Here is a new volume of essays edited by our friend and a participant in our law and religion colloquium a few years ago, Robin Fretwell Wilson, dealing with religion and family law–obviously an issue that has always been rather complicated but has become even more so in recent years. The Contested Place of Religion in Family Law (CUP), with essays by Orrin Hatch, Elizabeth Sepper, Michael Helfand, Brian Bix, John Witte, and many others.

Like many beliefs, religious views matter across an individual’s life and the life cycle of a family – from birth to marriage, through child-rearing, and, eventually, death. This volume examines clashes over religious liberty within the personal realm of the family. Against swirling religious beliefs, secular values, and legal regulation, this volume offers a forward-looking examination of tensions between religious freedom and the state’s protective function. Contributors unpack some of the Court’s recent decisions and explain how they set the stage for ongoing disputes. They evaluate religious claims around birth control, circumcision, modesty, religious education, marriage, polygamy, shared parenting, corporal punishment, faith healing, divorce, and the end of life. Authors span legislators, attorneys, academics, journalists, ministers, physicians, child advocates, and representatives of minority faiths. The Contested Place of Religion in Family Law begins an overdue conversation on questions dividing the nation.

It’s hate speech week here at the forum. Here’s another forthcoming book on the idea of hate and hate speech, this time by former president of the ACLU and current professor of law at NYU, Nadine Strossen. This volume appears to be less a critical examination of the concept of hate (it appears to assume that there is such an idea) than a defense of the current state of play in First Amendment law. The book is HATE: Why We Should Resist It With Free Speech, Not Censorship (OUP) (title emphasis in the original, of course).

HATE dispels misunderstandings plaguing our perennial debates about “hate speech vs. free speech,” showing that the First Amendment approach promotes free speech and democracy, equality, and societal harmony. We hear too many incorrect assertions that “hate speech” — which has no generally accepted definition — is either absolutely unprotected or absolutely protected from censorship. Rather, U.S. law allows government to punish hateful or discriminatory speech in specific contexts when it directly causes imminent serious harm. Yet, government may not punish such speech solely because its message is disfavored, disturbing, or vaguely feared to possibly contribute to some future harm. When U.S. officials formerly wielded such broad censorship power, they suppressed dissident speech, including equal rights advocacy. Likewise, current politicians have attacked Black Lives Matter protests as “hate speech.”

“Hate speech” censorship proponents stress the potential harms such speech might further: discrimination, violence, and psychic injuries. However, there has been little analysis of whether censorship effectively counters the feared injuries. Citing evidence from many countries, this book shows that “hate speech” laws are at best ineffective and at worst counterproductive. Their inevitably vague terms invest enforcing officials with broad discretion, and predictably, regular targets are minority views and speakers. Therefore, prominent social justice advocates in the U.S. and beyond maintain that the best way to resist hate and promote equality is not censorship, but rather, vigorous “counterspeech” and activism.

What could be less lovable than the “hateful”? What person–and, indeed, what people–could feel anything but hate for the hateful? At a period of deep cultural and political fracture, the concept of the hateful performs important rhetorical and political work, providing the state with at least something, or some set of views, that serves as a unifying object of civic opprobrium, vilification, and even disgust. Here is a new book whose contributors appear to turn a helpfully critical eye on the concept of “hate” in law–Hate, Politics, Law: Critical Perspectives on Combating Hate (OUP), edited by Thomas Brudholm and Birgitte Schepelern Johansen.

References to hate have become ubiquitous in the modern response to group defamation and violence in liberal democracies. Whether expressed in speech, acted out in criminal conduct, or seen as the fuel of terror and extremism, hate is persistently considered a vice, an evil, and a threat to the modern liberal democracy. But what exactly is at stake when societies oppose hate?

In Hate, Politics, Law: Critical Perspectives on Combating Hate, Thomas Brudholm and Birgitte Schepelern Johansen have gathered a group of distinguished scholars who offer a critical exploration and assessment of the basic assumptions, ideals, and agendas behind the modern fight against hate. They explore these issues and provide a range of explanatory and normative perspectives on the awkward relationship between hate and liberal democracy, as expressed, for example, through anti-hate speech and anti-hate crime initiatives. The volume further examines the presuppositions and ideological roots of fighting hate, as well as its blind spots and limits. It also includes discussions on the definition and meaning of hate, the longer and broader history of the concept of hate, and when and why fighting hatred became politically salient. While most research on hate crime is written and published in order to prevent and combat hate, Hate, Politics, Law takes a much-needed theoretical, historical, and exploratory approach to hatred.

The role of disgust in the law is ancient and vital. Disgust has often been thought a marker of the bounds of the civilized. It is one of those signals in, for example, criminal law that warn of entry into the territory of the deeply transgressive, and that constitute a particularly distinctive corner of criminal prohibition. Disgust aligns with and supports those “creedal prohibitions” without which, as Philip Rieff once said, “our law cannot help us govern ourselves.”

Yet one of the major projects of liberal modernity in law and politics has been to overcome disgust, denigrate as simply a backward and unenlightened emotion, and replace it with a fully rationalized and ostensibly more humane system of governance. See, for example, here. And here is another book with a similar object, albeit from a different disciplinary perspective, though I do wonder whether “gross” and “wrong” are really as often confused together as the blurb below suggests–Objection: Disgust, Morality, and the Law (OUP) by psychologists Debra Lieberman and Carlton Patrick.

Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed “obscene” and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as “unnatural,” it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking?

In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be “disgusting” (corpse desecration, bestiality) – and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses “gross” with “wrong.”

Something a little different today–a new translation of François-René de Chateaubriand’s “Mémoires d’Outre-Tomb” (“Memoirs from Beyond the Grave”), translated by Alex Andriesse and published by New York Review of Books Classics. Chateaubriand was a French aristocrat and an enormous talent representative of France’s high Romantic style. Another of his earlier works, Les Martyrs, Ou Le Triomphe de la Religion Chrétienne, is a kind of extended poem on the early Christian martyrs. In this late work, he writes very critically about the French Revolution relatively late in his life. Here is a helpful review of the book and the new translation.

Written over the course of four decades, François-René de Chateaubriand’s epic autobiography has drawn the admiration of Baudelaire, Flaubert, Proust, Barthes, and Sebald. Here, in the first books of his massive Memoirs, spanning the years 1768 to 1800, Chateaubriand looks back on the already bygone world of his youth. He recounts the history of his aristocratic family and the first rumblings of the French Revolution. He recalls playing games on the beaches of Saint-Malo, wandering in the woods near his father’s castle in Combourg, hunting with King Louis XVI at Versailles, witnessing the first heads carried on pikes through the streets of Paris, meeting with George Washington in Philadelphia, and falling hopelessly in love with a young woman named Charlotte in the small Suffolk town of Bungay. The volume ends with Chateaubriand’s return to France after seven years of exile in England.

In this new edition (the first unabridged English translation of any portion of the Memoirs to be published in more than a century), Chateaubriand emerges as a writer of great wit and clarity, a self deprecating egotist whose meditations on the meaning of history, memory, and morality are leavened with a mixture of high whimsy and memorable gloom.

Here is a new book describing–it appears in negative terms (though this is speculation at this point)–the practice of originalism in constitutional interpretation as an exercise of “faith”: Originalism as Faith (CUP) by law professor and self-declared anti-originalist Eric Segall. Segall follows in the path of other law professors, like Sandy Levinson, who have described ways of believing in the Constitution in religious terms. For an effort of my own a few years ago along these lines, see this paper on the rule of law. It will be interesting to see how Segall describes “faith” as distinct from other epistemological ways of believing and/or knowing.

Originalism as Faith presents a comprehensive history of the originalism debates. It shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits and judges to maintain the mistaken faith that the Court decides cases under the law instead of the Justices’ personal values. Tracing the development of the doctrine from the founding to present day, Eric Segall shows how originalism is used by judges as a pretext for reaching politically desirable results. The book also presents an accurate description and evaluation of the late Justice Scalia’s jurisprudence and shows how he failed to practice the originalism method that he preached. This illuminating work will be of interest to lawyers, law students, undergraduates studying the Court, law professors and anyone else interested in an honest discussion and evaluation of Originalism as a theory of constitutional interpretation, a political weapon, and an article of faith.

Listed more because of its reference to “tradition” than for anything directly related to religion, but this one looks to have in intriguing thesis: Authentocrats: Culture, Politics and the New Seriousness (Penguin Random House) by Joseph Kennedy. The thesis, which seems to draw inspiration primarily from British politics but perhaps also American politics, seems to come from a radical leftist direction–that liberals have contributed to the present fragmentation of politics by being insufficiently left wing, and by adopting and promoting the rhetoric of traditionalism and populism (described by the author as an amalgam of “authenticity” coopted by the managerial and bureaucratic classes for their own ends) from the right.

Here is a book we are late to notice, but that I am reading and enjoying now: The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (CUP), by Thomas G. West, published last year. The core claim of the book is that the natural rights framework of the early republic can explain, in a comprehensive way–that is, without too much recurrence to other cultural and historical factors including Protestantism as well as European enlightenment thought–the founders’ shared assumptions about the interplay of rights and duties. Liberalism and republicanism, in West’s treatment, do not coexist in an uneasy tension, but are entirely consistent and mutually reinforcing. I am finding it a useful treatment of the conception of natural rights as it existed at the founding, and helpful also in identifying competing claims about the relationship of rights and duties.

This book provides a complete overview of the American Founders’ political theory, covering natural rights, natural law, state of nature, social compact, consent, and the policy implications of these ideas. The book is intended as a response to the current scholarly consensus, which holds that the Founders’ political thought is best understood as an amalgam of liberalism, republicanism, and perhaps other traditions. West argues that, on the contrary, the foundational documents overwhelmingly point to natural rights as the lens through which all politics is understood. The book explores in depth how the Founders’ supposedly republican policies on citizen character formation do not contradict but instead complement their liberal policies on property and economics. Additionally, the book shows how the Founders’ embraced other traditions in their politics, such as common law and Protestantism.

It is not particularly controversial to observe that American politics is highly polarized, though there are interesting disagreements about whether it only feels this way because we have lost sight of the political battles of the American past. But if it is true that the American political present is particularly polarized, one should want an explanation. Perhaps part of the issue concerns the totalizing quality of politics in contemporary America–politics’ tendency today to swallow up all other features of life (including religion), features that in prior periods were able to hold their own relatively separate from the political sphere.

So seems to argue, at least in part, this new book, Uncivil Agreement: How Politics Became Our Identity (University of Chicago Press) by political scientist Lilliana Mason.

Political polarization in America is at an all-time high, and the conflict has moved beyond disagreements about matters of policy. For the first time in more than twenty years, research has shown that members of both parties hold strongly unfavorable views of their opponents. This is polarization rooted in social identity, and it is growing. The campaign and election of Donald Trump laid bare this fact of the American electorate, its successful rhetoric of “us versus them” tapping into a powerful current of anger and resentment.

With Uncivil Agreement, Lilliana Mason looks at the growing social gulf across racial, religious, and cultural lines, which have recently come to divide neatly between the two major political parties. She argues that group identifications have changed the way we think and feel about ourselves and our opponents. Even when Democrats and Republicans can agree on policy outcomes, they tend to view one other with distrust and to work for party victory over all else. Although the polarizing effects of social divisions have simplified our electoral choices and increased political engagement, they have not been a force that is, on balance, helpful for American democracy. Bringing together theory from political science and social psychology, Uncivil Agreement clearly describes this increasingly “social” type of polarization in American politics and will add much to our understanding of contemporary politics.