I have this short reflection over at the Liberty Law blog, which picks up a little bit on some things I've thought about at MOJ before. This is my own contribution of sorts to the symposium at the Law and Religion Forum that we are hosting on Professor Phillip Muñoz's fine paper, "Two Concepts of Religious Liberty," and the set of posts it has generated. A bit:
Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.
Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.
As Hamburger puts it:
If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.
The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.
Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.
I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.
Tuesday, October 11, 2016
At least, that's how I'm choosing to spin this little gem from the recent Wikileaks dump.
Bishop Robert Barron has a post at Word on Fire bearing the title of this one: "The Virtues of Saint John XXIII." I recommend it. For those of us who are lawyers, in particular, it is worth reflecting how the virtues discussed in the piece relate to our practice and profession of law.
Monday, October 10, 2016
I appreciate Tom's response to the quoted paragraphs I posted from Legutko's book. I did intend them to be in conversation with Tom's post, just as I have made arguments at Mirror of Justice in the past in conversation with his posts regarding many of the points he makes below. We may not agree about a few things, but we do agree about others. I'll just mention a few of the agreements (one of which is a tentative agreement) before noting a possible disagreement.
Tom and I agree that churches and religious institutions have made social contributions in the past and continue to make them today. Tom and I also agree that churches and religious institutions should be permitted to continue to make these contributions notwithstanding their standing athwart various moral, cultural, and political values supported by the broader secular society.
I think, but am not as sure, that we also agree that any time churches and religious institutions must justify the sorts of contributions they make to the broader secular world, there is a danger that in so justifying themselves, they may feel pressure to compromise as to certain of their core beliefs. That can occur not only, as Tom writes, under such circumstances as when "Catholic colleges drop...major religious elements in order to be eligible for federal funding." It can also occur more subtly, as when a religious institution vying for a particular contract knows that it is less likely to obtain that contract unless it soft-pedals, or moderates, its views on particular political, moral, or cultural issues of interest both to it and to the broader secular polity. It might happen in the context of tax and other fiscal exemptions. Under circumstances which, as Tom said, religious freedom is not an accepted premise, but a premise that needs to be justified by religious institutions' contributions to secular society, it seems only reasonable to suppose that an increasingly secularizing society will want to see justifications that match up with its own premises concerning the public good. That might very well be dangerous both for religious freedom and for the continuing survival of the religious organizations' contributions to the social sphere. And that, I believed, was one of the points made in the paragraphs I quoted--that the twin dangers of conciliation and capitulation must be minded. One stratagem to circumnavigate this problem might be for the religious organization to focus its energies on ostensibly "nonpolitical" or "noncultural" issues. I doubt it is an effective stratagem, however. More importantly, though there may be a difference in pursuing secular aims and justifying one's aims in secular terms, keeping these two projects conceptually pure may be rather challenging over time.
Tom and I may disagree about what he has described as "the middle" and the sorts of arguments that are likely to persuade it. Those disagreements have been rehearsed in other posts, but they are relevant here, too. In fact, I took it to be a premise of Tom's post that as American society becomes more secular, the middle itself will shift, and therefore the sorts of arguments that will be persuasive to it will shift, too. Those arguments will need to be made, more and more, in the language of secularism and within the accepted premises of what makes for a "social contribution" and what does not, and less and less in a language which takes it as a premise that religious freedom is intrinsically good. Tom and I may also disagree, in that case, about the likelihood of the dangers of conciliation and capitulation that face religious institutions as those changes persist.
We could all use a tonic for this political season, and what could be better than the soothing prose of John Henry Newman, whose feast was yesterday? I've noted before some resources from Newman for how to think about legal arguments. And I recently came across an essay (available here to those with JSTOR access) by Alvan Ryan from the Review of Politics in 1945 that nicely pulls together themes from Newman's writings (some of them quite obscure, such as the essay "Who's to Blame?" from his 1872 collection Discussions and Arguments) on politics. Ryan concludes:
If one were to summarize Newman's thought, it might be said that it has four phases: (1) the denial of the excessive claims of the State against the Church; (2) the de facto recognition of cultural and national traditions as determining the mode of operation of the Church in each State; ( 3) the affirmation of the rights of the person against the State, which leads Newman to his distinction between Nation and State, and explains his distrust not only of the tyranny of unregulated State power, but his dislike for radical democracy; (4) the affirmation of the dignity of the person, and the appeal to the dictates of conscience against the extreme advocates of Papal Supremacy, whose views, by the way, cannot be identified with those of the Church. Only by recognizing such a complex of relationships, so Newman held, could just and lasting solutions of political problems be achieved.
