The Federalist Society has put up a short animated primer on the Blaine Amendments, featuring a law professor who, clearly, has a face for radio. For more on the Trinity Lutheran case, go here.
Wednesday, May 10, 2017
A short primer on the Blaine Amendments
Panel discussion in Chicago: "Natural Law in Court"
If you are in or near Chicago, don't miss this event on May 18: Michael Moreland, Adrian Vermeule, and Jeff Pojanowski -- what a line-up! -- will be discussing Richard Helmholz's new book, Natural Law in Court: A History of Legal Theory in Practice. More info:
Join us for a reception and panel discussion of the recent book by R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). Copies of the book will be available for purchase.
Until very recently, lawyers in the Western tradition studied natural law as a part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.
SCHEDULE:5:15PM Registration and Reception
6:15PM Program
7:30PM Close
Tuesday, May 9, 2017
Fordham Event on "Religious Liberty in a Pluralistic World"
On May 16, I'll be one of the panelists at an event on Fordham's Manhattan (Lincoln Center) campus, entitled "And Justice for All? Religious Liberty in a Pluralistic World." My terrific co-panelists are Sr. Carol Keehan, executive director of the Catholic Health Association; Asma Uddin, of the Center on Islam and Religious Freedom; Ani Sarkissian, professor at Michigan State specializing in global issues of religion, politics, and religious freedom; and moderator Vince Rougeau of Boston College. The sponsor is Fordham's Center for Religion and Culture. If you're in NYC, come to Lincoln Center from 6-8 p.m. for a symphony of contrasting and complementing themes!
Monday, May 8, 2017
Link to video of recent Douthat/West conversation
Here is the link to the recent Murphy Institute conversation between Ross Douthat and Cornel West on "Christianity and Politics in the U.S. Today." We've edited the wide-ranging 2-hour conversation down to a manageable hour, including highlights such as: an analysis of recent U.S. military interventionism in light of Christian principles; a fascinating debate about whether the term "white supremacy" is applicable to any situation other than the relationship between blacks and whites in the United States; Ross Douthat asking Cornel West: "What about sex?", and the ensuing discussion; and the moving and thoughtful response to a young Latina woman's request for advice to her generation about dealing with the perception of increased racism, discrimination, and xenophobia.
Minnesota Public Radio will be broadcasting the conversation as part of their MPR News Presents series, tomorrow (May 9) at both noon and 9 pm (CST). That link is here.
Deneen on Social Contract Theory and the American Founders
From Patrick Deneen's essay, "Ordinary Virtue," in his collection of essays, Conserving America: Essays on Present Discontents 52-55 (2016) (footnotes omitted):
When one thinks back on those men who moved the nation to declare independence, cool reflection forces one to think not of how much they stood to gain by gaining independence from England--for it's not obvious that many, if any, stood to gain much at all--but how much they stood to lose by committing this act of treason in the eyes of England....
These were men with a great deal to lose--including, for most, significant fortunes by the standards of those days....What is all the more remarkable was their willingness to pledge their lives--which several did lose in the course of the revolution. The signers were keenly aware of the likelihood of execution for signing the Declaration....
The willingness to pledge their lives for the sake of independence is remarkable especially because the first part of the document is based extensively on the philosophy of John Locke. Locke famously argued that political community was the result of a social contract that people formed in the State of Nature. Because the State of Nature is eventually so disadvantageous to individuals--perhaps not as awful as Hobbes' conception of the state of nature, who described it as "nasty, brutish, and short," but not a condition that ultimately accords human beings with sufficient guarantees of security, much less justice--natural men sacrifice some of their natural freedoms to form a government that will act as an impartial judge and protector of the contracting agents. The government is charged with preserving the rights of citizens--among them "life, liberty, and property" in Locke's version--and when government encroaches too much on these rights, then we reserve the right to revolt against that government, and revert back to a State of Nature to form a new social contract.
What one has to notice is that there is a basic tension in the basic fabric of this theory. Social contract theory is based on the premise that we value, above all, self-preservation--even more than we value our total liberty, since we give up some liberties from the State of Nature in order to institute a government that can protect our lives from the depredations of others. Hobbes, for one, so feared reversion back to the State of Nature that he concluded that government could demand anything of its citizens except to force anyone to be willing to die....Locke is a bit more ambiguous about what conditions would justify outright revolution, but the conditions have to be much worse than the worst conditions of the State of Nature. And yet, for the men who signed the Declaration, this was clearly not the case--their lives were not personally in danger before they declared independence, and their lives suddenly were in grave peril afterwards.
Liberal theory has always had a bit of a hard time dealing with this conundrum, that is, how to call on the willingness to sacrifice even one's life for the sake of one's core principles of liberty, since liberalism itself places a very high premium on self-preservation. Under such a set of philosophical presuppositions, how can one be encouraged to value liberty even more than self-preservation? Tocqueville noticed this difficulty during his visit to the United States in the 1830s, remarking that democratic citizens had a tendency to justify every act in terms of self-interest, even those acts that might be justifiably construed as inspired out of generosity, sacrifice and duty, even the willingness "to sacrifice a part of their time and their wealth to the good of the state." Tocqueville surmised that, over time, the language of self-interest would exert a formative influence upon democratic man's self-understanding: "for one sometimes sees citizens in the United States as elsewhere abandoning themselves to the disinterested and unreflective sparks that are natural to man; but the Americans scarcely avow that they yield to movements of this kind; they would rather do honor to their philosophy than to themselves."
Friday, May 5, 2017
Fake Law
Though that could certainly describe President Trump's "Executive Order on Religious Liberty" issued yesterday, I have something different in mind in this article. A bit:
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role.
Thursday, May 4, 2017
Manent on the Necessity and Insufficiency of the Principle of Free Speech
Here's something else from Pierre Manent in a little book of his originally published as Situation de la France and translated as Beyond Radical Secularism (p.55):
In the present configuration of things, the demand for freedom of opinion and expression without restriction, as essential as it may be, as I have repeated, is not sufficient to prepare us adequately for the challenges that await us. This demand, as I have explained, is not even sufficient to produce a sufficiently enlightened freedom. The abstract principles of modern politics may be products of long experience, but they are not by themselves capable of producing the community of life and experience that they help so usefully to organize. Their abstraction, as I emphasized in discussing secularism, tends to distance us considerably from the experience that they are supposed to distill, to make us forget the meaning of this experience, and to give the illusion that we have only to apply them in order to live together freely and happily.
The Religious-Liberty Executive Order
The term "nothing burger" gets overused, I think, but it seems to apply pretty well to today's Executive Order. While I confess to feeling snarky about all the hysterical pre-denunciations we were getting from the usual Salon/Vox/Slate scare-quotes crowd that turned out to be wasted outrage, it's difficult to avoid feeling frustrated by the fact that some serious questions and issues are ignored by the order out of, it appears, a fear of the (inaccurate) "license to discriminate" charge.
Yes, Americans who embrace our constitutional tradition of respecting religious liberty and the role of religious believers in public life will welcome, naturally, the Executive Order's declaration that the Administration is committed to protecting religious liberty. The guidance it calls for from the Attorney General could also have positive effects, assuming that this guidance includes reminding all federal agencies about the demands of the Religious Freedom Restoration Act and other statutory provisions. And, this Order would appear to be entirely safe from legal challenge ... because it doesn't do anything.
With respect to the enforcement of the Johnson Amendment, it is already the case that the relevant agencies and officials are highly deferential to churches and religious leaders, especially when it comes to what's said in the context of sermons and homilies. And while it is a good thing -- and long overdue -- that the Administration apparently intends to craft a more reasonable and inclusive religious exemption from the contraception-coverage mandate, such regulatory relief was already probably on its way, eventually, as a result of the Supreme Court's decisions.
As I see it, it is unhealthy and even dangerous for the well being of the human right -- everyone's human right -- to religious freedom that it seems "baked into the narrative" that (a) "religious freedom" means "a license to discriminate" and so is bad and (b) that "religious freedom" is something that gets manipulated by politicians so as to appeal narrowly to a subset of political conservatives.
Quick Reaction on the Trump Religious Liberty EO
President Trump issued his executive order on religious liberty today, with a good-sized rollout featuring the Little Sisters of the Poor etc. There was much fear on the left and hope on the right. However, the order itself has little or no effect in concrete terms. It avoid issues concerning LGBT rights and religious liberty; it concentrates only on the Johnson Amendment and the contraception mandate.
The order's first section is a general statement in favor of religious liberty, which will be comforting to religious conservatives but has no operative effect.
On the Johnson Amendment--concerning withdrawal of tax benefits for organizations that endorse a candidate for office (e.g. through an official statement by a clergy leader)--all the order does is forbid IRS action against a religious organization in a situation that "has not ordinarily been treated" as a case of endorsing a candidate. In other words, don't treat religious organizations any worse than secular organizations. But there's no pattern of cases in which that's happened. This just confirms the status quo, under which the IRS has not been going after churches or anyone else for candidate endorsements. In theory, it might even allow the IRS to start going after both equally--although that seems very unlikely in this adminstration.
On the contraception mandate, all the order says is that HHS and other relevant agencies should "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections." The Supreme Court already ordered something similar in the Zubik/Little Sisters case. And Trump's order gives no direction on what the the new regs should do. The agencies will likely give the objectors some relief, assuming that his agency appointees set the course. But the executive order adds little to that.
Religious conservatives will take comfort from the generally positive attitude toward their religious liberty claims. But in its operative effects, this nowhere goes out on a limb for them. The issues concerning LGBT/religious-liberty conflicts remain, and this gives little indication Trump will go out on a limb on those. (Admittedly, he could be trying to take smaller steps first.)
ADDENDUM: It should be noted that in the Rose Garden ceremony, the President stated, with no tone of irony in his voice, that "We will never ever stand for religious discrimination. Never ever." This from the President whose travel-ban executive order began with the campaign pledge (never withdrawn) of a "total and complete shutdown of all Muslims entering the United States."
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