Monday, December 17, 2007
Here's James Carroll's latest op-ed in the Boston Globe. His views are not mine but, if you are interested . . . His in-a-nutshell aim is to push back on the Romney-esque idea that religion and political freedom are connected. He writes, for example:
The politics of human rights, like the idea of individual freedom, were born not in religion but in the Enlightenment struggle against it.
This is not quite right, of course. But read it for yourself.
Like Michael, I am delighted by the death-penalty news out of New Jersey. (As I noted earlier, the New Jersey result is particularly welcome because it is not the result of judicial overreach.)
Michael asks, "[d]oes anyone know if any Republican governors have called for the abolition of the death penalty in the their states?" George Ryan (IL) comes to mind.
In the editorial , "Finished playing by the rules" (an interesting, suggestive headline), to which Michael linked earlier today, the editors at NCR write:
Whither women priests? Perhaps they will become yet another breakaway movement, as many church officials must drearily hope. Or, depending on the faithful’s response, these women could conceivably drag the church into the 21st century. We’ll pray for that.
Why, exactly -- and putting aside, for now, the merits of the specific question presented, re: the ordination of women -- should we pray for the Church (or, as the editors put it, the "church") to be "drag[ged] into the 21st century." I'm (kind of) kidding, but . . . what's the answer? It's a tricky balance, isn't it: Should the "21st century" not only set the agenda for (i.e., provide the relevant "signs of the times" for) the Church, but also define and transform the Church (e.g., "finished playing by the rules")? Or, should we think more in terms of the Church's vocation to transform, and challenge, the 21st century? Or both . . . .
Saturday, December 15, 2007
It's been a month or so, so -- no surprise! -- Professor Cass Sunstein has another book out. This one looks to be relevant to our recent MOJ dust-up about climate change, the Pope, "it's not easy being Green", cost-benefit analysis, etc., etc. Here's Solum, discussing the book:
The Legal Theory Bookworm recommends Worst-Case Scenarios by Cass R. Sunstein. Here is a description:
And from the reviews:
Worst-Case Scenarios is a powerful intellectual treatment about the most difficult problems facing society. The book makes it clear that these problems do not have easy answers. Sunstein's analysis also makes it clear that we would be better off if societal decision makers fully understood the insights he brings to these problems.
--Max Bazerman, Harvard Business School
Sunstein cuts through a great deal of confusion that is preventing the development of coherent and rational public policies. The issues raised by low-probability, high-consequence events are becoming more important as the world is more interconnected. Governments and citizens are not prepared to deal with these issues. This book will help.
--Jonathan Baron, University of Pennsylvania
Professor Sunstein provides cogent advice about how people should respond to low probabilities of catastrophe. He strikes a thoughtful middle ground, showing how we should be careful without being paranoid. While the applications to terrorism and climate change are insightful, his intellectual approach offers guidance for all sorts of possible catastrophes. The book is a must for leaders of business and government throughout the world.
--John Graham, Dean, Pardee RAND Graduate School
Worst-Case Scenarios is a rich analysis, both explanatory and normative, of societal responses to catastrophic risks such as terrorism and global warming. Sunstein occupies the fertile middle ground between the proponents of traditional rational-actor models and cost-benefit analysis, and those who reject these approaches entirely.
--Matthew D. Adler, University of Pennsylvania Law School
Friday, December 14, 2007
The New York Times reports here that "[t]he New Jersey Senate voted Monday to make the state the first in the country to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976 and established the nation’s current system of capital punishment." The Assembly is expected to follow suit. Here's more from the piece:
For those opposed to capital punishment, New Jersey’s repeal would represent a victory that has so far eluded them in the modern history of the death penalty.
Though legislatures across the country have tried to abolish capital punishment since 1976, none have succeeded. This year alone, the legislatures in Nebraska, Montana, Maryland and New Mexico have debated bills to repeal their death penalties, but each of those measures failed, often by a slim margin.
So far, opponents of the death penalty have succeeded only through court rulings, like a decision declaring New York’s capital punishment statute unconstitutional, or through moratoriums imposed by a governor, like in Illinois and Maryland.
“What New Jersey is going to do is have a Legislature-initiated repeal, and that’s different,” said Franklin E. Zimring, a law professor at the University of California, Berkeley, who has been critical of American capital sentence laws. “This is a degree of legislative action in the undoing of the death penalty which is a fairly significant step forward.”
This (and not through decisions by federal courts) is, in my view, how abolition should happen. More like this, please.
Adding to Steve Smith's, Tom Berg's, Chris Eberle's, and Rob Vischer's earlier remarks, Prof. Eric Claeys writes:
I think Steve Smith's arguments explain why history is interesting to people who incline toward points of view conventionally viewed as conservative in interpretation or law & religion. But in most areas of individual rights con law, Steve's arguments don't respond to the concerns that animate the progressives who most often ask Eberle's question -- who cares how it was done 180 years ago if the reasons for doing it the old way can't earn their own keep today[?]
IMHO, Everson and McCollum have to be part of the explanation. Constitutional religion law is slightly odd. It has always relied less on normative political philosophy and more on history than other areas of individual rights law -- say, free speech or family law/reproductive rights.
I this is primarily the result of an accident. By the 1960s, the Warren Court and some academics had made "living Constitution" interpretation respectable enough that judges could repudiate earlier and non-progressive constitutional doctrines using Eberle's argument But religion law started going secularist in the late 1940s -- before Warren was Chief Justice and before living Constitution interpretation was respectable. In their own way, Robert Jackson, Hugo Black, & other Justices on the Court thought of themselves as originalists.
So the important opinions from Everson and McCollum used Jefferson's Danbury Baptist letter and other historical sources to make legally respectable doctrines that broke significantly with earlier case law. The interpretive choices made in those cases stayed in religion doctrine even as the Warren Court used living Constitution interpretive methodology to change doctrine elsewhere. And since a lot of academic scholarship is at least a little reactive to what the Supreme Court is doing, a lot of historians and legal scholars to assume that Founding Era history has normative authority it doesn't get elsewhere in con law.
It will be interesting to see whether the scholarly discussion changes in the next five or so years. Everson and McCollum have been taking a beating in Philip Hamburger's book, Noah Feldman's book, & other scholarship. My bet is that the conversation shifts away from history to normative political theory straight up.
Thursday, December 13, 2007
A few days ago, Chris Eberle asked:
. . . Even if we assume, as is surely not the case, that there was some one position, even broadly construed, that the founders took with respect to the proper public role of religion, of what normative significance is that fact? After all, suppose that we agree that, as Prof. Stone says, "the Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state." Why should that matter to me any more than their belief in Newtonian physics? . . .
In response, Steve Smith writes:
(1) One standard response, more or less Burkean, emphasizes the superiority of collective, accumulated wisdom over that of any single person or generation. This claim is debatable, of course, and it may not apply to the kind of argument that focuses not so much on an ongoing tradition as on the particular thinking of the founding generation. In this respect, Chris says his perplexity may reflect his Protestant skepticism of tradition. Maybe. But insofar as the sort of talk he is uncertain about isn't about "tradition" so much as about "the Founders" (and especially, of course, if the Founders are being cited in figuring out the meaning of the Constitution, as is often true), this sort of argument isn't really about tradition. It might be closer to a "sola scriptura" type of thinking that Protestants presumably would be comfortable with.
2. Or we might just think that the Founders, or their generation, happened to be unusually wise or prescient, so it would be prudent to give weight to their judgments. Reasons might be offered for thinking this. A variation is that their generation was part of, or at least closer to, a worldview that understood truths that a modern worldview has trouble grasping. So we might be interested in what they thought because for us this might be a sort of window into a world that we no longer have good access to.
3. Actually, though, I suspect that perhaps the major reason why we care so much about what the Founders thought is because they were in an important sense constitutive of the identity of our political community. On a personal level, any sane normative reflection will take into account the kind of person I am, or you are. "What should I do?" or "How should I live?" can't be sensibly addressed without some understanding of "Who or what sort of person am I?" The same seems true for a community. But what gives a community its character or identity? It's a large question, but surely a major part of the answer has to refer to the traditions of the community, and in particular to its origins or founding. I think we all basically understand this when we give normative weight to what the Founders thought.
Thoughts?
This past weekend, I was a panelist -- along with Judge McConnell, Prof. Chris Eisgruber, and Holly Hollman of the Baptist Joint Committee -- on an episode of "Dan Rather Reports." The show (filmed in a Hogwarts-y room on Princeton's campus) was called "Separation Anxiety: Church and State." If you are interested, here's the link.
Wednesday, December 12, 2007
. . . why do we lawyers think it matters what the Founders thought about religion, politics, and public life? He writes, with respect to our discussion of Geof Stone's recent post on Gov. Romney's speech:
I don't get it: I hear that kind of debate all of the time -- "this is what 'the founders' believed about religion and public life.' "No, *this* is what they believed." Etc Etc. But who cares? Even if we assume, as is surely not the case, that there was some one position, even broadly construed, that the founders took with respect to the proper public role of religion, of what normative significance is that fact? After all, suppose that we agree that, as Prof. Stone says, "the Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state." Why should that matter to me any more than their belief in Newtonian physics?
Actually, what I'm really wondering -- and I do wonder, because I think it's perhaps my Protestant individualism and latent hostility to tradition that's blinding me here -- is why two folks from MOJ should think his argument worth responding to. Is this some kind of Kabuki dance in which lawyers like to participate? Why waste the effort, other than to say: "Yes, perhaps the founders really did think what you say they thought. And now that we've mentioned that entirely irrelevant factoid, what should we, now, think about the proper role of religion in the United States?"
Well? Why do we "waste the effort"?
At Commonweal, Grant Gallicho has a post -- check it out -- that is critical of my part of the recent back-and-forth with Eduardo on climate change, etc. He writes (among other things):
Eduardo was endorsing the fairly recent phenomenon of Vatican officials–like the pope–increasingly mentioning environmental issues such as stewardship of the earth. Is Rick arguing that the curia should pipe down? Or should they simply avoid getting their hands dirty with troublesome “specific policy proposals”?
Wouldn’t it be great if the “shift” for which Eduardo hopes was, in an integrated and thorough way, distinctively Catholic, and involved talking about stewardship, solidarity, sustainable development, *and* the importance of valuing the truly human over chemically facilitated individualism? Surely the Church has more to add than “me, too!”
Sure it would, and no one suggested otherwise. But hooking the climate-change conversation to the contraception cart isn’t the only way to do it–or even a very good one.
I posted this comment:
For what it’s worth, the view of mine that (I think) runs through the back-and-forth between Eduardo and me is not that the “curia should pipe down” about important questions of environmental stewardship, resource use, development, etc. It is that, in speaking to these important questions, the Church (and Catholics in general) should be careful not to suggest, or to appear to suggest, that the costs and benefits of policies put forward as responses to, or prevention of, climate change are not crucially relevant to the task of deciding what should, may, or must be done. I do not think anything I wrote would justify the conclusion that I “doubt[]” that “pollution [is] bad, and not just for the environment.”
I do not think it is true that one cannot have “something worthwhile to say” if one “disagree[s] the church’s teaching against contraception.” Of course one can. I probably should have been more clear about this, or expressed myself better, but I was trying to suggest — and I think my correspondent was trying to suggest — that, wholly and apart from the “should the Church be more involved in speaking about environmental issues” question, that perhaps a *truly* “Green” worldview would be one that takes on board the moral critique of contemporary thinking about sex, fertility, reproduction, etc.
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