Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 8, 2007

"Equal Liberty" and Religious Freedom

Church-state experts Bob Tuttle and Chip Lupu have a new paper, examining the new book by Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution.  Here is the abstract (thanks to Larry Solum):

This essay is a review of Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Harvard University Press, 2007). Eisgruber and Sager reject many conventional notions of church-state separation. They offer an approach to religious liberty based on two basic principles, conjoined under the label “Equal Liberty.” First, “no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects.” Second, all members of the political community have a general set of liberty rights, including freedom of speech, personal autonomy, associational freedom, and private property, which allow a broad range of religious beliefs to flourish. From these principles, they develop elaborate accounts of the proper role of the free exercise clause and the establishment clause in our constitutional law.

This review essay focuses primarily on Eisgruber's and Sager's approach to the establishment clause. They claim that “Equal Liberty” provides an overarching framework for evaluating the permissibility of all government-sponsored religious speech, including current limitations on public school sponsorship of religious expression. They also claim that Equal Liberty can bring coherence to the vexed question of government financial partnerships with religious institutions.

In the review, we argue that Equal Liberty is not fully up to the task of either policing government religious speech, or measuring the permissibility of government financial relationships with religious providers of educational or other services. We question whether all religion-protecting norms can be fully explained in the authors' individualistic, rights-oriented, egalitarian terms. And we assert that religious commitments and religious institutions occupy a constitutionally distinctive place that Eisgruber & Sager are at pains to deny.

Indeed they do!

Today's charmless atheists?

Sam Schulman thinks today's celebrity atheists have no new arguments, and lack their forebears' charm:

What is new about the new atheists? It's not their arguments. Spend as much time as you like with a pile of the recent anti-religion books, but you won't encounter a single point you didn't hear in your freshman dormitory. It's their tone that is novel. Belief, in their eyes, is not just misguided but contemptible, the product of provincial minds, the mark of people who need to be told how to think and how to vote--both of which, the new atheists assure us, they do in lockstep with the pope and Jerry Falwell.

For them, belief in God is beyond childish, it is unsuitable for children. Today's atheists are particularly disgusted by the religious training of young people--which Dr. Dawkins calls "a form of child abuse." He even floats the idea that the state should intervene to protect children from their parents' religious beliefs.

For the new atheists, believing in God is a form of stupidity, which sets off their own intelligence. They write as if they were the first to discover that biblical miracles are improbable, that Parson Weems was a fabulist, that religion is full of superstition. They write as if great minds had never before wrestled with the big questions of creation, moral law and the contending versions of revealed truth. They argue as if these questions are easily answered by their own blunt materialism. Most of all, they assume that no intelligent, reflective person could ever defend religion rather than dismiss it. The reviewer of Dr. Dawkins's volume in a recent New York Review of Books noted his unwillingness to take theology seriously, a starting point for any considered debate over religion.

Is Free Will an illusion?

Dennis Overbye wonders, in the New York Times:

As William James wrote in 1890, the whole “sting and excitement” of life comes from “our sense that in it things are really being decided from one moment to another, and that it is not the dull rattling off of a chain that was forged innumerable ages ago.” Get over it, Dr. James. Go get yourself fitted for a new chain-mail vest. A bevy of experiments in recent years suggest that the conscious mind is like a monkey riding a tiger of subconscious decisions and actions in progress, frantically making up stories about being in control.

As a result, physicists, neuroscientists and computer scientists have joined the heirs of Plato and Aristotle in arguing about what free will is, whether we have it, and if not, why we ever thought we did in the first place. . . .

The death of free will, or its exposure as a convenient illusion, some worry, could wreak havoc on our sense of moral and legal responsibility. According to those who believe that free will and determinism are incompatible, Dr. Silberstein said in an e-mail message, it would mean that “people are no more responsible for their actions than asteroids or planets.” Anything would go.

Dr. Wegner of Harvard said: “We worry that explaining evil condones it. We have to maintain our outrage at Hitler. But wouldn’t it be nice to have a theory of evil in advance that could keep him from coming to power?”

He added, “A system a bit more focused on helping people change rather than paying them back for what they’ve done might be a good thing.”

Dr. Wegner said he thought that exposing free will as an illusion would have little effect on people’s lives or on their feelings of self-worth. Most of them would remain in denial.

I'm "in denial," I guess.

Sunday, January 7, 2007

Note taken

Michael P. links here to John Allen's Jan. 5 installment of "All Things Catholic," in which Allen contends that the reactions of Vatican spokesperson's to Hussein's execution "collectively mark a milestone in the evolution of yet another category in Catholic teaching:  Positions which are not absolute in principle, but which are increasingly absolute in practice."  I imagine Allen is correct in supposing that, in the future, we can expect the Holy See's spokespersons, and the various Bishops' conferences, to oppose all executions and all wars.  (Whether their opposition will, in all cases, rest on convincing arguments is, I suppose, a question about which we'll have to wait and see.)  And, I imagine Justice Scalia might take some comfort in Allen's observation that:

The fact that neither the death penalty nor war (for reasons other than what John Paul called "humanitarian intervention") are considered "ontic" evils probably means there will always be room for differing opinions in the church about the extent to which existing circumstances render them justifiable.

Finally, although Michael and I agree that the death penalty ought to be abolished (legislatively), I continue to think that the position set out in the Catechism, and in Evangelium vitae is unsatisfying.  As Allen writes:

The church's teaching on both the death penalty and on war is rooted in its doctrine on self-defense: If someone intends to kill you, you're entitled to defend yourself, including lethal force if that's the only option. By way of extension, if the only way to protect innocent people in society from aggressors, whether criminals or invading armies, is to use lethal force, then that does not constitute "murder."

The problem is, as I see it, that the Church's teaching on capital punishment, until very recently, was not separated in this way from the Church's teachings on punishment.  And, punishment is not about self-defense, but about justified retribution.  If a criminal is killed by the state in "self defense", then -- it seems to me -- we are not talking about "punishment" at all.

Thursday, January 4, 2007

Penalver and Miller on Hussein's execution

Check out Eduardo's post, over at Commonweal's blog, on Hussein's execution.  It complements well some of Richard Woodward's points, I think.

And, over at First Things, Robert Miller weighs in.

Romney's faith and private religion

Damon Linker has an article on Gov. Romney’s religion (“The Big Test:  Taking Religion Seriously”), and why we should worry about it, in the Jan. 1-15, 2007 issue of The

New

Republic

Although I was quite underwhelmed, and put off, by Linker’s overheated and parricidal book, The Theocons, and think that his recent writing about things Catholic and relating to Pope Benedict XVI has missed the mark, I think, with respect to Romney's religion, he has a point.  (Though not, perhaps, the point he intends to make.)

Linker's argument, in a nutshell -- which is also spelled out in this on-line debate between him and Richard Lyman Bushman -- is that treating Mormonism and Gov. Romney's embrace of that faith with the seriousness they deserve requires us to take seriously, and worry about, the claim that Mormonism does not have the doctrinal and traditional resources capable of supporting and sustaining (what Linker believes is) the necessary wall between a Mormon political leader’s own "conscience” and “church policy.”

Now, I do not know if Linker is right, i.e., that Mormonism in fact lacks these resources.  My take on Linker's writing about Catholicism makes me skeptical about his claims with respect to Mormonism.  I note that Richard Lyman Bushman insists, in his online debate with Linker, that, in fact, “Mitt Romney's insistence that he will follow his own conscience rather than church dictates is not only a personal view; it is church policy.”

In any event -- I do think, though, that those of Linker's critics who are objecting to arguments like his on the ground that Romney's religion is "private" are also missing the boat.  As David Bell writes, in this post from "The Open University":

The modern notion of religion as a purely private matter demands a literal suspension of belief: the burden is on the believer to reject, or at least ignore, those elements of her faith that might lead her to violate the laws and norms of modern secular society.

In modern society, it is not at all "prejudice" to demand that politicians shoulder this burden.

Or, I would say, it is perfectly appropriate to expect a religious believer to explain that, and why, the claims and commitments entailed in her religious profession are superior, and more worthy, than the "laws and norms of modern secular society."  (There is no reason, that is, to rule out of court religiously grounded challenges -- which may or may not convince -- to modern secular society.)

Those, like Linker, who want to raise concerns about Romney's Mormonism have an obligation, of course, to do so fairly, to not traffick in stereotypes, and to get that Mormonism right.  (And, unfortunately, there are good reasons to doubt the abilities of the press and commentariat when it comes to "getting religion.")  They also, it seems to me, need to concede, and not lash out against, analogous expressions of concern about, say, the political import of other, non-Mormon politicians' professed religions, and even about the political import of a hypothetical candidate's professed commitment to, say, reductionist materialism.  Couldn't we worry about whether someone who looks at the world the way, say, Daniel Dennett does, might also be shaped by a tradition or worldview that lacks the real ability (see, e.g., Michael Perry's work) to support and sustain human-rights commitments?

A final, quick gripe about the Linker piece.  He writes – distinguishing concerns he thinks are justified with respect to Mormons from those that might be harbored about Jews or Catholics – that “[u]nder modern conditions, some religions [including “post-Vatican II” Catholics] have spawned liberal traditions that treat faith primarily as a repository of moral wisdom instead of as a source of absolute truth.”  But, of course, nothing done or said at the Second Vatican Council involved a reduction of the Christian faith to “a repository of moral wisdom,” nor does the view that Christ has revealed – and, indeed, is – “absolute truth” entail the view that the Church or the faith supply “absolute[ly] tru[e]” answers to policy and political questions.

The Execution Video

Richard Woodward has a thoughtful piece, at OpinionJournal, about the video of Saddam Hussein's execution.  Here is a bit:

[I]n everything from the partisan chants of Shiite bystanders to the grainy, low-lighted jumpiness of the footage and the horror-movie ski masks of the executioners, the video images of the execution contradict the fragile message that a secure and democratic government is in charge, rendering justice to someone who deserves to die.

The intention of the U.S. in putting Saddam in the dock for crimes against humanity was to demonstrate the rule of law, a process he never followed while in power. . . .

In less than three minutes, the video undid that deliberate process. Saddam will now be frozen in time looking like a tested leader--angry but resigned to his fate--while the Iraqi government is seen hurrying to complete its nasty business before the new year.

With respect to the question of executing Hussein:  Although I try to oppose capital punishment, I agree with many of the points Steve Bainbridge made recently in this post.  Still, Woodward seems to be onto something:  The morality of an execution, it seems to me, is not unrelated to the plausibility of the claim that this particular government action is capable of meaningfully serving as an instrument or vehicle for justified retribution.  Having read about -- and also watched -- the video of Hussein's execution, I'm not sure this claim is all that plausible in this case.

Torturing Padilla

In answer to Michael's question, and -- I suspect -- agreeing with him, it does not seem possible to me to deny that treatment of the kind alleged by Padilla's lawyers is immoral -- horrifyingly so, in fact.

Monday, January 1, 2007

Rosen on Fried on Liberty

What is "freedom"?  What does it mean for freedom to be "authentic"?  What is the relationship between "freedom" and "liberty"?  And so on.  All questions of interest to those working to understand and expound "Catholic legal theory."  So, check out this review, by Gary Rosen, of Charles Fried's new book, "Modern Liberty and the Limits of Government".  Here's a bit:

As Fried sees it, the free development of individuals, choosing and judging by their own lights, must “come first” as a social and political priority. Much as we might talk about other public goals — virtue, equality, national glory — they all amount in the end to mere metaphors, especially as compared with the “rock-bottom, indigestible fact” of our “lonely individuality.” To capture this idea of personal liberty, and to give it some normative force, Fried asks us to imagine ourselves surrounded by a protective “bubble” of rights, carefully negotiating the terms of every relationship and attachment. This, he writes, is the “moral space” we inhabit, and no one may “trespass upon it” without wronging us. . . .

. . . Fried tends to press his philosophical claims too far, especially in asserting the autonomy and self-sufficiency of the sovereign individual. His hyperrational Mr. Bubble is a theorist’s fiction. No one’s life really takes shape so antiseptically, without unchosen attachments and the habits of mind imprinted by family, friends and nation.

More Catholic views on Saddam's execution

NRO has gathered some short posts -- including one by me -- by Catholics in response to the characterization, by a spokesman for the Holy See, of Saddam's execution as "tragic."  Those of Fr. Williams and Prof. Brugger strike me as particularly worth reading.