There has been a lot of discussion about and coverage of the recent conference, “Erroneous Autonomy: The Catholic Case Against Libertarianism,” which was sponsored by Catholic University’s Institute for Policy Research & Catholic Studies. (Robert Christian provides a very helpful summary of the presentations, here.) From what I can gather, the participants made a number of important points. At the same time, as I suggested a few days ago in this post, I continue to think that the ongoing critique by some Catholics of "libertarianism" as inconsistent with the Church's social teaching would be more valuable and effective if it were more careful to avoid invoking and attacking straw men (Paul Ryan's favorite books notwithstanding, it is not the case that "laissez faire", "unfettered" capitalism or Randian objectivism exists anywhere or is a live political option in the United States) and to disinguish consistently between "libertarianism's" unsound (and inconsistent-with-Catholicism) anthropological and philosophical premises, on the one hand, and specific policies that some self-identified "libertarians" support. If this distinction is not recalled and observed, it becomes easy to dismiss, perhaps in a partisan way, specific policies that are justifiable on entirely Catholic grounds and that owe nothing to an unsound anthropology or to "erroneous autonomy" simply because the label "libertarian" is attached to them by some.
If my Twitter feed is any guide, my raising these concerns is taken by some as an expression of support for "libertarianism" or as a disagreement with the Church's social teaching. But, at least readers of MOJ should know that it is no such thing. In academic writing (here) and in probably hundreds of MOJ posts over the last decade -- including my very first post ("Law and Moral Anthropology") -- I have endorsed the moral anthropology of Redemptor Hominis and rejected the one of Atlas Shrugged, and I have insisted that all legal and public policy questions should be seen as depending crucially on accounts of what it means to be human. In the spirit of "throwback Thursday," here's a quote from that first post (February 2004!):
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In this post, Michael Sean Winters -- who has been focused on the conference's theme for a while and in many posts and articles -- quotes me:
I agree with Michael Sean that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they work better (at bringing about human flourishing and common good, properly understood).
He then says, "Garnett expects the adjective 'effective' to carry a lot of water. 'Effective' at what? As I noted before, it is worth asking the question whether our current economic system does not create spiritual poverty at the same time that it creates material wealth, and if this co-creation is acceptable to a Christian."
I do not disagree at all, and I don't think Michael Sean's observation undermines or is inconsistent with my point and with the concerns I've been raising, which is not a particularly "big" one: Some policies, which are supported by "libertarians" or to which the label "libertarian" is attached are sound policies which Catholics can and should support, which are consistent with the Church's social teaching and with Christian anthropology, and which are "effective" in the sense that they accomplish worthy goals (i.e., goals that Michael Sean and I, I am sure, would often agree are worthy) in an efficient way and without unintended or undesired consequences. And, some policies that are framed in terms of "communitarianism" or "solidarity" or the preferential option for the poor are, notwithstanding this framing, unsound and unwise policies , , , and sometimes inconsistent with the Church's social teachings.
I enjoyed this essay, by John Haldane, called "Francis, Benedict, and MacIntyre," which is up at Ethika Politica. Here is a taste:
MacIntyre shares with Benedict and Francis three central beliefs: first, that contemporary Western culture is at sea when it comes to thinking about the foundations of morality; second, that it is characterised by a pervasive relativism; and third, that this relativism is not only “cognitive” but is also affective and practical.
I want to end this short discussion by suggesting that there is a fourth belief that unites the Popes and the philosopher . . .
The fourth belief is that to persuade those with whom one is in wholesale disagreement about the nature and content of morality it is not enough simply to state one’s position, or even to argue rationally for it; one has also to expose the confusions and contradictions involved in the thought of the other side. . . .
"Colleges and Evangelicals Collide on Bias Policy," is the title of this piece in the Times, about the decision by Bowdoin College to cease "recognizing" the Bowdoin Christian Fellowship because the Fellowship has "refused to agree to the college’s demand that any student, regardless of his or her religious beliefs, should be able to run for election as a leader of any group, including the Christian association."
The piece is fair and informative, I think. But, the policy it addresses is unwise, unfair, and contrary to its own purported goals of respecting pluralism and diversity. And, as I have argued elsewhere, it reflects -- as do many other applications of the antidiscrimination norm to religious groups and associations -- a common but dangerous (to pluralism) misunderstanding of wrongful "discrimination." There is nothing that a government-run university in a secular, liberal political community should regard and treat as "wrong" about a non-state association taking that association's mission, purpose, character, practices, aims, etc., into account when setting policies about membership and leadership.
Here is an interesting post, by Thomas Kidd, called "Anti-Catholicism: The Defining Religious Principle of Early America?" Among other things, Kidd discusses Owen Stanwood's The Empire Reformed: English America in the Age of the Glorious Revolution. (ed.: The "Glorious Revolution" was neither glorious, nor a revolution. Discuss.) He closes with this:
When Americans debate the role of religion in the American Founding, they’re often given two stark choices – either it was a religious founding in which religion worked for good, or a secular founding in which secularism worked for good. But in anti-Catholicism, we see a third type of role that religion played in early America, a species of religious opinion that was, from a modern perspective, less than constructive. Their anti-Catholicism may have been understandable, given the background of the Reformation, the serious theological concerns that birthed it, and the interminable wars prompted by the religious alliances of European states. Just ask French Protestants, the colonists would have reminded us, what happens when a Catholic state takes away Protestants’ very right to exist. (Catholics had evidence of such nightmare scenarios, too.)
But for evangelicals today who have grown to appreciate our Catholic friends’ advocacy for life, traditional marriage, and religious liberty, as well as their defense of doctrines such as Christ’s divinity in an era of liberal Protestant heterodoxy, the pervasiveness of early American anti-Catholicism makes one wince. Yes, Christianity played a major role in the founding of the colonies, and of the new American nation, but we should not assume that their religion was always a force for good. . . .
At "Cornerstone," the blog on religious freedom of Georgetown's Berkley Center, I have an essay about the likely result in Hobby Lobby/Conestoga: "Kennedy, the Perennial Swing Vote, and the Likelihood of A Narrow Ruling." The title pretty much summarizes it. I think the fears that any ruling upholding Hobby Lobby's religious-freedom claim will reflect a libertarian, Lochner-type "trash government regulation" approach are greatly overstated, because there are principled narrow ways to reach that result:
We can’t be certain which way Kennedy, and therefore the Court, will go. My point is that the Court can sustain the companies’ challenges on narrow grounds that will not pose any threat to the broad range of commercial regulations. I hope, and I think the chances are good, that the Court will do just that.
Despite the occasional snarky comment (from both sides), thoughtful public citizens of Catholic faith from both sides of the political spectrum earnestly desire a society in which people thrive, economically, socially, and religiously. We all want to see children enjoying a quality education. We all want to see young men and women of all races and from all backgrounds have an equal opportunity to succeed in life. We all want to see the unfortunate have access to housing, nutrition, and health care.
From the most part, what divides us are not first principles but a disagreement as to what works. (I say, "for the most part," as I do think there is some distance between the left and right on the independent value of freedom of choice -- that is, a freedom from even the well-intentioned directives of government.) Or, to put it in terms of Catholic teaching, the primary question is one of prudential considerations. And that, in turn, depends largely on evidence about how policies fare when translated into the real world.
Aaron Renn, an urban analyst, writes in City Journal about Rhodes Island as "The Bluest State." As Renn describes it, "Rhode Island has the full complement of blue-model orthodoxy: high taxes, high social-services spending, powerful unions, and suffocating regulation." And the result?
Small wonder that Rhode Island scores poorly in most business-climate surveys—47th in the Small Business Survival Index and 46th in the Tax Foundation’s rankings of business-tax climate.
Its blue-state enthusiasms have done the state serious damage. Depending on the month, Rhode Island has either the worst or second-worst unemployment rate in the nation: 9.3 percent, according to the latest Bureau of Labor Statistics figures. Since 2000, the state has lost 2.5 percent of its jobs, and what jobs it has created are mostly low-paying. The job situation is so dire that entire local economies have become dominated by the benefits-payment cycle. In Woonsocket, for example, one-third of residents are on food stamps.
On top of this, real incomes have remained "stagnant for decades" and housing is "prohibitively expensive."
Renn's prescription?
Rhode Island has to reduce the size of its government—paring back taxes, spending, and regulation, and doing so over the long haul until it has a fiscally sustainable system that doesn’t strangle its economy. And somehow, the state’s leaders and residents need to rethink their views on development and free enterprise.
The Washington Post has a story on the various health-care financing options outside the Affordable Care Act that have grown since the Act was passed, with signups from people opposed to the law's requirements. These include the faith-based "healthcare sharing ministries" that have an explicit (limited) exemption from the Act.
[Sarah] Tucker dropped the private health plan she had carried for more than a decade and joined Christian Healthcare Ministries, a faith-based nonprofit in which members pool their money to pay for one another’s medical needs — and promise to adhere to biblical values, such as attending church and abstaining from sex outside marriage....
Christian Healthcare Ministries ... has existed since the 1980s, but membership has surged — growing by 60 percent to more than 80,000 members — since the health-care law was passed. The most popular plan costs $150 a month per person and covers medical bills up to $125,000 for any single illness or incident. People with higher bills are covered if they belong to a special program in which members split the cost. This “brother’s keeper” program typically costs less than $100 a year, according to the group....
As someone who studies both religious liberty and religious social ethics, I'm interested in ways in which religious objectors to legal requirements like the ACA are forming, or might form, alternative institutions and practices that avoid the regulations. For devotees of a Stanley Hauerwas-type perspective on Christian ethics, this whole process might be salutary: Christians resisting the norms of the general secular culture, meeting more of the needs of each other and others through highly distinctive church-related practices and organizations, and thereby moving further toward seeing the church as an "alternative polis." There are, of course, major challenges involved in making that move:
"These ministries operate on a very high degree of trust,” said Timothy S. Jost, a Washington and Lee University law professor and consumer advocate. “It’s really important that people really believe in this and are committed to this. If you have a bunch of people sign up who are doing this only to [avoid the health-care law], the whole thing can collapse.”
The eminent First Amendment scholar (and my friend) Steve Shiffrin has a smart post disagreeing with my own criticisms of Olivier Roy’s column a few days ago concerning the European political right and its nominal association, but substantive dissociation, with the major Christian churches of Europe. Actually there is not much to disagree with in Steve’s post: insofar as my post suggests that the problems that attend church state associations simply have no application in Europe, surely Steve is right to object. Here are just a few additional ruminations in response:
First, I take Steve’s post to be in some measure a friendly amendment to my own. The principal point I wanted to make about Professor Roy’s column is that to the extent that church-state association or connection is a problem in Europe, that is nothing new and has little to do with today’s particular political trade winds. So that while the contemporary political right makes for a fat target, Professor Roy’s real objection is to the larger model of church-state relations that has predominated in Europe (for good and, as Madison had it, for ill) for the hundreds of years that preceded the last handful. Steve’s post is, I think, consistent with this criticism.
Second, Steve’s post is also a reminder to me that the strength or vigor of a religious tradition is itself a contested concept. A highly Protestant or Evangelical view of religion’s core or essence will see weakness in associational or public institutional characteristics and strength in individual commitment and the purity of interior zeal (I note that Steve cites Stanley Hauerwas!). Here’s some of what I wrote a few months ago (in response to George Will) about the claim that separationism must always and necessarily strengthen religion, much of which seems applicable here too:
The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris)…. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”
Notice also the individualistic current on which the claim [of religious strength's source in separationism] rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment…. The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations….
But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable….about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.
I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.
If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.
I take all of these points to be consistent with Steve’s final paragraph, in which he writes: “The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful.” Quite so.
Finally, a friend wrote to me indicating that he was dubious that “separationist” was a proper description of Professor Roy’s own views. That’s an interesting observation as well. I made the association because separationism has a long and rich history in this country. It is a view that proceeds in part from the position that the mingling of church and state is a corrupting force for both and it maintains that the cultural and identitarian features of religion which can permeate the political sphere are not a positive thing for either religion or government. I found this latter theme to be very much emphasized in Professor Roy’s piece; indeed, I found it to be crucial to the claims he makes. But separationism is an American phenomenon. And it may be difficult to transplant the flora of particular, culturally contingent church state arrangements to exotic soils and expect them to blossom in quite the same ways.
"The Holy Spirit teaches us: He is our interior Master. He guides us along the right path through life's situations. He teaches us the path, the street .... He is more than just a teacher of doctrine. The Spirit is a teacher of life. Certainly knowledge, understanding is also a part of life but within the broader and more harmonious horizon of Christian existence."
The drive-by shooting at "doctrine" is one thing. Another is the claimed opposition between "Christian existence," on the one hand, and "knowledge, understanding" ("also [sic] a part of life"), on the other.
Those interested in how Islam--and religions in general--relate to human rights should take a look at these findings from leading international-law scholar Tom Ginsburg and a co-author, concerning "Islamic clauses" in national constitutions, i.e. clauses that make Islam the supreme law. The authors analyzed a data set of constitutions adopted in majority-Muslim countries over decades and concluded, among other things,
that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. [Moreover,] contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in the rights provided by the constitution. Indeed, constitutions which incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.
These findings have significant normative implications.... [Among other things, they] suggest that outsiders monitoring constitution-making in majority Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.
