The cover of the April 28 issue of America caught my eye: The cover photo depicts the intersection of "church" and "state" streets, and adds the caption, "The U.S. Supreme Court at a Crossroads." Dale Recinella has a piece called "The Court and the Death Penalty" and Antony Barone Kolenc contributes an essay entitled "A New Majority and the Culture Wars."
Recinella discusses what "one Catholic Justice could do" to "end[] the death penalty". Now, I would also like to see an "end[ to] the death penalty", but I was not moved by Recinella's assertion that "there is manifest legal justification" for "one of the five Catholic justices" to "change his position on capital punishment". Nor is it clear to me why it should be relevant to a Catholic Justice, when he or she is deciding how to vote in a death-penalty-related case, that "U.S. death penalty jurisprudence contravenes the explicit commands of Scripture", assuming that it does. Recinalla also contends that, if just one of the Catholic justices changes his mind, "the use of the death penalty would end in the United States." It is not at all clear to me, though, that the four non-Catholic Justices believe they are constitutionally authorized, or are themselves inclined, to outlaw entirely the death penalty. (Would they impose increased limits on its use? Certainly.)
Like Recinella, I welcome the possibility that Catholic arguments and commitments will, soon, re-shape our crime-and-punishment practices. But, I'm hesitant to agree with Recinella that this re-shaping will, or should, come about because it is imposed by Catholic Justices.
In "The Court at a Crossroads", Kolenc writes that "big change may be coming in America's culture wars -- a legal shift that could alter the so-called separation of church and state." Could be. Kolenc is right, I think, that the departure of Justice O'Connor creates an opening for revisions to the Court's doctrine -- specifically, for de-emphasizing her "endorsement test" -- but I don't really expect any dramatic change in outcomes. (If one of the "conservatives" is replaced by President Obama or Clinton, I would think that we might well see some backtracking, particularly when it comes to public-funding cases.)
A quibble: In one place, Kolenc says that "Scalia is often joined in his campaign [for a greater tolerance of religion in the public arena] by Roberts, Thomas, and Alito." I can't think of any religion-in-public-life cases, though, decided since Alito joined the Court, so this claim would have been better phrased as a prediction than a description.
Monday, April 28, 2008
Rep. Thad McCotter, of Michigan, has introduced H. Res. 821, "Condemning Communist China's discrimination, harassment, imprisonment, torture, and execution of its prisoners of conscience". Here's the bill text. Here're the opening paragraphs:
Whereas according to the United States Commission on International Religious Freedom's (`USCIRF') 2007 Annual Report, `All religious groups in China face some restrictions, monitoring, and surveillance, ... and religious freedom conditions deteriorated for communities not affiliated with one of the 7 government-approved religious organizations, ... and those closely associated with ethnic minority groups. Religious communities particularly targeted include ... `underground' Roman Catholics, `house church' Protestants, and various spiritual movements such as Falun Gong';
Whereas according to the USCIRF 2007 Annual Report, in Communist China, `There continue to be reports that prominent religious leaders and laypersons alike are confined, tortured, `disappeared', imprisoned, or subjected to other forms of ill treatment on account of their religion or belief';
Whereas according the United States Congressional-Executive Commission on China's 2007 Annual Report, `The Commission noted a more visible trend in harassment and repression of unregistered Protestants for alleged cult involvement starting in mid-2006 ...' and `an increase in harassment against unregistered Catholics starting in 2004 and an increase in pressure on registered clerics beginning in 2005';
Whereas according to the United States Department of State's 2006 Country Report on Human Rights practices in China, `Government officials continued to deny holding any political prisoners, asserting that authorities detained persons not for their political or religious views, but because they violated the law; however, the authorities continued to confine citizens for reasons related to politics and religion';
Whereas according to Chapter II Article 36 of the constitution of Communist China, `No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion';
Whereas according to Article 18 of the Universal Declaration of Human Rights, `Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance'; . . .
I don't know how "politic" this kind of stuff is. Still, I say "bravo". Also, I don't know whether it makes sense to boycott the 2008 Olympics entirely, or if the cause of human rights in China is better served through "engagement" (or, "massive transfers of money through consumer spending") or condemnation. At the end of the day, perhaps the best course is the former. Still, this is a powerful image:
Here is Charles Taylor, over at The Immanent Frame:
What are we to think of the idea, entertained by Rawls for a time, that one can legitimately ask of a religiously and philosophically diverse democracy that everyone deliberate in a language of reason alone, leaving their religious views in the vestibule of the public sphere? The tyrannical nature of this demand was rapidly appreciated by Rawls, to his credit. But we ought to ask why the proposition arose in the first place. . . .
The state can be neither Christian nor Muslim nor Jewish; but by the same token it should also be neither Marxist, not Kantian, not Utilitarian. Of course, the democratic state will end up voting laws which (in the best case) reflect the actual convictions of its citizens, which will be either Christian, or Muslim, etc, through the whole gamut of views held in a modern society. But the decisions can’t be framed in a way which gives special recognition to one of these views. This is not easy to do; the lines are hard to draw; and they must always be drawn anew. But such is the nature of the enterprise which is the modern secular state. And what better alternative is there for diverse democracies?
Now the notion that state neutrality is basically a response to diversity has trouble making headway among “secular” people in the West, who remain oddly fixated on religion, as something strange and perhaps even threatening. This stance is fed by all the conflicts of liberal states with religion, past and present, but also by a specifically epistemic distinction: religiously informed thought is somehow less rational than purely “secular” reasoning. The attitude has a political ground (religion as threat), but also an epistemological one (religion as a faulty mode of reason). . . .
There's a lot more. At Balkinization, Andy Koppelman has posted some thoughts in response:
Taylor’s analysis implies that absolute neutrality is unattainable. Any state position will rely on some common ground, and no common ground is universal.
The answer to this puzzle, I think, is to note that there exist a large variety of possible modes of neutrality. The absolute neutrality toward all conceptions of the good proposed by Ronald Dworkin and Bruce Ackerman are only one available flavor of neutrality.
The range of possible justifications for any version of neutrality is broad. The following is a crude taxonomy of typical strategies of argument. It probably does not exhaust the possibilities, and arguments for neutrality typically rely on more than one of these moves.
One strategy is the argument from moral pluralism, which holds that there are many good ways of life and that the state should not prefer any of these to any other. Another is the argument from futility, which holds that some perfectionist projects are doomed to failure. The argument from incompetence holds that the state should be neutral about things that it is likely to get wrong. The argument from civil peace proposes that some issues be removed from the political agenda in order to avoid destructive controversy. Finally, the argument from dignity argues that some political projects fail to properly respect citizens’ capacity for free choice.
Different formulations of these arguments have persuaded different people. Everyone probably accepts most of these five arguments for neutrality, at least in some form, as applied to some question. Conceptual analysis cannot, of course, say whether or in what form you ought to accept them. There is probably an infinite number of ways in which any of them could be formulated, and an infinite number of ways in which those formulations could be combined. Shifting from any formulation of each rationale to a slightly different one will probably yield a slightly different prescription for neutrality. Neutrality is not a fixed point, but a multidimensional space of possible positions.
Both of these posts are well worth reading in full.
Wednesday, April 23, 2008
NYT columnist David Brooks has an op-ed, here, which is about one of my very favorite books, "The Discarded Image", by C.S. Lewis. A taste:
. . . while we moderns see space as a black, cold, mostly empty vastness, with planets and stars propelled by gravitational and other forces, Europeans in the Middle Ages saw a more intimate and magical place. The heavens, to them, were a ceiling of moving spheres, rippling with signs and symbols, and moved by the love of God. The medieval universe, Lewis wrote, “was tingling with anthropomorphic life, dancing, ceremonial, a festival not a machine.”
Lewis tried to recapture that medieval mind-set, Ward writes. He did it not because he wanted to renounce the Copernican revolution and modern science, but because he found something valuable in that different way of seeing our surroundings.
The modern view disenchants the universe, Lewis argued, and tends to make it “all fact and no meaning.” When we say that a star is a huge flaming ball of gas, he wrote, we are merely describing what it is made of. We are not describing what it is. Lewis also wanted to include the mythologies, symbols and stories that have been told about the heavenly actors, and which were so real to those who looked up into the sky hundreds of years ago. He wanted to strengthen the imaginative faculty that comes naturally to those who see the heavens as fundamentally spiritual and alive.
