The Disintegration of Free Speech?

There is a growing consensus that the principle of free speech is in crisis, whether the dangers are coming primarily from government actors, or private actors intent on suppressing dissenting views, or both (matters on which there is considerable disagreement). There is also growing anxiety about the sustainability of academic freedom, as well as the associated structure of tenure. There is even doubt and intense disagreement about the basic function and purpose of the university. Here is a new book discussing these developments in historical perspective, The Collapse of Freedom of Expression: Reconstructing the Ancient Roots of Modern Liberty (Notre Dame Press) by Jordi Pujol.

The topic of free speech is rarely addressed from a historical, philosophical, or theological perspective. In The Collapse of Freedom of Expression, Jordi Pujol explores both the modern concept of the freedom of expression based on the European Enlightenment and the deficiencies inherent in this framework. Modernity has disregarded the traditional roots of the freedom of expression drawn from Christianity, Greek philosophy, and Roman law, which has left the door open to the various forms of abuse, censorship, and restrictions seen in contemporary public discourse. Pujol proposes that we rebuild the foundations of the freedom of expression by returning to older traditions and incorporating both the field of pragmatics of language and theological and ethical concepts on human intentionality as new, complementary disciplines.

Pujol examines emblematic cases such as Charlie Hebdo, free speech on campus, and online content moderation to elaborate on the tensions that arise within the modern concept of freedom of expression. The book explores the main criticisms of the contemporary liberal tradition by communitarians, libertarians, feminists, and critical race theorists, and analyzes the gaps and contradictions within these traditions. Pujol ultimately offers a reconstruction project that involves bridging the chasm between the secular and the sacred and recognizing that religion is a font of meaning for millions of people, and as such has an inescapable place in the construction of a pluralist public sphere.

Video of “The Role of Tradition in Constitutional Law”

Here is video of this panel discussion yesterday with Professors Walsh, Young, and me at Catholic University’s Center for the Study of Originalism and the Catholic Intellectual Tradition. I enjoyed the exchange very much.

Discussion on the Role of Tradition in Constitutional Law at CUA

Here’s another event in which I’ll be participating at Catholic University, this one a discussion on Thursday at 12:30 with Professor Ernest Young and Professor Kevin Walsh, The Role of Tradition in Constitutional Law. The event is part of CUA’s Project on Constitutional Originalism and the Catholic Intellectual Tradition (though some renegade non-originalists like me sometimes sneak in, too!). Again, the event will be recorded, but if you are in town, please stop by and say hello!

Inaugural Conference of the Center for Law and the Human Person at CUA

I am delighted to be participating in this conference at Catholic University of America, Columbus School of Law, next Tuesday, which inaugurates the new Center for Law and the Human Person, directed by Elizabeth Kirk. The theme of the conference is “Rightly Ordered Law and the Flourishing of the Human Person.”

The title of my talk is “Notes on a New Humanism in Legal Education.” I’m told the conference will be recorded, but if you are in DC, please register at the link and do stop by and say hello! I’ll have more to say about the substance of the talk by and by.

Law and Religion in the American Colonies

Here’s what looks like an extremely worthwhile historical study of the law of church and state in the 17th and 18th centuries before the American founding, Law and Religion in Colonial America: The Dissenting Colonies (Cambridge University Press), by Scott Douglas Gerber.

Law – charters, statutes, judicial decisions, and traditions – mattered in colonial America, and laws about religion mattered a lot. The legal history of colonial America reveals that America has been devoted to the free exercise of religion since well before the First Amendment was ratified. Indeed, the two colonies originally most opposed to religious liberty for anyone who did not share their views, Connecticut and Massachusetts, eventually became bastions of it. By focusing on law, Scott Douglas Gerber offers new insights about each of the five English American colonies founded for religious reasons – Maryland, Rhode Island, Pennsylvania, Connecticut, and Massachusetts – and challenges the conventional view that colonial America had a unified religious history.

The Sociology of International Religious Freedom Litigation

Here’s what looks like an interesting new book about religious freedom advocacy in the international sphere, with interviews of some of the principal players: Faith in Courts: Human Rights Advocacy and the Transnational Regulation of Religion (Bloomsbury), by Lisa Harms.

The judicialisation of religious freedom conflicts is long recognised. But to date, little has been written on the active role that religious actors and advocacy groups play in this process. This important book does just that. It examines how Jehovah’s Witnesses, Muslims, Sikhs, Evangelicals, Christian conservatives and their global support networks have litigated the right to freedom of religion at the European Court of Human Rights over the past 30 years. Drawing on in-depth interviews with NGOs, religious representatives, lawyers and legal experts, it is a powerful study of the social dynamics that shape transnational legal mobilisation and the ways in which legal mobilisation shapes discourses and conflict lines in the field of transnational law.

Religious Speech as Free Speech Prototype

In my class this semester on Freedom of Speech and Freedom of Inquiry, I have been struck by how many of the foundational arguments for and against tolerance for free speech have been made in the context of religious belief and expression. Whether it is Hobbes’ antagonism toward such speech in Book II.29 of “Leviathan,” or Locke’s defense of toleration in his “Letter,” or again Madison’s “Memorial and Remonstrance,” and so on, the root exemplar of free speech historically was religious speech.

A new book treats this subject systematically, Religious Speech and the Quest for Freedoms in the Anglo-American World, by Wendell Bird (Cambridge University Press), and argues for a similar conclusion, it appears.

In the secular, contemporary world, many people question the relevance of religion. Many also wonder whether religiously-informed speech and beliefs should be tolerated in the public square, and whether religions hinder freedom. In this volume, Wendell Bird reminds us that our basic freedoms are the important legacies of religious speech arising from the Judeo-Christian tradition. Bird demonstrates that religious speech, rather than secular or irreligious speech based on other belief systems, historically made the demands and justifications for at least six critical freedoms: speech and press, rights for the criminally accused, higher education, emancipation from slavery, and freedom from discrimination. Bringing an historically-informed approach to the development of some of the most important freedoms in the Anglo-American world, this volume provides a new framework for our understanding of the origins of crucial freedoms. It also serves as a powerful reminder of an aspect of history that is steadily being forgotten or overlooked-that many of our basic freedoms are the historical legacies of religious speech arising from Judeo-Christian faiths.

Sixth Session of the CLR Reading Society: Miller’s “Canticle” & MacIntyre’s “After Virtue”

Mark and I are pleased to announce the sixth session of our CLR Reading Society, an opportunity open to all St. John’s Law Students to discuss works of fiction and non-fiction raising law and religion themes.

Our choice for this gathering is somewhat unusual, as it combines a work of science-fiction/fantasy and another of moral philosophy: the first story in Walter M. Miller, Jr.’s A Canticle for Leibowitz and selected chapters of Alasdair MacIntyre’s After Virtue: A Study in Moral Theory. A Canticle concerns a world ravaged by a series of environmental disasters, in which human knowledge and scientific achievement have not only been destroyed but are also blamed for the devastation by the Know-Nothing political power that survives. An order of obscure monks in the desert wasteland attempts to preserve and revive knowledge, but all its members have to go on are fragments of the past, disconnected from the theoretical structures of meaning and understanding within which they made sense. Miller’s tale about what recovery of learning in the ruins of such a civilization would look like was taken up by MacIntyre in After Virtue as the opening chapter’s inspiration for reflecting on the nature of moral and political disagreement today.

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books (both of them, for this session) are provided for free to students and all are welcome. We will meet on the evening of Tuesday, April 11, to discuss these works, so students who would like to join us and require books should write to us as soon as possible. Further details are forthcoming.

The Disintegrating Conscience

Perhaps this notice comes slightly early, but I had the pleasure of reading Professor Steven Smith’s new book, The Disintegrating Conscience and the Decline of Modernity (University of Notre Dame Press), in its pre-publication draft, and I was delighted to offer this book blurb about it: “Steven Smith is the greatest law and religion scholar of his generation. Every book he writes is illuminating, and this one is no exception. The Disintegrating Conscience and the Decline of Modernity is far and away the most insightful, balanced, and convincing account of the religion clauses to appear in the last five years at least.” Here is the description:

Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”

The Establishment Clause in History and Today

It is not especially controversial to observe that the Supreme Court is charting what some might claim are new directions in its Establishment Clause jurisprudence. Some others might say, though, that the new directions are actually ones that have long been charted, but were discarded by the Court in favor of other views its late 20th century doctrine. What’s new, on this view, is old.

In 2003, Professor Michael McConnell, then a judge on the U.S. Court of Appeals for the 10th Circuit, wrote what to my mind was one of the best articles about the meaning and scope of the Establishment Clause in American constitutional history, the colossal Establishment and Disestablishment at the Founding, Part I: Disestablishment of Religion. In the piece, Professor McConnell described systematically various categories of activity or behavior that were understood historically to be establishments of religion. McConnell’s focus on varieties of conduct or practice was deeply influential on my own view not only about the meaning of this Clause, but also on the nature of constitutional interpretation in general. But “Part II,” which seemed to be promised in the article’s title, never came. Years passed and it seemed that the project of completing the next installment was abandoned.

At long last, it looks like “Part II” has arrived, in the form of a new book by McConnell and Professor Nathan Chapman: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (Oxford University Press). The book looks like it contains two principal parts: historical and normative. It will be of great interest to anybody who studies and thinks about this area of law. For me, it will be especially interesting to see how the authors theorize the connection between the historical and the normative pieces of the book (incidentally, both Michael and Nathan are good friends of ours and longtime contributors to Center projects and programs–Michael keynoted our first Tradition Project conference and Nathan was recently here to present his work at our Colloquium in Law and Religion…warm congratulations to them both!).

The Establishment Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion”, may be the most contentious and misunderstood provision of the entire U.S. Constitution. It lies at the heart of America’s culture wars. But what, exactly, is an “establishment of religion”? And what is a law “respecting” it?

Many commentators reduce the clause to “the separation of church and state.” This implies that church and state are at odds, that the public sphere must be secular, and that the Establishment Clause is in tension with the Free Exercise of Religion Clause. All of these implications misconstrue the Establishment Clause’s original purpose and enduring value for a religiously pluralistic society. The clause facilitates religious diversity and guarantees equality of religious freedom by prohibiting the government from coercing or inducing citizens to change their religious beliefs and practices.

In Agreeing to Disagree, Nathan S. Chapman and Michael W. McConnell detail the theological, political, and philosophical underpinnings of the Establishment Clause, state disestablishment, and the disestablishment norms applied to the states by the Fourteenth Amendment. Americans in the early Republic were intimately acquainted with the laws used in England, the colonies, and early states to enforce religious uniformity. The Establishment Clause was understood to prohibit the government from incentivizing such uniformity. Chapman and McConnell show how the U.S. Supreme Court has largely implemented these purposes in cases addressing prayer in school, state funding of religious schools, religious symbols on public property, and limits on religious accommodations. In one of the most thorough accounts of the Establishment Clause, Chapman and McConnell argue that the clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.