have been given by any smart and knowledgeable political scientist of any political leaning.
Although Kristol displayed mild optimism from his perspective that the Republicans would control the Senate, there is building evidence that in fact the Democrats will hold on to the Senate despite the Republican advantage in terms of the map and the unpopularity of President Obama. In this respect, the Princeton Election Consortium analysis is awfully encouraging. See here. As to the Presidential election, the opposing party almost always wins after eight years of control by one party, but Kristol acknowledged that Clinton is outpolling the known candidates for the Presidential nomination in the Republican Party and he acknowledge that everyone involved has name recognition and that Clinton’s negatives are well known. By the way if the Democrats lose the Senate, they will surely regain it in 2016 where the map is highly favorable; Obama could veto any legislation in the interim, but appointments could be affected.
One of the other speakers Brian Kennedy, President of the Claremont Institute gave a chilling talk. He worried that Republicans had lost the national security advantage in election politics. He thought Republicans should play up the evils of Putin and Radical Islam and he proceeded to worry about the number of Muslims in the United States and speculated on the percentage of them who were budding terrorists in our midst. I checked the program to determine if his real name was McCarthy, but no it is Kennedy. Happily, this message was not met with universal approval. One member of the panel said he was no expert on national security, but he thought from the standpoint of political advertising, Kennedy’s view would be a tough sell.
I do not know if Hillary Clinton is really a hawk. I hope she is not. But she has that image. And Kennedy is right. The Republicans have lost the national security advantage, and one aspect of Clinton’s electability flows from that hawkish image.
Finally, one speaker argued that both the Democrats and the Republicans represent economic elites, but the Democrats talk a better populist game (he went over the top in suggesting it was only talk). He had proposals for representing the people without compromising Republican market principles. Given our campaign finance system, candidates of both parties have to be beholden to economic elites in order to be elected. The question is which elites and at what cost in each of the parties. One of the disadvantages of the Clinton candidacy are her obvious ties to Wall Street and that could plague her in the primaries. In the general election, despite her ties, any Republican will secure more funds from Wall Street. It is a sad commentary in a democracy when an important question is which economic elite controlling a candidate is less damaging to the people.
In a series of well known decisions, Republicans on the Supreme Court have made it easy for big money to influence the outcome of election campaigns. The cynical side of me suggests that it is not a coincidence that these decisions are likely to help Republicans over the long haul.
So I find it surprising that in this difficult year for Democrats, the Democratic Party committees and the Democratic Super PACS are outraising the comparable Republican groups by substantial margins. See (Wall Street Journal subscription required). This does not include money given to 501 (c) (4) groups where disclosure is not required, but it is still worrisome to Republicans, like those at the Journal.
It ought to prompt some concern by the rank and file Democrats though because it is a vivid reminder that the Democrats depend upon large donations just as much as the hated Republicans. When Barack Obama first ran for President, much was made of the large amount of money he raised in small donations. Footnote: he raised immensely more in large donations.
Why are Democrats raising more? My best guess is that more businesses are recognizing that the scorched earth policies of the Republican Party are bad for business. Indeed, a large part of the money given to Republicans was designed to assure that Tea Party candidates not succeed in primaries. More important, who is backing the different parties? I am not sure that the top money givers lists are all that revealing. Of course, unions give to Democrats. Oil companies give to Republicans. The way some businesses hedge their bets is interesting. Some of the top Democratic contributors are liberals who earned their money in hedge funds. Are they merely public spirited (no doubt they are to a large extent), or do they also have business interests in the outcome? One thing for sure: we need more solid reporting on what candidates are promising in order to raise money.
For the top organizational money givers, see Open Secrets Organizations. For the top individuals, see Individuals. For some information on the top individuals giving money to the Democrats, see Steyer, Simons, http://www.nationaljournal.com/magazine/meet-fred-eychaner-the-most-mysterious-figure-in-democratic-party-politics-20140508, and http://en.wikipedia.org/wiki/Michael_Bloomberg.
One of our foremost scholars of Indic philosophies, Chakravarthi Ram-Prasad, has an important guest-post at the Indian Philosophy blog: “On the possibility and nature of neurophilosophical study of Indic traditions.” I happen to be in full agreement on the following proposition: “I am not particularly confident that neuroscience in its current paradigm and practice settles anything about the nature and content of the discourse of these [i.e., Hindu, Jain, and Buddhist] contemplative practices.”
Sister Elizabeth Johnson, C.S.J. is a prominent Catholic theologian whose book Quest for a Living God was criticized by a committee of American Bishops for not toeing the Vatican line. I would ordinarily regard this as a description and not a criticism, but in this case there is substantial evidence that the Bishops misread the book, criticized positions she did not take, disagreed with positions she did take that are consistent with the Catholic catechism, claimed that she had undermined the Gospel (anyone who has read any of her books would find this claim implausible) and otherwise engaged in careless analysis. Indeed, the analysis was so poor that Commonweal editor Grant Gallicho was prompted to write a post in which he wondered whether the doctrinal committee had even read the book! See here. As is so often with censorial criticism, purchases of the book significantly increased.
Recently, the Leadership Conference of Women Religious, the umbrella organization for most of the 50,000 Catholic nuns in the U.S. decided to given Johnson an award for her book. As an apparent part of its campaign to clamp down on Catholic nuns (a campaign Pope Francis has not visibly interrupted), the Vatican through Cardinal Gerhard Müller, the head of the Congregation for the Doctrine of the Faith criticized LCWR for its decision to honor Johnson. Well last week, Sister Johnson accepted the award and gave a wonderfully perceptive speech that is well worth reading for its substance and for insight as to why she is so special. Here is the link to her speech: http://www.religionnews.com/2014/08/17/let-female-speculate-full-text-sister-elizabeth-johnsons-talk-lcwr/
For further commentary by Mollie Wilson O’Reilly, see https://www.commonwealmagazine.org/blog/lcwr-assembly-elizabeth-johnson-speaks-her-mind
Quite properly, journalistic reaction to events in Ferguson, Missouri, has focused on the militarization of the police, on the role of racism in the killing of unarmed African-American men, and on the political disenfranchisement that allows communities like Ferguson to operate in obvious defiance of public sentiment.
But there is another element peculiar to Missouri politics that must have light shed upon it. That is the sharp right-ward turn conservative politics in that State has taken. In its best moments, conservatism stands for caution, for prudence, for a government that is efficient yet serves the needs of all.
There was a time when conservatives in Missouri stood for these things, but that is no longer the case. Rather, what is visible to the outside observer is a dangerous movement towards the outermost fringes. For it is fair to say that a toxic neo-confederatism has emerged as a force to be reckoned with at the very heart of Missouri's government -- its state legislature.
Let's consider Brian Nieves, a State Senator from West St. Louis. Nieves is not some obscure back-bencher. He's been a member of the State Legislature since 2002, rising to the position of House Majority Whip before moving on to the Senate, where he now chairs the Committee on General Laws.
And what has Senator Nieves been doing in this position of trust? He has injected neo-confederatism into the law-making function. Consider Senate Joint Resolution 45, a state constitutional amendment Nieves proposed in January, 2012, which sought to revive the discredited Confederate principle of state nullification. The amendment would have declared that Missouri enjoyed the "sovereign" right to treat as null and void all federal law on gun control; abortion; climate change; federally-subsidized health care; same-sex marriage; hate crimes; and a range of other topics. In other words, had this amendment been adopted, Missouri would have been free to reject as non-binding a large body of federal statutes and judicial decisions.
Nullification, of which this is a modern manifestation, is an idea that has its origins in the efforts of the Southern planter class of the 1820's and 1830's to defend slavery against an encroaching federal government. In 1832, the federal government tried to enforce a tariff in South Carolina that posed a threat to the profitability of the slave-based cotton trade that formed the cornerstone of that State's economy.
Purporting to defend the Constitution from an allegedly unconstitutional tariff, the South Carolina Ordinance of Nullification declared that laws which "violated the true meaning and intent [of the Constitution] are null, void, and no law." When President Andrew Jackson threatened a military response, South Carolina backed down, although three decades later it chose secession rather than recognize Abraham Lincoln as President of the United States.
Nieves' joint resolution did not carry the day. But that did not deter the nullificationists in the State Legislature from a second, more successful attempt to assert Missouri's self-proclaimed right to nullify federal law.
"The Second Amendment Preservation Act," it was called, and it was introduced in January, 2014. It took direct aim at federal gun control legislation. Listing numerous federal laws on the subject, it declared the named provisions "shall be invalid in this state, shall not be recognized by this state, are specifically rejected by this state, and shall be considered null and void and of no effect in this state." Just like the South Carolina slave owners of the 1830s, the bill's sponsor declared that the proposed law was needed to defend the Constitution against an aggressive and out-of-control federal government.
This time, the nullificationists enjoyed greater success. In February, 2014, the Missouri Senate approved the bill by a vote of 23-10, with near-unanimous Republican support. The Missouri Tea Party rejoiced. In April, 2014, the State House of Representatives also passed the bill.
It is past time, way past time, 150 years past time, to be playing around with Confederate ideology. That Republicans in the Missouri legislature gave overwhelming support to a piece of legislation whose origins can be traced to the ugliest moments in America's slave-owning past stands as a badge of infamy. The Missouri Republican Party would do well to repudiate this legislation and promise to stop playing with the dynamite of nullification.
I've got news for Missouri's political class. They need to stop reviving the odious, discredited ideology of the Southern slaveocracy. They must instead return to reality and address the social crisis Ferguson represents. For in truth, African-Americans face substantial obstacles in Missouri. The four-year high-school graduation rate for African-Americans is 76 percent (as of 2009/2010). (The white graduation rate is 89 percent). The poverty rate for African-Americans is 27.7 percent (as of 2007/2011). The white poverty rate for the same period is 12.1 percent. The unemployment rate of African-Americans (2008/2012) is 18.0 percent. (For white Missourians it is 7.3 percent). The incarceration rate for African-Americans (as of June 30, 2012) is 38.2 percent.
It's time for Missouri's right-wingers to leave the nineteenth century behind. It is time for all Missourians -- indeed, time for all Americans -- to start building a more just and equitable world, one free of institutional racism and yawning racial disparities. Missouri was once the home of far-sighted progressives. Harry Truman desegregated the Armed Forces in 1948. Democratic Senator Stuart Symington voted for the 1964 Civil Rights Act at great political risk. Missouri, it is time to get serious. The world is watching.
The Huffington Post reports here that a Satanic religious group is citing Hobby Lobby to claim that the rights to religious freedom of women belonging to the group would be violated by abortion materials required by informed consent laws. Their claim is that the materials include false statements and that their religion calls for making health decisions based on the best scientific understanding of the world. As Marc DeGirolami observes at the Center for Law and Religion (here), however, Hobby Lobby has no application to the informed consent laws of state governments (it only applies to the Federal government) and it is not clear that the mere reception of materials is a serious enough burden on religion to trigger statutory or constitutional religion protections (even assuming the Satanists were to qualify as a religion).
A freedom of religion objection is unsustainable, but a freedom of speech objection is well placed when the government compels doctors to provide false or misleading information to their patients. See Planned Parenthood v. Rounds (adopting the principle, but misapplying it – see discussion by Michael Dorf here). Of course, the government can regulate the practice of medicine, and it would be crazy to say that all regulation of doctor-patient communications require strict scrutiny. But that does not turn those communications into a First Amendment free zone. Borrowing from Dorf, government could not require doctors to inform patients of the value of voting for Democrats to improve their health care before proceeding with a surgical operation. Whatever the standards applied to professional speech, it seems obvious that government has no legitimate interest in compelling doctors to give false information to patients. We need not wait for a Satanist to have an abortion and be provided with false information. To the extent, any of the laws in the 35 states with special informed consent laws for the abortion context require that false or misleading information be provided, rightly understood, the First Amendment stands in the way.
(For an excellent recent discussion of compelled speech of doctors in the abortion context with citations to the cases and relevant literature, see Stewart v. Loomis, 992 F.Supp.2d 585 (M.D. N.C. 2014))
I argued in a recent post here that the Supreme Court has prepared the way to overturn a 40 year old precedent that has protected the financial stability of public unions. Abood v. Detroit Board of Education held that objecting members of a bargaining unit could not be forced under the First Amendment to pay union dues used for its political expenditures, but could be compelled to pay union dues used to support collective bargaining, not because the First Amendment was inapplicable, but because First Amendment standards were satisfied. On the last day of the term this year, Harris v. Quinn criticized Abood’s view that First Amendment standards are satisfied when objecting members of a bargaining unit are forced to pay dues to support collective bargaining. I argued that Abood was rightly decided for the wrong reasons. I do not think the First Amendment rights of an individual are implicated when he or she is forced to fund something with which he disagrees. Here as elsewhere stupid slogans aside money is not speech. When money is taken from us we do not speak. Abood is right because it is legitimate for government to fund the collective bargaining efforts of unions; it is not legitimate for government to give money for the political expenses of an entity known to support one political party over another.
The question I want to raise in this post is this: I understand why someone can think that being forced to support political ideologies to which they are opposed violates their personal First Amendment rights. But what does collective bargaining have to do with the First Amendment? So far as I know, we have not yet come to the day when the regulation of collective bargaining is thought to trigger First Amendment scrutiny. Perhaps the idea is that freedom of speech is implicated whenever individuals are forced to subsidize ventures to which they are ideologically opposed. Leave aside, the chaos this would impose on the tax system, is it possible that Hobby Lobby was really a free speech masquerading as a freedom of religion of case? The answer provided in Abood is that individuals have a First Amendment interest (albeit outweighed by other interests) in not being forced to subsidize the position taken in the speech of unions taking place in the collective bargaining process. The Court argues that many of the positions taken by public employee unions are of public interest in a manner that is reminiscent of the Court’s attempt in the Virginia Pharmacy case to suggest that advertising is of public interest. The truth is that the game of finding public interest is easy to play. But this leads back to the question whether the regulation of collective bargaining triggers a First Amendment test if it is so saturated with speech of public interest. And if collective bargaining is subject to the imperialism of the First Amendment, why not contract law in general?
What the main goals of the First Amendment might be is much contested. But you would have to get up very early in the morning to suggest that the First Amendment is best interpreted to regulate collective bargaining in any fashion, let along with the intrusive heavy duty tests that inevitably follow from its applications.
In a broad sense of that term, reading Max Tegmark's Our Mathematical Universe is akin to a religious experience. I would not be at all surprised if Tegmark felt a similar sense of excitement in writing this massively learned yet wonderfully accessible book. For by the book's close, he found himself talking about the universe as a form of transcendence and advocating for the solemn ethical responsibilities humanity must undertake as likely one of the very few self-aware species in the galaxy.
On the level of my own religious perspective, I was deeply moved by Tegmark's work. But it is probably best first to recapitulate the main points of his argument. His claims go beyond ambitious -- they are truly audacious. Everything, he says -- our universe, and the many other universes with which it coexists -- are not only explainable mathematically but are in fact mathematical structures.
This sounds like a book that only a nerd would love. But that is not true. As Tegmark builds his narrative he makes his case in lucid prose, remarkably free of the equations and calculations that only a select few will ever comprehend. He nevertheless succeeds in building a compelling case that moves gradually from what we all know to be true about the universe until it finally pushes hard against the outer boundaries of human knowledge.
He begins with a couple of important premises. First, where cosmology is concerned, we must always be prepared to be counter-intuitive. It is not obvious to the casual observer that the earth should be round, or that it is in constant motion around the sun, or that all matter is composed of minutely-small subatomic particles. Careful observation, however, coupled with the willingness to break free of the conventional and obvious ways of thought, made these insights possible. Second, Tegmark insists that we should realize that the limits of what we know are constantly expanding -- the solar system was once the limit of our understanding, then the galaxy, and now the universe as demarcated by the cosmic background radiation left over from the Big Bang.
But, Tegmark continues, there is a reality lying beyond these observable limits. Theoretical physics points to the existence of a vast number of other universes that may never come into contact with ours but whose existence we may nevertheless infer.
Tegmark commences his explanation for how these other universes came to be with a discussion of "cosmic inflation." Inflation began as a hypothesis that sought to explain certain irregularities in the standard account of the Big Bang. It still rests upon a well-grounded assumption: "that once upon a time, there was a tiny uniform blob of a substance whose density was very hard to dilute" (p. 100). Because this primordial matter could not dilute, because its density remained nearly the same as it grew larger, it was capable of explosive, exponential growth. And while inflation remains a hypothesis today, empirical verification of its role in the formation of our universe is inching closer.
Our observable universe, Tegmark indicates, took its shape as inflation began to slow at least in our small corner of existence. But inflation, which is incessant, could reasonably be assumed to continue elsewhere and is still bringing into being countless other universes. And since its growth is exponential, the number of these other universes continues to double and to double again at an ever-increasing pace. Not all, or even most of these universes, likely obey the same physical laws as ours, and most are probably hostile and forbidding places. Still, their existence can be inferred from what we know about our own.
It is through inflation that we gain an awareness of the vastness of the cosmos and what Tegmark calls "Level One" and "Level Two" universes. Level One universes are those universes, scattered throughout the cosmos, whose physical laws resemble our own. We may never encounter them directly since inflation continually expands the distances between us and them, but it is likely that a process which continues to spawn universes at an exponential rate will bring into being other universes similar to our own. Level Two universes, like the first type, are also created by inflation, but are governed by different effective rules of physics than our own.
After probing the depths of space, Tegmark directs the reader's attention to the smallest bits of matter -- subatomic particles. It had been known for nearly a century that the smallest particles -- electrons and the like -- did not obey classical rules of physics. Had they, all atomic structure would have collapsed soon after the Big Bang. Something was responsible for preserving atomic structure, but what, exactly?
Tegmark draws on theories of quantum mechanics to assert that subatomic particles possess the capacity of being in more than one place at the same time, a phenomenon called "superposition." The movement of such particles, furthermore, is governed by the "wavefunction," which "describes the extent to which [they're] in two different places" (p. 179).
Why, then, do we not observe such behavior in our daily lives? The traditional answer, proposed by Niels Bohr and Werner Heisenberg, is that the act of observation collapsed the wavefunction "so that you find the object only in one place" (p. 178).
Tegmark, however, rejects the traditional account in favor of a more radical version of quantum mechanics. Why can't we more directly observe this sort of subatomic behavior? It has nothing to do with what we as observers bring to the process. Rather, it is the interaction of particles with one another that causes them to appear fixed in a process known as "decoherence." But, in optimal circumstances, it has become possible to detect electrons being in two places at one time: "if you pump out as many air molecules as possible with a good vacuum pump, an electron can typically survive for about a second without colliding with anything, which is plenty enough time for it to demonstrate funky quantum-superposition behavior" (p. 199).
These conclusions lead Tegmark to endorse Hugh Everett's controversial "many worlds" theory -- that in a process that remains undetectable subatomic particles "hive off" and bring into being new worlds that are almost exact copies as our own but that might differ in some crucial respect. Thus in some worlds we might be dead while in others we are the kings and queens of some exotic land. These many worlds Tegmark labels "Level Three" universes.
Tegmark has now prepared his readers for the final step in his reasoning. Subatomic particles, he asserts, are mathematical structures. And if they are mathematical structures, then everything which they support and form and order must also be a mathematical structure. Thus Tegmark is led to his "mathematical universe hypothesis."
Having now reviewed Tegmark's claims, I'd like to return to the dimension of religion. I am a Christian with some specialized training in ancient and medieval philosophy. And I find in Tegmark's arguments echoes of some very old ways of explaining existence.
The Greek philosopher Democritus (c. 460-370 BCE) proposed that all of existence was formed of invisible atoms. He even suggested the possibility of a multiplicity of worlds and universes that might be found on the far side of the firmament of stars we see in the night sky. By the second and third centuries BCE, we find the Stoics suggesting that this body of scientific knowledge reflected the existence of a God who was reason.
Early Christian writers borrowed this idea and made it a backbone of their own understanding of the universe. God is reason. Hence no science is alien to God. Many great medieval minds would have concurred -- thinkers like Albert the Great (c. 1200-1280) and Robert Grosseteste (c. 1175-1253) among many others. (None of this is to diminish the Church's role in sometimes violently stifling scientific inquiry as when Giordano Bruno was burnt at the stake.)
When I read Tegmark, I see traces of this very old way of understanding the divine. What else is mathematics but reason in its pure form? This is a commitment I share. God is reason. And since God is reason, there is no branch of inquiry where a believer should fear to tread.
This traditional account of God as reason has been obscured in a contemporary American context that is convulsed between dueling schools of fundamentalism -- simplistic, literal-minded religious zealotry on the one hand, and cool dogmatic atheism on the other. We must revive our commitment to a God that is reason if there is to be any hope of reconciling religion and science.
But if God is reason, there is yet one more thing that the Scriptures add. For revelation tells us that God is also love. While mathematics may tell us the form and shape and logic of all existence, it is as yet incomplete without love. For it is love that makes humanity a community, that calls for self-sacrifice and the sublimation of the personal for the good of something larger. If, as Tegmark argues, human life has meaning and significance even in the face of cosmic vastness, it is because we are, at least in our better moments, cooperative creatures capable of loving our neighbors as we do ourselves.
Released the same day as Hobby Lobby -to no public fanfare - Harris v. Quinn decided a case of little national importance on outrageous grounds purportedly rooted in the First Amendment while setting the stage for a decision of major national importance. The case raised the question whether home health workers could be forced to financially support a public union to which they were ideologically opposed. A forty year old precedent, Abood v. Detroit Board of Education, ruled that the First Amendment did not preclude the imposition of a fee to support a public employees union if they were members of the bargaining unit that the union served. In Quinn, the Court ruled that one of the interests at stake such as peace in the workplace was not implicated when the workers were spread out in many workplaces. Not unreasonable though the interest in not permitting free riders was obviously present. Undeterred by this, the Court insisted that Abood, a case that has served as the foundation of union contracts for many decades rested on questionable foundations, questionable because it did not take the First Amendment seriously enough.
In questioning Abood, the Court set the stage to impair the financial stability of public employee unions – this in a country in which the power of corporate-controlled states sadly needs a pluralistic base of dissenters. Abood is in fact a questionable decision, but not for the Court’s reasons. The case is problematic because it takes the First Amendment too seriously. It supposes that forced financial support of collective bargaining implicates the First Amendment. I do not now and never have gotten why forced taxation of this sort is speech. We are forced to pay for many things we do not like. Speech this is not.
But, you may say Buckley v. Valeo said that money was speech. Well it wasn’t. But First Amendment interests are affected by campaign finance regulations. Preventing contributions or expenditures for speech limits speech. The problem with Buckley was the failure to recognize the crucial interests in democracy and equality that outweighed the first Amendment interests in independent expenditures. Well, what about Hobby Lobby? Hobby Lobby said that forced contributions for insurance violated freedom of religion under a federal statute. True, but religious freedom extends beyond speech even to indefensible religious views of what counts as moral complicity. But what about the part of Abood I have not mentioned. Forced financial support for union political expenses violates the First Amendment. That is a correct result for the wrong reasons. The problem is not financial liberty; the problem is that government cannot through compelled financing support the political expenses of an institution that predictably will support one political party over another. But compelled financial support of collective bargaining is obviously distinguishable from supporting political speech.
Republicans have been attacking unions for many years and in recent years, public employee unions with even greater ferocity. I guess it should come as no surprise that a Republican court that has reached out to help corporations in many different contexts, would use a twisted version of the First Amendment to undermine public employee unions and strike another blow at a democracy it has done so much to dismantle.
Eugenio Scalfari, aged 90, is truly one of the grand old men of Italian politics and journalism. Trained as a lawyer, he has been active in Italian Socialist causes since World War II and edited and/or founded two of Italy's most influential newspapers --L'Espresso and La Repubblica.
He has also clearly become one of Pope Francis' good friends. In late September 2013, the two men sat down for a conversation. Scalfari later published a summary of their exchange. Working from memory, trying to capture the "essence" of what the Pope had said, Scalfari published a summary that rocked the closed and cloistered world of inside-the-Vatican politics. The two men spoke about the need for social justice. The mass unemployment of the young was a tragedy and a consummate waste of human talent and promise. The Pope looked to Scalfari to make common cause on this issue.
Scalfari and the Pope reflected together on the nature of the divine -- "God is Love," the two men agreed, with the Pope connecting that point to the Incarnation. The two men went on. Believers and non-believers are alike called to work for the common good. Pope Francis assured Scalfari that it was not his intention to proselytize -- "proselytism is solemn nonsense," the pontiff announced. Instead he hoped in some small modest way to love others as Jesus had loved.
They even talked about the Vatican court, the infamous "curia." It was a place full of intrigue. The curia, Pope Francis told his friend, is "the leprosy of the papacy."
Published in La Repubblica, for almost two months the interview also stood on the Vatican website where it attracted many complaints, especially by conservative Catholics. The Vatican itself finally removed the article from the website in November, 2013. The Pope, a Vatican spokesman said, did not really mean to compare his own curia to leprosy.
The Catholic right-wing, which had clucked in disapproval now made their discontent even clearer. This was no way for a Pope to comport himself. He might sow confusion. He should speak carefully, in the old and approved forms. When the interview came down from the Vatican website, they thought they had scored an impressive triumph.
A lesser pope might have been chastened by the experience. He might have bowed to critics and thereafter steered far away from someone like Scalfari. But this is not Pope Francis' style. And so, once again, in mid-July, 2014, Francis sat down with his friend Scalfari for another talk.
Unsurprisingly, once again Francis made news. He was said to have hinted broadly that the practice of priestly celibacy -- mandatory in the Western Church -- might be reconsidered. He told his old friend that two percent of the Catholic clergy are pedophiles. He let it be known that even some members of the hierarchy were guilty of this heinous crime -- bishops, cardinals.
Predictably, the Vatican rushed out a correction. No, the Pope did not really say that there were pedophiles among the cardinals. The remainder of the interview was allowed to occupy a kind of gray area -- neither officially confirmed as accurate nor officially denied as false. Scalfari freely admitted that he took no notes and reconstructed the conversation afterwards, trying to capture its essence if not the precise words that were used.
To dwell overly much on the content of the two conversations, to ask whether this or that phrase is transcribed exactly as it was pronounced is to miss I think what is truly most important about these interviews. For it is not so much the words and the content of the interviews, but the fact that they are happening at all that is meaningful.
If we consider that there were two interviews, that the second one occurred even against the backdrop of a great deal of criticism directed at the first interview, then several features are worth noting:
First, Pope Francis and Eugenio Scalfari are plainly friends. They like each other. And in their friendship they might be said to reflect the way in which the secular and the religious spheres might find common ground. The secular world and the realm of faith are not irreconcilable. So, how might these two worlds come to know each other better?
Again, I think a focus on the fact that these conversations occurred suggests ways in which the spiritual and the secular might cooperate, and that is through sincere and respectful dialogue. Women and men of faith must not take as their default position hostility towards all things secular. They must instead recognize the humanity of their conversation partners. They must show their emotions and share their vulnerabilities. They must in other words bare their souls. Such earnestness, Scalfari's response illustrates, will be met more than halfway. Both sides in this conversation must appreciate their shared priorities -- they must work for a world of justice and mercy, a world of love that crosses boundaries and worldviews. They must, in other words, show respect. They have more in common than they realize.
If friendship, dialogue, and respect are among the lessons to be drawn from these conversations, a final feature is also worth noting. Here, as in so much else he has undertaken, Pope Francis is rewriting the rules on how to be a pope for the modern world. Popes of the last two centuries have watched their words carefully. Their speech follows certain prescribed rules -- encyclicals are solemn, apostolic exhortations a little less so, allocutions and sermons just slightly more relaxed. What Pope Francis is doing fits none of these rules. What he is doing, rather, is what his namesake, St. Francis instructed his followers to do: teach first by example and use words only when necessary. He is doing nothing less than modeling the relationship of Church and the world.
Cross-posted at: http://www.huffingtonpost.com/charles-j-reid-jr/a-pope-and-an-atheist-pope-francis_b_5614052.html
“Israel must attack Gaza even more mercilessly, expel the population and resettle the territory with Jews, the deputy speaker of Israel’s parliament, the Knesset, has said. Moshe Feiglin, a member of Prime Minister Benjamin Netanyahu’s ruling Likud Party, makes the call in an article for the Israeli news website Arutz Sheva. Feiglin demands that Israel launch attacks ‘throughout Gaza with the IDF’s [Israeli army’s] maximum force (and not a tiny fraction of it) with all the conventional means at its disposal.’
Force Gaza population out
‘After the IDF completes the “softening” of the targets with its firepower, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations,’ Feiglin writes in one of several calls for outright war crimes.
Following the re-conquest, Israel’s army ‘will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrongdoing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave,’ Feiglin writes.
‘Gaza is part of our land’
‘Gaza is part of our Land and we will remain there forever,’ Feiglin concludes. ‘Subsequent to the elimination of terror from Gaza, it will become part of sovereign Israel and will be populated by Jews. This will also serve to ease the housing crisis in Israel.’
Feiglin has a long history of incitement. Last week he expelled Arab members of the Knesset who dared to criticize Israel’s ongoing slaughter in Gaza and called for Israel to cut off power to dialysis patients there.
As of now, ninety percent of Gaza is without electricity, journalist Mohammed Omer reports, and most Palestinians in Gaza are getting as little as two hours of electricity per day.” [….]
Comment: Should this be construed as incitement of genocide? Incitement means “encouraging or persuading another to commit an offence.” Incitement is only prohibited in international criminal law with regard to genocide, owing to its gravity and heinous nature. Incitement is criminalized as such, as Cassese informs us, “even if it is not followed by the commission of genocide.” Incitement must be both “public” and “direct.” Feiglin’s remarks meet the first condition,* and insofar as his statements are provocative and not vague and indirect, it appears to involve this second condition as well. Yet, as Larry May explains,
“The ICTR’s (International Criminal Tribunal for Rwanda) Akayesu Trial Chamber is forthright in recognizing that the intent of two different people must be proved (emphasis added): ‘It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.’ There is a desire to create in others a desire to commit a crime. And because of this odd type of mens rea, the crime of incitement to genocide is especially hard to prove, because in effect we must peer into the mind[s] of two different people, or infer from their behavior what the mental states for two different people are.”
May also points out that while the same Trial Chamber required proof of direct causation between propaganda or incitement and the commission of a specific offence,“the ICTR Media Case Trial Chamber concluded ‘that this cause relationship is not requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement.’” This is further distinguished from mere “hate speech” in several rulings. Moreover, the break with successful instigation of genocide renders this an “inchoate crime,” a category that also includes attempt, conspiracy, and solicitation.
Addendum: See Feiglin’s comments on Arabs and Palestinians at his Wikipedia entry.
Update: Over at Opinio Juris, Kevin Jon Heller states, correctly no doubt, that “Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide.” In other words, he is urging behavior that amounts to “a crime against humanity,” although there is not, as with genocide, the inchoate crime of incitement to ethnic cleansing. In addition, because Feiglin writes that “[a]ny place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage,” Heller notes that he is also “urging Israel to commit war crimes against the Palestinians.”
* See Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2nd ed., 2008): 229-230, and the discussion in Larry May’s Genocide: A Normative Account (Cambridge University Press, 2010), especially pp. 180-201
Raja Shehadeh, a founder of Al-Haq,* proffers advice to the Palestinian leadership in this piece from the London Review of Books, ending with a succinct proposal on how to end the Israeli-Palestinian conflict (i.e., the ongoing historic conflict, not the recent escalation of violence). I’ve copied a good portion of the article below which, unfortunately, is available online only to subscribers.
[….] “After the 1967 war, Israel spread the word that its occupation of Palestinian lands was the most benevolent in history, even if the ungrateful Palestinians refused to accept it. Those who actively resisted were called fedayeen; but Israel’s word for them was mukharebeen, which is what you call a naughty child in Arabic – anta mukhareb, ‘you are a spoiler.’ What, I wondered, were we spoiling? Then I realised that Israel was putting things in order for us and for them and we were spoiling it. Eventually, when George Bush declared the ‘war on terror,’ we graduated to being irhabyeen, ‘terrorists,’ every one of us, without exception. In Israel’s eyes we are all potential terrorists. And we are all here by permission of the Israeli state. Those who have a Palestinian passport are no different: the number on that passport is assigned to us by Israel and recorded in its security files and databases. Israel can on a whim forbid anybody to return home simply by revoking their residency. This is now the status of all Palestinians in the Territories and East Jerusalem. We are all infiltrators living where we aren’t supposed to live.
By 1987 the number of mukharebeen had greatly increased in the Occupied Territories. Most of us were spoilers. We used every non-violent method and some violent ones to show that we’d had enough of occupation: the First Intifada had begun. Our insistence on a military struggle had brought no results. It was the non-violent uprising of 1987, waged inside the Occupied Territories, that forced Israel to the negotiating table. In 1991, four years after the Intifada began, Israel was persuaded to attend an international peace conference in Madrid, which was followed by negotiations in Washington between the Israelis and a Palestinian delegation. But the leadership outside the Territories failed to recognise the role those of us living under Israeli rule had played in the civil struggle, as I was to discover when I took part in the negotiations as a legal adviser. Incidentally, I remember Edward Said coming to Washington to offer his services to the delegation only to be sent away. He could have played a crucial role, explaining to the American public what these negotiations were about. What sort of leadership refuses an offer like that?
Throughout the year I spent in Washington, and for some time afterwards, one question kept nagging at me: how did Israel succeed in using more or less the same tactics against the Palestinians and their property in 1967 as they had used in 1948? Why had the Palestinians not learned how to foil those tactics? Israeli military orders dealt with every aspect of life in the Occupied Territories as well as organising relations between the Palestinians – some but not all of them Israeli citizens – and the Jews who’d settled there. It was clear that Israel’s strategy in the negotiations was to hang on to as many of these orders – there were almost a thousand – as possible. Different orders applied to the two groups, discriminating between them in terms of allocation of land, use of natural resources and opportunities for development and growth. Marching in step with the military orders, Israeli laws were imported into the Occupied Territories and applied exclusively to the settlers. There had to be separate and unequal development – apartheid – if the Jewish settlements were to flourish. I had spent a year desperately trying to impress on the Palestinian leadership the need for a legal strategy based on a review of Israeli military orders when instructions to desist arrived from Arafat’s headquarters in Tunis: acknowledging the existence of military orders would only give them legitimacy. I packed my bags and went home.
After I left Washington I remained intrigued by the Palestinians’ and Israelis’ very different attitudes to the law. I began exploring each side’s legal narrative. A legal narrative – how people tell the story of their rights – is a construction: for it to stand it must have consistency and its own internal logic, as well as external reference points to which others can relate. And it must be communicable. In the Occupied Territories Israel has expressed its narrative mainly in terms of military orders, which it has successfully kept in force. The Palestinian leadership’s thinking on legal matters is characterised by a search for absolutes, apparent in the excessive stress they put on recognition of the PLO, believing that if the Israelis recognised the organisation they would somehow also be recognising its programme of self-determination.
The thinking is abstract: it takes no account of the shifting legal ground over which negotiations are conducted, and fails to anticipate the other side’s legal case, which makes it unable to respond adequately. At a meeting of the Palestinian National Council in Algiers on 15 November 1988, the PLO recognised the need for an international conference whose aims would include ‘the annulment of all measures of annexation and appropriation and the removal of settlements’. But it failed to devise a strategy for achieving this goal. Instead, the 1993 Declaration of Principles and the 1995 Interim Agreement between Israel and the PLO provided for the military orders to remain in force. Though it remained undeclared, what was in fact being preserved was a system of apartheid.
To this day Jerusalem demonstrates the inability of Palestinians to fight their cause by legal means, in stark contrast to the Israelis. After 47 years of Israeli rule Jerusalem is organised, run and designed for the sole benefit of Israeli residents, particularly settlers in and around Arab East Jerusalem, with a shrinking ghetto assigned to disenfranchised Palestinian residents. Israel never announced it was annexing the West Bank; as for its incremental control of Jerusalem, it too is discreet, sometimes brutally so. Compare the struggle in 2012 to win nominal recognition at the UN for the state of Palestine, even though the Palestinian Authority has no territorial sovereignty. Israel’s struggle takes the form of persistent, low-level administrative actions; the PLO – and now the Palestinian Authority – have lofty, abstract aims that have great resonance but are almost empty of practical meaning. The wish to entrench its virtual acquisition of a state sometimes manifests itself in physical terms: for example, the construction in Ramallah of a million-dollar presidential palace for visiting dignitaries who come to pay homage to the putative head of a state yet to be born.
This difference in approach to law and nation-building doesn’t of itself explain the defeat of the PLO in negotiations with Israel. Almost equally important is the fact that the experience of the Palestinian people under occupation meant little to Palestinians living elsewhere, including our leaders in exile. One kind of struggle, that of the glamorous, sometimes desperate fedayeen in the camps, prevailed at the expense of others, but it wasn’t because of a dearth of information from Palestinian organisations in the Occupied Territories. [….]
The negotiations that began in July last year between Israeli and Palestinian representatives under American patronage took place behind closed doors and between two hugely unequal sides. There was no prospect of international law being applied. Israel decides most aspects of Palestinian life as well as the very existence of the Palestinian Authority. Were there a powerful third party prepared to invoke the Fourth Geneva Convention and the enforcement mechanisms it provides for, Israel would be forced to withdraw and to reverse the consequences of its illegal occupation. But the third party is biased. Polling shows that most Israelis oppose withdrawal to pre-1967 ceasefire lines, even if land swaps were agreed to accommodate Jewish settlements. A number of observers on both sides have noted that the most any Israeli leader is prepared to offer is less than the minimum that any Palestinian leader could ever accept.
What can be done to end this conflict? I would argue for a two-pronged approach. Israel must be made to realise that the failure to apply international law will not last forever and that occupation will begin to exact an economic price; but it also needs to see the benefits it can derive from making peace. For the moment the Israelis show no sign of getting over the dangerous euphoria that was a result of their victory in the war of 1967 and continue to believe what Moshe Dayan, the minister of defence, declared at the time: that Israel is now an empire. Why should this empire, the sixth biggest exporter of weapons in the world, submit to international law? For the time being the Boycott, Disinvestment and Sanctions movement seems to me a necessary tactic. I can’t exaggerate the relief I’ve felt now that it’s clear that I wasn’t criminal, mad or naive when I used to call for the enforcement of international law. Recently, in response to corporate accountability rules, several European banks and the Norwegian government’s pension fund have started to withdraw investments from Israeli companies involved in the settlements while the Norwegian Council on Ethics has recommended excluding Israeli companies ‘due to … serious violations of individual rights in war or conflict through the construction of settlements in East Jerusalem.’ Yet high levels of investment in Israel have been the norm for close to half a century, despite the fact that the international law relating to occupation is fundamentally unchanged. Why has Europe only now discovered that Israel is in breach of the law?
If disinvestment continues, Benjamin Netanyahu will turn out to have been over-confident when he declared in February that world demand for Israeli high-tech goods would enable the country to outflank the boycott. But the boycott is a means, not an end. The objective is to overcome the anger and hatred that fuel exclusion, partition and separation. Once Israel begins to apply international law, the political outcome, whether one state, two states or a confederation with other states in the region, should be resolved by referendum. And once people’s rights are recognised, all kinds of possibility begin to open up.
In 1993 I realised how quickly things can change. Just before the Oslo deal was signed, young Palestinians were saying that they would fight Israel to the last day of their lives. But once the deal was signed and began to offer a glimmer of hope the tone changed. You heard them say: Yikhribbeit el hjar, ‘to hell with stone-throwing.’ Reminded of their earlier position they said in their defence that they wanted a better future and a chance to live in peace with the Israelis. Prominent among those who went through this transformation and put their faith in the peace process was the Fatah leader, Marwan Barghouti, in his early thirties at the time, who is now serving several life sentences for allegedly leading attacks against Israel. It is a mistake to hold the young to the values we were proud of during the First Intifada, the golden time of struggle. To them we are the generation that failed.”
* Al-Haq is an independent Palestinian non-governmental human rights organization based in Ramallah, West Bank that was established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT). The organization has special consultative status with the United Nations Economic and Social Council.
I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.
Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim. I respectfully disagree with one of their main reasons and strongly disagree with another.
I understand the argument that a corporation is not a person. A corporation has no conscience. On the other hand, religious organizations including corporations have freedom of religion rights. The question is whether a for-profit corporation (which liberals typically want to engage in some social justice work) should have freedom of religion rights when all of the owners object to an activity on the basis of conscience. I think to deny the freedom of religion right on the ground that the business is a corporation rather than a partnership elevates form over substance. Moreover, I do not see how the recognition of the possibility of rights in this context opens a door for large corporations. The need for owner unanimity (which I would impose) forecloses that possibility. I do not read the Court’s opinion as contemplating majority rule in the case of for-profit corporations.
The argument that I do not respect is the claim that the law here does not impose a substantial burden. Everyone on the Court agreed that the owners of Hobby Lobby are sincere. I am not sure whether it was part of the record that the Hobby Lobby’s 401 (k) plan has $73 million invested in mutual funds that invest in the very contraceptives to which they morally object! See here. I would like to hear an explanation of why the owners are morally precluded from offering insurance that includes certain contraceptives, but not precluded through their investments from making money off the sale of those contraceptives. I would be on a higher horse regarding this point if I were not an investor in index funds which must include however indirectly many loathsome companies and products.
I also worry that the sincerity of many on the right is politically corrupted. I think the hatred for Obama has helped fuel the religious objections which does not mean that the objectors are insincere. It does mean that many objectors got to these views by a corrupt process.
But the question whether a burden is substantial does not get started without sincerity and everyone on the Court conceded sincerity. So let us assume the owners’ sincerity. How does one support the view that the burden on the owners is not substantial? In the end, the argument in my view ultimately rests on a simple disagreement with the owners’ views. Of course, it is easy to disagree. The owners in the end are being forced by the government to make funds available in the form of insurance for medical care including contraceptives. The contraceptives at issue would be used if, but only if, women make the choice to use the particular contraceptives to which the owners object. Making money available for immoral purposes is a part of our daily tax life. To conclude that obeying this government regulation is foreclosed as a matter of conscience is morally precious to say the least. And the argument that notifying the insurance company of the moral objection is also morally foreclosed strikes me as what Catholics ordinarily characterize as an excessively scrupulous conscience.
My point, however, is that even if the moral claim is crazy, it is still a substantial burden to force someone to engage in conduct that violates their conscience. It is not up to government to officially declare that a religious objection is a false objection. Please understand. I am not saying that freedom of conscience should always prevail. Freedom of conscience should give way in the face of a significant interest in many cases. If women, for example, would have been denied access to contraceptives (the ones at issue would cost a month’s pay of a Hobby Lobby worker), that interest in my view should have overridden the freedom of conscience claim. But that was not the case here.
So I am left to wonder. Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?
Concurring in the McCullen decision last Thursday, Justice Scalia joined by Justices Kennedy and Thomas and Justice Alito, concurring in a separate opinion, argued that the Massachusetts law prohibiting persons except employees, patients, police and the like from entering a 35-foot buffer zone to the streets and sidewalks around the entrances to abortion facilities was a form of content discrimination. See Dorf On Law. He gave two arguments: one is difficult for me to take seriously; the other seems dead on. Nonetheless, the conclusion Scalia draws from the existence of content discrimination strikes me as inhumane – bereft of human feeling - and is symptomatic of a disease which afflicts First Amendment jurisprudence which in this case takes a gendered form.
Justice Alito give most of his attention to Justice Scalia’s second argument. The idea is that by permitting hospital employees into the buffer zones while preventing anti-abortion advocates in the zones, the statute permits those who favor abortion into the zones while keeping out those who oppose abortion. This, so the argument goes, is content discrimination. Chief Justice Roberts answer to this argument is entirely unsatisfactory. Out of whole cloth he produces the argument that employees acting within the scope of their duties are not permitted to speak favorably about abortion when they are in the buffer zone. Really? I would have thought it was the job of employees to help the patient in this traumatic time, and that one of the ways to do so might be to address the abortion issue in a favorable way from the perspective of the employer. It comes as a surprise that the statute silently set about to regulate the speech of the employees.
Assuming the Chief Justice is speaking out of his hat, it is doubtful that this differential effect is content discrimination. The reason is that the employees are permitted to be there, not because of the content of their communication, but their status as employees of the hospital. Consider the Perry case. A union had access to the mailboxes of teachers who it represented. A rival union sought access to the boxes. The Court rejected the claim of the rival union and argued that the union with access had the status of bargaining representative and was therefore rightly given exclusive union access to the boxes. No doubt the exclusion of the rival union had differential content effects, but those different effects did not amount to content discrimination.
The other argument made by Scalia and Alito was far better. This argument at its best focuses on the purpose of the Massachusetts legislature. No doubt a part of the purpose was to prevent obstruction and physical harassment. But is it not likely that a strong part of the legislative purpose was to protect women from officious strangers who would seek to talk with them about abortion in unwanted ways at a stressful time. Justified or not, this latter purpose clearly is a regulation of content. Chief Justice Roberts response to this strikes a false note. Beyond the obvious point that the statute on its face does not discriminate on the basis of content, he supposes that the statute is confined to stopping abuses that do not flow from content such as obstruction and physical harassment, but that strikes me as a deliberate oversimplification.
So let’s assume Roberts is wrong. Why is he so obtuse? And what follows from the argument if Scalia and Alito are right. Roberts wants to avoid the content discrimination label because regulations involving content discrimination require almost-always-fatal-strict-scrutiny. It might come as a surprise that the concept of strict scrutiny was unknown to the Framers and did not appear in the First Amendment cases for most of our history. It does not appear, for example, in the cases involving advocacy of illegal action, defamation, or obscenity. Those cases wisely understood that the interest in free speech may or may not outweigh other interests when they come into conflict. So if the 35-foot buffer zone is content discrimination, it is unconstitutional; but so then would be the floating 8 foot buffer zone upheld in Hill v. Colorado, and that is what the skirmish over content discrimination is really about. That is what Scalia is bound and determined to overturn.
The Colorado regulation upheld in Hill tried to protect women entering health facilities by prohibiting advocates and the like from approaching them within an 8 foot buffer zone without permission. Scalia regards this as a First Amendment horror story. From his perspective there is no right in a public street or sidewalk to be left alone. Indeed Scalia claims that protecting people from speech they do not wish to hear is not a function the First Amendment allows the government to undertake on streets and sidewalks. He states that explicitly and when faced with the question of harassment turns the rhetoric up even higher: “Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions? Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at ‘reproductive health care facilit[ies],’ of course) for so vague an offense as ‘follow[ing] and harass[ing].’"
So here is my answer. If Ms. McCullen approaches Justice Scalia as he approaches a fertilizer factory after being told not to, that is rude. If she does so a third or fourth time, that is harassment. But a reproductive health facility is not a fertilizer factory. And the person approaching the facility is not a swaggering bully, but a vulnerable pregnant woman at a particularly traumatic point in her life.
Colorado was well within its rights to protect such women by stating that you may not come close to them without permission (I have no stake in whether 8 feet is the right amount of space). To suggest that you have a First Amendment right to come near them when they have specifically denied permission even once, let alone two, three, or four times means that harassment is a First Amendment right (even if your are too blind to know harassment when you see it) and to suppose that our Constitution enshrines this principle is to adopt a form of First Amendment idolatry which converts that principle into a Religious principle instead of a principle of government. And it must be said that religion sacrifices women on an altar of insensitivity.
The Court’s treatment of the attempt of Massachusetts to protect the safety of abortion patients and to prevent obstruction and harassment by prohibiting persons (with the exception of employees, patients, police and the like) from entering 35 feet buffer zones around hospitals that provide abortions raises intriguing issues. On the one hand, it seems reasonable –at least to me – that in this vulnerable moment, an abortion patient should not be compelled to face the torrent of abuse hurled upon them by angry anti-abortion advocates, let alone be forced to walk along a gauntlet of such abuse in close quarters. On the other hand, the plaintiffs in the case built an admirable record showing that they did not seek to abuse, but to counsel alternative in a quiet voice at a time when many patients experience buyer’s remorse, and the record showed that many patients had been persuaded by these plaintiffs to seek alternatives to abortion.
Last Thursday, McCullen v. Coakley authored by Chief Justice Roberts, joined by the not quite liberal wing of this conservative court, ruled that the Massachusetts statute did not meet the standards for place restrictions on speech because it was not narrowly tailored to meet the government objectives. After all, the government could prosecute violators who interfered with the safety of patients, obstructed them from getting through, or harassed them. In addition, the Court reaffirmed cases like Schenck and Madsen where federal courts established buffer zones against those persons who had previously engaged in obstruction. Finally, the Court did not question (but did not reaffirm) a prior case in which persons were prohibited from entering an 8 foot floating buffer zone without the patient’s consent with whom the counselor wished to speak.
Given the record, I think the compromise forged by the Court is not unreasonable though it overstates the efficiency of the alternatives. What is unusual about the majority opinion is that it gives teeth to the narrow tailoring aspect of the time, place, and manner test, teeth not heretofore seen in the hands of the Court. Moreover, this aspect of the test is joined by Justice Alito and would have been joined by the opinion of Justice Scalia, joined by Kennedy and Thomas, JJ., except in a fit of childish pique, he did not formally reach the issue. It is not remarkable that the liberals would want to pour life into the time, place, and manner test. They traditionally have supported dissenters of all stripes. The conservatives, however, in the absence of content discrimination, have a lousy record in this regard. They have devised tests to deny access for dissenters to government property where demonstrations would naturally take place, and the time, place, and manner test has been interpreted in ways that provide music to the ears of those bureaucrats seeking to keep dissenters away. Mike Dorf rightly remarks that if the treatment afforded to the time, place, and manner test in McCullen is here to stay, it will be a significant jurisprudential development. I hope it is here to stay, but I suspect the conservative support for the dissenters in this case is a product of their empathy for those who oppose abortion, an empathy they could not muster in favor of those who protested national policy toward the homeless or for those who offered sexually-oriented speech in their theaters. The Court sat idly by when government authorities nationwide moved to shut down the Occupy Movement. Its behavior in the anti-abortion cases is markedly different. For those who think, I am accusing the Court of favoring their friends while turning a deaf ear to others. You got me exactly right.
More on McCullen probably tomorrow
the long fly ball to center field
takes its time
the runner on first looks up
at a passing cloud
after the grand slam
the umpire busy
with his whisk broom
—Cor van den Heuvel (b. 1931)
Van den Heuvel “discovered haiku in San Francisco in 1958 when he heard Gary Snyder talking about short poems at a Sunday gathering of the Robert Duncan/Jack Spicer poetry group in North Beach.” He “was known as ‘Dutchy’ when he played catcher in the late 1940s for the Comets, a sandlot team in Dover, New Hampshire.” From a volume of baseball haiku edited by Van den Heuvel and Nanae Tamura (W.W. Norton & Co., 2007).
I could not resist drawing attention to poetry that so skillfully joins a fondness for both baseball and haiku. And it seems this might be considered serendipitous, as haiku is a combination of two words: haikai (literally, ‘comic,’ ‘unorthodox’) and hokku, the latter a three line stanza and the former meaning “sportive” or “playful.” Bashō, a haikai master, sought to exemplify in his poetry both comic playfulness and spiritual depth, an uncommon blend of the vita contemplativa, which he practiced on his own terms, with the vita activa, evidenced in his willingness to take seriously “the ordinary, everyday lives of commoners,” portraying such figures as the beggar, the traveler and the farmer.
The first “baseball haiku” (1890) issues from the brush of the first modern haiku poet, Masaoka Shiki (1867-1902), whose “writings on baseball later helped to popularize the game throughout Japan.”
this grassy field makes me
want to play catch
On the origins of haiku, see “A Note on Haikai, Hokku, and Haiku,” appended to Robert Hass, ed., The Essential Haiku: Versions of Bashō, Buson, and Issa (Hopewell, NJ: The Ecco Press, 1994).
The Supreme Court decision on cell phones yesterday was a welcome development, but the Court has a long way to go before its privacy principles are anything other than warped. After yesterday’s decision, before searching your cell phone the police need a search warrant on the ground that a cell phone search is a deep intrusion into one’s private life. But without a warrant and without any justification, as a matter of constitutional law (in the absence of statute), police can get your bank records (including your credit card records), your telephone records (who you called and who called you), find out who sent you mail and who you sent mail to, and secure information from your internet provider about your use of the computer and even search your trash. They can get all this information without justification on the specious premise that there is no search despite the deep intrusion into your privacy. The theory is you had no reasonable expectation of privacy because you exposed the material to a third person, eg., the bank. Of course, living a modern life would not be possible without relying on institutions like banks, the postal authorities etc. to respect your privacy. Living a modern life requires precisely such reliance and expectations, and it requires that those expectations be reasonable. The notion that such a dragnet foray into a person’s private life is not a search is nothing less than a cynical departure from constitutional values. The cell phone decision is welcome, but it should not divert us from the recognition that Fourth Amendment jurisprudence is corrupt to the core.
“Modern neuroscience is validating observations about the mind that Buddhists have known for thousands of years. When I first began to study Buddhism, it was common to hear put-downs of Western psychology and...psychotherapy in major Buddhist centers. There was a widespread belief that meditation would answer everyone’s problems, and if you were a really good Zen or Vipassana or Vajrayana practitioner, you wouldn’t need therapy. Now I could give you the names of abbots of those same centers who are themselves seeing therapists—they have realized there’s a complementarity between meditation and the interpersonal skills of Western psychology.”—Jack Kornfield, in a forum discussion, “Is Western Psychology Redefining Buddhism?,” Buddhadharma: The Practitioner’s Quarterly, Summer 2014 (Vol. 12, No. 4).
The latest draft of “Buddhism & Psychoanalysis: a basic reading guide,” is available here. As noted at the link, I have related compilations on “Buddhism,” “the Emotions,” and secondary literature on “Freudian and Post-Freudian Psychology.”
Some readers of this blog might be interested in a letter to the editor that I had published in the current issue of the New Yorker. Click here and scroll down. The comment to which I was responding is here.
UPDATE: The text on the New Yorker website has now been corrected to reinsert two important words that had been accidentally deleted from my original letter.
The reconciliation of science and religion is one of the most compelling tasks confronting religious believers today. For we are truly faced with a pair of hostile, warring camps. Many religious believers have drifted into a kind of pietistic mistrust of science that seeks comfort in demonstrably false propositions like young earth creationism. On the other hand, we find a number of scientist who dismiss the possibility of a spiritual dimension to human existence. Some dismiss faith altogether as an outdated mode of explaining the inexplicable. Religion is superstition, they contend, and empiricism must finally triumph over the irrational.
Thus I picked up Amir Aczel's book, "Why Science Does Not Disprove God," with eager anticipation, hoping that he might make peace between these contending factions. Alas, I sighed, upon finishing the book, the chasm remains unbridged. Rather than grappling with the truly challenging, foundational questions, Aczel, I discovered, preferred to recite middle-brow explanations that might give consolation to people of faith but that never really come close to achieving a reconciliation of science and faith. Certainly, no one who is not already a believer will find much that is persuasive in these pages.
Let's just consider a couple of Aczel's arguments to see his method at work. Take evolution. Aczel's chapter on evolution opens with a nod to Charles Darwin's early training in theology. It notes that in the second edition of Darwin's "On the Origin of Species" someone -- Darwin himself, perhaps, or an anonymous editor -- inserted acknowledgement of a "Creator." So, the argument goes, Darwin maybe did not see an essential incompatibility between his findings and conventional Christian faith.
Aczel might have used these interesting historical nuggets as a way of opening a broader conversation about faith and evolution. Instead, however, he becomes distracted, devoting precious pages to expressing his own misgivings about evolutionary theory. Thus he goes on at great length about how he thinks evolutionary biology has failed to give an adequate account of the origins of human altruism, which we display not only towards beloved family members, but to animals: "How often do we hear about a person who jumped into the icy water of a lake to save the life of a dog, or a fireman who returned to a burning house to rescue a cat?" (pp. 203-204). The idea seems to be that since no genetic benefit is conferred by such acts, this impulse does not fit the evolutionary model and evolutionary theory is thereby weakened.
There are other thinkers, of course, who have attempted a sophisticated reconciliation of evolution and religion. Classically, there was Pierre Teilhard de Chardin (1881-1955). A world-class paleontologist as well as a Jesuit priest, Teilhard de Chardin relied on evolutionary theory and extended it to propose an ever-expanding "noosphere" -- an inter-connected realm of cognition and consciouness that aims finally at the Omega Point, which constitutes ultimate knowledge of the universe, and of God.
Aczel mentions Teilhard de Chardin, but refuses to engage the complexity of his thought. He merely quotes Teilhard on the compatibility of religion and evolution and leaves it at that. Why? Why are evolution and religion compatible? One longs to have the "why" question answered. But Aczel does not venture a reply.
This is small potatoes, however, compared to Aczel's condemnation of the concept of the multiverse. The multiverse is a trending subject of investigation among cosmologists and theoretical physicists. Relying variously on notions of cosmic inflation and quantum mechanics, exponents of the multiverse posit the existence of many universes -- perhaps even an infinite number of them. We happen to inhabit a universe that is not inherently hostile to sentient life, but a strong mathematical case can be made for the simultaneous existence of other universes where the parameters for life are simply absent. And while we may never come into contact with these universes, what we know of the physical laws governing our own point to their existence.
Aczel notes that some of the so-called "New Atheists" find intellectual refuge in the theory of the multiverse. And for that reason, it seems, he attacks the very proposition that such infinite complexity is possible. Aczel writes: "Just because we don't know how to 'stop' inflation doesn't mean that it creates other universes. And just because we understand so little about the wave function of quantum mechanics doesn't mean that a wave can live on in other worlds." (p. 145).
Aczel disputes the existence of the multiverse, finally, because it is not subject to strict experimental verification. We will never be able to observe its attributes, and so we should conclude that there is no such thing. There is an obvious fallacy lurking in this denialism. God, also, is not subject to strict verifiable proof. God's existence cannot be discerned by experiment. God and the multiverse alike are matters of inference, intuition, perceiving insight.
Aczel can be an informative and entertaining writer. I have particularly benefited from some of the articles he has written for Huffington Post. Thus I learned a good deal from his essay on Albert Einstein's concept of God and what has become of it. And even if I remain unconvinced, I think his essay on some of the more speculative elements of theoretical physics offers some cogent criticisms.
In the end, I wonder if Aczel was motivated to reject certain contentions, such as the multiverse, chiefly because some New Atheists have found such claims congenial to their cause. Honestly, whether we live in a singular, one-and-only universe uniquely and finely tuned for life, or in a microscopically small, habitable corner of an infinitely expanding multiverse, I do not believe that science has disproved God. To make that case, however, would require another book.
How do we describe a sociopath? It is someone who has no regard for the well-being of others. Someone who looks only to his own needs and treats other people as mere instrumentalities, as means to achieving personal gratification. It is someone who acts with cold calculation. Someone who is entirely lacking in remorse. Someone who can kill and think nothing more of it than the best means of disposing of the evidence.
Compare this understanding of the sociopath with the comments of Oscar Cardinal Rodriguez Maradiaga at a conference I was privileged to attend at the headquarters of Bread For the World this past June 3rd. I paraphrase the Cardinal's comments: "This economy kills." "The poor are superfluous." "What we are faced with is a phenomenon that is different than marginalization. At least when a person is marginalized, there is a place for that person, on the fringes. This economy excludes. And exclusion brings death." "We are not made for the market. The market is made for us. Thus, the market must become a humane market."
As I indicated, this is a paraphrase, but I think a fairly close one. The Cardinal posed a challenge: How do we make a more humane market? There are many things we might do to begin to reintroduce Christian principles to the marketplace. I might suggest three ideas to start the conversation.
First: Catholics -- and all Christians and persons of good will -- must take the principle of the living wage to be a non-negotiable right. Pope Leo XIII said as much in his encyclical Rerum Novarum, where he taught that all workers were entitled to wages sufficient to support a family.
The great Catholic economist Msgr. John A. Ryan developed this point in his book, "A Living Wage: Its Ethical and Economic Aspects" (1912). A living wage, he persuasively argued, is a natural right. It is absolute. It is a right that arises from the sacredness of the person. Every human being is entitled to be a fully integrated member of society. And this is only possible where people can support themselves, as well as dependents such as children or elderly relatives.
Ryan does not advocate a general leveling of wages. He understood that there will always be wage differentials and that such differences are not in themselves wicked. But where a plutocracy aggregates to itself an ever-increasing share of wealth at the expense of the vast mass of the working poor, then that system is unjust.
At a bare minimum, we must support the campaign to raise the minimum wage to fifteen dollars an hour. This campaign has already succeeded in some localities. Seattle just days ago raised its minimum wage to fifteen dollars an hour, but the phase-in provision (permitting businesses that employee fewer than 500 workers up to seven years to comply) dilutes its effectiveness. Even so, this is an important victory, and Christians should bring this campaign to other cities.
Second: We must re-legitimize trade unions. Catholics especially have a long and honorable history of supporting unions. John McGreevy, the Catholic historian, has documented the depth of this involvement. (See "Catholicism and American Freedom: A History," 2012). According to McGreevy, "priests across the country spent the 1930's encouraging their parishioners to join unions." (p. 163). Archbishop Edward Mooney of Detroit even argued that Catholic laborers had an affirmative duty to organize.
In today's economic environment, we need a revival of trade unionism. A robust trade-union movement must be premised on recognition of the right that all persons have to come together for economic purposes. If the interests of capital have the right and privilege of organizing and pooling resources, then so too do workers.
In truth, unions and corporations ought to share the same set of rights and privileges under the law. Today, all power flows to capital. In the nineteenth century, corporations were strictly limited entities. They were bound by their charters to fulfill certain public purposes and would be punished for failure. Today such language is considered antiquated.
Corporations today exist for the purpose of making money for their shareholders. At the same time, they enjoy limited liability. Shareholders are immunized from virtually all risk of loss. Thanks to a category error committed by the John Roberts Supreme Court (in which the Court mistook the fictitious, limited legal personality of a corporation for a real human being) corporations enjoy political rights that would have been unthinkable a century ago. We may soon learn whether for-profit business corporations even have a right to their own religion.
We need an equal playing field, and unions have proven historically to have been an effective means of achieving this end. Today, there is a nascent trade union movement organizing especially in immigrant communities. Led by forceful personalities like the Catholic protege of Cesar Chavez, Maria Elena Durazo, this movement deserves the support of all Christians and persons of good will.
Third: We must reinvigorate the traditional Catholic conception of the state. The medieval philosophers and canon lawyers well appreciated that the state was a natural extension of human sociability and the means by which we achieved a measure of justice in the temporal sphere. The Second Vatican Council ratified this understanding of the state when it declared that the state is the means by which we effectuate "the common good." It is the instrument by which "individuals, families, and organizations . . . achieve complete and efficacious fulfillment."
This insight returns us to the sociopathic economy. The forces of money and capital are not natural phenomena. They are not the winds and the tides. The sociopathic market has assumed the shape it has because we have allowed the legal system to become skewed in its favor. A reinvigorated state would bring to bear in the regulation of the marketplace a set of humane values. It would rebalance the marketplace so as to fairly serve the interests not of capital alone, but of all employees and all interested human beings.
When I read Timothy Cardinal Dolan's essay in the Wall Street Journal, in which he asserted that "the answer to problems with the free market is not to reject economic liberty in favor of government control" I can only say, with all due respect, that he misunderstands Church teaching on both economics and the role of the state. For millions of American workers, trapped in a world of wage theft and poverty conditions, the economy is not free. And the government is not the problem, as the libertarian right wing would have it, but the instrument Catholics have traditionally relied on to remedy such afflictions.
Paul Raushenbush is right. Religious progressivism is probably the most exciting and most significant religious movement in much of today's world. Certainly, the religious right is a discredited shell of its former self. And the most important task confronting religious progressives is to subdue "the economy that kills."
Marc DeGirolami, a distinguished law and religion scholar at St. John’s co-hosts an important law and religion blog clrforum.org with his outstanding colleague Mark Movsesian, and he recently posted an intriguing short essay (http://clrforum.org/2014/06/05/olivier-roy-on-the-closing-of-the-rights-mind/) part of which I strongly disagree. In that post, he calls attention to a New York Times column by Oliver Roy. The essence of the column is that the Christian parties of the right in Europe have secularized and have lost contact with Christian values. At the same time the right is claiming that Europe is Christian – meaning anti-Islam. In the end, the Right’s formal embrace of Christianity gives a blasphemous cover for discrimination.
What aroused my disagreement was DeGirolami’s criticism of Oliver’s column, namely its embrace of the notion of separating church from state. DeGirolami contends that this separation theme has not only been rejected by the current Supreme Court (it has), but also rested on assumptions that were foreign to the European experience: “The notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. I take it that has not been the European historical experience.”
To be sure, this undeveloped claim appears in a short post. In a way though, this claim is consistent with DeGirolami’s sophisticated commitment to a Burkean respect for the long-standing customs, habits, and traditions of a society. And in fairness, I am sure that DeGirolami would not suggest that such corruption is no part of the European experience. Nonetheless, I think his claim is wide of the mark.
To begin with, Madison’s claim that supported churches become dependent, compliant, lazy, bloated, and corrupt was itself a reflection on the European experience, and criticism of clergy and church corruption was a recurring theme leading up to the Enlightenment and the French Revolution. When churches are tied to unpopular and dictatorial governments, there is good reason to regard those ties as corrupt, to doubt their commitment to moral values and to think that these ties erode support for the churches in question. So it seems obvious, as Jose Casanova has detailed, that the Catholic Church did itself no favors when it supported or was perceived to support corrupt Kings of the past, or Franco, Salazar, Mussolini, and Vichy France. Similarly, the Church’s quiescence with respect to Hitler’s Germany undermined respect for the Church. At the same time, when the Church sided with the people against the Polish dictatorship and stood on the side of Irish nationalism, its unwillingness to be tied to the state was regarded as exhibiting strong moral leadership. That prophetic stance resonates even today though other factors have since undercut the moral force of the Church primarily in Ireland.
The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful. The Church’s ties to Constantine surely enhanced its numbers despite the character of his dictatorship (though as Hauerwas has argued that partnership sapped the church of its prophetic character).
I admit the sociological complexities. But, with Casanova, I do think that various kinds of religious corruption have been a major part of the European experience.
Highly recommended: Penelope Andrews, “A Champion for African Freedom: Paul Robeson and the Struggle Against Apartheid” (May 28, 2014). Albany Law Review, Vol. 77, No. 1, 2014.
From Part V, “Paul Robeson and Contemporary South Africa:”
“If Paul Robeson was around today, what might he say about the ‘rainbow nation’ and its transformative constitutional project? He might join in the chorus of applause about the text of South Africa’s constitution, the formal imprimatur of rights, and the mostly impressive series of judgments handed down by the Constitutional Court. He would no doubt celebrate the peaceful transition in South Africa from apartheid and authoritarianism to democracy, and particularly the significant role of the Truth and Reconciliation Commission.
But he might pause and ponder the dissonance between the fine constitutional text and its accompanying court decisions, and the limited signs of a human rights culture, as evidenced by widespread violence, particularly against women, African migrants, and homosexual South Africans. He might wonder why the Mandela government and its successors have openly embraced the ‘Washington consensus’ and a form of unregulated capitalism that has resulted in great wealth for some and the persistent impoverishment of others? He might wonder why the kind of crony capitalism euphemistically labeled ‘Black Economic Empowerment’ empowers and enriches only so few, and continues to fan the flame of black resentment—but now leveled against their black compatriots.
Paul Robeson would no doubt be shocked at the specter of black miners being shot by police officers in a manner reminiscent of Sharpeville and the dark days of apartheid. He might wonder what happened to that wonderful African concept of dignity—ubuntu—and why it often seems in such short supply.
Paul Robeson would no doubt ponder the bundle of contradictions that make up South Africa: first world and third world; contemporary and traditional; great wealth and extreme poverty; hope and despair.
And he would no doubt wonder why the promise of dignity, equality, and rights for women, including the right of security in the public and private domain, still eludes so many South African women, particularly those who are poor.
Yes—Paul Robeson may have celebrated and he may have lamented—but his legacy has shown that even as one struggle ends, new ones surface. And that the project of justice, human dignity, and equality requires ongoing vigilance and continuous struggle.”
A note regarding the aforementioned “peaceful transition in South Africa from apartheid and authoritarianism to democracy:”
Although the transition in South Africa was perhaps “peaceful” in broad historical and comparative terms, there was in fact a considerable amount of violence, the bulk of which was not committed by the ANC’s armed wing, Umkhonto weSwize (‘Spear of the Nation,’ or ‘MK’ as it was commonly known). From February 1990 to April 1994, roughly 14,000-15,000 people died as a result of such violence. In fact, as Janet Cherry points out, “more people died in the four-year transition, after MK had suspended its armed struggle, than in the preceding three decades.”
In my last post, I argued that had the Supreme Court -- a la Justice Thomas's concurrence in the Town of Greece case -- never "incorporated" the Establishment Clause against the States, it might still have developed broadly similar limits on state authority by way of the Free Exercise Clause. (It might also have done so by way of Equal Protection or Due Process or otherwise, but I'm going to focus on Free Exercise here.)
I want here to suggest three observations -- not so much full-blown arguments as data points -- supporting that counterfactual conclusion.