Here is Franklin Foer's recent New York Times essay, "The Joy of Federalism." Pointing to the gay-marriage debate, to state-level stem-cell-research initiatives (a/k/a biotech boondoggles), and to some local efforts to combat "corporate abuses," Foer observes that "liberal energies once devoted to expanding the national government are being redirected toward the states." Nor are we witnessing merely progressive opportunism, Foer insists: "[T]he well-known liberal liking for programs at the national level has long coexisted alongside a quieter tradition of principled federalism -- skeptical of distant bureaucracies and celebratory of local policy experimentation." After a quick re-cap of the career of New Republic founder H. Croly, Foer notes: "For conservatives, 'states' rights' often seems just another way of asserting their libertarianism, their dislike of government in any form. Liberal federalism, on the other hand, doesn't view the state and federal governments as opposing forces."
Foer admits that "many if not most of today's liberal federalists haven't converted out of true belief[.] Some have adopted the rhetoric of states' rights because it provides psychic relief from the alienation they feel now that a majority of the nation's voters has returned George W. Bush to office. In its most frustrated form, this alienation has manifested itself in the ubiquitous joking about emigrating to Canada. Liberal federalism provides a more rational outlet. Instead of retreating to Vancouver, liberal federalists would retreat from national politics and focus on effecting change in their own blue states -- passing health care reforms, expanding gay rights."
I wonder: Is a principled commitment to "federalism" possible? What should we conclude when -- to pick only one example from among many, on the right and left -- proponents of same-sex marriage celebrate the Massachusetts Supreme Court's decision and criticize the proposed Federal Marriage Amendment, on federalism grounds, on the one hand, and contend that the Constitution's equality norms require recognition of same-sex marriages, on the other? Putting aside, for the moment, the Constitution's federalism-related and structural provisions, are there rules, standards, or guidelines that could help us, in something resembling a principled way, to identify those question that should be resolved locally, and to distinguish them from those that should be decided on a national level? Or, does it all come down to opportunistic calculations about where we are most likely to get our way?
The latest issue of Books & Culture features this essay, "The Gospel According to America," by David Dark (author of Everyday Apocaplyse and The Gospel According to America: A Meditation on a God-Blessed, Christ-Haunted Idea). The essay offers plenty of (cautionary) food for thought:
Properly understood, the gospel of Jesus is a rogue element within history, a demythologizing virus that will undermine the false gods of any culture that would presume to contain it. In fact, as American history shows, the gospel itself will often instruct nations in the ways of religious tolerance. But our understanding of the gospel is made peculiarly innocuous when its witness of socially disruptive newness (in whatever culture it finds itself) is underplayed or consigned to the realm of "religious issues" within the private sphere. When the Bible is viewed primarily as a collection of devotional thoughts, its status as the most devastating work of social criticism in history is forgotten. Once we've taken it off its pedestal long enough to actually read what it says, how does the principality called America interpret the gospel? In an age when many churchgoing Americans appear to view the purposes of the coming kingdom of God and the perceived self-interests of the United States as indistinguishable, what does faithful witness look like? . . .
Jesus' announcement of a better kingdom puts any and every Babylon on notice, and woe unto any nation that would presume itself above the call to repentance, refusing to call into question its sacred symbols and assuming a posture of militant ignorance. Does the biblical witness disturb the mental furniture of the average American? Do we have the ears to hear a prophetic word? When we pray, "Deliver us from evil," are we thinking mostly of other people from other countries or different party affiliations, or are we at least occasionally noting the axis of evil within our own hearts and at work in the lives of whomever we think of as "our kind of people"?
Cornell law prof Brad Wendel has an interesting post on Legal Ethics Forum about the levels of deception practiced by lawyers, building off Harry Frankfurt's essay "On Bullsh--." (MoJ has thus far been an obscenity-free zone -- far be it from me to buck the trend.)
It was only a matter of time. In case your conference calendar has a gaping void, consider it now filled: the first Christian Blogosphere Convention a/k/a GodBlogCon 2005. Panels include "Blogging Christian Philosophy" and "Christian Homeschool Blogging," but alas, no place at the table yet for Catholic legal theory.
The New Republic's Supreme Court writer, law professor Jeffrey Rosen, has a nice essay in the upcoming issue on the Ten Commandments case. Though I don't think it quite right to say, as Rosen does, that "conservatives like Justices Antonin Scalia, Clarence Thomas, and William Rehnquist . . . yearn to resurrect open state support for religion, including school prayer"; and though I am not as sure as Rosen is that the Religion Clause's touchstone is "neutrality" (or, I don't understand "neutrality" in the same way); I think Rosen's discussion is very helpful. Here's the conclusion:
As Europe confronts the growing threat of Islamic extremism, countries like France are attempting to denude the public square of all religious displays--for example, forbidding young Muslim girls from wearing headscarves as a threat to the secular state. But the French effort to crack down on even private religious speech is an expression of the same overzealous secularism that led the French revolutionaries of earlier times to smash the faces of carved saints in the cathedrals. There is a similar zealotry in the air in the United States, as radical separationists are attempting to cleanse the public square of even ceremonial acknowledgments of our religious history while radical supremacists yearn for open state support of religion. The Supreme Court should reject both extremist positions. By ruling that the Ten Commandments can be displayed as long as the state isn't attempting to endorse a particular view about the centrality of religion in American life, the Court may not satisfy secular liberals or social conservatives. But it could provide a model of a healthy relationship between church and state.
[I know that many MOJ readers will be interested in this posting, by philosopher Elizabeth Anderson over at Left2Right. I assume that in the days to come, there will be some interesting comments on the posting at the Left2Right blog. One can access the blog by clicking here. mp]
This paper, by the eminent scholar Harold Berman, "World Law: An Ecumenical Jurisprudence of the Holy Spirit," looks fascinating:
By "world law" is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia are world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, universal criminal law administered by the International Criminal Court, much of intellectual property law, and much of human rights law. The article proposes a theory of jurisprudence that is appropriate to the development of such a common law of mankind. Such a jurisprudence would integrate the traditional schools of positivism, natural-law theory, and the historical school - positivism stressing will (the policies of the lawmaker), natural law stressing reason (moral values inherent in human nature), and the historical school stressing group memory (community traditions). According to St. Augustine, these three interlocking qualities of the human mind - will, reason, and memory - reflect the image of the tri-une God and were implanted by Him in man. In the West, the three schools of legal thought split apart from each other in the nineteenth and early twentieth centuries. In the new world economy and the emerging world society of the late twentieth and twenty-first centuries, the Holy Spirit challenges us to re-integrate them in the gradual creation of the body of world law.
Stuart Buck writes, commenting on the Supreme Court's decision in Roper -- which I mentioned the other day -- invalidating the execution of those who commit capital crimes as juveniles:
So the Court has taken into account the European distaste for using the death penalty on convicted brutal murderers. But, after all, Europeans are not uniformly opposed to all forms of killing. I wonder what the Court might someday make of the fact that the Netherlands sometimes allows terminally ill children to be killed, potentially up to the age of 12? (Perhaps these beliefs can be reconciled: If a terminally ill child manages to commit a brutal murder at age 11, then his or her life must be preserved as long as possible.)
The always-engaging and delightfully snarky Dahlia Lithwick has an essay up at Slate about the oral arguments in the Supreme Court's current Ten Commandments case. She opens with this:
Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that "secular" angels—candy stripers or maybe Hell's Angels) able to dance on the head of a pin. You'd have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.
I've always thought it was too bad that (a) "medieval" often functions in contemporary discourse as an epithet, and (b) that modern-day memory of the contributions and achievements of the medieval scholastics seems limited to their discussions (which, if I remember correctly, were much more intriguing and evocative than the "head of a pin" line suggests) about angels. But I digress . . .
Lithwick is right, in my view, to observe that the Court's doctrine dealing with public religious displays is a "mess." "As a result," Lithwick notes, "the court spen[t] the morning sorting among the rubble of discarded tests—all smashed up like Moses' tablets—and deconstructing hopelessly narrow, fact-specific old case law." What I find particularly interesting about her account is the extent to which the various players try to avoid (or, in Justice Scalia's case, embrace) the question whether we really want to say that "the Ten Commandments may be displayed on public property because they aren't really religious." Of course they are. It does not necessarily follow, though, that they may not be displayed in public or on public property. And, whether or not religious Christians and Jews should want them displayed is another matter entirely.
As we've noted previously (see here and here), public policy on stem cell research increasingly appears to consist of a frantic money grab by states. Now New York is jumping into the action:
State lawmakers from both parties yesterday proposed spending at least $100 million a year for stem cell research, joining a growing number of states moving to fill the void left by President George W. Bush's ban on federal funding to expand the studies.
Advocates believe stem cell research holds promise for treating diseases such as Alzheimer's, Parkinson's and diabetes. They fear New York is in danger of losing top scientists to states willing to fund it.
"We know they are actively being recruited," said Maria Mitchell, president of the Academic Medicine Development Company, which represents medical schools and research institutes.
Any role for ethical considerations? If we change some words around, we could be reading an argument to justify the construction of a new convention center. Bioethics may give the "race to the bottom" among states a whole new slant.
