“The End of the Affair”

I have a little review essay just published by the American Journal of Jurisprudence with this title (Graham Greene, apologies) reviewing Professor Joel Harrison’s recent book, Post-Liberal Religious Liberty: Forming Communities of Charity (CUP 2020). A portion:

“[A]s Joel Harrison observes in his new book, the price extracted from traditional religion for these thawing relations with liberalism was steep. First, the substratum of Christian culture and historical connection with Western nations had to be systematically stripped away to clear a path for the new civil religion of the liberal regime—as Harrison says, a new “true religion” of the modern civic sphere to replace the old one. (24) Second, because traditional religion was always perceived as a threat to the liberal egalitarian political order, it was expanded by that order to encompass an increasing range of phenomena connected to one of liberalism’s own master commitments, individual autonomy. Religion was in this way at once domesticated and subsumed by liberalism, “contained” and trivialized by hypertrophy. (55) Institutional religion, Harrison continues, was “flattened” to what liberalism regards as the most basic constituent fragment, the individual believer. (55) Third, this new capaciousness had the effect of subjecting religion to an assortment of balancing tests at law, in which religion’s importance was perpetually weighed against sundry other quotidian interests. Religion was reduced to one more consideration, no more intrinsically weighty than any other, that the liberal authority could horse-trade and dole out as it pleased. Fourth, it was deemed out of order for government officials and even ordinary citizens to make public appeals to religious authority as a transcendent source of meaning and worth in the activities of the polity. These claims instead had to be translated into the “secular” argot of liberal commitments—“reconceived as just like any other claim of ethical freedom”—to gain admission to the liberal courts of law and politics. (11) If they could not be, they were cordoned off to the “private” sphere. (13)”

Breen and Strang Reply to Interlocutors on Catholic legal education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: “A Light Unseen: A History of Catholic Legal Education.” Deans of several Catholic law schools, as well as other learned academics, offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

The Center’s 1oth Anniversary Video

Mark and I hope you enjoy this new video, which we put together for the Center’s 10th anniversary (plus one!). It describes the people, activities, projects, and opportunities that make the Center what it is. Here’s to another 10 (plus more)!

Lecture for the Order of Malta: “Understanding the Right to Religious Freedom Under the U.S. Constitution”

I am delighted to give this presentation on the right to religious freedom for the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta (or, less formally, the Order of Malta) this Sunday, October 17, at 2:00 pm. Further details are above. Please do come by!

Second Session of the CLR Reading Society: City of God

Mark and I were very pleased last night to host the second session of our Reading Society, an occasion for students and alumni to gather in the evening to discuss a classic work. Our choice for this session was a selection of books from Augustine’s City of God, together with associated materials drawn from the Letter to the Hebrews and elsewhere. As with our first session on Antigone, this one was a huge success. Our discussion centered around two main issues: Augustine’s two-cities theme; and the idea of a people having common “loves.” Our students were thoughtful and brought fresh insights to the material. They clearly had prepared for the discussion!

We will try to organize at least one new session next fall and are already thinking of possibilities.

Presentation at the U. Arizona Rehnquist Center’s Annual Conference of Constitutional Law Scholars

I was delighted to present a new paper at the University of Arizona Rehnquist Center’s National Conference of Constitutional Law Scholars today. I was on the religion and speech panel, with interesting presentations from Professors Luke Boso; Stephanie Barclay and Justin Collings; and Shaakirrah Sanders.

My paper (not yet in public circulation) is called “Establishment’s Political Priority to Free Exercise,” and it examines which set of principles and commitments underlying each Clause has political priority conceptually, temporally, and as a matter of general significance.

Professor Melissa Murray commented acutely and very helpfully on the draft and the presentation. More soon on this paper.

On Mill’s Influence on Constitutional Law

I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:

“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.”

Second Gathering of the CLR Reading Society: Augustine’s City of God

City of Men

Mark and I are delighted to announce the second session of the CLR Reading Society, an opportunity open to all St. John’s Law students to discuss works of fiction and non-fiction raising law and religion themes.

Our choice this time is Augustine’s masterwork, The City of God, a philosophical and theological meditation on the nature of God, evil, and human existence in this world and the next. Be assured, students, that we will not read the entire thing! For those who would like to participate, Professor Movsesian and I have made some selections that will not overwhelm you while giving you a sense of the work.

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books are provided for free to students and all are welcome. We will meet on the evening of March 31, 2021, to discuss The City of God, so students who would like to join us and require a book should write to us as soon as possible.

The Past as Origin: A Reflection from James Hankins

I thought this fragment from Professor James Hankins’ Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019), was very interesting and well put (64-65), quite apart from the “Cambridge School” applications it may have:

“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.”

Religion and Law at Regis High School Today

I was delighted to participate in a Religion and Law class at Regis High School, taught by AJ DeBonis. We chatted a little bit about fundamental questions of interpretive method, and then some of the primary interpretive theories the Court has used for the Free Exercise Clause and the Establishment Clause over the years. I was very impressed with the students’ insights and fund of knowledge. Well done!