The folks at Princeton’s James Madison Program have uploaded the video of my talk there last May on on the future of religious freedom in America. I discuss the rise of the Nones; the growth of the administrative state; our expanding notions of equality; even Tocqueville and pantheism. Oh, I also make some predictions about the then-undecided Masterpiece Cakeshop case, which were not too far off, actually. (That happens now and then). People who are interested can access the video on the Madison Program’s site, or here on our Videos page. Other panelists include John J. DiIulio, Jr. (Penn), Michael Stokes Paulsen (St. Thomas), and Katrina Lantos Swett (Lantos Foundation). Thanks again to the Madison Program for inviting me!
It often seems today that American society is coming apart. Our political, racial, and religious divisions seem ever more bitter and our capacity for goodwill and compromise ever more weak. Of course, this may only be a matter of perspective. Things might not be so bleak, or unusual. American society has been near fracture before. We had a civil war, in case people have forgotten. I heard someone say the other day that no one has ever accused a sitting president of treason before now; the person must never have heard of George Washington. And things looked awfully ominous in the 1960s. Perhaps our divisions only seem more pronounced than they have been . Perhaps, if we took a proper, historical view, today’s fissures wouldn’t be as worrying.
Well, a new book released today from Yale University Press maintains that we are right to be very worried, that our political, racial and religious divisions really are new and more bitter. The book is The Great Alignment: Race, Party Transformation, and the Rise of Donald Trump, by political scientist Alan I. Abramowitz (Emory). Readers can decide for themselves. Here’s the publisher’s description:
Alan I. Abramowitz has emerged as a leading spokesman for the view that our current political divide is not confined to a small group of elites and activists but a key feature of the American social and cultural landscape. The polarization of the political and media elites, he argues, arose and persists because it accurately reflects the state of American society. Here, he goes further: the polarization is unique in modern U.S. history. Today’s party divide reflects an unprecedented alignment of many different divides: racial and ethnic, religious, ideological, and geographic. Abramowitz shows how the partisan alignment arose out of the breakup of the old New Deal coalition; introduces the most important difference between our current era and past eras, the rise of “negative partisanship”; explains how this phenomenon paved the way for the Trump presidency; and examines why our polarization could even grow deeper. This statistically based analysis shows that racial anxiety is by far a better predictor of support for Donald Trump than any other factor, including economic discontent.
Here is a new paperback from Oxford about a Christian saint and theologian famous for resisting the power of the state: Maximus the Confessor: Jesus Christ and the Transfiguration of the World, by church historian Paul M. Blowers (Emmanuel Christian Seminary). Maximus, who began his career as a high imperial official, was important during the Monothelite Controversy of the seventh century. The details of that abstruse theological and political debate are not important, at least to most Christians today, but Monotheletism was an imperial attempt to reconcile Chalcedonian and Non-Chalcedonian Christians. Like all such attempts, it failed, largely because of intransigence on both sides. Maximus strongly adhered to the pro-Chalcedonian position and counseled against compromise, which landed him in trouble with the emperor, who had him tortured and exiled for heresy. Shortly after his death, though, Maximus’s position prevailed within the empire, and he was named a saint. Personally, I regard Maximus’s inflexibility, and those of his counterparts on the other side, with some regret. The theological differences between Chalcedonian and Non-Chalcedonian Christians are narrow and should not be so difficult to resolve; that we have not been able to do so across centuries is a continuing scandal. But one has to admire Maximus’s integrity in resisting the state, even at the cost of harrowing physical pain. The authorities cut out his tongue and amputated his writing hand so that he could no longer spread his views. The description of the book from the publisher’s website follows:
This study contextualizes the achievement of a strategically crucial figure in Byzantium’s turbulent seventh century, the monk and theologian Maximus the Confessor (580-662). Building on newer biographical research and a growing international body of scholarship, as well as on fresh examination of his diverse literary corpus, Paul Blowers develops a profile integrating the two principal initiatives of Maximus’s career: first, his reinterpretation of the christocentric economy of creation and salvation as a framework for expounding the spiritual and ascetical life of monastic and non-monastic Christians; and second, his intensifying public involvement in the last phase of the ancient christological debates, the monothelete controversy, wherein Maximus helped lead an East-West coalition against Byzantine imperial attempts doctrinally to limit Jesus Christ to a single (divine) activity and will devoid of properly human volition. Blowers identifies what he terms Maximus’s “cosmo-politeian” worldview, a contemplative and ascetical vision of the participation of all created beings in the novel politeia, or reordered existence, inaugurated by Christ’s “new theandric energy”. Maximus ultimately insinuated his teaching on the christoformity and cruciformity of the human vocation with his rigorous explication of the precise constitution of Christ’s own composite person. In outlining this cosmo-politeian theory, Blowers additionally sets forth a “theo-dramatic” reading of Maximus, inspired by Hans Urs von Balthasar, which depicts the motion of creation and history according to the christocentric “plot” or interplay of divine and creaturely freedoms. Blowers also amplifies how Maximus’s cumulative achievement challenged imperial ideology in the seventh century—the repercussions of which cost him his life-and how it generated multiple recontextualizations in the later history of theology.
A forthcoming book from Harvard University Press discusses America’s identification with Israel: Our American Israel: The Story of an Entangled Alliance, by University of Pennsylvania English professor Amy Kaplan. The author identifies several elements in post-war America that have led to the strong identification most Americans feel with the Jewish state, including the sense of biblical destiny. But Americans’ identification with Israel goes way back. American Protestantism has strongly identified with the Jews ever since the Puritans–just think of all those Old Testament names in New England. Even Thomas Jefferson wanted to make the story of the Exodus part of our national seal. Now that Israel is a nation state, the sense of common identity takes a somewhat different form, but it has been with us from the beginning. Here is the book’s description from the Harvard website:
An essential account of America’s most controversial alliance that reveals how the United States came to see Israel as an extension of itself, and how that strong and divisive partnership plays out in our own time.
Our American Israel tells the story of how a Jewish state in the Middle East came to resonate profoundly with a broad range of Americans in the twentieth century. Beginning with debates about Zionism after World War II, Israel’s identity has been entangled with America’s belief in its own exceptional nature. Now, in the twenty-first century, Amy Kaplan challenges the associations underlying this special alliance.
Through popular narratives expressed in news media, fiction, and film, a shared sense of identity emerged from the two nations’ histories as settler societies. Americans projected their own origin myths onto Israel: the biblical promised land, the open frontier, the refuge for immigrants, the revolt against colonialism. Israel assumed a mantle of moral authority, based on its image as an “invincible victim,” a nation of intrepid warriors and concentration camp survivors. This paradox persisted long after the Six-Day War, when the United States rallied behind a story of the Israeli David subduing the Arab Goliath. The image of the underdog shattered when Israel invaded Lebanon and Palestinians rose up against the occupation. Israel’s military was strongly censured around the world, including notes of dissent in the United States. Rather than a symbol of justice, Israel became a model of military strength and technological ingenuity.
In America today, Israel’s political realities pose difficult challenges. Turning a critical eye on the turbulent history that bound the two nations together, Kaplan unearths the roots of present controversies that may well divide them in the future.
Earlier this year, Princeton released a new work on religion in Ancient Rome that looks quite interesting. The book is Pantheon: A New History of Roman Religion, by German religious studies scholar Jörg Rüpke (University of Erfurt). Ancient Rome did not separate religion from government, as we do today. The emperor held the title of Pontifex Maximus, the greatest bridge-builder between the gods and men; visitors to the Capitoline Museum today can see, in one of the museum’s staircases, a wonderful bas-relief of the Emperor Marcus Aurelius performing a sacrifice in that role. Indeed, it is only the liberal societies of the West (and their imitators in other parts of the world) that have attempted to separate religion from the state, typically in an attempt to squelch the power of Christianity. The liberal project is feeling some strain just now; one wonders whether, if liberalism really does fade away, Western societies will return to the older model, with religion at the center of public life. But what religion would that be? Anyway, here is the description of the book from the publisher’s website:
From one of the world’s leading authorities on the subject, an innovative and comprehensive account of religion in the ancient Roman and Mediterranean world
In this ambitious and authoritative book, Jörg Rüpke provides a comprehensive and strikingly original narrative history of ancient Roman and Mediterranean religion over more than a millennium—from the late Bronze Age through the Roman imperial period and up to late antiquity. While focused primarily on the city of Rome, Pantheon fully integrates the many religious traditions found in the Mediterranean world, including Judaism and Christianity. This generously illustrated book is also distinguished by its unique emphasis on lived religion, a perspective that stresses how individuals’ experiences and practices transform religion into something different from its official form. The result is a radically new picture of both Roman religion and a crucial period in Western religion—one that influenced Judaism, Christianity, Islam, and even the modern idea of religion itself.
Drawing on a vast range of literary and archaeological evidence, Pantheon shows how Roman religion shaped and was shaped by its changing historical contexts from the ninth century BCE to the fourth century CE. Because religion was not a distinct sphere in the Roman world, the book treats religion as inseparable from political, social, economic, and cultural developments. The narrative emphasizes the diversity of Roman religion; offers a new view of central concepts such as “temple,” “altar,” and “votive”; reassesses the gendering of religious practices; and much more. Throughout, Pantheon draws on the insights of modern religious studies, but without “modernizing” ancient religion.
With its unprecedented scope and innovative approach, Pantheon is an unparalleled account of ancient Roman and Mediterranean religion.
Judge Brett Kavanaugh’s scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial “neutrality.” I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.
For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann’s book on statutory interpretation), he wrote: “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.” Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: “I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.” And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.
It’s a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.
Kavanaugh’s primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries–clear or ambiguous–to settle on. Kavanaugh argues that in consequence a judge’s predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it’s off and running with the substantive canons of interpretation.
Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her “best reading of the statute,” guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms (“dogs, pigs, sheep, and other animals” should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that “other animals” should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the “common denominator.” But I’m not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh’s “best reading of the statute” approach, one which he agrees must make use of context.
The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply “finding” clarity/ambiguity, of the judge’s predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.
Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, “rather indeterminate,” and at worst, “empty of real, determinate, objective meaning.” They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are “mood-setters.” And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.
Or consider the issue of exceptions to certain constitutional rights–the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral–non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas’s dissent in Whole Woman’s Health v. Hellerstedt). But one can see a critical unity in Kavanaugh’s objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.
Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: “At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases.” And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised “history and tradition,” together with “precedent,” as important for his judicial method in his acceptance last night.
We’ll have to wait and see if and how these threads come together if he is confirmed.
To our readers, Mark and I wish you a happy Fourth of July!
An independence from Great Britain. And a dependence and reliance on one another, as Benjamin Franklin recognized in his hanging together/hanging separately quip, made at the signing of the Declaration of Independence. (I have privately wondered whether we might find some space for a “Dependence Day” somewhere in the American calendar…below is a book that might give the holiday creators some inspiration.)
I have an op ed today in the New York Times co-authored with Kevin Walsh about the Supreme Court, the culture, and what to expect from whoever replaces Justice Anthony Kennedy. A bit:
[W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.
Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.
Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes….
To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.
As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.
Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.
The University of Kansas Press is known, for good reason, to be one of the most consistently interesting and high quality presses for American legal and political history. Here is a fascinating new book about religious arguments against the American Revolution–a kind of obverse of what one sees in the Declaration of Independence (see, e.g., all that talk about what unalienable rights “endowed by their Creator” required of early Americans). The book is God Against the Revolution: The Loyalist Clergy’s Case Against the American Revolution (University of Kansas Press), by Gregg L. Frazer.
Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.
Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.
For a revolution built on demands for liberty, equality, and fairness of representation, God against Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.
Here’s a wonderful looking collection of essays on some of the major figures in Spanish judicial history, focusing on their Christian thought. It includes better known judges such as Francisco de Vitoria and Juan Donoso Cortes, as well as several that are new at least to me. A very interesting project: Great Christian Jurists in Spanish History (CUP), edited by Rafael Domingo and Javier Martínez-Torrón.
The Great Christian Jurists series comprises a library of national volumes of detailed biographies of leading jurists, judges and practitioners, assessing the impact of their Christian faith on the professional output of the individuals studied. Spanish legal culture, developed during the Spanish Golden Age, has had a significant influence on the legal norms and institutions that emerged in Europe and in Latin America. This volume examines the lives of twenty key personalities in Spanish legal history, in particular how their Christian faith was a factor in molding the evolution of law. Each chapter discusses a jurist within his or her intellectual and political context. All chapters have been written by distinguished legal scholars from Spain and around the world. This diversity of international and methodological perspectives gives the volume its unique character; it will appeal to scholars, lawyers, and students interested in the interplay between religion and law.