Posted on by Marc O. DeGirolami

Eller, “Inventing American Tradition”

In the spirit of the famous Eric Hobsbawm-edited volume (“The Invention of Tradition”) Traditioncomes this seemingly not-quite as acerbic, but still generally skeptical, volume by sociologist Jack David Eller: Inventing American Tradition: From the Mayflower to Cinco de Mayo (Reaktion Books). At the very least, and notwithstanding any differences in point of view, it’s an appropriate listing for the co-leaders of the Tradition Project.

What really happened on the first Thanksgiving? How did a British drinking song become the national anthem of the United States? And what makes Superman so darned American? Every tradition, even the noblest and most cherished, has a history, nowhere more so than in the usa, which was born with a relative indifference, if not hostility, to the past. Most Americans would be surprised to learn just how recent – and controversial – the origins of their traditions are, as well as how those origins are often related to the trauma of the Civil War and to fears for American identity stemming from immigration and socialism.

Inventing American Tradition explores a wide range of beloved traditions, including political symbols, holidays, lifestyles and fictional characters, and looks at the people who conceived of and adapted them into the forms familiar to Americans – and the innumerable people around the world influenced by American culture – today.

What emerges is the realization that all traditions are invented by particular people at particular times for particular reasons, and that the process of ‘traditioning’ is forever ongoing.

Posted on by Marc O. DeGirolami

Zick, “The Dynamic Free Speech Clause”

Continuing with the speech theme in this week’s new book selections, here is a new Speech #2volume concerning the interaction of the Speech Clause with other constitutional rights, including the two constitutional clauses dealing with religious freedom. The historical parallels between the rights of religious freedom and freedom of speech–and in particular the claims made about their justifications and limits–are themselves an interesting subject of study. The book is The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights, by Timothy Zick (OUP).

The right to free speech intersects with many other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights, ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. This book examines the relations between the U.S. Constitution’s Free Speech Clause and other constitutional rights. Free speech principles and doctrines have brought about constitutional rights including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has often dominated rights discourse and has subordinated or supplanted free press, assembly, petition, and free exercise rights.

Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. While examining the dynamics that have brought free speech and other rights together, the book assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Posted on by Daniel Vitagliano

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Marc O. DeGirolami · 1 Comment

“The Free Speech Century” (Stone & Bollinger eds.)

The interpretation of the freedom of speech over the last century has resulted in its Speechunparalleled expansion. At no time in American history has the right protected more, and at no time has it reflected the fundamental premises of civil libertarianism more, than today. A new volume of essays reflects on the evolution of the freedom of speech on these libertarian premises over the last hundred years: The Free Speech Century, edited by Geoffrey Stone and Lee Bollinger (OUP).

The Supreme Court’s 1919 decision in Schenck vs. the United States is one of the most important free speech cases in American history. Written by Oliver Wendell Holmes, it is most famous for first invoking the phrase “clear and present danger.” Although the decision upheld the conviction of an individual for criticizing the draft during World War I, it also laid the foundation for our nation’s robust protection of free speech. Over time, the standard Holmes devised made freedom of speech in America a reality rather than merely an ideal.

In The Free Speech Century, two of America’s leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation’s leading constitutional scholars–Cass Sunstein, Lawrence Lessig, Laurence Tribe, Kathleen Sullivan, Catherine McKinnon, among others–to evaluate the evolution of free speech doctrine since Schenk and to assess where it might be headed in the future. Since 1919, First Amendment jurisprudence in America has been a signal development in the history of constitutional democracies–remarkable for its level of doctrinal refinement, remarkable for its lateness in coming (in relation to the adoption of the First Amendment), and remarkable for the scope of protection it has afforded since the 1960s. Over the course of The First Amendment Century, judicial engagement with these fundamental rights has grown exponentially. We now have an elaborate set of free speech laws and norms, but as Stone and Bollinger stress, the context is always shifting. New societal threats like terrorism, and new technologies of communication continually reshape our understanding of what speech should be allowed.

Publishing on the one hundredth anniversary of the decision that laid the foundation for America’s free speech tradition, The Free Speech Century will serve as an essential resource for anyone interested in how our understanding of the First Amendment transformed over time and why it is so critical both for the United States and for the world today.

Posted on by L&R Forum · 1 Comment

The Proper Response to the Crisis in the Catholic Church: Give the Laity a Role in the Appointment and Removal of Diocesan Bishops

 

consecration of st ambrose as archbishop (1)
The Consecration of Ambrose as Bishop of Milan (Juan Valdes-Leal, 1673)

 

By Robert Delahunty* & Andrew Ratelle**

The past few weeks in the life of the Catholic Church in America are proof of a twelfth century English proverb that “often the end fails to equal the beginning.”

What began some fifteen or more years ago as a series of promised reforms, compounded with yet more promises, has made a full circle return to the point of origin. A prince of the Church has been caught yet again in deeply hypocritical, sinful, and, if not for statutes of limitation, tortious and even criminal behavior. But this time, a coterie of fellow bishops and peers is gathered about him, unable or unwilling to see where the line between charitable forbearance and public condemnation must be drawn. According to the New York Times:

Between 1994 and 2008, multiple reports about the cardinal’s transgressions with adult seminary students were made to American bishops, the pope’s representative in Washington and, finally, Pope Benedict XVI. Two New Jersey dioceses secretly paid settlements, in 2005 and 2007, to two men … for allegations against the archbishop.

And now comes the news of a Pennsylvania grand jury’s findings that in six of the State’s eight dioceses, bishops and other clerical leaders concealed at least one thousand identified cases of child sexual abuse for a period of over seventy years. The grand jury wrote:

“Despite some institutional reform, individual leaders of the church have largely escaped public accountability.” …  “Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades.”

This is indeed “a spiritual crisis” that cuts deeper with every revelation. It is a “crisis” that goes much deeper than the episcopate seems competent or willing to handle.

The Catholic laity must assume far greater responsibility for the conduct of their bishops and priests, and the hierarchy must give them the tools to do so. Below, we outline a series of lay-led initiatives, ranging from least to most radical, for a project of reform. Most importantly, we recommend that the laity have a greater role in the appointment and removal of diocesan bishops.

The Failure of the Hierarchy

The unfolding story of Cardinal McCarrick’s decades of sexual predation is both dismal and familiar. But those disclosures are not the most dismaying part of the current crisis. What makes the McCarrick matter different is the unbelievable lameness of his fellow bishops’ excuses for their repeated failure to challenge him. Loyal Catholics have been driven to the conclusion that their Church’s hierarchy is utterly compromised. It has proven itself unfit to perform the urgent task of dealing with the rot that it has allowed to fester in its own ranks. The bishops— “good” and “bad” alike—have betrayed the faithful.

In addition to sexual abuse, there are two problems here. One problem is the continuing influence of “bad” bishops, willing to use their power to protect abusers, to promote them, and to marginalize those who would denounce them. The other problem is the silence (or at least the shrugging of the shoulders) of “good” bishops, unwilling to condemn the corrupt practices of their peers. This silence is not always intentional complicity, but it is close enough—a distinction with no real difference.

The American Church, it seems, has its own version of the Deep State, committed to obstructing genuine reform and to punishing those who question its authority.

For the Church to respond to this threat, the laity must now do what the bishops ought to have done years—decades—ago.

We are not talking only about the investigation and correction of priests and bishops who are guilty of sexual abuse. The Church has always had such priests, and canon law structures—though under-enforced—have long been in place to correct them. Clerical sexual abuse is the primary problem, but it is not the only one.

The real task ahead is instead to devise and implement processes, in which lay participation is extensive, that will police the bishops as they ought to have policed themselves. Investigation and punishment of abuses are not enough. It is essential to develop institution-wide remedies. The crisis in the Church is a structural or Read more

Posted on by Marc O. DeGirolami

Koerpel, “Maurice Blondel”

Few thinkers have had more to say about the relationship between reason, revelation, Blondeltheology, and tradition than Maurice Blondel, the French Catholic philosopher of the war period and critic of modernity. Here is a new work on this understudied figure, Maurice Blondel: Transforming Catholic Tradition (Notre Dame Press), by Robert C. Koerpel.

During the past few decades there has been renewed interest in the twentieth-century French Catholic philosopher Maurice Blondel (1861–1949) and his influence on modern and contemporary theology, but little scholarship has been published in the English-speaking world. In Maurice Blondel: Transforming Catholic Tradition, Robert Koerpel examines Blondel’s work, the historical and theological development of the idea of tradition in modern Catholicism, tradition’s relation to reason and revelation, and Blondel’s influence on Catholicism’s understanding of tradition. The book presents aspects of Blondel’s thought that deserve to be more widely known and contributes to important debates in current theology on modern French Catholic thought and the emerging conversations surrounding them. Koerpel looks to the cultural context from which Blondel’s thought emerges by situating it within the broader conceptual, historical, and theological developments of modernity. He examines the problem of reason and revelation in modern Catholicism, the role and nature of tradition, and the relationships between theology and history, truth and change, nature and grace, and scripture and the development of doctrine.

This book provides readers with an appreciation of Blondel’s conceptually creative answer to how tradition represents the Word of God in human history and why it is one of his most important contributions to modern and contemporary theology. They will discover how this contribution restores the animated vitality between the institutional and liturgical dimensions of tradition essential to the living, dynamic nature of Catholicism.

Posted on by Mark Movsesian · 1 Comment

Sheehan-Dean, “The Calculus of Violence”

9780674984226-lgIt’s a puzzlement. The American Civil War took place in a deeply Christian, even Evangelical society, only a short time after the Second Great Awakening. And yet the conflict was intensely bloody–more than 600,000 people died. How could people who took Christianity so seriously engage in such carnage? A forthcoming history from Harvard University Press, The Calculus of Violence: How Americans Fought the Civil War, by scholar Aaron Sheehan-Dean (Louisiana State) maintains that the belligerents in fact tried to limit the bloodshed, that it could have been much, much worse. So perhaps the puzzle is not so great as it appears. Here is the description from the Harvard website:

Shiloh, Chancellorsville, Gettysburg—tens of thousands of soldiers died on these iconic Civil War battlefields, and throughout the South civilians suffered terrible cruelty. At least three-quarters of a million lives were lost during the American Civil War. Given its seemingly indiscriminate mass destruction, this conflict is often thought of as the first “total war.” But Aaron Sheehan-Dean argues for another interpretation.

The Calculus of Violence demonstrates that this notoriously bloody war could have been much worse. Military forces on both sides sought to contain casualties inflicted on soldiers and civilians. In Congress, in church pews, and in letters home, Americans debated the conditions under which lethal violence was legitimate, and their arguments differentiated carefully among victims—women and men, black and white, enslaved and free. Sometimes, as Sheehan-Dean shows, these well-meaning restraints led to more carnage by implicitly justifying the killing of people who were not protected by the laws of war. As the Civil War raged on, the Union’s confrontations with guerrillas and the Confederacy’s confrontations with black soldiers forced a new reckoning with traditional categories of lawful combatants and raised legal disputes that still hang over military operations around the world today.

In examining the agonizing debates about the meaning of a just war in the Civil War era, Sheehan-Dean discards conventional abstractions—total, soft, limited—as too tidy to contain what actually happened on the ground.

Posted on by amnania

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Mark Movsesian

Camerlenghi, “St. Paul’s Outside the Walls”

9781108429511This forthcoming book, by Dartmouth art historian Nicola Camerlenghi, might seem a bit outside our jurisdiction. But as I said yesterday, art reflects and shapes the values of a culture, and scholars of law and religion ought to pay it more attention. Besides, the Basilica of St. Paul’s Outside the Walls is one of the most important churches in history, with strong church-state associations. It was one of the first churches founded by the Emperor Constantine in the fourth century, and its position outside the walls, in addition to reflecting the burial site of the saint for which it is named, reflects the sensitivity the emperor had to show pagans, who still made up the majority of Rome’s citizens.

And there’s another church-state association. Hildebrand, who went on to become Pope Gregory VII, was once abbot of the monastery attached to St. Paul’s–that Pope Gregory VII, from the Investiture Crisis. The monastery still displays his bony finger in a reliquary. I saw it myself once. Imagine, the finger that shook at Henry IV. What would Constantine have thought? If all this is not enough to qualify the book for a post, I don’t know what would.

The book is St. Paul’s Outside the Walls: A Roman Basilica, From Antiquity to the Modern Era. The publisher is Cambridge. Here’s a description from the Cambridge website:

This volume examines one of Rome’s most influential churches: the principal basilica dedicated to St Paul. Nicola Camerlenghi traces nearly two thousand years of physical transformations to the church, from before its construction in the fourth century to its reconstruction following a fire in 1823. By recounting this long history, he restores the building to its rightful place as a central, active participant in epochal political and religious shifts in Rome and across Christendom, as well as a protagonist in Western art and architectural history. Camerlenghi also examines how buildings in general trigger memories and anchor meaning, and how and why buildings endure, evolve, and remain relevant in cultural contexts far removed from the moment of their inception. At its core, Saint Paul’s exemplifies the concept of building as a process, not a product: a process deeply interlinked with religion, institutions, history, cultural memory, and the arts. This study also includes state-of-the-art digital reconstructions synthesizing a wealth of historical evidence to visualize and analyze the earlier (now lost) stages of the building’s history, offering glimpses into heretofore unexamined parts of its long, rich life.

Posted on by Mark Movsesian

Walsh, “The Fiery Angel”

EB_The-Fiery-Angel_lowres-310x460Art reflects a culture’s values and sometimes even drives them. This is why conservatives often find contemporary art so off-putting. It’s not that conservatives are philistines–though some are, as are some progressives. Rather, it’s that they understand that the values our current art express are mostly inimical to their own–especially the pointless insistence on ugliness and transgression for transgression’s sake. (At some point, transgression become simply cliched; and we have long since passed that point). In fact, some of the most thoughtful conservative commentators today recognize that giving up the arts to progressives was a major mistake. In a conservative reformation of society, art may prove a lot more important than law or politics.

Anyway, a new book from Encounter, The Fiery Angel: Art, Culture, Sex, Politics and the Struggle for the Soul of the West, by critic Michael Walsh, looks interesting. Here is the description from the publisher’s website:

In Western Civilization, the arts embody the eternal battle between good and evil, and through understanding the arts, we can address the political issues that plague us. Far from being museum pieces, simple recreation, or tales and artifacts from the past, the arts should be seen at the wellspring of our politics, and in particular in public policy debates. They are actually the reason we have public and foreign policy in the first place. In an age that prizes specialization, it’s a mistake to think of public/foreign policy as a discipline onto itself. The Fiery Angel is a historical survey showing significant ways the arts both reflect and affect the course of history, and outlines the way forward, arguing for the restoration of the Heroic Narrative which forms the basis of all Western cultural and religious traditions.