More than three years ago, I gave a paper at a conference -- one of a series exploring and celebrating the work of Jean Bethke Elshtain -- called "Public and Private: Feminism, Marriage, and Family in Political Thought and Contemporary Life." The paper was called "Moral Anthropology, Social Ontology, and Authentic Human Freedom." If you are interested, I've posted it here:
Download Elshtain paper Here are a few paragraphs:
In a short, 1999 essay – one that influenced strongly my own thinking – called “How Should We Talk?”, she suggested that the ongoing debate about the role of religion and religious believers in democratic politics should not proceed without attention to “anthropological issues” and “presuppositions.” Unfortunately, the anthropology that “underwrite[s] modern liberal contractarianism,” she noted,is one that “sees us as essentially free standing, self-possession, self-defining, and self-naming creatures. We relate to others to the extent it seems expedient, prudential and part of self-interest, rightly understood. Of course, there is love and family commitment, but the tendency is either to bracket these as the exception that proves the rule or to bring the family, too, under the wings of an anthropology that distorts it profoundly.”
She developed this point – and this concern – in a review, also published in 1999, of Michael Perry’s then-recent book, The Idea of Human Rights. Claims of, and talk about, “human rights” are, she insisted, founded necessarily on “certain anthropological presuppositions.” Some presuppositions are capable of sustaining the human-rights project but – she warned – some might not be.
“A view of a primordially ‘free’ self haunts the modern rights project,” she wrote, contrasting that view with the one proposed in Catholic social teaching. The latter
view sees human persons as “intrinsically, not contingently, social. We are born to communion, to relationality. .. . Rights . . . are lodged in an ontology of human dignity[ and this] dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as essentially, not contingently, related to others.”
If we hope to understand, protect, and nurture the role, calling, rights, and dignity of women – and the family, and the political community – we must try to understand the person, who is, in Tom Shaffer’s words, “the noblest work of God—infinitely valuable, relentlessly unique, endlessly interesting.” Like Elshtain, though, I worry that much of our legal, political, and constitutional discourse rests on a superficially appealing but incomplete and ultimately unworthy account of what it means to be human. . . .
Today, most constitutions aim to protect authentic human freedom by “entrenching” human rights, and putting them beyond the reach of ordinary politics. This is a good idea and a sound practice. But it is not enough. Human rights and human flourishing depend not only on enforceable constraints on government but also on the pluralistic structure of the social order, a structure in which, Elshtain has taught us, the family – neither entirely public nor entirely private – is both protector
and protected.
And so, it all comes together: Law is “of, by, and for” the people – for real human persons. The project of promoting persons’ flourishing – their real goods – will, necessarily, proceed on the basis of some assumptions – “anthropological” assumptions – about “what it means to be human”, about who and what people are and what they are made for. The project’s chances of success are improved – this side of heaven, it can only have chances – if these assumptions are true.
One assumption that is true, and that constitution-makers (and all of us) ignore at their peril, is that persons are social and situated. They live, thrive, and are
formed in families. The law will, accordingly, do what it can to attend to the health of families. In so doing, though, the law – the state –must stay its hand, and have its hand stayed. And families (like some other forms of human association) have a role to play – a constitutional role – and a job to do in staying, even as we should hope they might benefit from, the state’s hand.
Michael Sean Winters has a nice post up about Jean Bethke Elshtain's Augustine and the Limits of Politics (link), a book that I've read about often, but (mea culpa!) never read, and am now resolved to read. Winters provides, and I'm ripping off here, some powerful quotes:
False pride, pride that turns on the presumption that we are the sole and only ground of our own being; denying our birth from the body of a woman; denying our utter dependence on her and others to nurture and tend to us; denying our continuing dependence on friends and family to sustain us; denying our dependence on our Maker to guide and to shape our destinies, here and in that life in the City of God for which Augustine so ardently yearned, is, then, the name Augustine gives to a particular form of corruption and human deformation. Pridefulness denies our multiple and manifold dependencies and would have us believe that human beings can be masters of their fates, or Masters of the Universe as currently popular super-heroes are named….Every ‘proud man heeds himself, and he who pleases himself seems great to himself. But he who pleases himself pleases a fool, for he himself is a fool when he is pleasing to himself,’ Augustine writes. . . .
. . . We moderns tend to presuppose a free-standing individual and then to posit a state that we call sovereign. What connects the individual to the state is a series of reciprocal rights and obligations. The state in the senior partner, of course, and can, if it desires, call most of the shots. The individual can proclaim rights but also has obligations. There isn’t very much in-between. We know, of course, that there is lots of other stuff, but it goes unmentioned, untheorized, if you will.
Moving through the City of God with this myth of the individual and the state in my mind, but lodged there quite insecurely because I never quite got it – this story of the self and the state, for the world was so much denser, thicker, richer, and more complex than social contract metaphors and tales of rights and obligations allowed – I took up the distinction between the household and the polis, or the private and the public, because Aristotle had put that on the agenda explicitly and because feminists were vigorously proclaiming that the ‘private was the public,’ tout court, and that didn’t seem quite right to me either.
Tuesday, August 13, 2013
At The Catholic Thing, Prof. Hadley Arkes returns to a theme he's been developing in some recent columns and -- using Tom Farr's recent testimony before a House committee as an occasion -- notes what he calls "a critical need to recast our arguments over 'religious freedom' as they are offered not only in the courts but in the political arena." Here's is what strikes me as the crucial section of his piece:
The God of the American Founders was the God of the Declaration of Independence – the Author of the Laws of Nature, including the moral laws. He was that Creator who endowed us with rights. And he was not a local god, of this tribe of Americans. He was the God of the logos, of reason, the Creator of that human person who was marked, in his highest nature, by that gift of reason.
As I’ve argued in these columns, our case for religious freedom should start there, not with the invocation merely of beliefs, but with the things that our religious tradition teaches us about the canons of reason as the ground of our judgments – and the grounds of the law.
And yet that touches the truth that seems reluctant to speak its name these days even among people who have devoted themselves to the defense of religious freedom: that we risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.”
If the people at the State Department seem at sea or wanting in conviction, we have to ask, “Have our own friends, working on religious freedom, helped make these distinctions clear and given guidance to them?”
With all due respect to Prof. Arkes -- and agreeing entirely with him that some claims invoking "religion" or "religious liberty" are less plausible than others, and that some claims invoking "religion" or "religious liberty" should lose while others should win, and that the reasons matter why religious freedom is our "first freedom" -- I am not sure I see a need, at this moment, in the courts or in the public square, to push our religious-liberty arguments back to foundations and first principles, especially if this involves debating the question whether the "God of the American Founders" is, in fact, the God of the "radical jihadists" or of other "groups that fill our landscape . . . and carry the banner of 'the religious.'"
In one of his earlier columns, commenting on the Hobby Lobby case, Prof. Arkes said that "[o]ur friends litigating freedom feel pressed to argue within the grooves of 'sincere beliefs,' because they are the terms that the courts have confirmed and the judges recognize. The Greens are a generous, loving family, who deserve to prevail. But there needs to be another way of making the argument in the courts, and that is our task to come." He is right, I'm sure, that religious faith and religious freedom are really about more than just "beliefs" and their "sincerity." It seems to me, though, that the arguments to be made in courts and to judges are indeed the ones that -- for better or worse, and whatever their theoretical inadequacies or gaps -- "the courts have confirmed and the judges recognize."
As has been noted, political theorist Jean Bethke Elshtain -- a "political scientist unafraid to talk God," in The Atlantic's words -- died the other day. (Here is another notice, from Commonweal and here is yet another, from the University of Chicago.)
Elshtain wrote a lot, to put it mildly, and I know that many of us here at MOJ have been formed in various ways by engaging with her work. To mention just one project of hers: I think her Gifford Lectures, "Sovereignty: God, State, and Self", were wide-ranging, provocative, and important. (Here's one review, from First Things in 2009.) (And, while I'm at it, one might review, at the same time, some of the work by our Patrick Brennan, who is critical of the notion of "sovereignty" as it is used in American constitutional law.)
Monday, August 12, 2013
Mark Rienzi has a good column in USA Today regarding the business-corporations-and-religious-freedom issue. As I wrote a few days ago (here):
[I]t does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. . . .
