Posted on by Marc O. DeGirolami · 2 Comments

“Anchors Aweigh” (reviewing Hadley Arkes, “Mere Natural Law”)

I have review with that title that is both appreciative and critical of Professor Hadley Arkes’ book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month’s issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law…

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.

Posted on by Mark Movsesian

Webinar: Understanding the Karabakh Crisis

Yesterday, I participated in an online panel organized by the St. John’s CRS Global Campus Committee, “Understanding the Nagorno-Karabakh Conflict & Humanitarian Crisis.” The other participants were Artyom Tonoyan (Hamline) and Anna Hess Sargsyan (Austrian Center for Peace). Among the topics we discussed: the failure of international law in stopping the ethnic cleansing of Armenians and the complex role of religion in the conflict. I’d like to thank the organizers and my co-panelists for a very helpful, if somewhat depressing, discussion. You can view the webinar below.

Posted on by Mark Movsesian

St. John’s University Panel on Karabakh Next Week

For anyone interested, I’ll be appearing (virtually) this coming Wednesday, November 1, on a panel St. John’s University is sponsoring on the ethnic cleansing of Armenian Christians from Karabakh: “Understanding theNagorno-Karabakh Conflict & Ongoing Humanitarian Crisis.” I’ll join Anna Hess Sargsyan of the Austrian Center for Peace and Artyom Tonoyan of Hamline University. Details below:

Posted on by Mark Movsesian

Online Symposium: RFRA at 30 (Oct. 19, 2023)

I’m greatly looking forward to participating in an upcoming online symposium, “The Religious Freedom Restoration Act at 30,” sponsored by Emory’s Center for the Study of Law and Religion. I’ll present a paper on how the rise of the Nones will put pressure on the concept of religious exemptions. Details here. Register to listen in!

Posted on by Marc O. DeGirolami

Deseret News piece on the case of the missing law and religion cases

I’m quoted in this piece by Kelsey Dallas of the Deseret News (whom we have interviewed at the Forum before) on the unusual absence of law and religion cases in this year’s slate of Supreme Court cases. Of course, some might still be added, as Professor Mark Rienzi suggests in the article.

Posted on by Mark Movsesian

Podcast on Karabakh

Thanks to EWTN’s Kresta in the Afternoon for having me on again this week to discuss the situation in Karabakh, where Azerbaijan is starving 120,000 Armenian Christians in an ethnic-cleansing campaign. You can listen to the podcast here: https://player.fm/series/kresta-in-the-afternoon-3266582/military-blockade-leaves-thousands-of-armenian-christians-in-dire-straits-mark-movsesian21-august-2023.

Posted on by Mark Movsesian

Movsesian on Defining Religion

In First Things this month, I have an essay arguing that religion, for legal purposes, presumptively means a collective rather than a purely personal pursuit. It’s a question that already has perplexed courts in the context of COVID-19, and is likely to become more pressing with the rise of the Nones.

Here’s an excerpt:

It’s time for the Court to establish that religion, at its core, denotes communal beliefs and practices rather than idiosyncratic personal commitments. A communal definition makes sense for several reasons. First, the existence of a community captures something important about the social reality of religion. In lived experience, religion suggests a group of people linked with one another, through time, in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.”

Second, a focus on community accords with an important goal of religious freedom: the promotion of private associations that encourage cooperative projects and check state power. As Tocqueville explained, the despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to others, so that it can divide and dominate them all. By encouraging people to identify with and look out for one another, private associations militate against self-centeredness and social isolation and help keep the state in check. Religious groups perform this function especially well. No associations have been better, historically, at promoting cooperative social projects and defying state oppression—as dictators down the centuries have learned.

Third, the existence of a religious community reduces the possibility of fraud. Everyone agrees that courts need not honor a religious claim that a litigant does not genuinely hold or raises merely as a pretext. But sincerity, which depends on a claimant’s subjective state of mind, is notoriously difficult for courts to evaluate. The existence of a religious community to which the claimant belongs can provide objective evidence of the claimant’s good faith. A continuous tradition of teaching and worship, and an organized body that enforces discipline, can go a long way toward demonstrating the claimant’s genuineness about his religious convictions.

Fourth, the existence of a community helps ensure that religious commitments are not frivolous and fleeting, but serious and lasting. It is one thing for the state to accommodate a citizen’s profoundly held beliefs. To do so honors the citizen’s dignity and accords him respect. It is another thing to defer to commitments that may be temporary and superficial. Not all idiosyncratic commitments fit that description, of course, and beliefs can be religious even if novel. But the existence of an established religious community can screen out passing whims that the state need not honor.

Finally, making the definition of religion turn at least in part on the existence of a religious community reduces the potential for administrative disorder. Long ago, the Supreme Court warned that if personal spiritual convictions were sufficient to override legal obligations, “every citizen [would] become a law unto himself.” One should not overstate this concern, but the rise of the Nones makes it important today. Requiring a claimant to show that his or her objections are not merely personal but derive from the teachings of an organized body of believers can reduce the potential for conflict with state laws—especially in a society in which very large numbers claim to follow their own spiritual paths.

You can find the rest of the First Things essay here. A much longer version of the essay will appear in a forthcoming symposium issue of the Loyola University Chicago Law Journal.

Posted on by Mark Movsesian

2022-2023 Year-End Review

It’s been a productive 2022-2023 academic year at the Center. We’re pleased to share below some of the highlights (PDF). We have lots more planned for next year, so please stay tuned–and if you’d like to get on our mailing list, please let us know. Meanwhile, best wishes for a great summer!

23_CLR_YE_NewsletterDownload
Posted on by Mark Movsesian

Movsesian on Kresta on Tocqueville

I was happy to chat again last week with Al Kresta of Ave Maria Radio about the recent Wall Street Journal poll showing a decline in interest in community, country, and tolerance–and how the poll shows that Tocqueville was basically correct. A link to the interview is here.

Posted on by Mark Movsesian · 1 Comment

Tocqueville Was Right

At Law & Liberty today, I have an essay on that recent Wall Street Journal poll on American values. The poll suggests that Americans are checking out in large numbers. Compared to 25 years ago, many fewer of us today claim that “patriotism,” “community involvement,” even “tolerance” are very important to us.

There are some methodological questions about the poll–including a very low response rate. But the poll tacks with oft-observed trends in American life, especially the decline of civic associations. In my essay, I argue that all this shows that Tocqueville was right in predicting what would happen if America ever lost its mediating institutions:

The shift in values that the Journal survey reflects will not surprise anyone who has read Tocqueville. In Democracy in America, he described the propensity democratic societies have to “individualism,” which he defined as the tendency to detach oneself from the affairs of the wider society. Unlike aristocracies, he argued, which have status hierarchies that naturally encourage deference, democracies accustom each person to think of himself as the equal of everyone else—not only in terms of political citizenship, but moral judgment as well. Because everyone is equal, there is no reason to defer to received wisdom or traditional communal values. In deciding how to live, each person believes he must rely on his own judgment and look out for his own interests. Over time, Tocqueville wrote, this “sentiment disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and his friends, so that after having thus created a little society for his own use, he willingly abandons society at large to itself.”

Tocqueville believed that the tendency to individualism created the potential for two sorts of tyranny. The first was state oppression. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all. The second was the tyranny of public opinion. Socially isolated individuals are no match for the pressure of majority viewpoints, which, like state oppression, can squelch free thought. Indeed, he observed that egalitarian and individualistic America was, paradoxically, rather conformist: “I do not know of any country, where, in general, less independence of mind and genuine freedom of discussion reign than in America.”

Tocqueville famously argued that the United States overcame the dangers of destructive individualism through voluntary associations, including churches, which encouraged Americans to look beyond themselves and cooperate in common enterprises. They taught habits of fellowship and reciprocity. Importantly, they worked to check the tyranny of the majority by giving people a sense of shared identity beyond citizenship. Collections of like-minded people stand a much better chance than isolated individuals of resisting both state oppression and the pressure of public opinion.

Last week’s poll suggests what happens when mediating institutions weaken and disappear. As Tocqueville predicted, people lose interest in the wider community and focus more and more on their own projects. They “withdraw to one side” and “willingly abandon society at large to itself.” This can help explain why Americans decreasingly value tolerance and increasingly value money. Working in a joint enterprise teaches people to overlook personal differences to achieve a common goal; it trains us to forbear and forgive. Tolerance is unnecessary in a society in which everyone bowls alone. And money allows one to fulfill one’s desires without relying on the cooperation and approval of others.

You can read the whole essay here.