Tuesday, June 30, 2020
Below are remarks I recently gave to Directors of academic programs and institutes on human flourishing and civic life in the U.S. and U.K. -- Robert George
People sometimes ask why I—and my colleagues at the James Madison Program at Princeton and the Witherspoon Institute and at other programs and institutes with which we are involved around the country—are so committed to our work and so feverish in carrying it out. The question is heightened, and in a way made poignant, by what is happening in our country now. The riots in the streets. The cultural changes, which seem to be coming at us so extraordinarily rapidly. The “cancel culture.” The attacks on basic civil liberties. The incivility. The tribalism. The extreme polarization. The contempt people seem to have for others. The doubting and denying that our nation and civilization are worth preserving. Many people are wondering what to do—including the young men and women we serve at our institutes and in our programs.
All of this has gotten me thinking about the 19th century German Jewish Christian poet Heinrich Heine. Now you may be wondering, why does all this make the professor think of a 19th century German poet? I'll explain. Heine predicted in 1834 what came to pass in the 1930's and 40s in Germany. How could a man in 1834 have foreseen the rise of violent totalitarians and the plunging of Europe into vicious tyranny and the world into war a hundred years later? Well, let me quote Heine's prophecy. Then I’ll say a word about why I think this is so relevant to us, and state the lesson that's in it for the work to which we have dedicated ourselves. Here is what Heine wrote in 1834:
Christianity, and this is its greatest merit, has somewhat mitigated the brutal German love of war, but it could not destroy it. Should that subduing talisman, the cross, be shattered, the frenzied madness of the ancient warriors, that insane Berserk rage of which the Nordic bards have spoken and sung so often, will once more burst into flame. This talisman [the cross, Christianity] is fragile. And the day will come when it will collapse miserably. Then the ancient stony gods will rise from the forgotten debris and rub the dust of a thousand years from their eyes. And then Thor, with his giant hammer will jump up and smash the gothic cathedrals.
Do not smile at the advice, the advice of a dreamer who warns you against Kantians, Fichteans, and philosophers of nature. Do not smile at the visionary who anticipates the same revolution in the realm of the visible that has already taken place in the realm of the spirit. Thought precedes action, as lightning precedes thunder. German thunder is of true Teutonic character. It is not nimble, but rumbles ponderously. Yet it will come. And when you hear a crashing such as never before has been heard in the history of the world, then you will know that the German thunderbolt has fallen. At that uproar, the eagles of the air will drop dead. The lions in the remotest deserts of Africa will hide in their royal dens. A play will be performed in Germany which will make the French Revolution look like an innocent idyll.
Try to imagine in 1834 foreseeing something worse than the French Revolution with all the bloodshed of the guillotine. The mass madness and mass murder. The mind-numbing inhumanity. Yet Heine said that the day would come when the abolition of the Christian worldview—the destruction of the Christian understanding of humanity, of human nature, of the human good, of human dignity, of human destiny—would result in something that would make the French Revolution look like an “innocent idyll.” Which is exactly, of course, what Hitler and the Nazis did in Germany and across Europe--revalorizing Teutonic pagan "virtues" and even expressly reviving ancient pagan symbols, practices, and rituals. They "shattered that subduing talisman, the cross" and Thor "smashed the cathedrals." Of course, Heine didn’t identify somebody named “Hitler" or a party called “the Nazis,” but he knew that something like them would arise. His key insight was this: He saw that what happens in the domain of the invisible—in the minds, the hearts, the souls of people—eventually plays itself out in the realm of the visible. “Thought precedes action as lightning precedes thunder.”
What we are seeing in the streets now and more broadly in the culture—and what we're going to see in the universities in the fall (if or when students return)—didn't and doesn’t just happen. There is an ideology, a set of beliefs, a worldview—a way of looking at and interpreting the world—there is an anthropology, a moral philosophy, that have long been in place in the minds and hearts of opinion shaping elites and influencers that now plays out in the realm of the visible. The time to have fought was a long time ago in the realm of the intellect, the invisible domain of the spirit.
But we mustn't despair. Quite the opposite. Because two can play at this game. Transformations in intellect—in the mind, in the heart, in the spirit—can have good as well as bad consequences. Good thinking, good education, good formation can produce good results every bit as much as bad thinking, bad ideas, bad formation will produce evil results. Yes, our task is difficult. I get that. It is, nevertheless, our task. It is our calling, our vocation, our mission in our institutes and programs to provide that true education, that good, deep, critical, independent thinking, that excellent formation, that will overcome what is wrong, what is inhuman and degrading, what undermines the fulfillment and flourishing of our precious fellow human beings. Our work now, if we do it well, will produce down the line in the domain of the visible, the fruit of transformations in the realm of the invisible.
I echo Rick's praise for the Supreme Court's decision this morning in Espinoza with congratulations to him and others who have toiled for many years on school choice and religious freedom issues. One thought that occurs to me is to note briefly the important legacy of the late Chief Justice Rehnquist in today's decision (in a majority opinion appropriately written by a former Rehnquist clerk).
One aspect of that legacy is that then-Justice Rehnquist's dissents early in his time on the Court in cases such as Nyquist (1973) and Meek v. Pittenger (1975) criticizing overbearing separationism in First Amendment school funding doctrine have been vindicated, though much of that vindication had already occurred when he was Chief Justice in Agostini v. Felton (1997) and Zelman v. Simmons-Harris (2002). But it was only because the disco-era Establishment Clause separationism of the 1970s and early 1980s has now (rightly) been discarded to permit funding for religious schools in certain types of programs that the issue in Espinoza about no-aid discrimination in state constitutions could be teed up. As Justice Rehnquist wrote in Meek:
The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and '(a)ny interpretation of (the Establishment Clause) and the constitutional values it serves must also take account of the free exercise clause and the values it serves.'" 421 U.S. 349, 395 (1975) (citation omitted).
A second aspect of Chief Justice Rehnquist's legacy in Espinoza is his opinion in Locke v. Davey (2004). In assigning the opinion in Locke to himself, Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move) limited to funding for clergy training or "devotional theology" studies. An opinion in Locke by Justice Stevens (the senior associate justice in the majority) would presumably have given a constitutional imprimatur to no-aid state constitutional provisions (but then perhaps jeopardizing the majority by losing the votes of Rehnquist, O'Connor, and Kennedy). Indeed, Justice Breyer's dissent in Espinoza gestures toward just such a broad reading of Locke v. Davey, though not (in my view) persuasively so...thanks to William Rehnquist.
Here's my article on the June Medical case up at SCOTUSBlog today. After a technical discussion of Roberts' concurrence -- and its restoration of the "undue burden" standard in Casey -- I write:
As much as Roberts is right to correct the missteps of Whole Woman’s Health, he makes a few rather obvious missteps of his own. In rather passively joining the plurality on the standing issue, he misses the opportunity to reckon with the deep contradiction at the heart of this case and really at the heart of abortion jurisprudence as we know it. Not only is Thomas correct that the Supreme Court has had it wrong constitutionally from the start, but allowing abortion providers to sue on behalf of women puts women’s interests in the hands of abortion providers with adverse economic interests. A jurisprudence that treated women’s interests as distinct from those of abortion providers might come rather to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more, more of men, more of employers, more of medicine, more of the community at large. From this perspective, it’s no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down yesterday, is an African-American “whole life” Democrat who sees abortion, touted by Casey as a means for economic and social progress, as actually a “tool of racial and economic oppression.”
As in Whole Woman’s Health and in Roe itself, doctors’ interests take center stage here again, with the five justices in the majority – including three women! — maintaining that a regulation meant to protect women’s health and safety is unduly burdensome to women simply because it places significant requirements upon doctors who would serve them. And yet, as Justice Samuel Alito’s questioning loudly hinted at oral argument and as he now argues in dissent, “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.” In any other case involving business regulation – say, tobacco, or better yet, gun regulations — we would readily see the clear conflict of interest. If gun manufacturers attempted to stand on gun owners’ Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation of the manufacturers, we would not think courts should so readily strike down the law; indeed, requiring the manufacturers “be limited to [their] own rights,” in Alito’s words, would mean that the law would need to pass only very deferential rational basis scrutiny, and that’s it.
My gratitude to Steve Gilles for an article he wrote for a symposium in which I participated in his honor a few years back. Though the Chief did not entirely follow Gilles' suggestions in "Restoring Casey's Undue-Burden Standard After Whole Women's Health v. Hellerstedt," he came darn close. See also Gilles' excellent 2016 ND Law Review article where he argues how to take the next steps. The title kind of gives it away: Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters.
