At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:
Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.
Former CLR Fellow Jessica Wright ’14 began her legal career in Kabul, Afghanistan where she worked with a team of local and international lawyers on Afghan commercial and tax law matters, as well as Rule of Law Initiatives. She also served as a legal advisor to the Office of the President, and was an adjunct professor of law at the American University of Afghanistan. Now a litigation associate at DLA Piper in New York, Jessica reflects in this important post on the dire events unfolding in Afghanistan, and what the return of the Taliban means for the Afghan people.
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“It’s nearly spring again, and I’m still in Afghanistan, almost inexplicably. American airstrikes in the provinces are shifting Taliban sights on the cities, they say, and foreigners are advised to leave. Progress in law and institution building ebbs and flows, as do the foreign monies for projects, as do the people who run them in short, detached tours. Life is cyclical for almost everyone, turning in tedium or tragedy depending on whether one’s aim is a project benchmark or simply reaching home across town, unscathed.”
I wrote those words in the spring of 2018, just before I left Afghanistan for the last time. The Taliban’s spring offensive was about to begin, and I faced a direct threat from the ISI-backed Haqqani network. In truth, though, even then, Kabul didn’t feel like a war zone for more than a few days or hours at a time, and I always knew that if things went south, I could be on the next flight out. Expats are privileged to live with a sense of detachment in places like Afghanistan – we can view everyday life with its bomb blasts and security threats as a story to tell instead of a reality to live. Still, proximity to war changes the way we understand conflict – it personalizes the fight and deepens the relationships forged with a place and a people.
The speed at which the Taliban has advanced across Afghanistan in the last week has shocked nearly everyone I know, from seasoned journalists to well-connected Afghan politicians. Ten provincial capitals were seized by the Taliban in just six days: Shebergan, Sar-e pul, Kunduz, Taluqan, Aybak, Pul-e Khumri, and Faizabad in the north, Farah in the west, and Zaranj and Ghazni in the south. Understanding that the war in the provinces had definitively moved to the cities, Afghan friends began sending panicked messages asking for advice and visa references and Embassy contacts, hoping that with a little luck they could still make it out. Then, on August 13, two major cities fell: Herat, a vital cultural and economic hub on the border with Iran, and Kandahar, an important city in the southern Pashtun heartland. In quick succession, Mazar-i Sharif, the last holdout in the north, fell on August 14, and on Saturday, the Taliban took Jalalabad, the capital of Nangarhar province, cutting off Kabul from the east. Entire Afghan units surrendered to the Taliban, knowing that without U.S. support they could no longer continue to fight. Others laid down their arms in protest, unwilling to risk their lives on the battlefield for a hopeless cause and a government in shambles.
Colleagues on the ground in Kabul have reported a massive influx of refugees from the provinces. They tell stories of families weeping outside embassy gates and passport offices, desperately seeking a way out of the country. Many others have set up mattresses and makeshift tents in the local parks knowing they have nowhere else to run. As the weekend wore on, locals rushed to stock up on food and other necessities, and all the while American Chinooks and Black Hawks flew overhead at constant, regular intervals, serving as a brutal reminder that as foreigners escaped to safety, Afghans were trapped on the ground to face their fate alone.
On Sunday, as the Taliban continued its advance toward Kabul, President Ashraf Ghani and Vice President Amrullah Saleh relinquished power and fled the country, signaling the collapse of the Afghan government. In a post on his Facebook page, Ghani stated, “To avoid bloodshed, I thought it would be better to leave.” Shortly thereafter, Dr. Abdullah, the former Chief Executive Officer of Afghanistan, who remains in the country, sent a message to the people of Afghanistan asking them to stay calm. He assured them that “God will make [Ghani] accountable.” Former President Karzai, who also remains in Kabul, posted a photo of himself and his daughters with a message to the Taliban, asking them to provide security and safety for the people. The Taliban said they would not take Kabul by force, but when they reached the outskirts of the city on Sunday evening, they began making their way in to “prevent lawlessness.” Judging by the messages from my Afghan friends and colleagues, the mood had shifted from quiet panic to stoic resignation. They told me that the American flag at the U.S. Embassy had been taken down, and that the massive Afghan flag atop Wazir Akbar Khan hill was removed by the Taliban shortly thereafter. They sent pictures of Taliban leaders inside the Presidential Palace – once a serene fortress – and reported that groups of fighters were milling about on the streets carrying their distinctive white flag bearing the shahadah: “I bear witness that none deserves worship except God, and I bear witness that Muhammad is the messenger of God.” It felt as if everyone was holding their breath, expecting the bloodshed to start at any moment but still hoping, desperately, for some other outcome.
It is not yet clear what a Taliban regime will mean for the people of Afghanistan, but according to analysts, the insurgent group, ousted from power 20 years ago by a U.S.-led invasion, has been growing stronger for the last two decades, and the methods they employ to govern will likely be as brutal as they have been in the past. The Taliban has run a shadow state for years in the southern provinces, and residents of those areas report that gruesome beatings and executions remain commonplace. Researchers point out that the Taliban’s leadership has become savvier, which may in part account for its ability to seize the Afghan capital, but they caution that such change does not necessarily translate to more lenient rule.
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Islam has always been at the center of the lives of the Afghan people. In fact, a form of Sharia or Islamic law governed the legal process in Afghanistan until 1925. Traditional Islam in Afghanistan meant minimum government with little interference in people’s lives; everyday decisions were carried out by elders in the tribe and the community.” It was not until 1925 that King Amanullah introduced the first civil legal code, and not until 1946 that a Sharia faculty was set up at Kabul University, allowing an integration of traditional Sharia with modern law. “Another moderating factor for Islam in Afghanistan was the enormous popularity of Sufism, the trend of mystical Islam,” which is built on prayer, contemplation, music, and a “permanent quest for truth” (Ahmed Rashid describes Sufism and Islam in Afghanistan in his book, Taliban, from which the quotes in this section are taken).
The “austere Wahabbi creed of Saudi Arabia,” which opposed mystical Sufism, gained some traction in Afghanistan, but Islamic extremism had never flourished in earnest before the Taliban. There were indeed several traditional political Islamic movements, some of which sought a type of Muslim internationalism that would unite the ummah or Muslim world, and to achieve their political ends, “parties like the Pakistani Jamaat and Hikmetyar’s Hizb-e-Islami set up highly centralized modern parties organized along communist lines with a cell system, extreme secrecy, political indoctrination, and military training.” These movements were led by radical Islamicists, but they could be considered rather modern and forward-looking in comparison to the Taliban.
The Taliban’s interpretation of Islam, jihad, and social transformation echoes none of the Islamicist trends in Afghanistan. Rather, the Taliban’s particular interpretation of Islam stems from the teachings of semi-educated mullahs in the North-West Frontier Province (NWFP), who trained generations of Afghans in rural madrassas. Their interpretation of Sharia is heavily influenced by Pashtunwali, the tribal code of the Pashtuns, and the madrassas themselves were funded and influenced by Saudi Arabian Wahhabists. The Taliban are not advocates of learning or reform, and they accept “no concept of doubt except as sin and consider debate as little more than heresy.” In addition, the Taliban tend to be “poorly tutored in Islamic and Afghan history, knowledge of the Sharia and the Koran and the political and theoretical developments in the Muslim world during the twentieth century.”
When the Taliban first entered Kabul in 1996, the religious police beat men and women in the streets for not having long enough beards and for wearing the burka improperly. An intelligence agency was formed and staffed with thousands of professional spies and paid informers. Anyone who questioned the Taliban’s edicts were said to have questioned Islam itself and were punished severely. The Taliban massacred ethnic and religious minorities, and its subjugation of women was total. Their regime was built entirely on what amounted to myth: particularized beliefs, fears, and ideologies that had nothing to do with Islam itself or with Afghan cultural norms. The Taliban’s ban on every form of entertainment, for example, was based on the belief that entertainment, particularly music, strained the mind and hampered the study of Islam.
In recent years, the Taliban have sought to project a more moderate image and have shown some flexibility in their application of Sharia. In an Eid holiday message in May, the Taliban’s supreme leader Mullah Haibatullah Akhundzada stated, “The Islamic Emirate seeks cordial and positive relations based on mutual respect and good conduct with all neighboring, regional and world countries.” Many caution, however, that while Taliban leaders have become more adept politicians, they have not changed their goal of reinstating an Islamic emirate with the repressive laws and retrograde policies the world has seen before. As it currently stands, foreign powers have little to no leverage when it comes to ensuring that international humanitarian law is followed and that the rights and freedoms of the people are protected.
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What is happening in Afghanistan feels deeply personal to me. I have taught and worked with and come to know the vibrant younger generation of Afghans who desire peace and have worked, relentlessly, for a stable democracy. What will become of them now? Will they be able to study at university and operate businesses and run for office? Will Afghan journalists be able to publish stories, unfettered, or will the press become a propaganda arm of the new regime? And what about the women and girls? Will they be relegated to the home and denied an education and a livelihood? Will those intelligent, driven women who became law firm partners and political activists and influential artists be silenced and made to live a life in the shadows? These questions haunt me, and I struggle to imagine the Kabul I knew transformed into the bastion of a merciless Taliban state.
It is difficult to connect to tragedies from which we are far removed, but it is important to look to Afghanistan now. All of us would do well to remember that the Afghan people have suffered generation after generation of warfare and humanitarian crises, all at the hands of foreign powers. And there are dark days ahead.
For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:
Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence.
But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future.
Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so.
In First Things today, I write about recent corporate activism and what it reveals about our deep cultural polarization. More and more, employees and customers expect that firms will take stands on contested political issues. This wasn’t supposed to happen. According to liberal theory, the market is supposed to diminish conflicts over religion and big questions. What’s going on?
All this is happening because, contrary to the doux commerce thesis, people do not easily check their values at the door when they enter the marketplace. And in a society as evenly divided and politically saturated as ours, it’s only natural that many people will want the firms for which they work or with which they do business to reflect their side in public debates. “Employees today…want to know what you stand for,” one CEO recently told the Wall Street Journal. That goes for customers, too. In fact, firms may no longer have the option of staying silent on public controversies, since customers increasingly expect corporations to have political and social commitments. “[I]n these fraught times,” a corporate lawyer recently explained at Harvard Law School’s Forum on Corporate Governance, customers often construe silence on a political controversy as itself “a statement.”
Liberalism depends for its success on habits of mind that liberalism itself cannot create. The doux commerce thesis works fine where people mostly agree on public controversies, or where people believe they can safely remain indifferent to them. In a society like ours, though, where views are polarized and politics is everywhere, it is naïve to think the market will be an exception, or that commerce will somehow cause people to forget about their deep disagreements. Until America reaches a new social equilibrium, our market is likely to be as contentious as everything else.
“What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.”
“A conceptual framework motivated by present concerns may distort the past, but questions about origins and foundations are surely not “temptations” but the lifeblood of historical inquiry. A methodology that cripples the ability to ask such questions needs rethinking. Historical questions and metahistorical questions are indeed different and should be kept separate, but this fact need not be taken as a source of epistemological despair. Rather it is, or it should be, a call to exercise our imaginative understanding of human phenomena in relation to the entirety of past cultures, their Lebenswelt, the long-faded structures of practical constraints and inherited values that shaped those cultures and still renders them legible, with disciplined research, to the attentive mind. In practical terms this means exercising ceaseless vigilance against anachronism: something easier said than done. To see the past in its own terms goes against our naïve or interested desire to make use of the past for our own purposes. It also requires hard work, imagination, and (dare one say it) a certain kind of love. We want to root our own identities as individuals or groups in a glorious past, or (more often these days) we want to preen ourselves on our superiority to a benighted past, and this desire sometimes blinds us to difference, to anachronism, to moral universes other than our own. But sometimes we have to transcend our own needs in order to do justice to the reality of other persons and times. And sometimes it is the truth we cannot see that is precisely the one we need.”
Don Drakeman, Distinguished Research Professor at Notre Dame and a member of our Board of Advisors here at the Center for Law and Religion, wrote us recently to pass along this wonderful story about an obscure Christmas carol and our current, perhaps even more obscure, Establishment Clause jurisprudence. We take great pleasure in posting Don’s essay below, and in wishing all our readers a very Merry Christmas, a peaceful holiday season, and a Happy New Year!
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The holidays are a time for inspiring stories, and where better for Law and Religion Forum readers to turn than the Establishment Clause?
During some family caroling, my daughter Cindy and her husband Richard introduced me to Franz Biebl’s Ave Maria, a breathtakingly beautiful choral work. This isn’t the famous version by Schubert you hear this time of year. It’s the one by an obscure 20th century German composer, who spent most of WWII as a POW in Michigan. The composition is completely different from the Schubert piece, and you’ll only recognize it if you get your music via NPR.
Herr Biebl’s Ave Maria has become our inspirational story thanks to the 9th Circuit’s 2009 decision in Nurre v. Whitehead. The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl’s piece because they thought it would “showcase their talent.” But the Biebl was nixed by the school administrators on the grounds that “the title and meaning…had religious connotations and would be easily identified as such by attendees.” The 9th circuit backed them up, saying that the school’s action was an appropriate way to avoid an Establishment Clause problem.
As far as I can see, the court’s decision required a series of miracles, each involving a degree of faith in the education of America’s youth that, as the KJV might say, “passeth all understanding.”
The First Miracle: That anyone was listening. As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music. The chance that any of them would think, “Wow, what a great piece! I’ll check the program to see what it’s called” rounds to zero. But, in this season of miracles, let’s say they did, and learned that it was named Ave Maria.
The Second Miracle: That the seniors had any idea what “Ave Maria” means. I would like to share the judges’ faith that the seniors were well versed in Latin. Yet, even if they were, Biebl’s effect would more likely be something like this:
Football Captain: Are you waving at the band?
Head Cheerleader: Yes, they are playing that for me. It’s called, “Hey, Mary.” Didn’t you pay attention in AP Latin?
Football Captain: You have to stop skipping Latin Club meetings. The Romans didn’t say “Hey,” they said, “Hail.” This song is in honor of my “Hail Mary” touchdown pass in the championships.
High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.
The Third Miracle: That there could possibly be a “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test. In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion. But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words. Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.
Justice Alito called this decision “troubling” in his cert. denial dissent, but I prefer to see it as an inspiring story of faith in our educational system, where classically educated seniors listen to the wind ensemble with rapt attention, and find their religious beliefs profoundly deepened by the simple trigger words, Ave Maria.
On that inspirational note, if you are seeking to brighten your Christmas season, look no further than Chanticleer’s rendition of Biebl’s Ave Maria on YouTube. We have it on good authority that it will be a religious experience.
Don would like to thank Cindy Drakeman and Richard Wanerman, who not only introduced him to Biebl, but who also appear on this year’s Grammy-nominated recording of the world premier of Kastalsky’s Requiem. Since the Requiem includes the hymn Rock of Ages, he hopes the Grammys do not get any federal funding because the awards are being given in the 9th Circuit.
In First Things today, I have an essay on the Second Karabakh War: what happened, why it happened, and Armenia’s path for the future. Here’s an excerpt:
Notwithstanding the loss of territory and the terrible loss of life, Armenians should resist despair. Armenia’s history is very long, and things have looked bleak at many points—for example, when the Persians defeated Armenians at the Battle of Avarayr in the fifth century, when Arabs invaded in the seventh, when Turks invaded in the eleventh, and when Mongols invaded in the fourteenth. More recently, there was the 20th-century genocide after which, improbably, Armenians succeeded in reestablishing a state for the first time in several hundred years.
In the wake of the Second Karabakh War, Armenians need to evaluate their mistakes—especially their misguided optimism about support from Western governments and human rights organizations—accept certain realities, and work to rebuild. Notwithstanding a calamitous history filled with injustice, Armenians have preserved a distinct and continuous Christian witness in the Caucasus for millennia. With God’s help, they will survive this most recent defeat as well.
At the First Things site today, I have an essay on how a broad, ecumenical Christianity will feature in a new, multiethnic conservative movement. Here’s a sample:
The factors Salam identifies no doubt figure in minorities’ increasing affinity for conservative politics. But I think his explanation misses another important factor: conservative Christianity. The media typically presents conservative Christians as monolithically white, but that is not the case. For example, about one-quarter of evangelicals are members of racial and ethnic minorities, and Republicans apparently did very well among them. According to Gaston Espinoza, a researcher at Claremont McKenna College who conducted a survey of Latino voters, it was “Latino evangelicals” who “helped Trump to do better than anyone expected in Texas … and in Florida.”
I don’t know of studies that analyze minority voters in terms of church attendance, but in the general population, religious observance correlates with voting for the GOP, and that pattern presumably holds for many minorities as well. According to the AP Vote Cast Survey, people who attend church regularly—up to a few times a month—broke solidly for Trump, 54 percent to 45 percent. People who attend church once a week or more voted 61 percent for Trump. By contrast, people who never attend church went strongly for Biden, 63 percent to 32 percent. (This last figure is consistent with surveys that reveal that more than two-thirds of Democrats “never attend religious services.”) To be sure, differences exist among minority communities; black Christians, for example, continue to vote Democrat in very large numbers. Still, it is reasonable to think that, with respect to minorities, as with respect to the American public generally, the religiously observant tend to vote Republican.
If Republicans are to become a multiethnic, middle-class movement, a popular, ecumenical Christianity of the sort I observed at the Museum of the Bible will likely have an important place in it. In fact, the religious identity of the movement need not be exclusively Christian. Americans are famously non-sectarian when it comes to public religion, and it’s possible to imagine a political coalition of the traditionally religious from all faith communities. Although good studies are difficult to find, some suggest that Orthodox Jews increasingly vote Republican. And President Trump drew one-third of Muslim voters in 2020, a large increase over 2016.