An Awful Report by the USCCR

I have a post up at Law and Liberty on the recent report of the U.S. Commission on Civil Rights, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” It is not positive. A bit:

The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitchan utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.

After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”

The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.

 

Law and Tradition in America: My Reply

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Tradition ProjectFund blog. It is the last in this series, and I’ve enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson’s challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.

Stoner’s Response: “Legal Realism, Legal Revolution”

The final response to my essay on law and tradition has been posted over at Liberty Law, Tradition Projectand it is superb: Professor James Stoner’s Legal Realism, Legal Revolution. Jim’s work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism–and in particular about the erroneous and all-too-common characterization of constitutional law as “judge-made law.” It’s wonderful to have his contribution. A bit from the end of Jim’s piece:

Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.

“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”

DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.

Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.

The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

Levinson on Law and Tradition (a Skeptical View)

Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It’s a pleasure and an honor to be in conversation with him. I’m already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson’s essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument….

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)

Bernstein, “The Courts and Tradition: A Begrudging Respect”

Professor David Bernstein (George Mason) has a thoughtful response to my essay on lawTradition Project and tradition. Here is a bit:

When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.[3]

For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.[4]

The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.[5]

The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.

“The Unforgettable Fire: Tradition and the Shape of Law”

That’s the title of an essay I have at Law and Liberty’s monthly Forum on the relationship of law and tradition. The essay is aTradition Project bit of a trumpet flourish for the Tradition Project, the first part of which will be occurring in October of this year, keynoted by Michael McConnell and with subsequent workshops on the meaning of tradition, the American religious tradition, the American political tradition, tradition and the common law, and tradition and constitutional law.

I’m delighted and honored that Professors David Bernstein, Sandy Levinson, and James Stoner will write up responses to my essay, to be published serially in the next few weeks. I’ll get a chance to reply after that to what I know will be challenging and insightful pieces. Here’s a bit of the beginning of mine:

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable.

When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view: “What’s more American than taking a tradition, tossing out what you don’t like, and remaking it in your own image?”

Deep calls unto deep: writing more than a century earlier, Oliver Wendell Holmes, Jr. seems to have been of like mind when he thundered that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”[1] These words by one of the most influential of American jurists suggest that there has long been—perhaps there has always been—something of a reluctance (to put it gently) in the American legal intellectual to admit the connection of law and tradition. Arguments that depend upon tradition are widely thought to offer nothing against, or even in conversation with, the predominant intellectual legal frameworks—those inclined toward progress, efficiency, and technology, for example.

And yet the repudiation of tradition as a modality through which to think about and evaluate law is much more deeply ingrained today than in prior periods. One is unlikely, for example, to hear from any contemporary American Bar Association functionary or legal academic anything like what one once heard from ABA founder and Yale Law School Professor Edward J. Phelps. Phelps gave a speech in 1879 on the legacy of Chief Justice John Marshall and constitutional law in which he observed:

“It is idle to say that our sky is free from clouds. It is useless to deny that wise and thoughtful men entertain grave doubts about the future. The period of experiment has not yet passed, or rather has been again renewed. The stability of our system of government is not yet assured. The demagogue and the caucus still threaten the Nation’s life. But we shall not despair. . . .  Let us join hands in a fraternal and unbroken clasp, to maintain the grand and noble traditions of our inheritance, and to stand fast by the ark of our covenant.”[2]

Reliance on the justificatory support of tradition is in fact of long lineage in Anglo-American law. “Erravimus cum patribus”: such was Lord Coke’s response when summoned before the Privy Council to answer various frivolous charges in his ongoing disputes with King James I over his conduct as Chief Justice of the King’s Bench. If there was error, “we have erred with the fathers.” There was a time when this was thought answer enough.

Indeed, American law—and English law before it—historically has depended upon tradition as a vital source of stability and justification. Usages, dispositions, and moral views that endured from one generation to the next were presumed valid and true. There was an implicit judgment of value in these continuities: the wisdom contained in tradition would not have endured, people believed, if it did not advance basic human well-being. True, traditions could change or fall out of use and people did not defer to the past mindlessly. But the past had definite claims; one could not cast it aside as though it had nothing to offer to, or require from, the present.

What complicates the story of tradition’s contemporary decline is that in some ways, tradition as a source of meaning, justification, and even identity in law persists. The common law method, for example, in which law develops gradually and internally from precedent, depends upon traditional instincts and traditional processes. Lawyers and judges cannot ignore the cases that have come before; they must fashion arguments in ways that cohere with earlier judgments. They must incorporate the past into the present. They must respect the American legal tradition—do right by it as they resolve cases.

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

Divine Rights and Human Rights

That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power:

“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.

Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

On Justice Scalia’s “Teaching About the Law”

In anticipation of the new academic year, I have a short piece over at Liberty Law on a piece by Justice Scalia that (I think) has received almost no commentary, with the exception of a very good essay by Adam White, on “Teaching About the Law.” Here’s the beginning:

There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.

Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”

One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.

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