ReligiousLeftLaw.com

Did you hear the one about the Dalai Lama and the writer who went into a bar?

Time for a few smiles!

NYT, May 28, 2010

One More for the Path

By JOHN KENNEY

Buddha was not a god. He was a human being like you and me, and he suffered just as we do.

— “The Heart of Buddha’s Teaching,” by Thich Nhat Hanh

His Holiness said his experience was that the American people in general tend to react quickly to developments, being very joyous when something good happened or feeling depressed when something bad took place. He suggested that they needed to take time to think over the development.

— The Dalai Lama’s Web site, reporting on his visit to New York last week

BY now it was late and we were at Pastis and His Holiness was trying to get the bartender’s attention. The place was crowded and His Holiness seemed annoyed.

“What does a guy have to do to get a beer around here?” he said, more under his breath than to anyone in particular. Then he started laughing. “Patience, right? Let’s live in this moment. It’s just that it would be a better moment if we had beer.” Then he started laughing again.

I hadn’t seen him in a long time. I grew up on the farm next to his family’s in Tibet. I still knew him as Lhamo Dhondrub, his birth name, and I said, “Do you mind if I call you Lhamo?” And he smiled and said, “Yes, I do mind. Call me Mr. Dalai Lama.” I thought he was serious but then he laughed but I got the sense he was kind of serious. That’s the thing about the Dalai Lama. He loves practical jokes but is also touchy.

We were both seated cross-legged at the bar and eating hard-boiled eggs, one after another. We talked about Siddhartha and his search and the bodhi tree and the Four Noble Truths and also the Noble Eightfold Path and how it’s really badly organized and why didn’t the Buddha just make it simpler?

The Dalai Lama thought deeply and stared into my eyes with a look of benevolence. Then he said, “Do you know what word I find funny? Underpants.” We laughed, because I think underpants is a funny word too. Then these two women I’d noticed who were standing near us came over and said, “What’s so funny?”

The lama said, “Underpants.”

The women raised their eyebrows, as if to say, “Naughty!” And then they laughed too because even though the word underpants is funny, the way the Dalai Lama says it is even funnier.

We all caught our breath and the Dalai Lama said, “So what do you girls do?”

Chrissie worked at an ad agency on Mountain Dew, which the Dalai Lama had never heard of and was confused by. And Bethany worked at Bloomberg Business Week in sales.

They asked what I did and I told them, freelance poetry. And they asked the lama and he said, “I’m the 14th Dalai Lama and the spiritual leader of Tibet.” Bethany said that sounded awesome and Chrissie said she had a friend who she thought did the same thing. Then Chrissie said, “Do you guys want to party? We know about this awesome thing that’s happening at Marquee.”

The lama said, “That sounds cool.”

I nodded and Bethany said, “That reminds me. The Buddha talks about the Five Aggregates as form, feeling, perception, volition and consciousness. Sometimes I feel fat even though I know I’m not. Is that feeling or perception?”

The lama said, “I have no idea but you’re definitely not fat.” Then we all laughed because she wasn’t.

Then he got serious and said, “In the Ratnakuta Sutra, Chapter 23, there is a story about the Five Aggregates. A man throws a clod of earth at a dog. The dog looks at it and barks furiously. The dog does not realize that it is the man and not the clod of earth that is responsible. It’s not a great story.”

We all shook our heads because it wasn’t a great story and the word “clod” was annoying.

Chrissie said, “What’s the point?”

The Dalai Lama said, “I think it’s something to do with duality.”

Then we all meditated for a bit but the bartender got weirded out and asked us to leave. We took the women’s numbers and said we’d call but we knew we wouldn’t and the lama was like, “Why do we do that? It’s just wrong.”

“I might call Chrissie. She seemed great.”

“I should call Bethany but what’s the point? It’s the same awkward conversation every time I mention the celibate thing and not wanting children and living in India. I’ve got to get a place here.”

I said, “You want to play pool, have a nightcap?”

The Dalai Lama said, “I was about to say no when I thought of a line that made me realize the moment, that brought me back from drifting.”

“What was the line?” I asked.

“It’s all for you, if you really want it. It’s all for you, if you say you need it.”

“Did the Buddha say that?”

“Janet Jackson. The “All for You” album. Virgin Records. Released April 24, 2001.”

We walked downtown, trying to hail an off-duty cabby who made a rude gesture at us and so we did too, then regretted it, then laughed.

“Life is suffering,” the lama said. “But would it kill the guy to stop just to see if we’re going in the same direction?”

[John Kenney is a writer.]

"From Religious Freedom to Moral Freedom"

Yesterday I posted a new paper to SSRN.  Some ReligionLeftLaw readers may be interested.  Here is the abstract:

In one or another articulation, the right to religious freedom is a familiar part of national constitutions and of regional and international human rights instruments. The canonical articulation of the right is that of Article 18 of the International Covenant on Civil and Political Rights, to which the United States is one of more than 160 state parties. I argue in this essay that the "logic" (so to speak) of the best case for the right to religious freedom also supports an analogous right to moral freedom. At the end of the essay, I comment on the proper, and properly limited, role of religiously grounded moral premises as a basis of laws and other policies that implicate the right to moral freedom.

This essay will appear in a symposium issue of the University of San Diego Law Review -- a symposium issue devoted to freedom of conscience. A shorter version of the essay will appear in Religion and Human Rights, edited by John Witte Jr. and M. Christian Green (Oxford University Press, forthcoming).

Some of the material in this essay first appeared in my new book, The Political Morality of Liberal Democracy (Cambridge University Press, 2010), the table of contents and introduction to which are available at http://ssrn.com/abstract=1525920.

Comments welcome: [email protected]

[The paper is downloadable here.]

Abortion and the "excommunication" of Sister Margaret McBride

Some ReligionLeftLaw readers may be interested in these posts at Mirror of Justice:  here, here, and here.  There are other, related posts--and no doubt will be more.

Jim Wallis and the Tea Party

Jim Wallis has an interesting essay in the Huffington Post describing the many ways in which the Tea Party departs from Christian principles. He cogently discusses its privileging of choice and of the market, and he discusses the likely racism of the Party. The part I like the best though is his discussion of the unbiblical character of the Tea Party’s impoverished conception of the role of government. He suggests this finds little support in the Bible: “Just look at the biblical prophets in their condemnation of injustice to the poor, and how they frequently follow those statements by requiring the king (the government) to act justly (these requirements applied both to the kings of Israel and to foreign potentates). Jeremiah, speaking of King Josiah, said, "He defended the cause of the poor and needy, and so all went well."(Jeremiah 22:16). Amos instructs the courts (the government) to "Hate evil, love good; maintain justice in the courts" (Amos 5:15). The prophets hold kings, rulers, judges, and employers accountable to the demands of justice and mercy. . . .

“In Romans 13, the apostle Paul [describes] the role and vocation of government; in addition to the church, government also plays a role in God's plan and purposes. Preserving the social order, punishing evil and rewarding good, and protecting the common good are all prescribed; we are even instructed to pay taxes for those purposes! Sorry, Tea Party. Of course, debating the size and role of government is always a fair and good discussion, and most of us would prefer smart and effective to ‘big’ or ‘small’ government.”

Whatever Happened to the Middle?

When I saw the title of Joan Chittister’s column, Whatever Happened to the Middle?, I expected to be disappointed. I had recently read a column in the Chronicle Review, maintaining (apparently with approval) that law schools are becoming post-radical and post-ideological (Kagan is styled as a hero). My reaction to that column was that we need more, not fewer radicals in a time where corporate power is so strong. (Indeed, the decline of the middle is largely a story of corporate power).

Chittister, however, is not promoting dullness or politics without vision (indeed Kagan hired scholars of the left and right – the Chronicle column is itself misleading). Although I think American politics suffers from an inadequately populated left, the driving of moderates from the Republican Party is also a matter of significant regret. Chittister, a pro-life Catholic progressive, is critical of segments of the right from the Tea Party to the leaders of the Catholic Church (among other things, she wonders why children of lesbians cannot attend Catholic schools, but Protestants have been able to do so – even when it as thought they were going to hell), and she tries to push the agenda in more promising directions.

 

But the column primarily speaks against intolerance and the relative absence of a deliberative democracy.  She says that: “In a society facing global change in every arena -- science, economics, governance, education, ethics, sex roles and medicine -- it is lack for respect of questions, not the presence of answers, that is really the problem. The questions are serious but, in the face of intimidation or the presence of unnecessary vitriol, they are either being unasked or unheard. . . . From where I stand, it seems to me that a society without a middle -- or worse, a society where the middle is suppressed, where the questions are rejected, labeled and condemned, where thinkers are intimidated, drummed out of the corps, derided and suppressed by those whose pronouncements do not admit of questions -- is a society at war with itself.”

How the Bishops Get Health-Care Legislation Wrong

That's the title of of piece by Washington & Lee law prof Tim Jost, who is Mennonite.  Tim is widely recognized as one of the premier health law scholars in the United States.  Tim begins:

"On May 20, 2010, the Secretariat of Pro-Life Activities of the United States Conference of Catholic Bishops issued a statement supporting H.R. 5111, sponsored by Congressmen Joseph R. Pitts (R-Pa.) and Dan Lipinski (D-Ill.). H.R. 5111 is prolife legislation intended to protect the unborn and the consciences of health-care providers, and it is not surprising that the USCCB should support this bill. Unfortunately, the USCCB used this occasion to attack once again the major health-care legislation that was signed into law in March, the Patient Protection and Affordable Care Act (PPACA). The USCCB continues to misunderstand the provisions of PPACA and contributes to confusion about its content. This analysis is intended to correct the USCCB’s erroneous characterizations of PPACA, and to clarify what the legislation actually says and does. . . .

Public polling repeatedly reveals that Americans are confused about what the health-reform legislation does. The legislation is long and complicated, and some misunderstanding of the bill is inevitable. It is unfortunate, however, that this confusion continues to be fed by mischaracterizations of the legislation by the USCCB."

Read the rest in Commonweal.

The Dalai Lama: "Many Faiths, One Truth"

"WHEN I was a boy in Tibet, I felt that my own Buddhist religion must be the best — and that other faiths were somehow inferior. Now I see how naïve I was, and how dangerous the extremes of religious intolerance can be today.

Though intolerance may be as old as religion itself, we still see vigorous signs of its virulence. In Europe, there are intense debates about newcomers wearing veils or wanting to erect minarets and episodes of violence against Muslim immigrants. Radical atheists issue blanket condemnations of those who hold to religious beliefs. In the Middle East, the flames of war are fanned by hatred of those who adhere to a different faith.

Such tensions are likely to increase as the world becomes more interconnected and cultures, peoples and religions become ever more entwined. The pressure this creates tests more than our tolerance — it demands that we promote peaceful coexistence and understanding across boundaries.

Granted, every religion has a sense of exclusivity as part of its core identity. Even so, I believe there is genuine potential for mutual understanding. While preserving faith toward one’s own tradition, one can respect, admire and appreciate other traditions.

An early eye-opener for me was my meeting with the Trappist monk Thomas Merton in India shortly before his untimely death in 1968. Merton told me he could be perfectly faithful to Christianity, yet learn in depth from other religions like Buddhism. The same is true for me as an ardent Buddhist learning from the world’s other great religions."

Read the rest of the Dalai Lama's op-ed, in this morning's Times.

A review of Steve Shiffrin's new book

The reviewer--Professor of Law and English, Cornell University; Mellon/LAPA Fellow in Law and Humanities and Visiting Associate Professor of Comparative Literature, Princeton University--says that "[t]hese comments were initially presented at the book celebrations in honor of Steve Shiffrin held at Cornell Law School in November of 2009. Discussions with copanelists Sally Gordon and Kent Greenawalt, as well as with Steve himself, helped shape the final version of these remarks."

The abstract:

This essay comments on Steve Shiffrin's The Religious Left and Church-State Relations. It contends, on the one hand, that Shiffrin has valuably brought to the fore various reasons why religious believers might resist close relations between church and state. On the other hand, it argues that no fundamental connection exists between the "religious Left" and a particular position on church-state relations and that religious liberals will not necessarily be more persuasive than secular liberals in arguing against positions espoused by religious conservatives.

[Paper downloadable here.]

Can one be a hillbilly *and* a Thomist?

Of course one can.  I've seen it done.  And you can too, if your click here:  View this photo.

(HT:  My Emory colleague, Aquinas Professor Philip Reynolds.)

Is Pornography Bad for Its Consumers?

Catharine MacKinnon led a movement arguing that a class of sexually oriented material was harmful to women: it led to sexual assaults and sexual discrimination. Wendy Maltz persuasively argues in the Psychotherapy Networker (a respected professional journal) that porn is bad for its consumers as well. Maltz decades ago used to recommend pornography to her clients. She now, together with many other analysts, has concluded that pornography distorts human relationships in very serious ways. It is a major cause of divorce and relationship difficulties. Maltz describes it as a cousin to sexual abuse.

She says: "Added to my pile of concerns about porn, the realization that porn could be used as weapon against vulnerable children and women was the last straw. The clearer I became about conditions necessary for experiencing healthy sexuality—consent, equality, respect, trust, safety—the more doubt I had about advocating pornography as a sexual-enhancement product. How can I support something that portrays sex as a commodity, people as objects, and violence, humiliation, and recklessness as exciting? What am I doing encouraging people to condition their arousal to self-centered, sensually blunted, loveless sex? Do I really want to be advocating a product that's associated with causing sexual harm and relationship problems?

"My primary concern about porn wasn't that it was sexually graphic, explicit, or hot: it was that porn conveyed harmful ideas about sex and could lead to hurtful and ultimately unrewarding sexual behaviors." Porn leads to sexual addiction and unhealthy obsessions. According to Maltz, pornography has grown from a side issue to a central issue in sexual counselling. I suppose this is not surprising. Pornography, according to Malz, is a $13 billion dollar industry in the U.S. and $100 billion worldwide. It accounts for 1/3 of all downloads. It is not surprising that psychotherapists see a rise in sexual disfunction.

What is the Tea Party anyway?

Back on May 13, I posted something by Mark Lilla on the Tea Party.  Today, Elizabeth Sanders, a ReligionLeftLaw blogger, posted a comment in response to that post.  Elizabeth's comment is not to be missed ... so here it is:

I'm not sure it's accurate to see the Tea Party as libertarian, in view of its flamboyant nationalism, apparent militarism, and unyielding defense of Medicare and Social Security. We may be over-intellectualizing an assortment of malcontents. I attended a TP rally in Alabama in April. It celebrated soldiers and the Bible (Judge Roy Moore of Ten Commandments fame is running for governor and was the most rabble-rousing politician to address the rather small crowd).

From my informal survey of my high school class (which appears to celebrate the TP), I tend to agree with NYT columnist Tom Friedman, who wrote in a recent Op-Ed,

“Our parents were “The Greatest Generation,” and they earned that title by making enormous sacrifices and investments to build us a world of abundance. My generation, ‘The Baby Boomers,’ turned out to be what the writer Kurt Andersen called ‘The Grasshopper Generation.’ We’ve eaten through all that abundance like hungry locusts.”

I am a Baby Boomer too. Most of the audience at the TP rally I attended were baby boomers; most, I dare say, already on Medicare (or if not, probably some of the lucky few who are still working, and, like me, have generous employer-provided health and retirement programs).

What I hear the Tea Party baby boomers and their upper-income allies saying is this:

“I’ve got mine. My government-provided health care is the most generous available. I can fall and bruise my foot and get taken to the hospital in an ambulance for days of “observation,” and pay almost nothing. I can make innumerable visits to the doctor for every health worry…and they are abundant in my over-fed, under-exercised generation. Instead of telling me to shape up, cut the fat and salt from my diet and walk for an hour a day, the doctor will give me prescriptions for drugs for my blood pressure and cholesterol and the indigestion that attends overeating, all paid for by the government. I may live forever (granted, without large chunks of my mind); but my doctor and hospital and the hugely profitable pharmaceutical industry have every financial incentive to keep my body alive.

“I ignored the Bush policy of conducting two big wars—one based on stories about Saddam Hussein being ready to launch a ‘mushroom cloud’ at us. I thought it was fine to have two big wars while cutting taxes on upper-income people like me. I agreed with Alan Greenspan when he told Congress to ignore the growing deficits and not try (like Clinton and the Democrats in the ‘90s) to cut the deficit and restore a balanced budget. I also backed the big Republican expenditures for new weapons systems, highways, agricultural subsidies, and more Medicare drug benefits (with no controls on drug pricing, and importation of cheaper drugs forbidden). After all, I benefitted from these policies.

“I also supported deregulation of the finance industry. I believed Bush and Greenspan when they said this would unleash great free-market energies with no possible downside. I watched as the EPA, SEC, and other regulatory agencies were virtually dismantled. Good riddance!

“Now economists say that all those chickens have come home to roost. The economy tanked because of deregulation and the rising burden of debt-financed wars and generous baby-boomer health care and retirement pensions.

“Now, suddenly, I NOTICE the debt, and I am outraged, OUTRAGED that the Democrats propose extending health care to young and low-income people. Granted, even my son, a small businessman, has no health insurance while paying a big chunk of his income in Medicare and Social Security taxes, but luckily he’s still pretty healthy.

“I want all entitlements and programs for people under 65 cut. I want the new health care bill repealed. I do NOT want ANY change in Medicare or Social Security. I refuse a higher co-pay, any limit on drugs or office visits, and I certainly refuse to work a month beyond my 66th-year retirement eligibility. I’m ready for golf, bridge, and seeing my friends in the doctor’s office waiting room. I’m happy for the high levels of unemployment that came with the economic crash of 2008, because now I can have a housekeeper, home health aide, and a yard man without paying an arm and a leg.

“I do NOT want to cut the military budget, which rivals entitlements for a huge chunk of the budget. We need to remain the world’s only superpower, with a military budget as big as all other countries put together. The way to fight terrorism is not with wimpy international police work and pressing Israel and India to end their occupations of the West Bank and Kashmir. Let people over there go crazy with rage. We’ll just use our predator drones and missiles to wipe out their villages.

“So the only way to pay down the huge deficit and cumulative debt that suddenly worries me is to repeal the health care reform and cut things I don’t care about. I hear foreign aid is less than one percent of the budget, but I’m fine with it going to nothing if that will help to protect my Medicare drug benefit. I also think we spend too much on education and research. Let the private market provide those services.

“They can also cut out the EPA, as far as I’m concerned. I don’t go to Gulf Shores much anymore, since my walker doesn’t roll well in sand. And besides, Rush Limbaugh says the ocean will gradually absorb that oil without any remediation or regulation. Drill Baby Drill!

I also agree with him when he says we shouldn’t spend a taxpayer dime to protect silly Louisiana wetlands, if that would mean cutting any medical benefits for granny. After all, I am granny!

“Hear me roar!”

Why We Need Libertarians

Despite the absurdity of Rand Paul's interpretation of The Civil Rights Act of 1964 (as pointed out in the Panalver post), and the impracticality (to say the least) of abolishing environmental and food and drug regulation, the libertarian antiwar stance is a valuable addition to public debate. 

As The Week recently observed, "Just two years ago, it seemed unthinkable that Paul’s admittedly radical constitutionalism and non-interventionist foreign policy could even gain a hearing in a Republican Party so strongly identified with the Bush administration."

When I was a new assistant professor at Rice University in the 1980s, I foolishly joined another young colleague in circulating a petition among Rice faculty opposing U.S. aid to El Salvador, where death squads ran rampant under a brutal government backed by the U.S. We got only a few signatures on our petition from Rice faculty, but sent it to our congressional delegation anyway. The only response we got was from Rand's father, Ron Paul, who heartily agreed with us on ending aid to the reprehensible government. One might object that Paul (and his son) want to abolish ALL foreign aid. But given the costs of U.S. wars and interventions, and the difficult-to-establish results of our paltry foreign aid (half of which is military assistance), that might not be a bad trade. 

If Rand Paul manages to sell his antiwar policy to the Tea Party, that will say something very remarkable about the movement. But this seems rather unlikely.

ES

Montgomery County Common Pleas Judge A. J. Wagner has asked to be excused from the case of Cody Henderson, 20, indicted on three counts of aggravated murder. It’s a death penalty case, and Judge Wagner opposes the death penalty.

[Thus begins an editorial in the Dayton Daily News, May 20, 2010.  The editorial continues:]

His desire not to serve clearly applies to all death penalty cases.

This is unusual. Several law school professors around the state who follow these matters were contacted by the Dayton Daily News. None could think of a case of a judge making such a request.

Presiding Judge Barbara Gorman approved the request, saying she has approved all requests for recusal.

Judge Wagner made his request not by filling out the usual form, but by putting together a 135-page submission. It includes material from a respected group of lawyers that has studied how the death penalty is applied.

Despite the length, his argument comes down to a simple matter: He cannot justify the death penalty on moral, constitutional or religious grounds. So is he right in recusing himself?

Well, if he is not going to impose the death penalty no matter what, then, of course he should not be sitting on a death penalty case. The law obliges him to proceed on a case-by-case basis. A judge has to follow the law.

The larger question here is whether somebody who can’t follow the law should run for a position as a common pleas judge. Capital cases are part of the territory, after all. Could he have done something short of recusing himself?

Lori Shaw, assistant dean for student affairs and professor of lawyering skills in the University of Dayton School of Law, suggested one option might have been hearing the case but then ruling that the death penalty is unconstitutional. That ruling wouldn’t prevail, but it would fight the fight, at least more than simply passing the case on to somebody else.

Judge Wagner wonders, however, whether it would be appropriate to preside all the way through a capital case in the full knowledge that he wouldn’t apply the ultimate sanction.

Judge Wagner isn’t slated to face voters until 2014. Whether pro-death penalty voters should be upset with him is not so clear. After all, if he refuses to hear a case, the case might go to a judge they might like better.

Still, some voters are likely to have an opinion on this matter.

Even before that, though, the question arises: Should a judge stay in a job in which he refuses to do the biggest, toughest tasks?

Judge Wagner says the question isn’t compelling because death penalty cases are rare. This is his first, except for one in which a plea bargain had been arranged, he said.

Recusing oneself from a case is a respected mechanism. It’s used when a judge knows a person involved in the case or has some other potential conflict of interest. But it’s typically used one case at a time, not for a category of cases.

And not for such a tough category. After all, many judges dread death penalty cases. Some oppose the death penalty as law, but feel they must enforce the law. When a judge declines to take up the burden, that means somebody else ends up with it, in this case Judge Mary Wiseman.

Judge Wagner says that when he first ran for judge at the beginning of the last decade, he thought he could handle a death penalty case. His thinking gradually changed. But he was last elected in 2008 (unopposed).

He has now thrown the court and the public a curve ball, and some people have a right to be upset.

The first man for whom I worked, after finishing law school, and, still, the best man for whom I have worked since finishing law school thirty-seven years ago this month: Judge Jack B. Weinstein

Judge Weinstein is still trying to make the law "less cruel".  Read about it, in the New York Times, here.

Simon Critchley on Philosophy

 
I’ve joined the chorus commenting on Simon Critchley’s article in the New York Times: “What is a Philosopher?” at the Legal Ethics Forum.

 

Image: Luca Giordano, The Death of Seneca (1684)

Rand Paul and Places of Public Accommodation

In today's article in the NY Times on the Rand Paul, civil rights controversy, the reporters said this:

Mr. Paul said in an interview with Rachel Maddow on MSNBC on Wednesday night that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business; he raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio.

It's hard to know whether the ignorance evinced by the distinction drawn in the paragraph is Paul's alone or whether the NY Times reporters also think there is some difference between "the sections of the Civil Rights Act that applied to public accommodations" and the sections that apply to "private business."  I hope it's the former, but even if it is, they should have used the opportunity to explain what is probably not obvious to most people:  the public accommodations provisions of the law are the very same as the sections aimed at privately owned businesses.  This is because -- in Title II of the Civil Rights Act -- the question whether an accommodation is public has nothing to do with who owns it.  Rather, it has to do with whether it is the sort of facility that opens its doors to all comers who are willing to (1) behave themselves and (2) pay the price charged for the services rendered. 

Here is how the law defines "public accommodation":

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

Virtually all of these establishments are privately owned under most circumstances, although some of them (e.g., stadiums and concert halls) are frequently publicly owned.  So anyone who is familiar with this statute -- and, in fact, with the history of the debate over Title II -- knows that if you eliminate its applicability to privately owned businesses, you eliminate the bulk of Title II.

The logic behind applying Title II to privately owned places of public accommodation is that a business owner who opens his private property to operate this sort of business has a very limited interest in picking and choosing among the people he will serve.  The relationship that is established by serving a customer under these circumstances is highly attenuated and, as a consequence, being forced to serve all comers (a doctrine with deep roots in the common law of property in its treatment of so-called "common carriers") is barely an infringement of the liberty interests of owners.  If you don't want to interact with black people even in the shallow context of  casual commercial interactions, don't open a restaurant or soda fountain.  Instead, open a private club, which the law exempts from its reach.

On the other hand, the infringement on the liberty of those excluded is substantial.  What makes libertarians like Paul and his defenders seem so obtuse -- and the reason you will not find many black libertarians -- is that they categorically elevate even the very attenuated liberty interest a property owner has in being able to pick and choose customers on the basis of race such that it trumps everything else, including, the dignity of black citizens in being able to engage in commercial activity without the risk of humiliation or violence. 

If you look in the comments of the thread of my dotCommonweal post, you'll see this logic at work in the arguments raised by one libertarian commenter, who said that the harm suffered by a black person excluded from a soda fountain is of a different nature from the harm imposed when the state coerces, presumably (for example) by mandating non-discrimination in privately owned places of public accommodation.  Set aside the fact that the enforcement of owners' "rights" to exclude on the basis of race is built on a foundation of coercion (just look at the video I linked to in the last post, which showed peaceful sit-in protesters being beaten by private citizens before being arrested for criminal trespass).  Set aside the networks of private coercion that prevented non-racist business owners in the pre-civil-rights South from opening their doors to black customers for fear of reprisals or lost business.  It is only a categorical decision at the outset to privilege rights that bear the label of "property" above other types of interests that allows a person to conclude that denial of interests in access is less significant than the rights of business owners to discriminate among their customers on the basis of race.  My guess is that such a prioritization of abstract rights of private ownership over rights of nondiscriminatory access is greatly facilitated by never having experienced the sting of racial exclusion.

The Rise of Sarcasm

Does the prevalence of sarcasm mark our age as distinctive? Skye Jethani so argues here. If sarcasm is on the increase, is it a good thing or a bad thing? And why is it on the increase? According to Jethani,"Phil Vischer, the creator of VeggieTales, gave a speech at Yale in 2005 in which he unpacked the media values of our generation -- the slow descent from our parents' ‘dry, cocktail party wit of Johnny Carson’ to the ‘sarcasm and twisted humor’ of David Letterman, and the emergence of the bottom-feeder humor that is Beavis and Butt-head and South Park. In these shows, Vischer says, ‘we had found our voice. We were safe from the world, as long as everything was treated as a joke.’He continues: Some folks believe Vietnam was the source of America's modern cynicism. Others point to Watergate. But for me and for many others in my generation, the real root, I think, is much closer to home and much more personal. When we were very young, our parents broke their promises. Their promises to each other, and their promises to us. And millions of American kids in a very short period of time learned that the world isn't a safe place; that there isn't anyone who won't let you down; that their hearts were much too fragile to leave exposed. And sarcasm, as CS Lewis put it, ‘builds up around a man the finest armor-plating ... that I know.’”

 

Sarcasm seems to me to be a mixed bag. It is an effective rhetorical tool in criticizing customs, habits, institutions, and authorities. It is funny. Jon Stewart and Stephen Colbert are justifiably successful. But it does create an emotional distance – a dehumanizing “armor-plating.” As Jethani argues, it distances us from our anger and our fear. As I read him, he believes we cannot break through to love without confronting our anger and our fear. And, surely, sarcasm in private conversation throws up interpersonal barriers rather than opening the way to strengthening interpersonal ties.

Rand Paul

[Cross-posted at dotCommonweal] 

Rand Paul has been making waves for his criticism of the Civil Rights Act of 1964's prohibition of discrimination in places of public accommodation.  Title II of the CRA makes it unlawful to discriminate on the basis of race (and a number of other grounds) at establishments like restaurants, movie theaters, etc.  Paul's timing is interesting, since this year is the 50th anniversary of the lunch-counter sit-ins, which really put the public accommodation question on the civil rights agenda in early 1960.  Although fairly controversial at the time, the idea that private owners cannot exclude from places of public accommodation (i.e., businesses that they have opened to, for the most part, all comers) has become part of the legal furniture of our lives.  I would guess that only a tiny number of Americans at this point think that private business owners have the right to hang a sign in their window saying "whites only," but apparently Rand Paul does.   If he were elected, I'd wager he'd be the only member of the United States Senate who has openly expressed opposition to Title II in the past 30 years.

Of course, it's almost certainly true that very few business owners these days would put out a "whites only" sign, at least if they wanted to remain in business for long, but that is almost certainly a testament to the success of Title II (among other things) in changing norms about the propriety of racial discrimination.   And, of course, stories of more subtle or ad hoc forms of racial exclusion from places of public accommodation are fairly easy to come by.  So it would be wrong to think that the law does not have something important to contribute.  In addition, there is no doubt that employment discrimination (prohibited by Title VII) continues to be a problem in the United States, as well racial discrimination in private housing markets  (prohibited by the Fair Housing Act, aka Title VIII of the Civil Rights Act of 1968).  I hope folks in the press will ask Paul what he thinks about those provision, which libertarians have also criticized as infringements on the rights of property owners and employers.

Listening to Paul on NPR last night, what struck me most was his inarticulate ignorance.  He admitted that he had little idea what was actually in the Civil Rights Act of 1964.  I doubt he has much idea about the history behind it or the impact that private discrimination in places of public accommodation.  If he's interested in boning up, he might want to start with this documentary.  Notwithstanding his admitted lack of information, he steadfastly refused to say he supported the prohibition of discrimination in places of public accommodation.  It will be interesting to see how mainstream conservatives respond to this.

abortionsamesexmarriage

I was at a conference last week in Prague and missed the Pope’s statement in Fatima that abortion and same-sex marriage were “some of today’s most insidious threats” to the common good. James Martin, S.J., responding to this, reports here that, “A good friend of mine, who is gay, recently resigned from his position at the U.S. Conference of Catholic Bishops, in Washington, D.C., where he said, with great dismay, that ‘abortionsamesexmarriage’ had become one polysyllabic word among some of his bosses.”

Martin wonders: “Why has same-sex marriage been equated with abortion? Are they really equivalent ‘threats’ to life? If you're looking for a life issue with stakes as high as abortion, why not something that actually threatens life? Like war? Or the death penalty? Or the kind of poverty that leads to death? Why aren't ‘abortion and war’ the most ‘insidious and dangerous’ threats to the common good? Or ‘war and the death penalty’? Or ‘war and poverty?’”

Perhaps the Pope paired the two because Portugal’s parliament had recently approved same-sex marriage and Portugal had approved abortion in 2008 (his opposition to both abortion and same-sex marriage is hardly news). Nonetheless, the pairing of abortion with same-sex marriage is common practice among American conservatives and the pairing of the two by American Bishops together with their opposition to the health care legislation suggests that they have chosen to emphasize those beliefs of theirs that could qualify them as a spiritual wing of the Republican Party.

More on Robby George's Approach to Constitutional Interpretation

In a recent post at Mirror of Justice on May 16, Robby George was able to identify only two justices (White and Black) appointed by Democratic Presidents in modern times that he could approve – those who he said applied what he calls “constitutionalist” premises. Judges are constitutionalist in Robby’s sense only to the extent to which they confine themselves to the “text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or ‘original’) meaning.”

In response to an earlier post of his, I asserted that Robby’s limitation on constitutional sources has been rejected in practice by the overwhelming majority of Supreme Court justices in modern times. I suggested that constitutionalism is Robby’s theory, not the Court’s. In other words, if a sociologist examined what justices do, he or she would recognize that the practice of constitutional interpretation is not confined to Robby’s sources. In fact, justices look to language, history, structure, precedent, policy, and occasionally the Court’s power (or limits thereof) as constitutional sources in arriving at constitutional interpretations. 

There are many who say that justices who use policy arguments (based on morality or practicality or efficiency) are not doing interpretation, but are engaged in legislative reasoning. This is a normative institutional claim, not a descriptive claim of what justices actually do. Moreover, the community of discourse in which constitutional interpretation is situated is not a open-ended as legislative reason. Justices cannot do whatever they want simply because policy is a constitutional source. For example, the Constitution does not guarantee adequate food, clothing, education, housing, and health care to all. As Henry Monaghan once said, we do not have a “perfect Constitution.” In my view, the Constitution is an unjust document because it fails to protect the poor; I do not think it would be appropriate to use constitutional interpretation to change that; the policy arguments one can use are limited by the history and tradition in which our Constitution is embedded.

Robby points to Ronald Dworkin’s article in the New York Review of Books: A Moral Reading of the Constitution. Dworkin say that justices do not admit they are making moral arguments though they should. I think this is incorrect even as to moral arguments (they do explicitly make moral arguments), but it is blatantly false if it is intended to suggest that justices do not routinely make policy arguments. Policy arguments permeate first amendment discourse for example. In the recent Stevens case the Court made an attempt to explain the exceptions to first amendment protection by reference to history. But the fact is that the Court protects far more speech than was protected at the time of the founding (think of defamation and advocacy of illegal action) and the greater protection has been developed by policy arguments. The use of standards of review in equal protection simply states weights for policy arguments. The same is true in the commercial speech area and the time, place, and manner area. Policy analysis is a part of constitutional interpretation; it is a part of constitutional law. The term “constitutionalist” understood in a descriptive sense would include policy.  Robby's constitutionalist in fact is an anti-constitutionalist.  

Of Apes, Dogs, Hermits and 'Halakhic Man'

Hello All,

I've just had a chance to read Michael P's fascinating post of earlier this week, on 'Ape Pieta.'  I had heard brief mentions of the practices described in the piece that Michal quotes, but only on reading the detail in this piece, and taking a look at some of the images linked in it, have I come to appreciate how profoundly affecting they are.  How marvelous, indeed, are our nonhuman cousins!  I'm so very grateful to Michael for posting this. 

I've also got two quick comments to add in response to the piece which might be of interest here.

The first comment is this: Just as the studies reported in Michael's post indicate that we as humans will do well to avoid pretending to uniqueness in our capacities to mourn the losses of our fellows and venerate them, in view of chimpanzees' manifestly doing the same in response to losses of their own, so will observers of chimpanzees themselves do well to avoid pretending that these practices are confined to anthropoids.  For there is a wealth of literature, reportage, and of course (scads of) anecdotal evidence tending to demostrate beyond reasonable doubt that all manner of animals additional to humans mourn the losses of loved ones -- both intra- and inter-species loved ones -- and that they likewise experience multiple cognate forms of care.  They love, they miss, they pine, they experience joy upon reuniting, they are downcast when 'in trouble,' & cet. & cet. 

What is more, much of the evidence to which I allude involves, not only vocal or gestural expressions of such forms of care, but also what often appear to be evocatively symbolic ones too -- as in, for example, the recently reported case of a dog who transferred the entirety of her horde of socks, toys, and other hidden treasures to the bed of her human companian while that companion was convalescing after a bout with cancer, only to return the goods to their hiding place once the companion had recovered.  I think, then, that the story that's begun to be told in the piece quoted in Michael's post will ultimately prove to be much richer even than is apparent in that piece itself. 

This takes me to the second comment.

The second comment has to do with the third and final paragraph of the piece quoted in Michael's post.  While I by and large admire the first two of the piece's paragraphs, I find the third a bit puzzling in juxtaposition with them:  At the end of the second paragraph, the author suggests that the chimpanzee practice of carrying dead infants on their backs is a 'culturally transmitted tradition[ ]' among the chimps.  Immediately thereafter, in beginning the third paragraph, the author enjoins us to 'ponder the significance of the fact that chimpanzees, aware of their mortality, grieve and mourn without religious symbol or ritual.' 

Leaving to one side the fact that nothing in the tales the author recounts in the first two paragraphs seems to speak one way or the other about any 'aware[ness] of their own mortality,' what I find puzzling here is this: the 'cultrually transmitted tradition[ ]' to which the author refers would seem itself just to be the 'religious ... ritual' that he declares to be 'absent,' would it not?  Indeed, it seems as pure and elemental a ritual practice as one can imagine -- at least assuming, as seems altogether safe to assume, that the chimpanzees are aware of the fact that their mummified infants are indeed deceased.  Why, then, not view chimp practice as itself a form of religiosity in the only honest sense of that word -- not a 'nascent' religiosity, as the author countenances, but a religiosity much more pure and august than any of the cheap cant we encounter each day at the hands of human (political and) 'religious authorities' all over the airwaves and all over the planet? 

I recall, as an undergraduate, attending a series of what were billed as 'Asian film masterpieces.'  One of these old films, from 1960s Japan I think, was set in the late-mid-1940s.  It concerned a hermit who inhabited one of the islands on which thousands of Japanese and American soldiers had died in the Second War.  All that this man did, day after day, was bury dead soldiers, irrespective of their nationalities.  Nobody else was doing this -- or, if I recall correctly, even living on the island.  The man said nothing, asked for nothing, asserted nothing, denied nothing, perhaps even wondered nothing.  He simply buried the dead.   

This was the most stirring bit of liturgy, I think, that I've ever witnessed, immeasurably more powerful than anything I've experienced in any formal ecclesial context.  But the lesson I take away from it is not that which the author of the piece Michael posted seems to take from chimpanzee practice.  The real lesson, I think, is that there is no more need, or warrant, for asserting a metaphysical absence than there is for asserting a metaphysical presence in the face of such stirringly resolute payments of love and respect as those we find among our fellow creatures including chimps, dogs, and hermits.  It strikes me as profanation -- it's bullsh** -- to put any metaphysical spin what ever on these powerful acts.  They are enough.  They speak for themselves.

In a way, it might be that the sensibility which leads one to react in the way that I do to this third paragraph is that of what Rabbi Soloveitchik, I believe, called 'Halakhic Man' -- the observant who is averse to waxing romantic, rhapsodic, or metaphysical about matters religious, preferring simply to 'pay the proper respects,' 'in the prescribed manner.'  It is also, of course, distinctly possible that I've got Rabbi S wrong.  But if I am right, then my guess is that the good Rabbi would also have found the anecdotes to which I've alluded here, as well as those recounted in Michael's post, fit for an appreciative nod.  For all of them have in common the fact that those 'paying the proper respects' do not purport to be doing anything magical -- they do not claim to turn water into wine or wine into blood, they do not pretend to 'change the course of the universe' or 'enter into the divine economy' or anything else of that gaudy sort.  They simply are fitting.  And that is enough.

Warm thanks again to Michael,

Bob

The Political Morality of Liberal Democracy

Michael J. Perry’s book, The Political Morality of Liberal Democracy (2010) receives (yet again) a favorable review at Notre Dame Philosophical Reviews (NDPR) by James Boettcher (St. Joseph’s University). From the conclusion of the review:

“…The Political Morality of Liberal Democracy is an important and timely book, with much to offer those working in political philosophy and constitutional law. It brings together in a unified theory the many ideas of one of our most distinguished commentators on the proper role of religion in law and political life.”

A Conversation With Tariq Ramadan

Islam, the West and the Challenges of Modernity

EVENT TRANSCRIPT April 27, 2010

European campaigns to ban burqas, the Swiss vote to bar new construction of minarets and attempted terrorist acts in the United States have renewed questions and concerns about the compatibility of Islam with Western society. Swiss-born scholar and philosopher of Islam Tariq Ramadan has written and spoken on the subject, generating widespread debate and reaction.

The U.S. State Department recently overturned his six-year ban from the country, allowing him to visit and speak in the U.S. How have his experiences influenced his views on the reform of radical Islam and the bridging of cultural differences? What can Western Muslims do to balance faith and modernity? And what lies ahead for the future of Islam in Europe, the U.S. and the rest of the world? Ramadan addressed these questions and related topics at a press luncheon hosted by the Pew Forum on Religion & Public Life.

Ramadan is a professor of Islamic studies at the University of Oxford's St Antony's College. He is also the president of a Brussels-based think tank, European Muslim Network, and the author of more than 20 books, including What I Believe, published in November 2009. Foreign Policy magazine named him one of the Top 100 Global Thinkers of 2009.

[Click here to read the transcript of the interview.]

Food for Thought?

An excerpt from Mark Lilla, “The Tea Party Jacobins,” New York Rev. of Books, May 27, 2010, available in full here.

We are experiencing just one more aftershock from the libertarian eruption that we all, whatever our partisan leanings, have willed into being. For half a century now Americans have been rebelling in the name of individual freedom. Some wanted a more tolerant society with greater private autonomy, and now we have it, which is a good thing—though it also brought us more out-of-wedlock births, a soft pornographic popular culture, and a drug trade that serves casual users while destroying poor American neighborhoods and destabilizing foreign nations. Others wanted to be free from taxes and regulations so they could get rich fast, and they have—and it’s left the more vulnerable among us in financial ruin, holding precarious jobs, and scrambling to find health care for their children. We wanted our two revolutions. Well, we have had them.

Now an angry group of Americans wants to be freer still—free from government agencies that protect their health, wealth, and well-being; free from problems and policies too difficult to understand; free from parties and coalitions; free from experts who think they know better than they do; free from politicians who don’t talk or look like they do (and Barack Obama certainly doesn’t). They want to say what they have to say without fear of contradiction, and then hear someone on television tell them they’re right. They don’t want the rule of the people, though that’s what they say. They want to be people without rules—and, who knows, they may succeed. This is America, where wishes come true. And where no one remembers the adage “Beware what you wish for.”

Bart Stupak responds

RLL readers may remember (it hasn't been that long ago) that Bart Stupak was vilified by some for the role he played in winning enactment of the Democrats' healthcare reform legislation.  Stupak now has his say, in the most recent issue of Newsweek (May 17, 2010).  You can read his piece, "Health Care Hell", here.  An excerpt:

By [March 21,] I had realized that health-care reform would pass, so rather than vote no and lose my power to add pro-life protections, I gathered my coalition to try to reach an agreement with President Obama: an executive order confirming that no federal money would support abortion. On that Sunday, seven or eight of us pro-lifers sat with silver urns of coffee, yellow legal pads, and red pens in a discreet room away from the White House, hammering out the language. We also put in a final call to the U.S. Conference of Catholic Bishops, which had been among my strongest supporters during the fall.

I was disappointed by what I heard. No, no, no, no, they said. We need statutory law. But an executive order can have the full force of law, I said. Lincoln used one to free the slaves. George W. Bush used one to block stem-cell research using human embryos. And President Obama assures me that this is "ironclad." Besides, I said, it's time to negotiate or lose our chance to shape the bill. Help me with it? No, they said. Won't you at least look at it? No.

That call changed my relationship with the pro-life movement. In the 18 years I've been in Congress, pro-life Democrats like me have delivered, working out compromises that protect human life. Now we had the most important piece of legislation for our movement yet—with pregnancy prevention, prenatal and postnatal care, and care for kids—and we couldn't get support.

In the past few weeks, I've received so many death threats that I was advised to get a security escort around Washington. My wife, Laurie, has had to unplug our home phone to avoid drunken messages from people screaming, swearing, and generally acting profane—usually around the time the bars in their states close. We've had to endure TV, radio, and bus-stop ads. One day I got 1,500 faxes, all hate mail.

Ultimately, what stings the most isn't the hatred. (After all, people hate cops, lawyers, and politicians, and I've been all three.) It's that people tried to use abortion as a tool to stop health-care reform, even after protections were added. That realization has stayed with me in the weeks since, a time that I've spent shuttling between Michigan and Washington, as I have for years. My decision not to seek reelection isn't about anything other than it being time to do something else with my life. The truth is that I've been thinking of a career change for more than six years. I was glad that I stayed to fight the bull. Now I'm glad the fight is over.

Ape Pietà

This piece, by Christian Sheppard for Sightings (Martin Marty Center at the University of Chicago), may be of interest to some RLL readers.  Sheppard is co-editor of Mystics: Presence and Aporia (University of Chicago Press, 2003) and is currently completing a memoir on mourning the death of his father after the death of God.

Sightings 5/13/10

 Ape Pietà

-- Christian Sheppard

 Two new ethological studies tell us how chimpanzees grieve, raising doubts about the uniqueness of human mourning as well as, perhaps, the superfluity of religious practice.  Laboratory scientists in Scotland have made unprecedented close observations of captive chimpanzees reacting to a long-time group member’s death and conclude that “without death-related symbols or rituals, chimpanzees show several behaviors that recall human responses to the death of a close relative.”  Behaviors displayed by these chimps before, during, and after the death of one elderly female include “respect, care, anticipatory grief,” “test for pulse or breath,” “attempted resuscitation,” “denial, feelings of anger toward the deceased,” “night-time vigil,” “consolation, social support,” “disturbed sleep,” “cleaning the body,” “grief, mourning,” and, finally, “leaving objects or places associated with the deceased untouched.”  After meticulously detailing the deathbed scene of this beloved chimp grandmother, these scientists are provoked to ask, “Are humans uniquely aware of mortality?”  It has long been known that chimpanzees, like humans, possess self-awareness, but that chimpanzees are also aware of their mortality is news that profoundly alters our own self-awareness. Our grief could be a sign, not of our humanity, but that we are apes.

Meanwhile, out of Africa comes other news to further refine awareness of our essential ape-ness. Field ethologists in Bossou, Guinea have studied one wild chimpanzee group’s macabre cultural tradition of “corpse-carrying”:  “The carrying of infants' corpses has been reported from a number of primate species, both in captivity and the wild — albeit usually lasting a few days only — suggesting a phylogenetic continuity for a behavior that is poignant testament to the close mother-infant bond which extends across different primate taxa.”  Corpse-carrying, like other signs of grief, may point to an awareness of mortality, but in Bossou grieving mothers have been observed carrying and caring for their children’s bodies over two months after death.  “Corpse-carrying may have become something of a Bossou "tradition", admits Bossou’s lead-scientist Dora Biro, suggesting that one chimp mother may have learned to carry her dead infant from another mother, who had been observed performing the behavior twice before.  It seems that chimpanzees not only grieve like us, but like us, they also invent traditions to deal with their grief.  Further ethological work in the lab and field may someday reveal what such culturally transmitted traditions mean for chimpanzees, but for humans, it is apparent that we are not the only beings who mourn.

Moreover, we ought to ponder the significance of the fact that chimpanzees, aware of their mortality, grieve and mourn without religious symbol or ritual.  While some might be tempted to interpret our fellow apes' mourning behaviors as a sign of some kind of nascent religiosity (although thereby complicating the claim that religion is uniquely human), these studies can be understood as undermining altogether the role of religion in our response to death.  Perhaps now better aware of our essential ape-ness in regards to death, grief, and mourning, traditional religious responses can be discarded as inessential.  Let the uncanny image of a chimpanzee mother tenderly toting her weather-mummified infant through primordial jungle (http://divinity.uchicago.edu/martycenter/publications/sightings/images/chimpanzee.jpg) be our post-Darwinian pietà, a post-religious icon to unfix our gaze from such traditional religious images as Mary mourning over her crucified son.  Where, for example, Michelangelo’s famous statue in Rome emphasizes the pitiful death of Jesus all the more to anticipate His resurrection and to promise believers their own eventual eternal triumph over death, our ape pietà offers no transcendental context, no after-life, no resurrection, no “good news” (for that matter, no reincarnation and no nirvana), no means of escape from our primal tearful awareness of our mortality.  So observing our chimpanzee kin raises our awareness of life’s amazing, wonderful variety, as well as life’s fearful finitude.

George and Kagan

In a recent post at Mirror of Justice, Robert George maintains that: “If, indeed, Kagan believes it is legitimate for judges to read into the Constitution liberal (or, for that matter, conservative) views about abortion, sexuality and marriage, religion, speech, or anything else, then she should be opposed for that reason.  In my judgment, a constitutionalist is someone who believes that the legitimate sources of constitutional meaning are the text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or "original") meaning.  A jurist who is willing to look beyond these sources of meaning in order to reach outcomes in line with his or her moral and political preferences undermines the Constitution by usurping authority it allocates to other actors in the system.”

I have a number of clarifying questions about this passage. First, I wonder if George counts precedent as a constitutional source of meaning. It is not obvious from the quoted passage that he does. Second, I wonder which justices serving from the Warren Court to the present meet this standard. Does anyone put forward by a Democratic President serving anytime from the Warren Court to the present meet this standard (perhaps Justice Black?)?

If I were to faithfully apply George’s standard (given my current understanding of it), I would conclude that the overwhelming majority of these justices are not constitutionalists in George’s sense. This would mean that George’s understanding of proper constitutional interpretation differs from that of the overwhelming majority of the justices over an extended period. George’s perspective appears to me to be a critical perspective, not a descriptive perspective. If one were describing what the Court does, I would think that the Court looks to language, history, structure, precedent, policy, and occasionally its power (or limits thereof) as constitutional sources in arriving at constitutional interpretations.

Should those who approve of the Court’s methodology oppose every “constitutionalist”? George apparently sees opposition to non-constitutionalists as defending the Constitution, or, as I see it, defending his subjective understanding of constitutional interpretation. There are many who think that a President should be given some deference in picking a nominee for the Court. That is, for example, no Democrat can reasonably expect a Republican President to pick a liberal. But I assume that apart from his personal theory of constitutional interpretation, George has no grounds to criticize Democrats if they oppose “constitutionalists.”

Depressing Thoughts about the Kagan Nomination

There are several depressing aspects about the Elena Kagan nomination. First, we will witness the charade in which the Republicans feign concern about her lack of judicial experience, concern they did not share over William Rehnquist. (Of course, they might have for Earl Warren, Hugo Black, William O. Douglas, and Byron White).

Second, although I have no doubt about her intelligence and doctrinal abilities, I can not help but think that one of her most important qualifications is her lack of public expression of her views on the great issues of the day. I think it possible that she is a strong progressive, but I wish a Democratic President would muster the courage to name one who is obviously so.

Third, I fear that we will see another judicial nomination hearing in which the Democrats will cater to the Republican fiction that Justices on the Supreme Court routinely face cases in which they are just calling balls and strikes. Must we witness another round of flirtations with perjury? I hope not.

Finally, as Marvin Ammori points out at Balkinization, there are grounds to worry that Kagan’s First Amendment philosophy as expressed in her articles would lead her to strengthen the majority in the corporate free speech case, Citizens United (even though she represented the government in defending the statute). That conclusion is not ironclad because her articles are maddenly descriptive, but that is the way I read them. And, of course, she could have changed her mind – it would not be the first time a lawyer came to believe her own brief. Nonetheless, it would be deeply depressing if, in the rush to appoint a stealth candidate, Obama appointed someone who is going the wrong way on the case he has rightly criticized the most.

Baseball as Religion

As an avid baseball fan, I regret reporting my view that a recent Christian Century column is over the top, but that does not prevent it from being great fun. The column reports on Rick Warren’s “Sermon on the Mound” on Easter Sunday in the Angels home ballpark. And it cites Annie Savoy’s poetic “statement in the 1988 film Bull Durham, ‘The only church that feeds the soul, day in and day out, is the church of baseball.’ The well-known theologian Stanley Hauerwas, a fellow fan of the Durham Bulls, has written that ‘there are few things better that Christians can do in and for America than play and watch baseball.’

Those statements cannot be outdone, but theologian William Herzog takes a stab at it: “[Baseball] doesn't feed the hungry, or care for the sick, or settle disputes between warring nations. And yet, he says, there is something ineffably stirring and nearly transcendent about sitting in Boston's Fenway Park and seeing the outfield where great players once roamed—the ‘great cloud of witnesses,’ or ‘communion of saints,’ if you will.”

I understand Herzog’s point, but it is hard to ignore that Boston’s ticket prices have become a testimony to the corporate materialism of our age. Even if we forget Boston’s lamentable history of racism, it is hard to get behind a franchise when the best thing that can be said on its behalf is that it is not the New York Yankees.

Yoga: An Introduction

[Subscript diacritic dots missing]

Yoga: from a verbal root, “yuj,” which is often taken to mean “to yoke” or “to unite” (with God: here, as īśvara, an ‘impersonal, acosmic, detached presence whose inherent contentlessness can only show itself as what it is not’), however, as Gerald Larson* explains, “[B]oth Vyāsa and Vācaspatimiśra [point] out that Yoga in the context of Pātañjala Yoga does not mean ‘yuj’ in the sense of ‘yoke’ or ‘join,’ but rather ‘yuj’ in the sense of samādhi or concentration [these being the two possible associations of the verbal root ‘yuj’].” It entails unswerving commitment and concentration as a meditative discipline that harnesses bodily and psychic energy on behalf of techniques designed to still the mind (the fluctuations of ‘mind-stuff’) and finely focus the mental powers of discrimination and concentration. It is a combination of physiological, psychological, and spiritual methods fashioned to alter routine states of consciousness or awareness.

 

Sometimes the term “yoga” is used in a general and loose sense to mean something like “disciplined thought” or meditative concentration, in which case it can refer to “disciplined work in any number of areas, including law, medicine, art, ritual, language, and so forth” (Larson). Our focus here is on the first and more technical meaning of Yoga as “that specific system of thought (śāstra) that has for its focus the analysis, understanding and cultivation of those altered states of awareness that lead one to the experience of spiritual liberation. [here: kaivalya, elsewhere: moksa]” (Larson).

 

Patañjali’s Yoga system is one of the six āstika (orthodox) darśanas, hence a distinct philosophical school and a spiritual praxis, as elaborated in his Yoga Sūtra (3rd to 4th century CE; the Sūtra, usually read together with its indispensable commentary, Vyāsa’s Bhāsya), is also known as the “Eight-Limbed Yoga” (astānga-yoga), only one limb of which, the third and “outer member” (āsana), is found in contemporary “YMCA” and “classified ads” yoga (there are all-too-few exceptions to this generalization). The long-term goal of yoga is asamprajñāta-samādhi, a non-conceptual awareness beyond all thought, attribute and description (nirvikalpa). As such a state of awareness becomes more than intermittent, it is capable of eliminating samskāras (karmic predispositions, i.e., it is karmically ‘seedless’). Classical Yoga largely assumed or took over Sāmkhya metaphysics: as Larson reminds us, Pātañjala Yoga ”as a philosophical tradition is unintelligible without the Sāmkhya ontology and epistemology,” sharing many of the latter’s basic philosophical presuppositions and assumptions, but most importantly, the aim of disassociating pure consciousness from the mind-body complex (the latter a product of prakrti). Unlike Sāmkhya, however, Yoga introduces a deity essential to contemplation (īśvara-pranidhāna) and a model of the yogi’s ultimate goal, for “The Lord is a special [kind of] purusa, untouched by hindrances, karma, its fruition, and latent-deposits [of karmic actions]” (Yoga Sūtra 1.24). This is a peculiar deity indeed, for the Lord does not create the universe, remaining an utterly transcendent deity never in touch with the world (thus completely set apart from the manifestations of prakrti).

 

Although Patañjali’s Yoga is both a darśana and an ascetic or meditative practice, we can distinguish Yoga as a classical philosophical system and school from Yoga as a spiritual tradition of “experimental or experiential practice (whether ritualistic, devotional, meditative, therapeutic, alchemical or magical)” (Larson), for there are many traditions of Yoga “that run parallel to philosophical Yoga from the earliest centuries of the Common Era through the medieval and modern periods,” only two of which we’ll mention here: the Yoga of the Bhagavad Gītā and Moksadharma portion of the epic Mahābhārata (e.g., bhakti-, karma-, and jñāna-yoga), and the yoga praxis (Kundalinī yoga) found in the monistic Śaivism of Abhinavagupta and Ksemarāja. (In a future post, we’ll introduce the former three yogas by way of a prelude to a discussion of Gandhi’s preference for karma-yoga). Alas, among the later, “popular extensions” of these parallel traditions one finds “peripheral” and “tangential” sub-traditions, writes Larson,  “which sometimes have degenerated into pointless superstition and aberrant psychological behavior. Unfortunately, some of this peripheral and tangential material has found its way into New Age spiritual practices. New Age bookshelves continue to be filled with the most incredible nonsense that passes itself off as Yoga, ranging from so-called Yoga massage books to au courant techniques for new and improved tantric orgasms.” Both New Age “Yoga” and commodified gymnastic āsanas are, to put it feebly, a far cry from Patañjali’s Yoga philosophy and praxis or the yogas of the Bhagavad Gītā. Somewhat distinct from either of these contemporary expressions of Yoga, what we’ll term “hybrid-Yoga,” is well represented in the following article from the Los Angeles Times, “Bending yoga to fit their worship needs:”

 

“Christian pop music played quietly in the background as instructor Bryan Brock led a recent yoga class at the nondenominational Church at Rocky Peak in Chatsworth. Incorporating prayer and readings from the Bible, Brock urged his class of about 20 students to find strength in their connection to their creator through yoga’s deep, controlled breathing. ‘The goal of Christian yoga is to open ourselves up to God,’ he said. ‘It allows us to blur the line between the physical and the spiritual.’

The instructor then recited the Lord’s Prayer while his students moved slowly through a series of postures known as the sun salutation. Such hybrid classes, which combine yoga practice with elements of Christianity or Judaism, appear to be growing in popularity across Southern California and elsewhere. Some Christians call their versions of the discipline holy yoga or Yahweh yoga and some teachers urge participants to ‘breathe down Jesus.’ Jewish yogis, in turn, have developed—and in some cases, even trademarked—Torah yoga, Kabbalah yoga and aleph bet yoga, applying Eastern meditative movements to Jewish prayer and study.” [….]

 

Among its philosophical virtues, the Yoga tradition of Patañjali spells out in some detail the essentials of karma theory: paraphrasing Karl Potter’s concise summary, an act (karman) performed with purposive intent and desire or passion creates either a meritorious or unmeritorious karmic residue depending on the quality of the act (including its motivation). This karmic residue includes dispositional tendencies (samskāra) of various kinds, including two kinds of traces (vāsanās), one of which, when activated, produces certain mental and emotional afflictions (including ignorance, egoism, attachment) (kleśas). The kleśas color or characterize the thinking, feeling, and actions of one engaged in purposive activity and, in turn, causally lead to the production of yet more karmic residue, assuring the person’s continued bondage. At death, a person’s unactivated karmic residues, including his vāsanās, gather together within that individual’s citta (here, and loosely, ‘mind,’ as intellect, the ego and senses). Citta is the term for the bodily and mental evolutes or aspects of prakrti (material substance, from grosser to finer), made up of the three gunas (sattva, tamas, and rajas) whose fluctuations affect the thinking, willing, and feeling of individual selves. The citta associated with a jīva of the just-deceased body immediately passes on to a new body-mind configuration (assuming human rebirth here)—presumably a fetus—and accords the new body a citta appropriate to it. The karmic residues determine the individuation of the body-mind configuration, ceteris paribus, the length of its life, and the affective tone (bhoga) of the experiences the person will have (i.e., whether pleasurable or painful). When the person acts (as a purposive agent), karmic residues directly affect the tone of experience: ‘good’ residues producing pleasurable experiences, “bad” residues producing painful experiences. It is the individual’s response or reaction to those experiences (e.g., attached or non-attached) that determine whether or not she will create further karmic residues and associated vāsanās. According to the Gītā (cf. XII.12, 13-20; XVII.12), for example, it is “non-attachment”to or renunciation of the “fruits” of one’s actions that forestalls further karmic production. Such non-attachment or renunciation may require, as in Patañjali’s Yoga system, attainment of the highest state of meditative concentration (samādhi), an enduring state of non-conceptual awareness of reality (‘pure witness-consciousness’). (Please see Potter’s essay, ‘The Karma Theory and Its Interpretation in Some Indian Philosophical Systems,’ in O’Flaherty, ed., 1980: 241-267)

 

References and Further Reading:

• Alter, Joseph S. Yoga in Modern India: The Body Between Science and Philosophy. Princeton, NJ: Princeton University Press, 2004.
• Chapple, Chris and Eugene Kelly, trans. The Yoga Sūtras of Patañjali. Delhi: Sri Satguru, 1990.
• De Michelis, Elizabeth. A History of Modern Yoga: Patañjali and Western Esotericism. New York: Continuum, 2004.
• Doniger, Wendy. The Hindus: An Alternative History. New York: Penguin Press, 2009.
• Dyczkowski, Mark S.G. The Doctrine of Vibration: An Analysis of the Doctrines and Practices of Kashmir Shaivism. Albany, NY: State University of New York Press, 1987.
• Eliade, Mircea. Yoga: Immortality and Freedom. Princeton, NJ: Princeton University Press, 1973.
• Feuerstein, Georg. The Philosophy of Classical Yoga. New York: St. Martin’s Press, 1980.
• Feuerstein, Georg. The Shambhala Encyclopedia of Yoga. Boston, MA: Shambhala, 1997.
• Feuerstein, Georg. The Yoga-Sūtra of Patañjali: A New Translation and Commentary. Rochester, VT: Inner Traditions, 1989.
• Flood, Gavin. An Introduction to Hinduism. Cambridge, UK: Cambridge University Press, 1996.
• Grimes, John. A Concise Dictionary of Indian Philosophy. Albany, NY: State University of New York Press, 1996, new ed.
• Jacobsen, Knut A. Prakriti in Sāmkhya-Yoga: Material Principle, Religious Experience, Ethical Implications. Delhi: Motilal Banarsidass, 2002.
• King, Richard. Indian Philosophy: An Introduction to Hindu and Buddhist Thought. Washington, DC: Georgetown University Press, 1999.
• Larson, Gerald J. Classical Sāmkhya. Santa Barbara, CA: Ross/Erikson, 1979 ed.
• Larson, Gerald James and Ram Shankar Bhattacharya, eds. Encyclopedia of Indian Philosophies,Vol. IV, Sāmkhya—A Dualist Tradition in Indian Philosophy. Princeton, NJ: Princeton University Press, 1987.
• Larson, Gerald James and Ram Shankar Bhattacharya, eds. Encyclopedia of Indian Philosophies, Vol. XII, Yoga: India’s Philosophy of Meditation. Delhi: Motilal Banarsidass, 2008.
• Miller, Barbara Stoler, trans. Yoga: Discipline of Freedom—The Yoga Sūtra attributed to Patañjali. Berkeley, CA: University of California Press, 1996.
• Minor, Robert N., ed. Modern Indian Interpreters of the Bhagavad Gītā. Albany, NY: State University of New York Press, 1986.
• Mishra, Rammurti S. The Textbook of Yoga Psychology (includes translation of Patañjali’s Yoga Sūtras). New York: Julian Press, 1987 ed.
• Muller-Ortega, Paul Eduardo. The Triadic Heart of Siva: Kaula Tantricism of Abhinavagupta in the Non-Dual Shaivism of Kashmir. Albany, NY: State University of New York Press, 1989.
• O’Flaherty, Wendy Doniger, ed. Karma and Rebirth in Classical Indian Traditions. Berkeley, CA: University of California Press, 1980.
• Potter, Karl H., ed. Presuppositions of India’s Philosophies. Delhi: Motilal Banarsidass, 1991 (first published in 1963).
• Sargent, Winthrop, trans. The Bhagavad-Gītā. Albany, NY: State University of New York Press, 1994 ed.
• Silburn, Lillian (Jacques Gontier, trans.) Kundalinī: The Energy of the Depths. Albany, NY: State University of New York Press, 1988.
• Stutley, Margaret and James. Harper’s Dictionary of Hinduism. New York: Harper and Row, 1977.
• Sullivan, Bruce M. The A to Z of Hinduism. Lanham, MD: Scarecrow Press, 2001.
• White, David Gordon. The Alchemical Body: Siddha Traditions in Medieval India. Chicago, IL: University of Chicago Press, 1998.
• White, David Gordon. Kiss of the Yoginī: ‘Tantric Sex’ in Its South Asian Contexts. Chicago, IL: University of Chicago Press, 2003.
• White, David Gordon, ed. Tantra in Practice. Princeton, NJ: Princeton University Press, 2000.
• Woods, James Haughton. The Yoga-System of Patañjali. Delhi: Motilal Banarsidass, 1966.

*Or “Gerry” as his former students, including yours truly, affectionately know him.

 

[Anecdotal trivia (i.e., having nothing whatsoever to do with the grammar, rhetoric and logic of the Liberal Arts): Santa Barbara has an incredible number of yoga instructors, many of whom are associated with the Santa Barbara Yoga Center. My dental hygienist happens to be among its instructors. I doubt any of these otherwise kind, considerate and well-meaning men and women could teach classical Pātañjala Yoga philosophy, indeed, they probably have little interest in the philosophy of Yoga as such.]

National Day of Which Prayer? Are ALL Prayers Alike?

Diana Butler Bass has an interesting essay here in which she explores the difficulties of implementing a National Day of Prayer in a pluralistic society. But, the pluralistic society she describes originates from the beginnings of the republic where Anglicans, Puritans, and Quakers had sharp disagreements about the proper mode of prayer. She details the sharp doctrinal disputes whether prayers should be spontaneous and extemporaneous (moved by the spirit) or written (to be theologically rigorous).

She concludes: “The sentiment of a National Day of Prayer for communal forgiveness and social unity is nice, even noble. It is also politically expedient. Honestly, what politician can vote against prayer and hope to get re-elected? But whose prayer? Which theology? What form of devotion? National prayer without a state church is utterly unrealistic and consistently raises knotty theological and political questions, as our forebears discovered. American prayer has more often divided us rather than uniting us. If today's news headlines are any indication, that is still the case. Maybe the Quakers had it right all along: Next year we should try a ‘National Day of Silence’ instead.”

Gideon’s Trumpet Heard in New York

Washington, DC (May 6, 2010) – The New York Court of Appeals ruled today in the case of Hurrell-Harring, et al. v. New York that indigent defendants denied their constitutional right to counsel do not have to be first convicted before seeking to vindicate that right. Until now, indigent defendants have been prevented from seeking redress of the denial of their right to counsel, which attaches at arraignment, unless and until they are convicted. The Court was clear, “Wrongful convictions … are not the only injustices that command our present concern…. The absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted.” Addressing the U.S. Supreme Court’s landmark 1963 decision guaranteeing the right to counsel for all, the Court announced that “Gideon’s guarantee to the assistance of counsel does not turn upon a defendant’s guilt or innocence, and neither can the availability of a remedy for its denial.”—News Release of the National Association of Criminal Defense Lawyers

 

New York Court of Appeals decision

joint amicus brief 

 

Gideon v. Wainwright, 372 U.S. 335 (1963)

 

hat tip: Legal Ethics Forum

Abortion-Neutrality, the New Health Insurance Reform Legislation, and Hard Times in Michigan and Minnesota

Hello All,

I'd like to commend to all RLL readers, at least if they also occasionally read Mirror of Justice, two newspaper stories recently cited and linked to by Rick Garnett and Greg Sisk at the latter site.  The reason is that I take very different impressions away from those stories than those highlighted by Rick and, especially, by Greg, and so I worry that some who do not read the full stories might take what I would regard as an inaccurate impression away from such posts as theirs. 

The first sentence of Greg Sisk's second paragraph, for example, elides quickly from quoted words concerning 'demand for abortions,' to quoted words concerning a 'possible increase in demand because of the new federal health care bill.'  Examination of the full article, however, quickly reveals that ten paragraphs separate these quoted phrases, and that the 'demand' referenced in the second phrase is demand for clinic services generically considered.  Those services actually specified are birth control and disease screening.  As for abortion, the article cites Minnesota Citizens Concerned for Life, 'the state's leading voice against abortion, [as being] sharply critical of the [health insurance reform bill] because it would provide more funding for community clinics like those operated by Planned Parenthood, though not for abortion.' 

Other noteworthy passages in the two articles, from my point of view anyway, include the following:

'Minnesota ... is one of 17 states that pays [sic] for low-income women to receive abortions through Medicaid, the result of a 1995 decision by the state Supreme Court.'  (Second page of Greg's linked article.)  This of course invites the question - at least for those like me who know little of the details of Medicaid law or Minnesota constitutional law - whether abortion opponents should be arguing for repeal of Medicaid, or amendment of the Minnesota state constitution, or both.  My guess is we don't hear such calls for reasons not unlike those that explain our not hearing calls to shut down the interstate highway system, the power grids, and like government-afforded goods that incidentally affect abortion availability. 

'Most health insurers in Michigan pay for abortions, but not necessarily for birth control.' (From Rick's linked article.)   This of course re-raises a question I raised at MoJ in December and March - viz., why are abortion opponents not arguing, as I have argued, for requirements that insurance companies that offer policies covering abortion also offer identical policies not covering abortion.  It also re-raises another question I raised in March - viz., how many abortion opponents, including at MoJ, are insured by insurers who offer abortion coverage?

'Recession has heightened demand for contraception and for abortion, especially from clients who wouldn't have gone to Planned Parenthood in better times. "Over the last couple of years, we've been getting calls that go, 'I'm pregnant, we don't have health insurance, my husband isn't working and we can't afford another child.' These calls have become routine for us," says Lamerand [a Michigan PP executive officer].'  (Again from Rick's linked article.) This of course once again suggests - though of course only suggests, as distinguished from statistically corroborating - a correlation between economic hardship and perceived need of reproductive health services and abortions.

'Even politically, [the Michigan PP executive] says, Republican legislators "have become a little more moderate on birth control," after seeing evidence that "a dollar for birth control this year saves $6 next year and the year after," says Lamerand, referring to budget cuts last year. "There were doors that were opened to us that in the past had been resoundingly closed. It made them more receptive to reconsidering cuts for reconsidering family planning."  (Again from Rick's linked article.) This suggests - though again, only suggests - that Republicans themselves in hard-hit Michigan have been prompted of late by economic considerations to view contraception more favorably than in the past.

I don't wish in quoting and commenting as I do here to suggest that I've any firm view as yet concerning the merits of various claims made by defenders and critics of PP or the health insurance reform legislation where abortion is concerned.  I wish only to highlight the fact that the two cited articles appear to tell rather more than a simply a 'health insurance reform legislation funds and increases the incidence of evil deeds - abortions - by evil entity - Planned Parenthood' story.  Matters appear rather more complex than that on all scores, and accordingly invite careful further inquiry.

A final point: I've read apparently carefully reasoned opinions by such as Tim Jost to the effect that no federal funds will be proximately led by the new legislation to the subsidization of abortions, and carefully reasoned opinions by such as the USCCB to the contrary effect (not to mention Robby George's latest post at MoJ on this matter), and confess to not knowing who has the better of this argument. I'm just not sufficiently well versed in the intricacies of health law. 

But it seems to me there's a much easier way for abortion opponents to handle this uncertainty than continuing to read various peoples' attempts at parsing statutory and regulatory 'language' (which often seems scarcely lingual): Monitor actual expenditures, with a view to determining whether federal funds actually do begin funding abortions in some manner that they have not done prior to the legislation.  Then if they do, act to close the apparently unintended loophole.  My guess is that it would be easy to procure legislation to do that, as for better or worse, there does seem to be broad political consensus that federal funding programs should be abortion-neutral in recognition of the continuingly deep legal and political controversy on this fraught subject. 

And while at it, by the way, lest any be criticizing the motes in our neighbors' eyes while ignoring the beams in our own, let any of us who oppose federal funding for abortion look to our own insurance plans while asking whether, in purchasing our policies from them, we are ourselves alreadly subsidizing abortions in much more direct ways than the federal government is accused now by some of doing.  And let us also focus efforts on seriously ending the economic dysfunction and poverty that seem to prompt so much perceived need of contraception or abortion, as well as on the provision of better alternatives to those that many now seem to experience as sole alternatives.  It seems better, as the blessed proverb has it, to light even one candle than to curse the darkness.

Blessings and Peace to All,

Bob

Kristof Attacked

Yesterday I posted about Nicholas Kristof’s column on the two Catholic Churches. Later the same day at Mirror of Justice, Rick Garnett responded to the same column. He began by quoting from Kenneth Woodward’s fascinating column in Commonweal, containing the metaphor that the New York Times is a rival magisterium. Although the Times is influential and has its own institutional culture, many important aspects of this “Magisterium” are important: it is secular and secularizing; it promotes dialogue within the liberal framework –even allowing the token conservatives a voice on the op-ed pages, without suppressing opposing voices outside its pages; its liberal voice makes it the paper conservatives seek to mock; from the perspective of those on the left, it is timid and too cozy with those in power; among its readers, I would bet that its editorials are largely unread – certainly in comparison with the opinion columns.

After citing Woodward, Rick says that almost “on cue” (not sure why it was on cue), Kristof, according to Rick, offers the "yes, the institutional Church and its old, out-of-touch, male leaders are no good, but the real Church is out there, in the trenches, doing things I like" story that one often hears.  Actually, Kristof’s claim is not that the people in the trenches are doing the “things he likes,” but the works of Jesus and, he maintains, that the leaders of the Church have drifted from the message of Jesus.

Rick admits that the people Kristof describes in the Sudan are doing “good work,” and they are. For example: “But what about Father Michael Barton, a Catholic priest from Indianapolis? I met Father Michael in the remote village of Nyamlell, 150 miles from any paved road here in southern Sudan. He runs four schools for children who would otherwise go without an education, and his graduates score at the top of statewide examinations.

“Father Michael came to southern Sudan in 1978 and chatters fluently in Dinka and other local languages. To keep his schools alive, he persevered through civil war, imprisonment and beatings, and a smorgasbord of disease. “It’s very normal to have malaria,” he said. “Intestinal parasites — that’s just normal.”

“Father Michael may be the worst-dressed priest I’ve ever seen — and the noblest.

“Anybody scorn him? Anybody think he’s a self-righteous hypocrite?

“On the contrary, he would make a great pope.”

In response, Rick says, “To be clear, the people in Sudan whom Kristof describes, and admires -- but does not, I think, I understand -- are doing good work.  But, when Kristof imagines himself competent (or inspired?) to declare that so-and-so would be "a good pope" (how does Kristof know this?), I cannot help thinking of Woodward's "rival magisterium" observation.”

I wonder what Rick supposedly gets about the Sudan that Kristof doesn’t (Kristof does mention the birth control position of the Church regarding Africa – is that what Kristof does not understand about the Sudan?). I think that the suggestion that a servant of Christ in the trenches has qualities that are relevant to Papal greatness is a good one. And with respect to the magisterium claim, it is worth noting that Kristof is arguing outside the Times secular perspective.

Rick then presses onward: “For Kristof, there are good guys (and women) helping the poor in Africa, and bad guys, in Rome, issuing ‘paleolithic edicts on social issues.’  What he doesn't get, in my view, is the Catholic claim that the Church's ‘paleolithic’ opposition to abortion comes from the same place as its commitment to the dignity of the poor, that its ‘paleolithic’ proposals regarding sexual morality come from the same place as its call to generosity, and self-gift.  In a similar way, Pope Benedict's recent encyclical, I thought, was misunderstood by people who, like Kristof, think that the Church's social teachings are a disconnected jumble, rather than the implications of a unified and animating moral anthropology.”

Actually Kristol does not mention abortion in his column. He does mention homophobia, the failure to protect children, and birth control in connection with aids. In addition, he understands “why many Americans disdain a church whose leaders are linked to cover-ups and antediluvian stances on women (perhaps Rick thinks that the reference to women is code for abortion), gays and condoms — but the Catholic Church is far larger than the Vatican.” I am quite sure Kristof thinks that the Church’s positions on gays, birth control in connection with aids, and the failure to protect children are inconsistent with Christianity. If they all can be squeezed into a unifying moral anthropology, so much the worse for the anthropology. Finally, if Kristof meant to refer to abortion, I think it utterly improbable that Kristof is unaware of the way abortion fits into Church teachings. He may disagree with those teachings, but I doubt he is confused.

Finally, Rick turns to David Bonagura at the Catholic Thing. Rick says that Bonagura also responds to Kristof. In fact, Bonagura responds to a different, but similar column by Kristof. Rick cites a paragraph from Bonagura that is about the role of Christian love in promoting social justice. The New York Times might or might not disagree with the paragraph, but surely Kristof would agree. Finally, Bonagura reacts to this line from Kristof (in the column Rick was not responding to): “Jesus himself focused on the needy rather than dogma, and went out of his way to engage women and treat them with respect.” Bonagura says “Dogma and rules do not distract the Church from social justice; they allow social justice to flourish by pointing it towards its proper and ultimate end.” In context, however, I think it clear that Kristof is focused on what he believes to be inhumane (e.g., when one spouse has HIV aids, the couple may not use birth control) unchristian dogma and rules.

Leaving, but taking off from Rick’s post, I have heard it said that the current crisis in the Church is the greatest since the Reformation. I do not know if this is true, but it is surely in the midst of a serious crisis. I do not think it has been helpful that (as I said in an earlier post) Spiro Agnew apparently returned from the dead to be the chief advisor to the Vatican: “Circle the wagons and attack the media.” Any public relations persons would have told the Vatican to apologize, apologize, apologize, and focus on what is now being done to address the issue. It is certainly arguable that Pope Benedict has enormously matured on this issue and that, if he were replaced, the new Pope would not be as good on this issue – sad as that speculation might be. And the Church leaders are stuck with (and proud of) their conservative teachings.

At this time, many Catholic are contemplating leaving the Church (in the U.S., a greater percentage leave the Church than any other denomination). Nicholas Kristof gives a message to those who will never be persuaded to admire the leaders of the Church: “So when you read about the scandals, remember that the Vatican is not the same as the Catholic Church. Ordinary lepers, prostitutes and slum-dwellers may never see a cardinal, but they daily encounter a truly noble Catholic Church in the form of priests, nuns and lay workers toiling to make a difference.”

 

 

On Goldman Sachs

Hello All,

Have been a bit busy of late with finance-regulatory developments, and so have not been posting on more fundamental matters these past several weeks.  But there will presumably be more time for that soon.  In the meanwhile, for any RLL readers who might be interested in the recent hullabaloo over Goldman Sachs and related concerns, there's some analysis of what is at stake, provided by a local entertainer, here: http://www.dorfonlaw.org/2010/05/meanings-of-goldman-sachs.html .  I'd be especially interested in folks' reactions to the last couple of paragraphs, which project ahead to forthcoming work on how we might render the financial economy more helpful to those sectors of our and the global polity with much less disposable income and financial sophistication than Wall Street's currently dominant clientele.  There's a bit more on that here: http://www.lawschool.cornell.edu/ .  Wouldn't it be lovely were we to prove able to bring a 'preferential option for the poor' to the options markets themselves?

All best,

Bob

Two Catholic Churches

Nicholas Kristof had a column over the weekend here, discussing the two Catholic Churches. He said it “may be easy at a New York cocktail party to sniff derisively at a church whose apex is male chauvinist, homophobic and so out of touch that it bars the use of condoms even to curb AIDS.” He argues that the Boston Globe has done more to protect children than the Cardinals. And he registers doubts that Jesus would have worked to protect clergymen who raped children. Nonetheless, he finds much to praise in the base of the Church. Certainly those liberal Catholics who stay in the Church do not do so because of admiration for Church leaders.

Arizona Immigration Law, ctd.

No matter what you think of the question of illegal immigration, there's no denying that the Arizona immigration law will have a huge impact on legal resident Latino immigrants, naturalized citizens and even U.S. born Latino citizens (and, although the focus has been on Latinos, the same would go for Asian-Americans as well).  In fact, U.S. born citizens and naturalized citizens are likely to feel the brunt of it most directly, because of two interlocking factors:  (1) they possess the phenotype and accents that police will inevitably rely on in identifying illegal immigrants and (2) since they are actually citizens, and therefore secure in their presence here, they are not in the habit of carrying around papers that would prove their citizenship. 

This is what defenders of the Arizona law, who say that it is just an attempt to deal with illegal immigration by enforcing the law do not seem to understand.  The burden of this enforcement is not just going to fall on illegal immigrants.  Besides the actual illegal immigrants whose apprehension it will facilitate, the design of the law means that the burden it creates will fall exclusively on Latinos who are lawfully present in the United States.  This is exactly how the law differs from a law that, say, would require everyone to prove his or her lawful immigration status in certain contexts (e.g., as when we are required to show our SS card when we begin new employment).

And a recent episode confirms the fear that the law is designed specifically to maximize the zone in which these intrusive police interactions will occur.  An email from Kris Korbach, a UMKC law professor who has been instrumental in shaping and defending the language of the Arizona law, confirms this.   When lawmakers recently tinkered with the statute's language, ostensibly to limit the circumstances under which law enforcement would be required to demand papers, he sent an email to Russell Pearce, an Arizona State Senator involved in drafting the new language, asking him to be sure to do it in ways that would continue to  give police officers the ability to selectively target certain groups (e.g., those who have cars on blocks in the their front yards and those living with lots of people in a single apartment) for immigration inquiries by making violation of local ordinances one of the contexts in which police would be obligated to ask for proof of immigration status when they developed a reasonable suspicion that someone was here illegally: 

When we drop out "lawful contact" and replace it with "a stop, detention, or rest, in the enforcement a violation of any title or section of the Arizona code" we need to add "or any county or municipal ordinance." This will allow police to use violations of property codes (ie, cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.

Korbach's email suggests that the point of the law is not just to empower the police to question the immigration status of people they happen to encounter in the course of their normal law-enforcement duties.  That would be intrusive enough from the perspective of lawfully resident Latinos who find themselves in a situation of always being on the hook to prove their status.  As Korbach's email makes clear, however, the goal is much more ambitious:  to give local law enforcement the mandate -- and then use the other provisions of the law to pressure them to make use of it -- to affirmatively target certain populations for intrusive immigration inquiries.

Interestingly, the very same group of people promoting the Arizona immigration law are generally (1) eager to avoid government intrusions on their "liberty" (e.g., the Real ID Act) and (2), as Frank Rich pointed out in his column this past Sunday, not satisfied by President Obama's own proof of his U.S. birth, notwithstanding his Hawaiian birth certificate.  Why is that?  Given the racially tinged rhetoric of the current immigration discussion in some quarters, you could forgive Latinos for thinking that this law might have to do with a bit more than just enforcing immigration laws and might, in fact, be tied up with larger racial and cultural anxieties animating certain segments of the American Right.  (And, it should go without saying that if Obama's birth certificate is not evidence for these people that he is a natural born US citizen, heaven help the rest of us.)

In light of all of this, this WSJ article, discussing the growing dissatisfaction with the GOP among conservative Latinos should come as no surprise.  Here's the essence of it (but go read the whole thing):

Conservative Hispanic voters, in particular, say they feel betrayed by Republican Party leaders who have supported the law. ....  "When the Arizona law was passed, it quickly became the single most important issue to all Latinos in Arizona and nationwide," said Matt Barreto, a political science professor at the University of Washington who studies Latino voting patterns. "Either party that pushes the issue too hard risks moving centrist voters in the other direction," said Dan Schnur, a former Republican strategist and director of the Jesse M. Unruh Institute of Politics at the University of Southern California.  Massey Villarreal, a Houston businessman and past national chairman of the Republican National Hispanic Assembly, an independent group with chapters nationwide, said, "It's insulting to have Republican leaders across the country applauding this racist law. I'm sure this is going to hurt the Republican Party."

This law is quickly becoming a litmus test for Latinos of all political stripes.  So far, the GOP is failing it.

The Cross, The Desert, and Religious Hypocrisy

It is ironic that those who argue that government properly put up a Cross to honor the war dead (including the non-Christian dead?) in the Mojave Desert argue that the primary meaning of the cross is not religious, but historical and cultural, even though the reason they want the cross to be displayed is religious in character. Advancing religion through hypocrisy is not unprecedented, but it is not admirable either.

The Establishment Clause would not have been passed were it not for the support of the Baptists. They were quite aware that it is no victory for religion when government uses religion for secular ends or seeks to secularize religious symbols.  With the exception of the American Baptist wing of that church, the Baptists have abandoned that wisdom. For a dispute among evangelicals on the case, see the Huffington Post.

Happy May Day!

    

The Workers’ Maypole

 

World Workers, whatever may bind ye,
This day let your work be undone:
Cast the clouds of the winter behind ye,
And come forth and be glad in the sun.

 

Now again while the green earth rejoices
In the bud and the blossom of May
Lift your hearts up again, and your voices,
And keep merry the World’s Labour Day.

 

Let the winds lift your banners from far lands
With a message of strife and of hope:
Raise the Maypole aloft with its garlands
That gathers your cause in its scope.

 

It is writ on each ribbon that flies
That flutters from fair Freedom’s heart:
If still far be the crown and the prize
In its winning may each take a part.

 

Your cause is the hope of the world,
In your strife is the life of the race,
The workers’ flag Freedom unfurled
Is the veil of the bright future’s face.

 

Be ye many or few drawn together,
Let your message be clear on this day;
Be ye birds of the spring, of one feather
In this--that ye sing on May-Day.

 

Of the new life that still lieth hidden,
Though its shadow is cast before;
The new birth of hope that unbidden
Surely comes, as the sea to the shore.

 

Stand fast, then, Oh Workers, your ground,
Together pull, strong and united:
Link your hands like a chain the world round,
If you will that your hopes be requited.

 

When the World’s Workers, sisters and brothers,
Shall build, in the new coming years,
A lair house of life--not for others,
For the earth and its fulness is theirs.

—Walter Crane

 

In many parts of the world today is May Day, the true “Labor Day.” International Workers Day, despite its origins in the U.S., is not celebrated here. But it is still a holiday in many countries.

First, let’s set the historical and socio-economic backdrop in the United States:

”Writing in the midst of the devastation of the 1877 railroad strikes, a St. Louis newspaper noted: ‘The country was in a feverish state of excitement from Boston to San Francisco, from the Lakes to the Gulf.’ That feverish state would recur repeatedly over the next two decades. Between 1877 and 1898 working people undertook a series of fierce battles with their economic and political antagonists. Craft unionists, Knights of Labor, Farmers’ Alliance members, Populists, socialists, and anarchists struggled for a more egalitarian society and a more just economic system. As masses of working people shook their collective fist at the growing visibility of unbridled privilege, industrial capitalists dug in their heels in an organized defense of their wealth and power.

These struggles peaked twice: first in 1886, in an eruption of activism, organizing, and confrontation that came to be know as the Great Upheaval; and second in the 1890s, when Populism and the Homestead and Pullman strikes linked farmers and workers together in a loose coalition of resistance. At root, these epic confrontations of the 1880s and 1890s were working people’s forthright responses to the unprecedented economic and political changes wrought by the new industrial order.”
—Who Built America? Working People and the Nation's Economy, Politics, Culture & Society, Vol. Two: From the Gilded Age to the Present (New York: Pantheon Books, 1992): 109-110.

 

As Jeremy Brecher writes in Strike! (San Francisco, CA: Straight Arrow Books, 1972), “In 1884, a dying organization, the Federation of Organized Trades and Labor Unions passed a resolution that ‘eight hours shall constitute a legal day’s work from and after May 1, 1886.’” Opposed by organized labor’s leadership (e.g. the Knights of Labor), “the idea of a general strike for the eighth-hour day had caught the imagination of tens of thousands of workers.” Demonstrations up to the date were followed by strikes that began on May 1, 1886 and continued for several days afterward. The hysteria in the wake of the Haymarket bombing “gave the signal for law and order forces throughout the country to act.” Brecher concludes that, although a “pattern of demoralization and compromise” reverberated throughout the country, it is worth recalling that “the mass strike of 1886 was an attempt by the new class of industrial workers to use their power to gain some control over the conditions of their life and work. [….] The eight-hour strike was both an assertion that the worker was a human being whose life should not be consumed in toil, and an attack on the deliberate policy of keeping hours long and unemployment high in order to get the most work for the least wages.”

 

The idea of a May Day celebration for workers spread quickly to the international workers’ movement: “In 1889 the International Socialist Conference in Paris, with full knowledge of the American precedent, designated May 1 as an eight-hour holiday for the workers of the world. [….] Elaborate ceremonies soon evolved, with songs, banners, uniforms, even dioramas to mark the date, often with drawings of the Haymarket victims uplifted as martyrology.” (See Malloy on ‘May Day’ below)

 

Of course the auspicious nature of this date goes back to celebratory spring festivals and is still an excuse for Morris dancing: in the words of Emma Goldman, “If I can’t dance, I won’t be part of your revolution!” Eric Hobsbawm writes that

“From the start the occasion attracted and absorbed ritual and symbolic elements, notably that of a quasi-religious or numinous celebration (‘Maifeier’), a holiday in both sense of the word. […] Red flags, the only universal symbols of the [socialist labor] movement, were present from the start, but so, in several countries, were flowers: the carnation in Austria, the red (paper) rose in Germany, sweet briar and poppy in France, and the may, symbol of renewal, increasingly infiltrated, and from the mid-1990s replaced by the lily-of-the-valley, whose associations were unpolitical. Little is known about this language of flowers which, to judge by the May Day poems in socialist literature also, was spontaneously associated with the occasion. It certainly struck the key-note of May Day, a time of renewal, growth, hope and joy (we recall the girl with the flowering branch of may associated in popular memory with 1891 May Day shootings at Fourmies). Equally, May Day played a major part in the development of the new socialist iconography of the 1890s in which, is spite of the expected emphasis on struggle, the note of hope, confidence and the approach of a brighter future—often expressed in metaphors of plant growth—prevailed.”
—Eric Hobsbawm, “Mass-Producing Traditions: Europe, 1870-1914,” in Eric Hobsbawm and Terence Ranger, eds. The Invention of Tradition (Cambridge, UK: Cambridge University Press, 1983): 284-285.

 

References and Further Reading:

American Social History Project (Herbert G. Gutman, Director, and Stephen Brier, Editor) (various contributors). Who Built America? Working People and the Nation's Economy, Politics, Culture & Society, Vol. One: From Conquest and Colonization through Reconstruction and the Great Uprising of 1877 (New York: Pantheon Books, 1989).

American Social History Project (Herbert G. Gutman, Director, and Stephen Brier, Editor) (various contributors). Who Built America? Working People and the Nations's Economy, Politics, Culture & Society, Vol. Two: From the Gilded Age to the Present (New York: Pantheon Books, 1992).

Avrich, Paul. The Haymarket Tragedy (Princeton, NJ: Princeton University Press, 1984).

Foner, Philip S. May Day: A Short History of the International Workers' Holiday 1886-1986. (New York: International Publishers, 1986).

Green, James. Death in the Haymarket.... (New York: Pantheon Books, 2006).

“May Day” at the Marxist Internet Archive

“May Day,” by Scott Molloy, in Mari Jo Buhle, Paul Buhle, and Dan Georgakas, eds., The Encyclopedia of the American Left (New York: Garland, 1990): 455-457.

Roediger, Dave and Franklin Rosemont, eds. Haymarket Scrapbook (Chicago, IL: Charles H. Kerr Publ. Co., 1986).

“The Transformation of Labour Rituals,” in Hobsbawm’s Workers: Worlds of Labor (New York: Pantheon, 1985): 66-82.

 

Please note: this is revised from the May Day post of 2008 at the Ratio Juris blog.