I've been delayed in writing about my next selection from the City of God--this one from early in Book II,
a book devoted to exploring the extent to which the Roman gods did not protect Romans from sundry disasters. But the particular disasters Augustine has in mind are moral disasters--not disasters of the body but disasters of the soul--and he highlights the vice and civic decay not only enabled but positively stimulated by the Roman gods. Here is Book II, Chapter 6, in full:
This is the reason why those divinities [MOD: in the previous chapter Augustine discusses Cybele, the "Earth Mother," in particular] quite neglected the lives and morals of the cities and nations who worshipped them, and threw no dreadful prohibition in their way to hinder them from becoming utterly corrupt, and to preserve them from those terrible and detestable evils which visit not harvests and vintages, not house and possessions, not the body which is subject to the soul, but the soul itself, the spirit that rules the whole man. If there was any such prohibition, let it be produced, let it be proved. They will tell us that purity and probity were inculcated upon those who were initiated in the mysteries of religion, and that secret incitements to virtue were whispered in the ear of the elite; but this is an idle boast. Let them show or name to us the places which were at any time consecrated to assemblages in which, instead of the obscene songs and licentious acting of players, instead of the celebration of those most filthy and shameless Fugalia [MOD: civil feasts] (well called Fugalia, since they banish modesty and right feeling) [MOD: I think that Augustine is relying here on the root, 'fuga,' meaning 'flight'], the people were commanded in the name of the gods to restrain avarice, bridle impurity, and conquer ambition; where, in short, they might learn in that school which Persius vehemently lashes them to, when he says:
Be taught, ye abandoned creatures, and ascertain the causes of things; what we are, and for what end we are born; what is the law of our success in life; and by what art we may turn the goal without making shipwreck; what limit we should put to our wealth, what we may lawfully desire, and what uses filthy lucre serves; how much we should bestow upon our country and our family; learn, in short, what God meant you to be, and what place He has ordered you to fill.
Let them name to us the places where such instructions were wont to be communicated from the gods, and where the people who worshiped them were accustomed to resort to hear them, as we can point to our churches built for this purpose in every land where the Christian religion is received.
One of the interesting features of the this chapter and, indeed, the entire book is the extent to which Augustine believes it to be religion's role to inculcate virtue--including civic virtue--in its adherents. The morality that Augustine is discussing is not a private or interior morality, at least not solely. In the previous chapter, he castigates the Romans for bestowing their finest citizens with the honor of a statue of "that demon Cybele." Robert Dodaro writes: "[E]ven Rome's best citizens are deceived by Cybele, the 'Mother of the Gods.'" Dodaro, Christ and the Just Society in the Thought of Augustine 45. And here, Augustine specifically mentions the morality not of individuals, or even of families, but of "cities and nations." The context in which he condemns Roman vice is not personal, but public--the feast of Fugalia, which so far as I can tell is a civic feast celebrating the expulsion of the Roman kings. And the fragment he quotes from the stoic Roman satirist Persius concerns both private and public virtue ("how much we should bestow upon our country and our family").
Augustine clearly believes that it is an important function of religion to inculcate civic or public virtue and honor. Religion is not a privatized or purely personal phenomenon, and any religion worth its salt must do more than "whisper" "secret incitements to virtue" "to the elite" (notice that by highlighting the "elite," Augustine is emphasizing the importance of religion's influence on the powerful, including the politically powerful). It must inform their private and public lives. It must provide a public forum--a place of assembly--for the discussion of virtue to occur (not just a private "whispering"). And it must "vehemently lash" public men. Christianity, Augustine believes, performs these functions, while the Roman gods failed to do so.
A final aside: I was struck by the fragment of Persius, because it sounds so much like the words that Dante puts into the mouth of Ulysses in Canto XXVI of Inferno as he sails to the ends of the earth (118-20):
Considerate la vostra semenza:
Fatti non foste a viver come bruti,
Ma per seguir virtute e canoscenza.
"Consider your origins: You were not made to live like beasts, but to pursue virtue and knowledge." Unfortunately for wandering Ulysses (at least in Dante's telling), he was not in the end able to discover "by what art we may turn the goal without making shipwreck."
Tuesday, November 5, 2013
Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I'm afraid. The review reflects on the nature and value of the canons of textual interpretation--the book's primary focus. Indeed, it might have been better if the canons had been the book's exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which--notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter--the canons create something like a linguistic tradition for lawyers. Here is a fragment:
Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .
Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.
Thursday, October 31, 2013
My colleague, Mark Movsesian, has a short summary and discussion of the late Ronald Dworkin's posthumously published book, Religion Without God. I recently received the book and am about half way through (it's quite short). It also seems to me that Dworkin had made these sorts of claims about the superfluousness of God several times before. I recall arguments in Life's Dominion, for example, about how believing in the imago Dei is totally unnecessary to affirm the inherent human dignity of all people, because it should be obvious that we all believe in the objective moral fact that all human beings are "creative masterpieces" of human and natural creation. I'm not sure who actually believes that sort of aesthetic claim, or how Dworkin was so certain that everybody does. Even if I believed it, it seems to me that some people are much more masterpieces than others.
I guess the new stuff in the book is the legal claim in the second half that religion as a category deserves no constitutional protection.
Wednesday, October 30, 2013
Hurt feelings are unreliable bases for constitutional law. People are insulted by all sorts of things,
their feelings of insult can change at breathtaking speed, and it is difficult to explain what ought to count as a constitutionally cognizable insult, and what ought not to, and why. And there is no area of constitutional law that is more dependent on judicial investigation and perception of insult or hurt feelings than the Establishment Clause--particularly the standard used to evaluate the constitutionality of religious displays by the government. Readers of this blog are probably familiar with the endorsement test, which demands that judges inquire after the degree to which a display might make someone feel like an outsider, or not fully part of the political community. That is a standard that depends on both judicial perception of insult and comparative valuations of insult (not all insults count).
My aim in this post is not to talk about that category of hurt feeling or insult, but about a related but less prominent argument about insults that one sometimes hears in connection with state-sponsored religious displays. It is the argument that for a religious person, when the government displays a religious symbol, it thereby robs or despoils the symbol of its sacredness. And when government then describes the nature and value of the symbol in non-religious terms (in cultural terms, for example, or in historical terms, or in secular terms), that constitutes an insult to religious people. So, for example, the constitutional category of "ceremonial deism" that is used to describe the phrase "In God We Trust" on money, or the phrase "under God" in the Pledge of Allegiance, is said to be deeply offensive to religious believers. Similarly, the description of the crucifix by Italian judges in the Lautsi v. Italy litigation as a symbol of national historical importance is said to cause hurt feelings among Catholics. By describing (or perhaps defining) a symbol in cultural or historical terms, the government thereby appropriates and degrades the symbol in the eyes of religious believers--and it's "their" symbol, after all--draining it of religious content. One can see strong traces of the claim and the sense of indignation and insult in Justice Thomas's concurring opinion in Van Orden v. Perry: "Telling either nonbelievers or believers that the words 'under God' have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like 'God' are not vulgarities for which the shock value diminishes with each successive utterance." This argument from insult certainly is understandable and it resonates with many people, including some of my friends.
But not with me, I'm afraid. If anything, I find the argument itself insulting. The argument assumes that religious people are so thick-headed, or so culturally illiterate, or so confused about the nature of their faith and its symbols' meanings, or so hyper-attentive to the government's activities, or so insular, parochial, and unsophisticated, that they cannot understand the difference among (a) a cross that is displayed in a church; (b) a cross that is displayed at a cemetery; and (c) a cross that is displayed as a Halloween joke. Who doesn't understand those differences, and the differences in meaning that they convey? Who is confused? And is not the imputation of confusion, hurt feelings, and cultural simple-mindedness itself offensive? Those poor hayseed religious believers, bearing the psychological cross of their egg-shell sensitivities about their symbols! To argue that any act of the state--least of all its display of a cross at a war memorial or some statement about God on money or in a secular national pledge--could adulterate what a religious symbol like the cross means to Christians is to make a very unflattering claim about the strength with which those Christians believe, about the quality of their intellectual awareness and cultural acumen, and about just how little it takes to shake them up and distress them.
The argument also assumes that a government's decisions about a symbol really command, and ought to command, the attention of the religious. But what difference should it make that government "degrades" a symbol like the cross? Does the government have the power to degrade the Christian meaning of the cross? Do we look to the government to define the Christian meaning of the cross? That meaning is not the government's to define, or to degrade! To fret about state-sponsored religious degradation is implicitly to acknowledge the state's authority in an area where it has none. That the government (or anyone else, for that matter) may use a symbol for secular purposes of its own should do nothing to trivialize the Christian meaning, or to destabilize religious commitment or religious understanding, unless the suggestion is that the religious commitment runs no deeper than attachment to the symbol's secular meanings. Brand dilution may work for trademark law, where all symbols operate and compete at the level of the profane market, but it has little place here.
But as I say, it is difficult to tell someone not to feel hurt or insulted. I can certainly understand the sense of insult at a perceived usurpation of a religious symbol, but it is not a feeling I share at all when the Supreme Court trots out such coarse euphemisms as "ceremonial deism" to justify and explain the sorts of secular uses of religious symbols and religious language that have been going on at least as far back as the late Roman empire. For myself, I am more offended by what the arguments from insult imply about religious believers' savvy and understanding of the world, as well as of their own beliefs.
All of that, I suppose, is to return to the beginning, and to repeat my view that feelings of insult and offense are unsound grounds for constitutional law.
[Image: Delaroche's "Charles I Insulted by Cromwell's Soldiers"]
Monday, October 28, 2013
I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”
The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable--the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The "holiday" of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.
My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:
Probably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements--a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects--werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.
Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is perhaps complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.
It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today. That would be preposterous, in the etymologically correct sense of the word--mixing up what comes later for what came before. It would also, from my perspective at least, be insulting. It would imply that Christians are such boors and cultural rubes that they cannot tell the difference between a joke and the truth of their faith.
It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate religious meanings from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:
Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.
