When I first read the last lines of Alasdair MacIntyre's book, After Virtue, I was not quite sure what Professor MacIntyre meant by awaiting another St. Benedict. But I suspected that what he intended was somebody who would have the genius to create a new institution in the way Benedict had. That is, I thought that the reference to Benedict was intended to suggest neither withdrawal from the fields of law and politics nor a kind of spiritual focus on the arts or the theater or poetry, but the possibility of the creation of a new institutional power (or of the renewal of an existing institutional power) one of whose primary functions would be wise and temperate resistance to the dominant socio-cultural order. The institution of the Benedictine monastery, more than the figure of Benedict himself, was the point.
Patrick Leigh Fermor's description of life at the Benedictine Abbey of St. Wandrille de Fontanelle, in his short gem, A Time to Keep Silence, captures this institutional feature of monastic life. Two things in particular struck me in these passages: first, the rigor of the Benedictine life--its difficulty. This is not just "focusing on the family," so to speak, or expressing one's religious sensibilities through art rather than politics. It is, instead, a profoundly different way of life than most people lead. Second, the idea that a subsidiary, but still important, feature of Benedictine life was intellectual--the highest, purest, and most impregnable peak of the ivory tower.
After the first postulate of belief, without which the life of a monk would be farcical and intolerable, the dominating fact of monastic existence is a belief in the necessity and the efficacy of prayer; and it is only by attempting to grasp the importance of this principle--a principle so utterly remote from every tendency of modern secular thought--to the monks who practise it, that one can hope to understand the basis of monasticism. This is especially true of the contemplative orders, like the Benedictines, Carthusians, Carmelites, Cistercians, Camaldulese and Sylvestrines; for the others, like the Franciscans, Dominicans or the Jesuits--are brotherhoods organised for action. They travel, teach, preach, convert, organise, plan, heal and nurse; and the material results they achieve make them, if not automatically admirable, at least comprehensible to the Time-Spirit. They get results; they deliver the goods. But what (the Time-Spirit asks) what good do the rest do, immured in monasteries far from contact with the world? The answer is--if the truth of the Christian religion and the efficacy of prayer are both dismissed as baseless--no more than any other human beings who lead a good life, make (for they support themselves) no economic demands on the community, harm no one and respect their neighbours. But, should the two principles be admitted--particularly, for the purposes of this particular theme, the latter--their power for good is incalculable. Belief in this power, and in the necessity of worshipping God daily and hourly, is the mainspring of Benedictine life. It was this belief that, in the sixth century, drove St. Benedict into the solitude of a cave in the Sabine gorges and, after three years of private ascesis, prompted him to found the first Benedictine communities. His book, The Rule of St. Benedict--seventy-three short and sagacious chapters explaining the theory and codifying the practice of the cenobitic life--is aimed simply at securing for his monks protection against the world, so that nothing should interfere with the utmost exploitation of this enormous force. The vows embracing poverty, chastity and obedience were destined to smite from these men all fetters that chained them to the world, to free them for action, for the worship of God and the practice of prayer; for the pursuit, in short, of sanctity....
These values have remained stable while those of the world have passed through kaleidoscopic changes. It is curious to hear, from the outside world in the throes of its yearly metamorphoses, cries of derision leveled at the monastic life. How shallow, whatever views may be held concerning the fundamental truth or fallacy of the Christian religion, are these accusations of hypocrisy, sloth, selfishness and escapism! The life of monks passes in a state of white-hot conviction and striving to which there is never a holiday; and no living man is in a position, after all, to declare their premises true or false. They have foresworn the pleasures and rewards of a world whose values they consider meaningless; and they alone have as a body confronted the terrifying problem of eternity, abandoning everything to help their fellow-man and themselves to meet it.
Worship, then, and prayer are the raison d’être of the Benedictine order; and anything else, even their great achievements as scholars and architects and doctors of the church, is subsidiary. They were, however, for centuries the only guardians of literature, the classics, scholarship and the humanities in a world of which the confusion can best be compared to our own atomic era. For a long period, after the great epoch of Benedictine scholarship at Cluny, the Maurist Benedictine Abbey of St. Germain-des-Prés was the most important residuary of learning and science in Europe. Only a few ivy-clad ruins remain, just visible between zazou suits and existentialist haircuts from the terrace of the Deux Magots. But in scores of abbeys all over Europe, the same liberal traditions survive and prosper. Other by-products of their life were the beautiful buildings in which I was living, and the unparalleled calm that prevailed there. At St. Wandrille I was inhabiting at last a tower of solid ivory, and I, not the monks, was the escapist. For my hosts, the Abbey was a springboard into eternity; for me a retiring place to write a book and spring more effectively back into the maelstrom. Strange that the same habitat should prove favourable to ambitions so glaringly opposed.
Monday, June 8, 2015
One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and legal scholars take the former.
Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.
And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia says in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”
Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.
In dissent, Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.
Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?
Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on a quite expansive reading of Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that has characterized its years in power.
Wednesday, June 3, 2015
I have a brief recap of this minor decision over here. The Twitter version:
Motivations, not knowledge, make the engine of antidiscrimination laws hum.
Tuesday, May 19, 2015
This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:
[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.
I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful.
The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:
There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.
The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure?
These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.
Friday, May 15, 2015
I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.
Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.
Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.
Friday, May 8, 2015
Thanks to Susan for blogging about the conference she is attending. I'm sure it will be a very interesting and diverse set of presentations.
I did have one question about what Susan reported as one of EJ Dionne's "provocations." It's the one wherein Dionne distinguishes between "rights" and "accommodations" and "what we are trying to do in a pluralist society, i.e. find ways to accommodate conflicting interests," without "constitutionaliz[ing]" them.
I assume that the focus of the program Susan attends is on the sorts of questions that tend to fall into the "free exercise of religion" basket. And I quite agree that it would be nice not to have to constitutionalize so much, to have so many "rights." It would be far more socially attractive voluntarily to undertake a few more self-imposed burdens of civic tolerance. Unfortunately, that battle has been lost for quite some time with respect to the Establishment Clause, beginning circa 1947 and continuing right on through the 20th century, so much so that many commentators just think of the Court's current, heavily constitutionalized Establishment Clause as the perennial state of affairs. Yet it would be unfortunate in a discussion about "rights" and "accommodations" to lose sight of the other side of the religion clause coin. Perhaps free exercise is simply catching up.
