There has been a lot of discussion about and coverage of the recent conference, “Erroneous Autonomy: The Catholic Case Against Libertarianism,” which was sponsored by Catholic University’s Institute for Policy Research & Catholic Studies. (Robert Christian provides a very helpful summary of the presentations, here.) From what I can gather, the participants made a number of important points. At the same time, as I suggested a few days ago in this post, I continue to think that the ongoing critique by some Catholics of "libertarianism" as inconsistent with the Church's social teaching would be more valuable and effective if it were more careful to avoid invoking and attacking straw men (Paul Ryan's favorite books notwithstanding, it is not the case that "laissez faire", "unfettered" capitalism or Randian objectivism exists anywhere or is a live political option in the United States) and to disinguish consistently between "libertarianism's" unsound (and inconsistent-with-Catholicism) anthropological and philosophical premises, on the one hand, and specific policies that some self-identified "libertarians" support. If this distinction is not recalled and observed, it becomes easy to dismiss, perhaps in a partisan way, specific policies that are justifiable on entirely Catholic grounds and that owe nothing to an unsound anthropology or to "erroneous autonomy" simply because the label "libertarian" is attached to them by some.
If my Twitter feed is any guide, my raising these concerns is taken by some as an expression of support for "libertarianism" or as a disagreement with the Church's social teaching. But, at least readers of MOJ should know that it is no such thing. In academic writing (here) and in probably hundreds of MOJ posts over the last decade -- including my very first post ("Law and Moral Anthropology") -- I have endorsed the moral anthropology of Redemptor Hominis and rejected the one of Atlas Shrugged, and I have insisted that all legal and public policy questions should be seen as depending crucially on accounts of what it means to be human. In the spirit of "throwback Thursday," here's a quote from that first post (February 2004!):
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In this post, Michael Sean Winters -- who has been focused on the conference's theme for a while and in many posts and articles -- quotes me:
I agree with Michael Sean that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they work better (at bringing about human flourishing and common good, properly understood).
He then says, "Garnett expects the adjective 'effective' to carry a lot of water. 'Effective' at what? As I noted before, it is worth asking the question whether our current economic system does not create spiritual poverty at the same time that it creates material wealth, and if this co-creation is acceptable to a Christian."
I do not disagree at all, and I don't think Michael Sean's observation undermines or is inconsistent with my point and with the concerns I've been raising, which is not a particularly "big" one: Some policies, which are supported by "libertarians" or to which the label "libertarian" is attached are sound policies which Catholics can and should support, which are consistent with the Church's social teaching and with Christian anthropology, and which are "effective" in the sense that they accomplish worthy goals (i.e., goals that Michael Sean and I, I am sure, would often agree are worthy) in an efficient way and without unintended or undesired consequences. And, some policies that are framed in terms of "communitarianism" or "solidarity" or the preferential option for the poor are, notwithstanding this framing, unsound and unwise policies , , , and sometimes inconsistent with the Church's social teachings.
I enjoyed this essay, by John Haldane, called "Francis, Benedict, and MacIntyre," which is up at Ethika Politica. Here is a taste:
MacIntyre shares with Benedict and Francis three central beliefs: first, that contemporary Western culture is at sea when it comes to thinking about the foundations of morality; second, that it is characterised by a pervasive relativism; and third, that this relativism is not only “cognitive” but is also affective and practical.
I want to end this short discussion by suggesting that there is a fourth belief that unites the Popes and the philosopher . . .
The fourth belief is that to persuade those with whom one is in wholesale disagreement about the nature and content of morality it is not enough simply to state one’s position, or even to argue rationally for it; one has also to expose the confusions and contradictions involved in the thought of the other side. . . .
"Colleges and Evangelicals Collide on Bias Policy," is the title of this piece in the Times, about the decision by Bowdoin College to cease "recognizing" the Bowdoin Christian Fellowship because the Fellowship has "refused to agree to the college’s demand that any student, regardless of his or her religious beliefs, should be able to run for election as a leader of any group, including the Christian association."
The piece is fair and informative, I think. But, the policy it addresses is unwise, unfair, and contrary to its own purported goals of respecting pluralism and diversity. And, as I have argued elsewhere, it reflects -- as do many other applications of the antidiscrimination norm to religious groups and associations -- a common but dangerous (to pluralism) misunderstanding of wrongful "discrimination." There is nothing that a government-run university in a secular, liberal political community should regard and treat as "wrong" about a non-state association taking that association's mission, purpose, character, practices, aims, etc., into account when setting policies about membership and leadership.
Here is an interesting post, by Thomas Kidd, called "Anti-Catholicism: The Defining Religious Principle of Early America?" Among other things, Kidd discusses Owen Stanwood's The Empire Reformed: English America in the Age of the Glorious Revolution. (ed.: The "Glorious Revolution" was neither glorious, nor a revolution. Discuss.) He closes with this:
When Americans debate the role of religion in the American Founding, they’re often given two stark choices – either it was a religious founding in which religion worked for good, or a secular founding in which secularism worked for good. But in anti-Catholicism, we see a third type of role that religion played in early America, a species of religious opinion that was, from a modern perspective, less than constructive. Their anti-Catholicism may have been understandable, given the background of the Reformation, the serious theological concerns that birthed it, and the interminable wars prompted by the religious alliances of European states. Just ask French Protestants, the colonists would have reminded us, what happens when a Catholic state takes away Protestants’ very right to exist. (Catholics had evidence of such nightmare scenarios, too.)
But for evangelicals today who have grown to appreciate our Catholic friends’ advocacy for life, traditional marriage, and religious liberty, as well as their defense of doctrines such as Christ’s divinity in an era of liberal Protestant heterodoxy, the pervasiveness of early American anti-Catholicism makes one wince. Yes, Christianity played a major role in the founding of the colonies, and of the new American nation, but we should not assume that their religion was always a force for good. . . .
Here is the Becket Fund / Doug Laycock (you know, Doug Laycock) brief in the important religious-freedom-in-prison case, Holt v. Hobbs. And, here is the Becket Fund's backgrounder page. Stay tuned for opinion pieces appearing in the New York Times or Slate about how this is actually some kind of right-wing cause . . .
Check out my colleague Gerry Bradley's Public Discourse piece on the Town of Greece case. A taste:
. . . Greece seems to have inaugurated—or renewed, with a fresh commitment—a partnership between constitutional doctrine and historical practice.
It is too early to say where this alliance will take the law. But it could preserve some important practices that, although presently lawful, would be vulnerable to any Supreme Court majority that shares the Establishment Clause interpretation of the Greece dissenters. Among these potential targets are tax exemptions for churches and other religious institutions, conscientious exemption from general laws, and a host of public-religious collaborations in projects that serve the common good (in health, education, welfare, and so on). The American tradition of such collaboration dates back to the founding, when most of what we now think of as “public” services were supplied by churches, often at public expense.
Some other practices that are now constitutionally endangered, such as prayers at public school occasions and the display of the Ten Commandments in public places, could also be buttressed by Greece. . . .
The other day, this Twitter novice took to the Twitterverse and "tweeted" the suggestion that Michael Sean Winters's post, "The Catholic Case Against Libertarianism," occasionally indulged in some straw-mannery in invoking the threatening prospect of "laissez-faire" "libertarianism": “’Laissez-faire’ is a straw man, I think. Doesn’t exist.”
Today, in this post, Michael Sean took issue with my "pithy, but woefully inadequate, comment." Fair enough. The tweet was, certainly, inadequate as a response to all the things that Michael Sean said in his post (much of which I agree with) about "libertarianism" as a philosophy or ideology. And yet, although inadequate, the comment was right, I think. Again, I agree with much of what Michael Sean says about moral anthropology and the centrality of the person. He says, "To be clear, for a Catholic, the criterion for evaluating a solution to any human conundrum is not to ascertain if that solution is a government solution, and to support it because it is a government solution, nor is it to defend a free market solution because it is a free market solution. Our criterion, as Catholics, is the human person, not an abstract commitment to the state or the market." I agree.
And yet -- no one really thinks that "the market" should be entirely unregulated. And, in fact, it is pervasively, thoroughly, comprehensively (and sometimes stupidly) regulated. Everyone agrees – that is, everyone who is in the conversation agrees – that “the market” is not and should not be entirely “free.” Or, put differently, a “free market” – in order to be meaningfully free – is a (reasonably and intelligently) regulated one. We enforce contracts. We impose liability for harms caused. We regulate all the time and everywhere. The real debate (among people who concede the basic point, which Catholic teaching firmly and unambiguously affirms, that ordered-freedom, not statist command-and-control, should characterize “the economy”) is about how to locate the point at which regulations begin to stifle, rather than to promote, human flourishing and the common good, properly understood.
It is not, in my view, helpful to label as “idolatry” the unremarkable view that we can and should evaluate policies with respect to their effectiveness and that the effectiveness of policies is related to, and perhaps depends on, a number of things that the economists like to remind us about. No one thinks that government should do nothing. But, some of us think – and there is absolutely nothing not-Catholic about thinking – that there are limits to (a) what governments are morally authorized to do and (b) what governments, practically speaking, do well. To say this is not to make an “idol” of the market (though it is to avoid the error of making an “idol” of populism or statism)
Like Michael Sean, I have no interest in (my understanding of) the "objectivism" of Ayn Rand. It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints. But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.
I agree with Michael Sean that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they work better (at bringing about human flourishing and common good, properly understood).
Over at First Things, George Weigel has a very nice post up about the new book by my colleagues Prof. Nicole Stelle Garnett and Prof. Margaret Brinig, Lost Classroom, Lost Community. (Buy it here!) Here's a taste:
It’s commencement season and tens of thousands of students are graduating from inner-city Catholic elementary schools. As decades of empirical research have shown, these kids have a better chance of successfully completing high school and college, and are better prepared for life-after-the-classroom, than their peers attending government schools. These inner-city Catholic schools are “public schools” in the best sense of the term; they’re open to the public (not just to Catholics), and they serve a genuine public interest, the empowerment of the youthful poor.
There is ample research to demonstrate inner-city Catholic schools’ educational excellence, going back to the pioneering Coleman/Greeley studies in the 1970s. Now comes an even more comprehensive claim about the positive impact of these schools: For, according to two law professors at the University of Notre Dame, Margaret F. Brinig and Nicole Stelle Garnett, inner-city Catholic schools are important factors in urban renewal as builders of “social capital” on inner-urban areas. . . .
Here is a post of mine, at the Berkley Center's "Cornerstone" blog, called "Religious Freedom in Early America: Complicating the Common Narrative." In the coming days, a number of law-and-religion scholars and historians will respond. Stay tuned!
Charlie Camosy has a thoughtful post up, at Catholic Moral Theology, called "The New Authoriphobia." He covers a lot of ground -- and has some really interesting thoughts about the place of authority in the work of academics -- but this quote was highlighted by (corporeal and Facebook) friend, Patrick Deneen:
The evidence now appears to be clear: more than a year into Pope Francis’ pontificate, many on the right and left in the US cynically use the authority of the Pope as a weapon in their political war. The source of their ultimate and irreducible concern is not the authoritative Catholic tradition, but rather the success of an American political agenda.
I agree entirely with Charlie that the Church's teaching - which all three of these Popes have proclaimed and defended - poses challenges to both the American left and the American right. Still, it seems to me that the reality is that our political system serves up two realistic options at election times and so those who choose to vote and who think elections can move things for better or worse (which does not mean, of course, that they can cure all or even most ills) have to make choices based on trade-offs.
It is not, it seems to me, "authoriphobia" (and I think Charlie would agree) to prioritize, relatively speaking, say, religious liberty, educational choice, and improved abortion laws over other matters (which also matter very much). This prioritization might be misguided, or based on an erroneous perception of the facts or on speculative predictions, but it need not involve denying the Church's (or the Gospel's) "authority" with respect to the questions given lower priority, nor need it reflect a misplaced loyalty to an "American political agenda."
