The latest draft of my bibliography for human rights is 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 firstname.lastname@example.org
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.