Legal Spirits Episode 003: Tradition in the Global Context

Tradition Project

In this episode, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the upcoming meeting of the Center’s Tradition Project, set for Rome on December 12-13. This session, “The Value of Tradition in the Global Context,” features a keynote address by Justice Samuel Alito, a response panel of European jurists, and a series of workshops with scholars from both sides of the Atlantic. Mark and Marc discuss the relationship among tradition, liberalism, nationalism, and populism in today’s world and address recent works by Yascha Mounk, Mark Lilla, Patrick Deneen, and Yoram Hazony, as well as, on its 25 anniversary, Samuel Huntington’s famous essay on the clash of civilizations.

Next Week in Rome: Tradition Project III

Tradition ProjectWe’re delighted to announce we’ll hold the third session of the Tradition Project, “The Value of Tradition in the Global Context,” next week in Rome. This session will feature a public address, on December 12, by Associate Justice Samuel A. Alito, Jr., of the Supreme Court of the United States., and four private workshops on the conference themes. The event is hosted by our partners at LUMSA Università and is co-sponsored by Villanova’s Eleanor H. McCullen Center for Law, Religion and Public Policy. Details are available here, Programma12-13dicembre2018. Forum readers in Rome, stop by and say hello on December 12!

New Article: Masterpiece Cakeshop and the Future of Religious Freedom

I’ve posted a new article on SSRN, “Masterpiece Cakeshop and the Future of Religious Freedom.” The article, which will appear in the current volume of the Harvard Journal of Law and Public Policy, uses last term’s decision in Masterpiece Cakeshop as a vehicle for exploring deep trends in American culture, politics, and religion. Here’s the abstract:

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

You can download the paper here.

Movsesian on Religious Polarization

To follow on Marc’s post yesterday, here is the video of my panel presentation earlier this month’s at the annual Notre Dame Ethics and Culture Center Conference. The title of the panel, chaired by Notre Dame Law Professor (and Tradition Project member) Marah Stith McLeod, was “A House Divided–Polarization in Our Common Life,” and the subject of my talk, beginning at the 35:45 mark, was “Church and State in a Time of Polarization.” Thanks to Marah and my co-panelist, John Carr (Georgetown), and to the Notre Dame Center Director, Carter Sneed, for inviting me!

Notre Dame CEC Conference Panel on “Shield or Spear: The Power of Speech”

Here is the video of my panel with Michael Moreland and Rick Garnett at a recent conference at Notre Dame, discussing the current condition of free speech. For those disinclined to read the paper below, you can get a rough sense of some of the points in it in the video. I appreciated the chance to chat with Mike and Rick to get a sense of where we agree (on many issues) and perhaps see things a little differently (a smaller, but interesting and important, set of issues) as to the First Amendment.

New paper: “The Sickness Unto Death of the First Amendment”

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

Judge Diane Sykes at the Colloquium in Law and Religion Today

We are delighted to welcome the Honorable Diane S. Sykes to the Colloquium in Law andDiane Sykes.jpeg Religion today!

Judge Sykes will be discussing a number of her opinions involving law and religion, including Korte v. Sebelius (a contraception mandate for-profit RFRA case before Burwell v. Hobby Lobby); CLS v. Walker (an equal access/speech case before CLS v. Martinez); Books v. Elkhart County (involving state-sponsored religious displays); and Tagami v. City of Chicago (concerning the role of a moral tradition in satisfying intermediate scrutiny for both expressive conduct and Equal Protection Clause purposes).

Welcome, Judge Sykes!

“Rethinking Open Society” (Ignatieff & Roch, eds.)

Here is a very interesting collection of essays, one of which is a discussion between liberal public intellectuals Michael Ignatieff and Mark Lilla about the prospects for and substantial challenges to the idea of the “open society”–in the US and around the world. That exchange was so interesting that I chose it as one of the essays we will discuss at our upcoming Tradition Project conference in Rome this December, at a workshop on “Nationalism, Populism, and Traditionalism.”

The book (which contains contributions from the likes of Thomas Christiano, Stephen Open SocietyWalt, and Roger Scruton) is Rethinking Open Society: New Adversaries and New Opportunities (Central European University Press).

The key values of the Open Society – freedom, justice, tolerance, democracy and respect for knowledge – are increasingly under threat in today’s world. As an effort to uphold those values, this volume brings together some of the key political, social and economic thinkers of our time to re-examine the Open Society closely in terms of its history, its achievements and failures, and its future prospects. Based on the lecture series Rethinking Open Society, which took place between 2017 and 2018 at the Central European University, the volume is deeply embedded in the history and purpose of CEU, its Open Society mission, and its belief in educating sceptical but passionate citizens.

Wilken, “Liberty in the Things of God”

It’s perhaps somewhat early to notice this new and important book, scheduled for summer of 2019, but it deserves at least two book notes from us. We were lucky enough to host Professor Robert Louis Wilken at the Center for Law and Religion’s Colloquium a few weeks ago to discuss several draft chapters of this new book, a deep study of the Christian Patristic period for early arguments concerning religious liberty. Arguments which, Professor Wilken writes, can be connected to several others of the Protestant Reformation many centuries later and are the true foundation for our American conception of religious freedom.

Congratulations to Robert on this major achievement. The book is Liberty in the Things of God: The Christian Origins of Religious Freedom (Yale University Press). Look out for it Wilken.jpgnext year.

In the ancient world Christian apologists wrote in defense of their right to practice their faith in the cities of the Roman Empire. They argued that religious faith is an inward disposition of the mind and heart and cannot be coerced by external force, laying a foundation on which later generations would build.

Chronicling the history of the struggle for religious freedom from the early Christian movement through the seventeenth century, Robert Louis Wilken shows that the origins of religious freedom and liberty of conscience are religious, not political, in origin. They took form before the Enlightenment through the labors of men and women of faith who believed there could be no justice in society without liberty in the things of God. This provocative book, drawing on writings from the early Church as well as the sixteenth and seventeenth centuries, reminds us of how “the meditations of the past were fitted to affairs of a later day.”

Center for Law and Religion at Notre Dame this Week

Mark and I will both be in South Bend this week, at the Notre Dame Center for Ethics and Culture’s annual conference. This year’s conference, organized by Carter Snead with his usual flair and skill, is Higher Powers. The theme picks up on a remark by Aleksandr Solzhenitsyn in a memorable address at Harvard 25 years ago, and the conference takes the occasion to reflect on Solzhenitsyn’s life and thought.

Mark will be speaking about “Church and State in a Time of Polarization,” while I will be speaking about “The Higher Purposes of Free Speech.” The full schedule for the conference is here. We hope to see many of our readers and friends!

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