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If David Brooks was Big and Fat, He would be a Big Fat Idiot

In his Tuesday column, David Brooks announced to parents throughout the United States that if they are judging a potential son or daughter-in-law on political grounds, their “values are out of whack.” So I take it that if liberal parents have liberal children who are about to marry conservative evangelical members of the Tea Party, it should be a matter of indifference. Brooks always seems to write with a touch of smug arrogance, but the blindness of this conclusion is stunning even for him.

Let’s leave aside family members for the moment. Let’s think of dinner companions. Would the tone of a conversation change if a table of liberals were joined by a passionate conservative? A table of liberals might make easy assumptions about capital punishment, the use of drones, the need for spending on infrastructure, the failure of the nation to care for the poor, and the immorality and impoverished economics of a system of economic inequality. If a conservative joins the table, politics might be avoided as a subject or debate about these subjects would substitute for an exchange based on shared assumptions. Perhaps a debate would be better for all concerned; perhaps not; but the nature of the conversation is not a matter of indifference.

In terms of in-laws, parents might be concerned about more than weekend or holiday dinners. They might wonder whether the marriage might flounder or flourish given the personalities of the pair, the importance of politics to either or both of them, and the extent to which they can tolerate and flourish with disagreement. Given the exotic character of Brook’s claim, you might wonder what motivated him to go this far.

Brooks is concerned about what Cass Sunstein calls “partyism.” He suggest that hiring for jobs or competition for scholarships and the like should not turn on political views, but there is evidence that the politics of applicants might well be employed against them. On this point, with respect to the overwhelming majority of jobs and scholarships, he is surely right that such discrimination is unjustifiable. He also is concerned not only that the social value of a person is increasingly evaluated on the basis of his or her politics, that people have formed their identity by their politics, and that politics in his view has been hyper-moralized.

I don’t know how to measure the first two points, but there is something to it. For example, the driving force behind shifts in religious affiliation (as opposed to preacher shopping) has been political. Moreover, in an age of balkanized communications and increasingly partisan politics, the demonization of those who are politically different is not new, but it appears to be deeper and more widespread. Perhaps related to that, politics is thought of in more acutely moral terms. Brooks appears to yearn for the days when politics was controlled by pragmatic technocrats because the means to achieve ends were the central stuff of debate about which honest and intelligent people could disagree. Brooks rightly thinks that when issues become matters of moral principle, compromise becomes more difficult – though there is a long history of political deals between those with moral differences.  Nonetheless, Brooks does not give sufficient attention to the fact that many of the most gripping political issues implicate moral issues of profound importance: war, abortion, poverty, crime, punishment, economic inequality, and the environment. Although Brooks decries the extent to which political appeals are phrased in existential terms, he simply tries to wish away the fact that politics addresses fundamental moral issues that go to the heart of what life is all about.

In the end, Brooks’ article is internally inconsistent. If people have set their moral identity according to their politics, their politics in most cases cannot and should not be ignored in making judgments about marriage.  

Human Rights: A Bibliography

The latest draft of my bibliography for human rights is here.

Democratic Theory: A Bibliography

The latest draft of my bibliography for democratic theory is here.

Torture: A Bibliography

The latest draft of my bibliography on torture is available here.

Punishment & Prison: A Bibliography

The latest draft of my bibliography for punishment and prison is available here.

Philosophy of Law & Legal Theory: A Bibliography

The latest draft of my bibliography for philosophy of law and legal theory is here.

Whistleblowers, Confidential Sources, and the Obama Administration's Ruthless Treatment of the Press

The October 27^th issue of the Nation has a terrific article: The Government’s War on Whistleblowers by Normon Solomon and Marcy Wheeler.The story powerfully details retaliation by both the Bush and Obama administrations against both whistleblowers and the reporters who tell their stories. In great detail, the Nation shows retaliation against New York Times reporter James Risen who won a Pulitzer Prize for reporting the existence and details of a secret domestic wiretapping program. The story was followed up by a bestselling book.

Both recent administrations have sought to prove that Jeffrey Sterling, formerly with the CIA, was the whistleblower who provided Risen with the information. One of the obvious problems with the pursuit of Risen and Sterling is that it was initiated by the very people who were criticized in the reporting and the policies criticized have been continued by the Obama Administration. If a prosecution were contemplated at all, the need for an independent prosecutor was obvious from day one.

But the methods pursued by the government are independently indefensible. The Obama Administration opposes the confidentiality of journalist’s sources in court. More devious, it secured three subpoenas to get Risen’s credit reports, travel records, credit-card records, and bank records in an effort to determine who the source might be without regard for Risen’s privacy. You might imagine that this could have a chilling effect on reporters and their sources.

Risen’s case is not alone. In just one case, the Nation reports that Holder’s DOJ secured the phone records of twenty phone lines affecting 100 journalists in order to find the source for a single story. That this could occur highlights the bankruptcy of Fourth Amendment law and First Amendment law. But it also underscores the Administration’s thin skinned insensitivity to the importance of a free press, an arrogant desire to keep the public in the dark, and an apparent desire to terrorize those who would publish information the Administration does not want us to see however much it purports to say that it “welcomes the debate.”

It would be wrong to assume that this campaign of terror is ineffective. David Barstow, a New York Times reporter, puts it well:

“I’ve felt the chill firsthand. Trusted sources in Washington are scared to talk by telephone, or by e-mail, or even to meet for coffee, regardless of whether the subject touches on national security or not. My fellow investigative reporters commiserate about how we are being forced to act like drug dealers, taking extreme precautions to avoid leaving any digital bread crumbs about where we’ve been and who we’ve met.”

We would do well to recognize that the Obama Administration stands in the tradition of Richard M. Nixon and Spiro T. Agnew. It is no friend of the press. Indeed, the harm it has imposed on the press, public information, and American democracy is incalculable.

 

How to Prevent Pre-Trial Publicity from Contaminating Fair Trials: An Easy Fix

 

One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as fundamental to the American scheme of justice. If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage.

Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pre-trial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on prospective jurors.

Even in small town Ithaca, New York where I live, there are sensational cases in which the risks that a jury has been contaminated are all too real. Some argue that searching questions of jurors can cure pre-trial publicity. If you believe that I have a bridge to sell you. Many jurors lie to get on juries, and many lie to stay off juries. Sometimes jurors maintain the have heard no publicity about a case only to remember later that they had heard damaging information about the defendant.

So what to do? One possibility, of course, is to gag the press. This is commonly done in England and Germany – in one case to protect the right to a fair trial, in the other to protect the dignity of the accused who is presumed to be innocent. In the U.S., however, even if such restrictions could get through the legislative process, a court challenge on free press grounds would be immediately successful.

But there is another way. In virtually all jurisdictions, attorneys are prohibited from making particular kinds of public or private statements outside the judicial process. For example, in New York attorneys are not permitted to comment in ways that cast doubt on the character, credibility, or reputation of a suspect in a criminal investigation, and they are not permitted to reveal the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person’s refusal or failure to make a statement, or the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented. They are not even permitted to express any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration.

The purpose of these rules, of course, is avoid contaminating the jury pool and to promote a trial by an impartial jury rather than by a raft of sensational publicity. But these rules are ineffective. Why? They do not work because police are not lawyers and they are not bound by these rules of professional responsibility. So the police commonly feed incriminating information to the press, and the cycle of adverse pre-trial publicity is commonplace.

This suggests an obvious solution: place the same restrictions on police that are placed on lawyers. This would not prevent the police from informing reporters that a suspect had been apprehended, the name of the suspect and other information about him or her. Of course, the police could indicate the nature of the charges that would be brought and matters of public record. But police could not give incriminating information to the press. When police are permitted casually to release incriminating information to the press, we may enjoy the gossip, but we cannot responsibly claim we treat defendants fairly. To put it another way, if fair trials are the hallmark of a civilized society, we do not live in a civilized society.

 

 

 

 

 

What Professors Shouldn’t Teach

 

In his book, Save the World on Your Own Time, Stanley Fish takes the position that faculty may not advocate political or moral views in the classroom. Indeed, he claims that if “an idea or policy is presented as a candidate for allegiance –aided by the instructor, students are asked to decide where they stand on the matter - then the classroom has been appropriated for political purposes.”

If the primary purpose of the professor is to persuade the students to his or her point of view, then Fish has a point. But Fish goes further. He thinks the personal determination of professors and students as to what they believe should be no part of a university classroom life (though he thinks it permissible to evaluate particular pieces of discourse advocating policy positions).

In teaching the First Amendment for many decades, along with many, if not most, law professors, contrary to Fish, I have long asked students how they would decide important cases. Many professors will do this and hide the ball as to their own views. I tend to advocate positions in the classroom. The views I advocate are those the students are likely to disagree with and most of the time those views are those I actually hold. Generations of students have rejected my views. Would I like to persuade some? Sure. But that is far from my primary goal.

My predominant purpose is to challenge students to think about how to argue for the positions they at least tentatively hold and to make them think that First Amendment issues are more challenging than they had previously thought. At the same time, I tell students they should listen carefully to the arguments of those who resist the positions I take because law school is calculated to develop the ability to argue both sides of difficult questions and to take both sides into account in developing your own positions. John Stuart Mill was not speaking purely out of his imagination when he suggested that this process is well calculated to further the pursuit of truth.

Fish’s notion of professionalism is impoverished. If implemented, it would undermine the teaching of many political theorists, philosophers, and law professors, just to mention a few. More generally, it would make it far more difficult to prepare students for civic life in a democratic society.

Columbia University President Lee Bollinger has a more sophisticated conception of what should happen in university classrooms, but I have some reservations about his position as well. In a lecture on academic freedom before the Association of the Bar of New York nearly ten years ago (see here), Bollinger rightly said, “We should not accept the argument that professors are foreclosed from expressing their opinions on the subject in the classroom,” and he also said “We will not tolerate intimidation of students in the classroom for appropriately expressing reasonable and relevant points of view.” There is, of course, a risk when a faculty member takes a position on a moral, political, or legal issue that some students will be reluctant to speak out. That is why faculty members who do take such positions need to encourage opposing views and try to promote debate among the students on such issues. Fish seems to view this as the blind leading the blind. I think this fails to appreciate the extent to which persons with different backgrounds and experiences have something to contribute on controversial issues.

Bollinger, I believe, would part company from Fish here as well. He believes the academic community most values qualities of mind that have “the imaginative range and the mental courage to take in, to explore, the full complexity of the subject. To set aside one’s pre-existing beliefs, to hold simultaneously in one’s mind multiple angles of seeing things, [and] to actually allow yourself to believe another view as you consider it.” This to my mind is an extremely attractive type of mind to promote. And Bollinger does not suppose that it is or should be the goal of every course in the university. Bollinger understands that a crucial function of a university is to transmit human understanding and new knowledge to the next generation.

But there is a little bit of Fish in Bollinger. He suggests that the “question is not whether a professor advocates a view but whether the overall design of the class . . . is to explore the full range of the complexity of the subject.” Bollinger, of course, knows that no class can possibly explore the full complexity of the subject, but I take him to be suggesting a kind of “fairness doctrine” for courses. Let all sides be heard or as many sides as possible. This kind of prescription risks sacrificing depth for breadth in pursuit of the mental qualities Bollinger prizes. Perhaps, however, the prescription is simply designed to prevent a professor from simply exploring his or her own point of view in a course. But here I would also contend there should be a place in the university for courses in which professors teach their own point of view. Imagine seminars in which Rawls, Dworkin, or Nozick had advanced materials designed to pursue in depth their own political theories. Bollinger might say that would capture the full range of the complexity of the subject, but if the professor can define the subject to fit his or her own views, Bollinger’s game is up.

It seems to me that seminars of this character are enormously valuable. Similarly, I know of conservative and liberal professors in law, philosophy, and government who would do a far better job of exploring their own positions in depth that they would in trying to adopt the neutral pose of on-the-one-hand-on-the-other-hand-let-me-hide-the ball. And students might well benefit from examining and questioning the in depth analysis those professor really believe in.

If Fish has an excessively narrow one-size-fits-all view of the profession, Bollinger appears to tip the scales too heavily toward promoting certain qualities of mind. There is room for the kinds of professors and classes Fish and Bollinger have in mind, but there should be room for much more in a first class college or university.

This Changes Everything

The Vatican report issued Monday, October 13, is a preliminary document, intended to mark the halfway point of a synod convened to discuss the family. Documents like that aren't supposed to excite passions. They're supposed to be sleepy, soporific, committee-crafted documents meant to reveal little. They are not usually earthquakes that rattle the foundations of the Church.

This document, however, is different. It is, as John Thavis wrote, an earthquake. It is worth extended study, and since it is meant to be a template for further discussions, it will undoubtedly be carefully scrutinized in the months ahead. I shall certainly return to it in my future writing. For I truly believe that nothing since the close of the Second Vatican Council 50 years ago has the potential of this document to change "business as usual" in the Catholic Church.

I'd like to indicate four areas where I think this document breaks new ground:

(1) The report opens by powerfully asserting a dynamic understanding of the human person and the human condition. That is the meaning of the declaration in paragraph five that "anthropological and cultural change today influences all aspects of life." The word "anthropological" is particularly important. That is a term of art reserved in Catholic moral writing for what is understood about human nature. By speaking of "anthropological change," the report suggests that our awareness of the human person is capable of growth and change as history and the sciences reveal new vistas for discovery.

This may seem self-evident but in fact it marks a crucial shift in Catholic thought about the human person. Pope John Paul II"s concept of the person, as articulated especially in his writings on the theology of the body, was remarkably static. It assumed the existence of a single, biologically-determined human nature, good for all times and places and proposed a one-size-fits-all set of moral laws to be applied across time in every case.

The synod report moves away from this fixed and unalterable concept of the person. And this will change how we reason about human sexuality. If we adopt the static view of John Paul II it becomes impossible to incorporate into moral analysis the latest scientific insights on, say, the nature of same-sex attraction. A dynamic understanding of the person, on the other hand, which keeps the door open to future learning, may be open to revisiting and revising teaching that has become outdated -- not because the underlying values have changed but because our awareness of what it means to be human has shifted.

(2) The document seeks to give primary place to the person and his or her journey towards faith in God. Faith is a process according to this document, and it is a process guided and shepherded by an awareness of Jesus. And Jesus is seen as welcoming: "Jesus looked upon the women and men he met with love and tenderness, accompanying their steps with patience and mercy."

The report demands that the Church meet people in the same way Jesus encountered them: in all the messiness of their scattered lives. Jesus, after all, promised the gift of living water to a Samaritan woman who had been married five times and was even then cohabiting with a man outside of marriage (John 4: 4-26).

This insight is then brought to bear on the question of reconciling the divorced and remarried with the Church. To appreciate the new path this document has embarked upon, John Paul II's pontificate again serves as a point of comparison. Take, for instance, his speech to the Roman Rota in the year 1994. These annual speeches are deliberately intended as instructions issued by the Pope to the Vatican Supreme Court charged with hearing petitions for marriage annulments. Judges, John Paul II gravely warned, must avoid "the temptation to lighten the heavy demands of observing the law in the name of a mistaken idea of compassion and mercy." What mattered to John Paul II, above all, was the defense of the abstract principle of the marital bond.

The synod report, in other words, shifts the premise of the debate on the subject of the divorced and remarried. Where John Paul II and Benedict XVI were concerned above all else with abstractions -- rules, principles, policies -- Pope Francis is concerned with the concrete reality of individual human beings trying to do their best in their faith journeys. People who have been divorced, who have remarried, who are now living in successful second marriages, should be "listened to with respect and love." Many of them may even have been divorced "unjustly."

(4) The synod report breaks fresh ground again in the way it discusses frankly the "reality... of cohabitation." To be sure, the report stresses the singular importance of what it calls an "institutionally-recognized relationship." Marriage should be the culmination that couples should strive to attain.

But the document also acknowledges, in a way never done before, that cohabitation might be a fruitful step in the direction of spiritual growth. It might, the document states, be "seen as a germ," a seed that might grow in the direction of a permanent, life-long marital union. How would Jesus respond to people living together outside of marriage? He would, the document insists, act like "the light of a beacon in a port." He would not condemn or drive such people away, he would attract them with the example of his life. We should imitate Jesus when we consider those who are in cohabitation relationships.

(4) And, of course, I must comment on the synod's treatment of gays. This part of the document represents a stunning reversal of the hostility we've seen in many quarters of the Catholic Church. Omitted from this document is even a hint of the Catholic Catechism's denunciation of same-sex attraction as an intrinsic disorder. In its place, we find: "Homosexuals have gifts and qualities to offer the Christian community; are we capable of welcoming these people... ?" "Often they wish to encounter a Church that offers them a welcoming home." Will they be attracted or repulsed by what they find?

What is most surprising about the document's discussion of gays is found in paragraph 52, where it states, regarding same-sex unions: "It has to be noted that there are cases in which mutual aid to the point of sacrifice constitutes a precious support in the life of the partners."

"Mutual aid" and "sacrifice" -- these are words that Catholic moral teaching reserves to marriage. Pope Pius XI, in his encyclical Casti Connubii (1930), described marriage as promoting the "mutual aid" of the spouses. Marriage, John Paul II was fond of repeating, must imitate the "sacrificial love" of Jesus, who died for the sins of humanity.

This document, in other words, changes the terms of the debate. And on the subject of same-sex attraction, debate is precisely what the document is inviting. Thus paragraph 51 states that "the question of homosexuality leads to a serious reflection on how to elaborate realistic paths of affective growth."

The synod's report, in other words, is an invitation to reform the likes of which we have not seen for half a century. I hope to be a full participant in this debate, and certainly I encourage others to join the discussion.

cross-posted: http://www.huffingtonpost.com/charles-j-reid-jr/this-changes-everything_b_5984634.html 

Ten Facts about Homelessness in USA

Three True Stories

Renee Delisle was one of over 3500 homeless people in Santa Cruz when she found out she was pregnant.  The Santa Cruz Sentinel reported she was turned away from a shelter because they did not have space for her.  While other homeless people slept in cars or under culverts, Renee ended up living in an abandoned elevator shaft until her water broke.

Jerome Murdough, 56, a homeless former Marine, was arrested for trespass in New York because he was found sleeping in a public housing stairwell on a cold night.  The New York Times reported that one week later, Jerome died of hypothermia in a jail cell heated to over 100 degrees.

Paula Corb and her two daughters lost their home and have lived in their minivan for four years.  They did laundry in a church annex, went to the bathroom at gas stations, and did their studies under street lamps, according to America Tonight.

Fact One.  Over half a million people are homeless

On any given night, there are over 600,000 homeless people in the US according to the US Department of Housing and Urban Development (HUD).  Most people are either spending the night in homeless shelters or in some sort of short term transitional housing.  Slightly more than a third are living in cars, under bridges or in some other way living unsheltered.

Fact Two.  One quarter of homeless people are children

HUD reports that on any given night over 138,000 of the homeless in the US are children under the age of 18. Thousands of these homeless children are unaccompanied according to HUD.  Another federal program, No Child Left Behind, defines homeless children more broadly and includes not just those living in shelters or transitional housing but also those who are sharing the housing of other persons due to economic hardship, living in cars, parks, bus or train stations, or awaiting foster care placement.  Under this definition, the National Center for Homeless Education reported in September 2014 that local school districts reported there are over one million homeless children in public schools.

Fact Three.  Tens of thousands of veterans are homeless

Over 57,000 veterans are homeless each night.  Sixty percent of them were in shelters, the rest unsheltered.  Nearly 5000 are female.

Fact Four.  Domestic violence is a leading cause of homelessness in women

More than 90% of homeless women are victims of severe physical or sexual abuse and escaping that abuse is a leading cause of their homelessness.

Fact Five. Many people are homeless because they cannot afford rent

The lack of affordable housing is a primary cause of homelessness according to the National Law Center on Homelessness and Poverty.  HUD has seen its budget slashed by over 50% in recent decades resulting in the loss of 10,000 units of subsidized low income housing each and every year.

Fact Six.  There are fewer places for poor people to rent than before

One eighth of the nation’s supply of low income housing has been permanently lost since 2001.  The US needs at least 7 million more affordable apartments for low income families and as a result millions of families spend more than half their monthly income on rent.

Fact Seven.  In the last few years millions have lost their homes

Over five million homes have been foreclosed on since 2008, one out of every ten homes with a mortgage.  This has caused even more people to search for affordable rental property.

Fact Eight.  The Government does not help as much as you think

There is enough public rental assistance to help about one out of every four extremely low income households.  Those who do not receive help are on multi-year waiting lists.  For example, Charlotte just opened up their applications for public housing assistance for the first time in 14 years and over 10,000 people applied.

Fact Nine.  One in five homeless people suffer from untreated severe mental illness

While about 6% of the general population suffers from severe mental illness, 20 to 25% of the homeless suffer from severe mental illness according to government studies.  Half of this population self-medicate and are at further risk of addiction and poor physical health.  A University of Pennsylvania study tracking nearly 5000 homeless people for two years discovered that investing in comprehensive health support and treatment of physical and mental illnesses is less costly than incarceration, shelter and hospital services for the untreated homeless.

Fact Ten.  Cities are increasingly making homelessness a crime

A 2014 survey of 187 cities by the National Law Center on Homelessness & Poverty found: 24% make it a city-wide crime to beg in public; 33% make it illegal to stand around or loiter anyplace in the city; 18% make it a crime to sleep anywhere in public; 43% make it illegal to sleep in your car; and 53% make it illegal to sit or lay down in particular public places.   And the number of cities criminalizing homelessness is steadily increasing. 

For more information look to the National Law Center on Homelessness & Poverty, the National Center for Homeless Education and the National Coalition on the Homeless. 

 

 By Bill Quigley.  Bill teaches law at Loyola University New Orleans.  You can reach Bill at [email protected]

 

Advocacy Scholarship and the Place of Law Schools in the University

In a recent symposium in the Illinois Law Review, Jason Mazzone maintains that many, if not most, Constitutional Law articles in laws reviews are principally advocacy pieces. He contends that these articles are not scholarship. He insists that law professors should engage in the same kind of research and writing employed in other departments. See here. (For interesting commentary by Paul Horwitz, see here). In so arguing, Mazzone puts forward the most recent echo (though he does not go quite as far) of the insouciant claims of Stanley Fish, who insists that professors in universities should confine themselves to politically neutral academic discourse.  

I think it worth observing that advocacy pieces in Constitutional Law have counted as scholarship in American law schools, and the narrow conception of scholarship recommended by Mazzone and Fish borrowed from other disciplines has long been rejected in American law schools, not to mention some other humanities and social science departments. Mazzone and Fish apparently would not allow such articles to be counted for tenure in law schools. Would legal education be better off if law professors did not write what in many respects many, if not most of them, are best equipped to write? It seems obvious to me that the clash of advocacy scholarship has sharpened our understanding of legal issues. John Stuart Mill was on to something when he thought that advocates were more likely to see the benefits of a particular position. In the end, I do not see the advantage of imposing the author's crabbed conception of scholarship and inquiry as the one-size-fits-all mode of writing in the legal academy.

Having said that, I am not claiming that advocacy pieces are the only or even the best approaches to the understanding of law or legal issues. Law reviews have always had articles featuring the on-the-one-hand-on-the-other-hand handwringing neutral sounding discussions of legal issues, and the move toward interdisciplinary scholarship has made law reviews far more interesting and important. Moreover, many advocacy pieces are shoddy. They often sport the kind of bad advocacy that avoids confrontation with the most serious challenge to the positions they take. Nonetheless, law schools have rightly declined to dismiss advocacy pieces merely because they argue for apparently preconceived positions, let alone because they dare to depart from neutral academic discourse.

It is also worth observing that the call of Stanley Fish for politically neutral discourse highlights one of the great failures of American education. Universities ought to be a place where student citizens come to learn how to debate the great issues facing the United States and the world. But where would they go to do this? In most departments, they can learn facts that bear on such issues, but the curriculum itself does not present adequate opportunities to explore the policy issues presented.

The university is infected with positivism, and normative issues are for the most part unexplored. Political Science is a discipline thoroughly infected with the positivist disease. The exceptions within the discipline are Constitutional Law (which does not come close to addressing the broad range of policy issues) and Political Theory. The theory is valuable, but it approaches policy issues from a high level of abstraction that is under inclusive with regard to the levels of abstraction analysis needed to approach many issues. The same applies to Philosophy Departments that themselves are situated in a discipline that is not well equipped to explore the interaction between theory and practice.  Public policy schools tend to be dominated by cost-benefit analysis; economic departments by narrow economic analysis.

A law school is one place in the university where a broad range of policy questions can be addressed. Of course, one weakness is that most of these questions are addressed by resort to a model of adjudication, but that is not the exclusive model employed and the adjudicatory model quite frequently engages in an exploration of relevant policy factors. In short, law schools fill a vacuum in scholarly writing and in the education of citizens wrongly left open in the general university.

This brings me back to Fish and Mazzone. The imposition of their imperialistic conceptions would deprive the university of a type of scholarship and teaching that is vitally needed in a democratic society. 

 

Catholic Conservatives and American Culture

Conservative Catholics are involved in a fascinating and heated debate with each other. The debate is about the compatibility (or not) with America as they sometimes style it or liberal democracy as they sometimes conceive of it. One group traceable to John Courtney Murray sometimes called older, orthodox, accommodationist, or neo-conservative maintains that Catholicism is fully compatible with American style democracy. Their position is that the American Constitution is founded on natural law/natural rights principles and is opposed to a relativistic view. Their quest is to fill in the neutrality of liberal democracy, to return us to limited government, laissez faire economics, and a strong foreign policy. They are pro-life, pro-family, and supportive of traditional marriage.

The so-called radical school denies the compatibility of Catholicism and liberal democracy. It rejects the individualism, the excesses of capitalism, and the imperial tendencies while sharing the pro-life, pro-family, and traditional marriage views of the other conservatives.

Catholic conservatives are on the defensive. It should be obvious to a stone that gay rights are here to stay and that those who fight against it will be marginalized. Both groups are right to worry that  relativism, individualism, and pure selfishness are too prominent in American culture (though blaming these tendencies on “liberalism” strikes at a straw man). The conservative radicals join the political left, not to mention Pope Francis, in worrying about the hedonism, materialism, exploitation, and imperialism embedded in capitalist culture. It is helpful that many traditional Catholics (liberal on most economic issues- conservative on many social issues – this is why they do not like being called conservatives) have something to share with the political left and speak out in articulate ways about these issues.

Both groups of conservatives seem to believe that liberal Catholicism is doomed. It is a strange time to believe that. After all, the current Pope does not stress social issues and has even invited an open debate about the issues that concern liberal Catholics. Moreover, there is a smugness about this in comparing liberal Catholics to liberal Protestants which they also see as terminally ill. In fact, 60% of Anglo-Americans born in the Catholic Church are no longer Catholics and a surprisingly strong percentage of those who have left are not liberal.  Indeed, the decline among Anglo-Catholics is about the same as that of liberal Protestants. As is well known the size of the American Catholic Church has been supported by Latino immigration and that group tends to be more conservative on social issues. So the American church looks to become more conservative than it is today (though it is hard to predict how much the church overall will move in response to the culture).

Nonetheless, on most social issues favored by conservatives, they are right to fear that they have lost a substantial part of the culture war. They probably will have some room for maneuver on abortion for some time. But consider the rest of the views: pre-marital sex, masturbation, divorce, contraceptives, same sex relations and the like. According to Catholic doctrine, doctrine strongly held by the conservatives, these are always wrong. The conservatives are right to worry that they are on the margin of American culture. Indeed, despite the doctrine, the conservatives are far from being a majority, not even in their own church – and it’s a good thing too.

For an excellent introduction to the debate among Catholic conservatives, see http://www.theamericanconservative.com/dreher/ghosts-chuck-colson-richard-john-neuhaus-first-things/

Religion Without God

I have yet to read Ronald Dworkin’s book, Religion Without God, but I go into in with three observations. First, as a matter of ordinary usage, our understanding of religion does not require a belief in a transcendent God. If it did, Buddhism as ordinarily understood would not count as a religion. Second, it makes no sense to me to offer legal protection to those who are motivated by religion to live in a certain way, but not to those who as a matter of moral conscience (free of any religious tradition) feel obligated to live their life in a certain way. Third, it is likely that Dworkin’s perspective may offer the most challenging alternative to a theological perspective I find persuasive.

Hans Kung and Charles Taylor argue that it is a reasonable for an agnostic or a person with doubts to act on the assumption that God exists. Given a choice it is better to believe that the universe is meaningful rather than meaningless, that we are part of something larger than ourselves, that our life has a purpose rather than one simply chosen, that we are disciples of a loving God.  In his book, Dworkin argues that there is a moral reality and that human life has objective meaning and importance. He also maintains that the universe is of intrinsic awe and wonder. He contends that these beliefs are central to religion and to secular humanists. He believed that recognition of this should dampen the culture wars between the religious and the humanists.

In the book, Dworkin makes a point he made in his earlier Justice for Hedgehogs. Morality reality is independent of God and cannot be changed by God. If God decreed that the gratuitous torture of babies was not immoral, God would be wrong. I agree, and Dworkin uses the point to strengthen the ties between the religious and the humanists.

Going into the book, however, I remain a follower of Kung and Taylor. I think my own life goes better if I try to act as if a loving God (not an angry hell-threatening God) exists that I am called to follow, if I work within a religious tradition in which thinkers over the ages have addressed life issues from a moral perspective (though I would not say this of all religious traditions), and if I encounter others who inspire me in the ways they try to live religious lives (not that there are no humanists to be inspired by).

At least the pull of a religious tradition is significant for me. In any event, I look forward to reading Dworkin’s last book.  

Toward a Theory of Human Motivations

 

What follows is a selection from La Rochefoucauld (Tr. Leonard Tancock). Maxims. London: Penguin Books, 1959 (1678):

“One of the reasons why so few people are to be found who seem sensible and pleasant in conversation is that almost everybody is thinking about what he wants to say himself rather than about answering clearly what is being said to him. The more clever and polite think it enough simply to put on an attentive expression, while all the time you can see in their eyes and train of thought that they are far removed from what you are saying and anxious to get back to  what they want to say. They ought, on the contrary, to reflect that such keenness to please oneself is a bad way of pleasing and persuading others, and that to listen well and answer to the point is one of the most perfect qualities one can have in conversation.”

“Our self-esteem is more inclined to resent criticism of our tastes than of our opinions.”

“We all have strength enough to endure the troubles of others.”

“We often pride ourselves on even the most criminal passions, but envy is a timid and shamefaced passion we never dare acknowledge.”

“Greater virtues are needed to bear good fortune than bad.”

“Neither the sun nor death can be looked at steadily.”

“Our promises are made in proportion to our hopes, but kept in proportion to our fears.”

“What makes us so unstable in our friendships is that it is difficult to get to know qualities of soul but easy to see those of mind.”

“Everybody complains of his memory, but nobody of his judgment.”

“To be known well, things must be known in detail, but as detail is almost infinite, our knowledge is always superficial and imperfect.” [This is virtually identical to a key proposition found in Jain epistemology and provides one part of the justification of a relativistic and pluralist theory of knowledge.]

“Nothing is less sincere than the way people ask and give advice. The asker appears to have deferential respect for his friend’s sentiments, although his sole object is to get his own approved and transfer responsibility for his conduct; whereas the giver repays with tireless and disinterested energy the confidence that has been placed in him, although most often the advice he gives is calculated to further his own interests or reputation alone.”

“We are so used to disguising ourselves from others that we end by disguising ourselves from ourselves.”

“The glory of great men must always be measured by the means they used to acquire it.”

“The virtues lose themselves in self-interest like rivers in the sea.”

“Spiritual health is no more stable than bodily; and though we may seem unaffected by the passions we are just as liable to be carried away by them as to fall ill when in good health.”

“Virtue would not go so far without vanity to bear it company.”

“Nothing is so contagious as example, and our every really good or bad action implies a similar one. We imitate good deeds through emulation and evil ones because of the evil of our nature which, having been held in check by shame, is now set free by example.”

“Not many know how to be old.”

“We should often blush at our noblest deeds if the world were to see all their underlying motives.”

“It is far easier to stifle a first desire than to satisfy all the ensuing ones.”

“In order to succeed in the world people do their utmost to appear successful.”

 

“Alone among the moralists, La Rochefoucauld offered something like a theory of human motivations. In fact, his views about unconscious motivation and unconscious cognition are probably more valuable than anything found in twentieth-century psychology. To some extent it is true, as Jean Lafond says, that ‘a certain verbal exuberance together with the exaggeration required for an original assertion turns the psychology into mythology.’ Yet…some systematic views can be extracted from what first appear as a random collection of diamond-like maxims.”

—Jon Elster, from the section on “the French Moralists” in a work that evidences his singular capacity to see with remarkable clarity both the forest and the trees: Alchemies of the Mind: Rationality and the Emotions (Cambridge University Press, 1999). The four writers he treats in the part of the book—Montaigne, Pascal, La Rouchefoucauld, La Bruyère—“mark the beginning and the end of the greatest era in French intellectual and cultural history.” (Whether or not he intended it as such, we might read this, in part at least, as an indirect comment on the overweening infatuation with postmodern French philosophers among more than a few academic intellectuals.)

 

Patriotism and Injustice

Saturday’s Wall Street Journal is always a treat: great features and bizarre opinions. Last Saturday, Peggy Noonan departed from her weekly diatribes against President Obama to make the new discovery that it was not enough for Republicans to attack the Democrats. The Republicans had to stand for something. Incredibly, she stopped there leaving me with the impression that she has no clue what positive message could unify the divided Republicans. On the other hand, Donald Kagan put forward an education policy that could unify Republicans, but that policy is indefensible.

It is not all wrong, however. Kagan argues that an education should be designed not just for instrumental purposes, but to produce a virtuous people and good citizens. He rejects the idea of a value free education. In my view, as I have argued in prior writing, the notion of a value free education was always bankrupt, if not oxymoronic. Teachers are always role models; they model behavior; and in enforcing classroom rules, they instill views of how people with good character behave. Think also of sports coaches in schools across the country. There is nothing value free about what they do.

Kagan also rightly agrees with Jefferson who thought the purpose of education was to communicate the special virtues of republican representative democracy (including equality), the dangers that threatened it, and the responsibility of its citizens to esteem and protect it. Although Kagan does not mention it, Jefferson thought that it was the responsibility of citizens to criticize the country if it did not live up to the virtues of representative democracy even to the point of revolution.

This failure allows Kagan to take some firm steps into outer darkness. He argues that it is the responsibility of education to teach its student to be patriotic, meaning to love, support, and defend the country. Obviously there is a difference between cultivating an appreciation for a sense of justice, and insisting on loving and defending a country – even if it becomes unjust. Of course, American will have deep ties to their country regardless of what is taught in the schools. The tendency already is for Americans to be deeply chauvinistic. But citizens should be taught to love justice and that their love of country needs to be earned by a polity that strives to live up to the virtues of a representative democracy. There is no moral responsibility to support injustice.