Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity. (Get yours here.) I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing. I asked him to supply MOJ with an "extended blurb", to give readers a sense of the argument. Here it is:
Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)
This argument challenges the increasingly popular liberal egalitarian account of religious liberty. According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity. Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.
Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority. Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.
In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank. Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community. Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.
(Available here, discount code: PLRL2020; or via Cambridge Core online)
I was struck, the other day, by the realization that the upcoming presidential election in the United States is the fifth one since the launch of this blog, back in 2004. Skimming through old posts, I was reminded that the "for whom should Catholics vote?" and "what considerations should guide Catholics' electoral decisions?" and "what are 'prudential' considerations, anyway?" questions were consistently, sometimes energetically, engaged.
This has not been the case this year, and not only because these conversations and arguments migrated to Twitter. And, I'll confess to not missing them very much. Very little seems to change (although, in 2016 and 2020, unlike -- in my view -- 2004, 2008, and 2012, candidates' manifest and deep character defects might add new ingredients to the mix).
There was some controversy, a few days ago, about former V.P. Biden having been referred to as a "fake Catholic." No, he's baptized, and the sacrament, we believe, works. (Questions about scandal, excommunication, etc., are different.) And, there was a published account that, on the contrary, his "Catholic roots have shaped his public life." Interestingly, that account stated that "[Biden's] is . . . a faith that has come into conflict with Democratic policy positions, forcing him to change and evolve along the way to keep up with shifting uniform stances within the party." "Forcing him"?
Pushing back on the "fake Catholic" charge, John Gehring conceded (phew!) that it is "legitimate for Church leaders and others to challenge Biden on his positions, including his support for abortion rights," if it's done with "civility." (Gehring claims that this requirement rules out "distorting Biden's position as “pro-infanticide”, but one suspects that the entirely accurate statement that "Biden believes that American positive law should protect abortion on demand, for any reason, at any time, at public expense" wouldn't make him much happier.)
There's been an interesting contest about how to read the USCCB's "Faithful Citizenship" document , and about that document's explicit emphasis on the immorality and injustice of our abortion regime, and about the significance of Pope Francis's statement in Gaudete et exsultate that "equally sacred [to the lives of the "innocent unborn"] are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection.” Of course, the Holy Father's statement is precisely the heart of the pro-life, anti-abortion position: All human persons, because they are human persons, are radically equal in dignity. It is precisely because of this "equal[] sacred[ness]" that abortion -- and its legal protection -- is gravely unjust. Nothing about Pope Francis's statement could plausibly be understood as in tension with the bishops' observation that, given the American legal givens, the need to remedy our unjust abortion regime remains "preeminent", and efforts to suggest otherwise seem opportunistic and misplaced. Similarly, efforts to suggest that the regular and longstanding emphasis on "prudence" in the Catholic approach to politics calls into question the immorality of the American abortion-regulation regime are sophistical.
The launch of a "Catholics for Biden" looks to make the case (in Michael O'Loughlin's words) to Catholic voters that, all things considered, the policy-outputs of a Biden-Harris administration would be better, in terms of Catholics' "shared values", than those of another Trump-Pence administration. There's the rub (once again), I guess. Even assuming "shared values" among American Catholics, it is not at all clear that we share a "metric" for identifying better or worse policy outputs. The "Catholics for Biden" effort, for example, probably does not weigh too heavily the clear and negative effects a Biden-Harris administration would be for Catholic schools and school choice. The "Catholics for Trump" analogue (I haven't checked) probably does not put into the balance, say, the downsides of deregulation. And so it goes.
St. Thomas More, patron of statespersons and politicians, pray for us!
Chinese Communist Party officials say that the Uyghurs, a Turkic minority in the Xinjiang region, are the “happiest Muslims in the world.” The evidence trickling out of western China tells a different story. In July, U.S. customs officials intercepted a 13-ton shipment of beauty products made out of human hair from the region and a video of blindfolded prisoners being led onto train cars went viral. Over the past couple of years, some have compared the human tragedy unfolding there to North Korean totalitarianism and South African apartheid. More recent evidence has inspired comparisons to the Holocaust. “Genocide” is a word that packs a punch, spurring action by connecting “the solemn commitments of the past and a new atrocity unfolding before the world’s eyes,” as a report by the U.S. Holocaust Memorial Museum’s Simon-Skjodt Center put it last year. This word, sadly, is now an apt descriptor for the situation in Xinjiang.
I have an essay on the difficulty of integrating them at the Liberty Law blog--more an effort to chew over what I take to be a problem than to offer a definitive resolution, though my tentative approach to the issue depends upon other methodological moves that I did not discuss at length in this piece.
There are many others who are more committed to originalism than I am, and even more who have thought much more deeply about the relationship of originalism and stare decisis. Among them are Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who will respond to the essay by and by. A bit from the end:
Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.
Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like Gamble, Mesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.
Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.
I very much enjoyed and appreciated George Weigel's recent-ish book, The Irony of Modern Catholic History. I realize that my liking the work was probably over-determined, given its themes and plot-lines and characters. My sense is that Weigel wrote it as an ecclesiological work -- and it is -- but I also think it (i.e., its helpful presentation of the Catholic engagement with, and proposals to, "modernity") should be incorporated into political-theory courses.
On John Paul II and freedom: "A truly human freedom is one in which we freely choose what can rationally be known to be good, and do so as a matter of habit. Freedom as willfulness is like a child banging on a piano; the freedom that makes for mature individuals and coherent societies is like an artist who has mastered the disciplines that allow him or her to make real music on the piano[.]"
Benedict XVI at Westminster: "Religion . . . is not a problem for legislators to solve, but a vital contributor to the national conversation."
Benedict XVI again, at the Bundestag: "[T]here is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself."
Weigel on the two: "[They] constantly called the late modern world to [the] freedom for excellence. . . . Freedom for excellence, they argued, was humanism in full."
Notre Dame’s Potenziani Program in Constitutional Studies and the Tocqueville Program will host a lecture by Charles Kesler of Claremont McKenna College. This virtual event is free and open to the public. Recording will be made available.
Doug Laycock and I have posted this paper on SSRN; it draws on but significantly expands on our brief for the Christian Legal Society and others in the Espinoza case. From the abstract:
There was nothing surprising about the [Espinoza] decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down.
But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choice and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government’s interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.
August 25th marks the third anniversary of the Burmese military campaign in Rakhine State that resulted in mass atrocities and displaced hundreds of thousands of Rohingya Muslims.
The U.S. Commission on International Religious Freedom (USCIRF) will host a virtual event to discuss the current situation of Rohingya Muslims in Burma and in refugee camps in Bangladesh, as well as the pending international lawsuits against the Burmese government on August 27th.
Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020. The prize will be awarded at the 2021 AALS Annual Meeting. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2020.
As we celebrate the centenary of the ratification of the constitutional amendment that gave women the right to vote, for most it will not be a shock to learn that the Catholic Church was not out front in the movement for women's suffrage. Nonetheless, we can still find ways to celebrate the journey toward increasing appreciation of women's contributions to public life - in this very brief CNS piece, with a little bit of help from Star Wars - The Rise of Skywalker.
