I have this short reflection over at the Liberty Law blog, my own contribution of sorts to the symposium on Professor Muñoz’s fine paper and the set of posts it has generated. A bit:
Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.
Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.
As Hamburger puts it:
If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.
The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.
Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.
I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.
From its earliest days, Christianity has viewed Judaism and Jews ambiguously. Given its roots within the Jewish community of first-century Palestine, there was much in Judaism that demanded church admiration and praise; however, as Jews continued to resist Christian truth, there was also much that had to be condemned. Major Christian thinkers of antiquity – while disparaging their Jewish contemporaries for rejecting Christian truth – depicted the Jewish past and future in balanced terms, identifying both positives and negatives. Beginning at the end of the first millennium, an increasingly large Jewish community began to coalesce across rapidly developing northern Europe, becoming the object of intense popular animosity and radically negative popular imagery. The portrayals of the broad trajectory of Jewish history offered by major medieval European intellectual leaders became increasingly negative as well. The popular animosity and the negative intellectual formulations were bequeathed to the modern West, where they had tragic consequences in the twentieth century. In this book, Robert Chazan traces the path that began as anti-Judaism, examining how it evolved into antisemitism.
Many Muslim societies are in the throes of tumultuous political transitions, and common to all has been heightened debate over the place of shari`a law in modern politics and ethical life. Bringing together leading scholars of Islamic politics, ethics, and law, this book examines the varied meanings and uses of Islamic law, so as to assess the prospects for democratic, plural, and gender-equitable Islamic ethics today. These essays show that, contrary to the claims of some radicals, Muslim understandings of Islamic law and ethics have always been varied and emerge, not from unchanging texts but from real and active engagement with Islamic traditions and everyday life. The ethical debates that rage in contemporary Muslim societies reveal much about the prospects for democratic societies and a pluralist Islamic ethics in the future. They also suggest that despite the tragic violence wrought in recent years by Boko Haram and the Islamic State in Iraq, we may yet see an age of ethical renewal across the Muslim world.
A fierce critique of civil religion as the taproot of America’s bid for global hegemony