Psychic Sophie, as I mentioned in Part I, appealed the district court's unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday. ChiefJudge Traxler, Judge Wilkinson, and Judge Duncan made up the panel. Here's a news report on the argument. A couple of highlights.
First, in response to an inquiry about whether predicting the future is "inherently deceptive" (and therefore should not receive constitutional protection), counsel for the defendant County said, "Yes, sir, it is." To which CJ Traxler responded, "How would you characterize the Book of Revelation?" Counsel for the plaintiff seems to have argued that predicting the future is not "inherently" deceptive provided that the prognosticator "sincerely believes" the prediction or does not believe that he is being deceptive. Does the deceptiveness of a prediction of the future depend on the speaker's subjective belief as to its truthfulness and/or his intent to deceive? I wouldn't think so, but I'm not a free speech maven. But I suppose one might have replied that predictions of the future are not "inherently" deceptive; they are only contingently true (or false) -- the contingency being their (dis-)confirmation on the appointed day. We're still waiting on Revelation. On the other hand, Montaigne, in his essay, "On Prognostication," doesn't see what all the fuss is about: "[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise -- a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand --.... It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]"
Second, Judge Duncan was interested in the question of whether Psychic Sophie's business and belief system were "religious" or instead a "way of life." But Judge Wilkinson seemed dubious: "If what she's expressed is a religion, then anything and everything is a religion." Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine. From Book IV, Chapter 3 of the Confessions:
There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.
Looking forward to the panel's decision.
UPDATE: A reader and speech expert sends in these interesting comments on the speech side of this case:
These issues quickly get subtle, beyond my capacity to jurisprudentially slice and dice with any authority. I’m put in mind of another Fourth Circuit case, the horrifying Paladin Press/Rice/”Hit Man” book sale/free speech case.
In some, but hardly all, psychic/astrology/legal and illegal lottery cases, as well as in Rice, what’s being bought and sold is in part the opportunity to experience a realistically sustainable simulacrum, a pleasant illusion, or a fantasy of one sort or another which would not be realistically available without the transaction, and the payment associated therewith.
From the psychic, one may be buying in part, and with one degree or another of conscious recognition, the simulacrum of a caring friend or ally. From the lottery sales clerk, one may be buying the realistic opportunity to pleasantly fantasize about what one would or would not do in radically changed economic circumstances (the actual purchase of the ticket may strengthen the vividness or the intensity of one’s fantasizing). In buying the Hit Man book, one “creatively visualizes” oneself as self-reliant, less vulnerable, a noir anti-hero.
But part of the subtlety is that buyer acknowledges all these things at one level, yet for the transaction to make economic sense, there must remain enough distance from those acknowledgements to sustain a sufficiently vivid illusion. The Hit Man book, a virtual instruction manual on committing murder, actually had a disclaimer, which some readers might have, in character, cynically shrugged off, or crushed like a cigarette stub, again to one degree or another, as pointless verbiage required by the squares of the world.
And if all this is so, it becomes harder to distinguish these activities from an escapist movie, or the shoes associated with one’s sports hero, or even a modestly effective, if transient, mood-enhancing drug.
Apropos of Trollope and Ike, here's a neat case -- courtesy of MOJ buddy Kevin Walsh -- that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit. It concerns one Psychic Sophie, a self-described "spiritual counselor" operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers' personal questions in person, over the phone, and via email.
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Excellent constitutional scholar and all around generous guy Nelson Tebbe is blogging with us at CLR Forum for the month of December. Come on over and check out his first post, "Government Nonendorsement," in which he gives a readable summary of this new piece. For me, one of the most interesting conceptual moves he makes in the piece is to consider the question of "secular nonendorsement."
Wednesday, December 5, 2012
The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government's Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI). The case is important on the issues of standing and ripeness, inasmuch as it goes in a different direction from several other courts that have addressed these questions. The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014). The decision is complicated and has several moving parts. Here's the scoop, after the break.
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Tuesday, December 4, 2012
Anthony Trollope is a wonderful novelist of the Victorian period. His Chronicles of Barsetshire series is both a window on nineteenth-century Britain and a stylistic masterpiece. And he is the author of as stingingly elegant a line about literary talent as I have run across (composed at the expense of my man, James Fitzjames Stephen): "a poor novelist, when he attempts to rival Dickens or rise above Fitzjeames, commits no fault, though he may be foolish." (from "Barchester Towers")
Here is a fascinating quote from his travelogue, "North America" (1862), written long before President Eisenhower said something vaguely similar, though in a very different register:
I have said that it is not a common thing to meet an American who belongs to no denomination of Christian worship. This I think is so: but I would not wish to be taken as saying that religion on that account stands on a satisfactory footing in the States. Of all subjects of discussion, this is the most difficult. It is one as to which most of us feel that to some extent we must trust to our prejudices rather than our judgments. It is a matter on which we do not dare to rely implicitly on our own reasoning faculties, and therefore throw ourselves on the opinions of those whom we believe to have been better men and deeper thinkers than ourselves . . . .
It is a part of [the American] system that religion shall be perfectly free, and that no man shall be in any way constrained in that matter. Consequently, the question of a man's religion is regarded in a free-and-easy way. It is well, for instance, that a young lad should go somewhere on a Sunday; but a sermon is a sermon, and it does not much concern the lad's father whether his son hear the discourse of a free-thinker in the music-hall, or the eloquent but lengthy outpouring of a preacher in a Methodist chapel. Everybody is bound to have a religion, but it does not much matter what it is.
Monday, December 3, 2012
Eugene Kontorovich, whose blogging is a treat, has a wonderful post up on the new German zoophilia. The old German zoophilia was manifested in the civil right to bestiality back in 1969, and the rise of predictably associated phenomena of moral decay -- the taste for which, it seems, is on the rise. The new zoophilia champions the rights of animals to be left alone -- one might even call it a right of privacy -- in seeking to have these libertine liberties reversed (note that animal cruelty laws do not seem to be in issue, though I haven't studied the challengers' case well enough to know). The difficulty is the question of the grounding of the right, since moralistic reasons, or reasons of "legal moralism" (whatever those may be) are now widely deemed outré in Germany. Professor Kontorovich has an interesting observation about the issue of consent:
I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.
He then notes the now-common move of grounding the moralistic regulation of sexuality in arguments from social harm and public policy, but here perhaps I differ a bit with Professor Kontorovich. It was always the case that the retrograde moralizers grounded their arguments in ideas of social harm, beneficent social policy, and so on. The distinction is not of the method of argumentation now and then, but of the difference between what passes for harm now and then. These two excellent papers -- one by Bernard Harcourt (but sadly unavailable without payment) and the other by Steve Smith -- come at matters from fairly different angles but gesture toward the same larger idea.
Thursday, November 29, 2012
The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history. My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar. Fairly recently, I picked up Professor Hamburger's book on John Stuart Mill: John Stuart Mill on Liberty
and Control (1999).
The thesis of the book is that the strong and unqualified libertarian understanding of Mill -- the view that Mill was an unadulterated champion of freedom for its own sake -- is very much mistaken. Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:
[A]n explanation of Mill's overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions. This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control requires a different explanation. It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform. (18-19)
Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet). He then spends several very interesting chapters discussing Mill's aim to vanquish Christianity as the de facto social morality and replace it with a "religion of humanity" -- the new moral system which would strike the balance between liberty and control properly:
The real task of religion was to direct emotions and desires away from low objects and to be "paramount over all selfish objects of desire." Moreover, it ought to make us disinterested: "It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake." Christianity, however, in Mill's view, did anything but this:
The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person's own posthumous interests; they tempt him to regard the performance of his duties to others mainly as a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature. (43, quoting "Utility of Religion")
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Italian clergy “in the public square” at a time of great political and social turmoil, The Pulpit and the Press in Reformation Italy (Harvard 2013), by Emily Michelson (St. Andrews). The historical importance of the American political sermon has been understudied as well, though this is slowly changing (for me, Michael McConnell’s work has been helpful in bringing these fascinating texts to light, though others have written about them as well). From the description below, it also appears that Professor Michelson usefully puts into some question the dichotomy that one often hears: Americans “choose” their religion while Europeans are “born into” theirs. At any rate, I am greatly looking forward to reading Professor Michelson’s book. Here's the publisher’s description.
