The Nationalist Providentialism of Justice John Marshall Harlan

In a richly detailed new article, Professors Josh Blackman (South Texas) and Justice JM HarlanBrian Frye (Kentucky), together with Michael McCloskey of the Harlan Institute for Constitutional Studies, discuss the constitutional jurisprudence of Justice John Marshall Harlan by exploring his turn-of-the-century lectures at what was then the Columbian College of Law (now GW). My old students will remember Justice Harlan for, among other opinions, his famous dissent in Plessy v. Ferguson. The paper is very interesting on many fronts, but the authors’ reconstruction of Harlan’s nationalist providentialism (Harlan himself, the authors write, was a “devout Presbyterian”) really caught my eye (particularly in light of a paper I am now working on involving a contemporary judge with not entirely dissimilar views):

In his lectures, Justice Harlan expressed a strong belief in American exceptionalism and in the role of providence in America’s success. He saw a tight connection between the rule of law and religion, and considered them both essential to America’s prosperity. For Harlan, constitutional liberty consisted of the common law rights of Englishmen, secured by the Constitution and realized by the Court. The primary merit of a written Constitution was to render immutable traditional common law rights. And those common law rights were secured and realized only by special providences, indelibly marked by blood and fire. Harlan argued that the Fourteenth Amendment incorporated the Bill of Rights against the states. He believed that the Constitution expressed the “providential” purpose of the United States. Discussing the clause that requires that officers must swear to uphold the Constitution, Harlan asks, “Is there any country on the Earth that has in its statutes or laws a provision like that? Not one.” ….

Harlan’s republicanism committed him to popular sovereignty, civic virtue, and self-governance. Other Justices saw the rights guaranteed by the Constitution as abstract, derived from reason and practicality. For some, like Holmes and Brandeis, it meant legal realism. By contrast, Harlan saw constitutional rights as elements of a shared culture, and the extension of them to the states through the Constitution as a means of promoting and preserving national unity. By affirming a common American heritage, rooted in “Anglo-Saxon” liberties, the Court, through the Bill of Rights and the constitutional privileges and immunities it protected, could help create a unified nation, one with the ideological strength to overcome sectional and racial differences. Harlan’s lectures were one tool for accomplishing this goal.

Robert Bellah, RIP

Word comes that sociologist Robert Bellah (left) has passed away at the age of 86. Bellah was famous for his work on American civil religion–indeed, he reintroduced that concept to American law in the 1960s–and the magisterial Habits of the Heart, a book he co-authored in 1985. Habits remains remarkably relevant today, particularly in its famous discussion of “Sheilaism,” the thoroughly individualist spirituality that appeals to so many Americans, particularly the growing number of “Nones.” When he died, he was working on a new book, Religion in Human Evolution. Matt Schmitz has a tribute on the First Things site. RIP.

Welcome to Robert Delahunty

Mark and I are pleased to welcome Professor Robert J. Delahunty of the University of St. Thomas School of Law, who will be posting with us for the month of August. Most of his scholarship is in international and constitutional law, but he has interests in law and religion as well. His most recent project concerns Tocqueville’s views on individualism and religion in America. Welcome, Robert!

Lee, “Religion and Politics in the Middle East: Identity, Ideology, Institutions, and Attitudes”

This July, Westview Press published a new edition of Religion and Politics in the Middle East: Identity, Ideology, Institutions, and Attitudes, by Robert D. Lee (Colorado College). The publisher’s description follows.

This innovative book analyzes the relationship between religion and politics in the Middle East through a comparative study of five countries—Egypt, Israel, Turkey, Iran, and Saudi Arabia. Robert D. Lee examines each country in terms of four domains in which state and religion necessarily interact: national identity, ideology, institutions, and political culture. In each domain he considers contradictory hypotheses, some of them asserting that religion is a positive force for political development and others identifying it as an obstacle. Among the questions the book confronts: Is secularization a necessary prerequisite for democratic development? How is it and why is it that religion and politics are so deeply entangled in these five countries? And, why is it that all five countries differ so markedly in the way they identify themselves and use religion for political purposes? The book argues that the nature of religious organization and practice in the Middle East must be understood in the context of individual nation states.
The second edition is updated throughout and includes an entirely new chapter discussing the political and religious climate in Saudi Arabia. Earlier introductory analysis has been condensed to make room for new material, and chronologies at the end of each chapter have been added to help students understand the broader context. The second edition of Religion and Politics in the Middle East is a robust addition to courses on the Middle East.

Karraker, “Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small City”

This July, Lexington Books published Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small City, by Meg Wilkes Karraker (University of St. Thomas). The publisher’s description follows.

Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small city examines how Catholic Sisters and their congregations have been critical nodes in religious and civil networks, translating their social capital to address one of the most pressing issues facing communities today: diversity. The book begins with a regional overview, placing “Bluffton” in historical, cultural, and social context in America’s heartland before describing past racist incidents in the city and region, including cross-burnings and a raid by Immigration Control and Enforcement (ICE). Into this history are woven interviews with Catholic sisters and Catholic, Protestant, and Jewish religious leaders, as well as civic leaders in education, government, journalism, and social welfare. “Bluffton” is revealed as a community that has confronted and resolved a past stained by overt racism of the ugliest kind, and has created a good society for her citizens through the concerted efforts of her Catholic Sisters and a highly committed civil society.

Blending original quantitative and qualitative research collected over three years, as well as scholarship on civil society, Diversity and the Common Good tells the story of one small city in the Midwestern United States in the second decade of the twenty-first century. The work is well grounded in the academic literature and includes an extensive bibliography, but is written in a narrative style that engages not only scholars from sociology, community studies, political science, public administration, and religious studies who study community, civil society, and faith, but also practitioners and professionals, among them community leaders, journalists, those working with civic and religious organizations, and others seeking to understand the challenges facing American communities today. Unusual in social science, Diversity and the Common Good tells the story about a community that “works!” Finally, given the severe criticisms of American Sisters by the Vatican, the story of the great good done by Sisters must be told now.

Hendrick, “Gülen: The Ambiguous Politics of Market Islam in Turkey and the World”

This August, New York University Press will publish Gülen: The Ambiguous 9780814770986_FullPolitics of Market Islam in Turkey and the World by Joshua D. Hendrick (Loyola University Maryland).  The publisher’s description follows.

The “Hizmet” (“Service”) Movement of Fethullah Gülen is Turkey’s most influential Islamic identity community. Widely praised throughout the early 2000s as a mild and moderate variation on Islamic political identity, the Gülen Movement has long been a topic of both adulation and conspiracy in Turkey, and has become more controversial as it spreads across the world. In Gülen, Joshua D. Hendrick suggests that when analyzed in accordance with its political and economic impact, the Gülen Movement, despite both praise and criticism, should be given credit for playing a significant role in Turkey’s rise to global prominence

M. Fethullah Gülen, the movement’s founder, moved to the U.S in 1998. Following their leader across the Atlantic, loyalists in the Gülen network have expanded their operations in the U.S., where they are now active in intercultural outreach, commerce, political lobbying, and charter school education. Hendrick argues that it is the Gülen Movement’s growth and impact both inside and outside Turkey that has helped Turkey emerge as a regional power in the twenty-first century.

Drawing on 14 months of ethnographic fieldwork in Turkey and the U.S., Hendrick examines the Gülen Movement’s role in Turkey’s recent rise, as well as its strategic relationship with Turkey’s Justice and Development Party-led government. He argues that the movement’s growth and impact both inside and outside Turkey position both its leader and its followers as indicative of a “post political” turn in twenty-first century Islamic political identity in general, and as illustrative of Turkey’s political, economic, and cultural transformation in particular.

Künkler & Stepan (eds.), “Democracy and Islam in Indonesia”

This September, Columbia University Press will publish Democracy and Islam indemocracyindonesia Indonesia edited by Mirjam Künkler (Princeton University) and Alfred Stepan (Columbia University).  The publisher’s description follows.

Indonesia’s military government collapsed in 1998, igniting fears that economic, religious, and political conflicts would complicate any democratic transition. Yet in every year since 2006, the world’s most populous Muslim country has received high marks from international democracy-ranking organizations. In this volume, political scientists, religious scholars, legal theorists, and anthropologists examine the theory and practice of Indonesia’s democratic transition and its ability to serve as a model for other Muslim countries. They compare the Indonesian example with similar scenarios in Chile, Spain, India, and Tunisia, as well as with the failed transitions of Yugoslavia, Egypt, and Iran. Essays explore the relationship between religion and politics and the ways in which Muslims became supportive of democracy even before change occurred, and they describe how innovative policies prevented dissident military groups, violent religious activists, and secessionists from disrupting Indonesia’s democratic evolution. The collection concludes with a discussion of Indonesia’s emerging “legal pluralism” and of which of its forms are rights-eroding and rights-protecting.

Walsh on the Third Circuit’s Contraception Mandate Decision

Center for Law and Religion friend Kevin Walsh has a thoughtful and informative post about the Third Circuit’s recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin’s post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of “exercise” was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin’s post:

Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

Stark, “America’s Blessings”

I spent last weekend reading Baylor University sociologist Rodney Stark’s most recent book, America’s Blessings: How Religion Benefits Everyone, Including Atheists (Templeton Press 2012). I’ve benefited greatly from Stark’s work in the past; the book he wrote in 2005 with Roger Finke, The Churching of America, is a must for anyone interested in the history of American religion. America’s Blessings is very helpful, too. It puts into context the results of some recent surveys on religion in America.

For example, Stark explains that, although the number of persons who tell pollsters they have no religion has increased since 1990–the much-discussed Rise of the Nones–the number of people who belong to religious congregations has gone up as well. In fact, about 70% of Americans now belong to religious congregations, the highest percentage in our history. (One possible explanation: some Evangelical Christians who are members of free-standing congregations, without denominational ties, do not think they belong to a “religion”). Many of the Nones are quite religious; they pray frequently. Only a small group of Americans, around four percent, say they are atheists–a percentage that hasn’t changed in several decades.

Stark also shows that the academic literature routinely ignores evidence of religion’s beneficial social effects. For example, he says, reliable statistical studies show that religious people are much less likely to commit crimes, much more likely to contribute to charities, including secular charities, and more likely to say they have satisfying marriages. Findings like these almost never appear in the scholarly literature–or in the media, for that matter.

Some of these claims do seem stronger than others. For example, the claim about the lower propensity of religious people to commit crimes seems robust, as it is based on objective data about crime rates.  The claim about marital happiness, in contrast, doesn’t seem so compelling, at least to me, since it relies on what people tell surveyors about their marriages. It’s true that people who attend church regularly are more likely than non-churchgoers to say their marriages are “very happy,” but perhaps that’s because of social pressure. The churchgoers may feel they’re expected to say positive things about their family lives. In Stark’s defense, regular churchgoers also have a much lower divorce rate than people who never attend church, and that is an objective measure.

In any event, Stark’s new book is a valuable contribution to the burgeoning empirical literature on religion in America. Worth reading.

Gray on Machiavelli and the Weakness of Law

This is a bracing essay by the skeptical philosopher John Gray about legal scholar Philip Bobbitt’s new book on Machiavelli. Way back in the stone age, I studied Machiavelli and Guicciardini (whose immense Storia d’Italia is a relatively unknown masterpiece) in graduate school and wrote my master’s thesis about contemporary misinterpretations of Machiavelli’s writing (I called this “Machiavellianism,” and I argued that the aristocrat Guicciardini had a much more acute understanding of Machiavelli than did most contemporary commenters). But Gray’s piece actually says something larger about the comparative weakness of law as against politics. And what he says has direct application to the way in which it is fashionable to discuss many legal issues–from religious freedom to international human rights. Here is a fragment of the essay:

One of the peculiarities of political thought at the present time is that it is fundamentally hostile to politics. Bismarck may have opined that laws are like sausages – it’s best not to inquire too closely into how they are made – but for many, the law has an austere authority that stands far above any grubby political compromise. In the view of most liberal thinkers today, basic liberties and equalities should be embedded in law, interpreted by judges and enforced as a matter of principle. A world in which little or nothing of importance is left to the contingencies of politics is the implicit ideal of the age.

The trouble is that politics can’t be swept to one side in this way. The law these liberals venerate isn’t a free-standing institution towering majestically above the chaos of human conflict. Instead – and this is where the Florentine diplomat and historian Niccolò Machiavelli (1469-1527) comes in – modern law is an artefact of state power. Probably nothing is more important for the protection of freedom than the independence of the judiciary from the executive; but this independence (which can never be complete) is possible only when the state is strong and secure. Western governments blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state, which is the usual result of western sponsored regime change. In many cases geopolitical calculations may lie behind the decision to intervene; yet it is a fantasy about the nature of rights that is the public rationale, and there is every sign that our leaders take the fantasy for real . . . .

If Bobbitt misreads Machiavelli, it is because Machiavelli is as much of a heretic today as he ever was. Resistance to his thought comes now not from Christian divines but from liberal thinkers. According to the prevailing philosophy of liberal legalism, political conflict can be averted by a well-designed constitution and freedoms enshrined in a regime of rights. In reality, as Machiavelli well knew, constitutions and legal systems come and go. According to Bobbitt, “The lesson of Machiavelli’s advice to statesmen is: don’t kid yourself. What annoyed . . . Machiavelli was the willingness of his contemporaries to pretend that quite simple formulations were adequate to the task of governing in the common interest.” Plainly, the market state is a formula of precisely this kind.

The true lesson of Machiavelli is that the alternative to politics is not law but unending war. When they topple tyrants for the sake of faddish visions of rights, western governments enmesh themselves in intractable conflicts they do not understand and cannot hope to control. Yet if Machiavelli could return from the grave, he would hardly be annoyed or frustrated by such folly. Ever aware of the incurable human habit of mistaking fancy for reality, he would simply respond with a Florentine smile.