“Liberalism in Neoliberal Times: Dimensions, Contradictions, Limits” (Abraham-Hamanoiel et al. eds)

Pity the poor neoliberal. He is today besieged by both right and left, as fissures in the Bad Neoliberalismfusionist and “liberal-tarian” camps are all too visible. Neoliberalism has become one of those near-dog-whistle-level epithets for those of more traditional progressive or conservative outlooks. Here is a volume whose authors’ aim clearly is to distinguish a progressive liberalism from a libertarian-infused liberalism–that is, a classical liberalism. Not too much explicitly about religion in the description; indeed, usually religion makes its appearance in the ‘defusionist’ literature, rather than this type of book. But still of interest to readers of this blog. The publisher is MIT. The description is below.

What does it mean to be a liberal in neoliberal times? This collection of short essays attempts to show how liberals and the wider concept of liberalism remain relevant in what many perceive to be a highly illiberal age. Liberalism in the broader sense revolves around tolerance, progress, humanitarianism, objectivity, reason, democracy, and human rights. Liberalism’s emphasis on individual rights opened a theoretical pathway to neoliberalism, through private property, a classically minimal liberal state, and the efficiency of “free markets.” In practice, neoliberalism is associated less with the economic deregulation championed by its advocates than the re-regulation of the economy to protect financial capital. Liberalism in Neoliberal Times engages with the theories, histories, practices, and contradictions of liberalism, viewing it in relation to four central areas of public life: human rights, ethnicity and gender, education, and the media. The contributors explore the transformations in as well as the transformative aspects of liberalism and highlight both its liberating and limiting capacities.

The book contends that liberalism—in all its forms— continues to underpin specific institutions such as the university, the free press, the courts, and, of course, parliamentary democracy. Liberal ideas are regularly mobilized in areas such as counterterrorism, minority rights, privacy, and the pursuit of knowledge. This book contends that while we may not agree on much, we can certainly agree that an understanding of liberalism and its emancipatory capacity is simply too important to be left to the liberals.

H.G. Wells, “The Rights of Man”

I’ve never much cared for H.G. Wells’s science fiction–a combination of preachy and Wells.jpegperiod-piece utopian. As to his religious views, there is a credible argument that he was a proto-None (see his “God the Invisible King”). But while I did know that his contributions spanned nonfiction as well as fiction, I was not aware that he had written a tract on human rights. In this book, first published in 1940 and recently reissued by Penguin Random House, Wells is said to have previewed many of the ideas that made their way into the U.N. Universal Declaration of Human Rights. Here is the description.

H. G. Wells’s passionate and influential manifesto—never before available in the United States—was first published in England in 1940 in response to World War II. The progressive ideas Wells set out were instrumental in the creation of the UN’s Universal Declaration of Human Rights, the European Convention on Human Rights, and the UK’s Human Rights Act. In the face of a global miscarriage of justice, The Rights of Man made a clear statement of mankind’s responsibilities to itself.

Seventy-five years later we are again witnessing a humanitarian crisis, with human rights in developed nations under threat and millions of refugees displaced. A new introduction to Wells’s work by award-winning novelist Ali Smith underlines the continuing urgency and relevance of one of the most important humanitarian texts of the twentieth century.

Falkeid, “The Avignon Papacy Contested: An Intellectual History from Dante to Catherine of Siena”

One can find historical discussion of the separation of church and state in the most Avignon Papacy.jpgwonderfully unexpected of places. Here’s a very interesting looking treatment of it by Professor Unn Falkeid in the context of the Avignon Papacy–that fascinating period of Franco-Roman conflict during the 14th century, denominated “the Babylonian Captivity,” when the popes resided in Avignon, not Rome. The publisher is Harvard University Press, and the description is below.

The Avignon papacy (1309–1377) represented the zenith of papal power in Europe. The Roman curia’s move to southern France enlarged its bureaucracy, centralized its authority, and initiated closer contact with secular institutions. The pope’s presence also attracted leading minds to Avignon, transforming a modest city into a cosmopolitan center of learning. But a crisis of legitimacy was brewing among leading thinkers of the day. The Avignon Papacy Contested considers the work of six fourteenth-century writers who waged literary war against the Catholic Church’s increasing claims of supremacy over secular rulers—a conflict that engaged contemporary critics from every corner of Europe.

Unn Falkeid uncovers the dispute’s origins in Dante’s Paradiso and Monarchia, where she identifies a sophisticated argument for the separation of church and state. In Petrarch’s writings she traces growing concern about papal authority, precipitated by the curia’s exile from Rome. Marsilius of Padua’s theory of citizen agency indicates a resistance to the pope’s encroaching power, which finds richer expression in William of Ockham’s philosophy of individual liberty. Both men were branded as heretics. The mystical writings of Birgitta of Sweden and Catherine of Siena, in Falkeid’s reading, contain cloaked confrontations over papal ethics and church governance even though these women were later canonized.

While each of the six writers responded creatively to the implications of the Avignon papacy, they shared a concern for the breakdown of secular order implied by the expansion of papal power and a willingness to speak their minds.

Supreme Court End of Term Podcast

In this podcast, Mark and I discuss three law and religion cases either decided by the Supreme Court this term or to be decided next term: Trinity Lutheran, Masterpiece Cakeshop, and IRAP v. Trump.

“The War on Sex” (Halperin & Hoppe, eds.)

It is an interesting feature of the culture wars that frequently partisans on both sidesSex book.jpg believe that it is only those on the other side who are doing the warring. But this new book of essays, “The War on Sex,” edited by David M. Halperin and Trevor Hoppe, puts me in mind of a line by Philip Rieff: culture is the form of fighting before the firing begins. The authors of these essays do not in the least believe that the culture wars are over. Not, at any rate, if the book’s description generally reflects their views. The publisher’s description is below.

The past fifty years are conventionally understood to have witnessed an uninterrupted expansion of sexual rights and liberties in the United States. This state-of-the-art collection tells a different story: while progress has been made in marriage equality, reproductive rights, access to birth control, and other areas, government and civil society are waging a war on stigmatized sex by means of law, surveillance, and social control. The contributors document the history and operation of sex offender registries and the criminalization of HIV, as well as highly punitive measures against sex work that do more to harm women than to combat human trafficking. They reveal that sex crimes are punished more harshly than other crimes, while new legal and administrative regulations drastically restrict who is permitted to have sex. By examining how the ever-intensifying war on sex affects both privileged and marginalized communities, the essays collected here show why sexual liberation is indispensable to social justice and human rights.

“The Cambridge Companion to Natural Law Jurisprudence” (Duke & George eds.)

Natural law jurisprudence, which spans back more than a thousand years, is one of the Natural Lawcentral philosophical/jurisprudential traditions. This new volume from Cambridge, edited by Professors George Duke and Robert George (one of the preeminent exponents of the so-called “new” natural law), treats many important subjects, including the foundations of natural law; practical reason, normativity, and ethics; and law and politics. The contributors are a virtual who’s who of leading thinkers about natural law. A very helpful contribution for the law student who is interested in learning about this important jurisprudential school. Here is the description.

This collection provides an intellectually rigorous and accessible overview of key topics in contemporary natural law jurisprudence, an influential yet frequently misunderstood branch of legal philosophy. It fills a gap in the existing literature by bringing together leading international experts on natural law theory to provide perspectives on some of the most pressing issues pertaining to the nature and moral foundations of law. Themes covered include the history of the natural law tradition, the natural law account of practical reason, normativity and ethics, natural law approaches to legal obligation and authority and constitutional law. Creating a dialogue between leading figures in natural law thought, the Companion is an ideal introduction to the main commitments of natural law jurisprudence, whilst also offering a concise summary of developments in current scholarship for more advanced readers.

Morrow, “An Introduction to Biblical Law”

Continuing the theme of religious law that I had noted on Wednesday, here’s a new book, Biblical Law.jpegAn Introduction to Biblical Law, by William S. Morrow, that looks like a helpful volume for learning about law in the Pentateuch. The description by the publisher, Eerdmans, is below.

In this book William Morrow surveys four major law collections in Exodus–Deuteronomy and shows how they each enabled the people of Israel to create and sustain a community of faith.

Treating biblical law as dynamic systems of thought facilitating ancient Israel’s efforts at self-definition, Morrow describes four different social contexts that gave rise to biblical law: (1) Israel at the holy mountain (the Ten Commandments); (2) Israel in the village assembly (Exodus 20:22–23:19); (3) Israel in the courts of the Lord (priestly and holiness rules in Exodus, Leviticus, and Numbers); and (4) Israel in the city (Deuteronomy).

Including forthright discussion of such controversial subjects as slavery, revenge, gender inequality, religious intolerance, and contradictions between bodies of biblical law, Morrow’s study will help students and other serious readers make sense out of texts in the Pentateuch that are often seen as obscure.

Zuckert, “The Spirit of Religion and the Spirit of Liberty”

In the fall of 2013, Professor Robert Delahunty wrote a wonderful blog series for us about Tocqueville’s view of religion in America (here is the first post). One of the conclusions Robert reached in that series was that Tocqueville believed the Protestantism of early America would eventually change into, first, a type of “natural religion” and, next, what he (Tocqueville) called “pantheism”–a kind of “cosmic egalitarianism” that becomes especially attractive in democratic societies:

Man is obsessed with the idea of unity. He seeks it in every direction; when he believes he has found it, he willingly rests in its arms. Not content with discovering that there is but one creation and one Creator in the world, he is still irritated by this primary division of things and he seeks to expand and simplify his thought by enclosing God and the universe in a single entity. If there is a philosophic system according to which things material and immaterial, visible and invisible within the world are to be considered only as the separate parts of an immense being who alone remains eternal in the continuous shift and constant change of everything which is within it, I shall have no difficulty reaching the conclusion that a similar system, although it destroys human individuality, or rather because it destroys it, will have secret attractions for men who live in a democracy.

Democracy in America, 521.

The eminent political theorist, Michael P. Zuckert, has a wonderful looking new book on Tocqueville.jpgTocqueville’s understanding of religion–specifically focusing, it seems from the description, on church-state matters: The Spirit of Religion and the Spirit of Liberty: The Tocqueville Thesis Revisited. The publisher is University of Chicago Press, and the description is below.

Tocqueville’s thesis on the relation between religion and liberty could hardly be timelier. From events in the Middle East and the spread of Islamist violence in the name of religion to the mandated coverage under the Affordable Care Act, the interaction between religion and politics has once again become central to political life. Tocqueville, facing the coming of a new social and political order within the traditional society that was France, faced this relation between politics and religion with freshness and relevance. He was particularly interested in reporting to his French compatriots on how the Americans had successfully resolved what, to many Frenchmen, looked to be an insuperable conflict. His surprising thesis was that the right kind of arrangement—a certain kind of separation of church and state that was not also a complete separation of religion and politics—could be seen in nineteenth century America to be beneficial to both liberty and religion. This volume investigates whether Tocqueville’s depiction was valid for the America he investigated in the 1830s and whether it remains valid today.

“Blaine Amendment” Case Decided, Without Reference to Blaine Amendments or Animus Inquiry

Trinity Lutheran Church has just come down, and Tom Berg has a nice summary and set of good comments on it at Mirror of Justice. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.

For now, here’s one thought: this case concerned Missouri’s Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine’s proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them–the “animus” in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on “neutral” grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments’ tainted genesis–their anti-Catholic animus–has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case that was challenged on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to “sectarian” schools is justified on Establishment Clause grounds as tainted by wicked animus:

Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow….Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, “animus” analysis (or even the word “animus”), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom’s point # 3 below. Indeed, the Chief’s opinion is taken to task by Justice Gorsuch for being insufficiently “principled.” Justice Gorsuch would have preferred a decision more maximal in nature.

But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.

Abrams, “The Soul of the First Amendment”

“The First Amendment is the rock star of the American Constitution.” Floyd Abrams has litigated some of the most well known free speech cases Abramsin the constitutional canon, from the Pentagon Papers and Branzburg v. Hayes to Citizens United v. FEC. His new book (where I found the phrase that begins this post) is “The Soul of the First Amendment,” where he explains and defends the powerful interpretation of the freedom of speech in the United States against criticisms and other models. The publisher is Yale University Press and the description is below.

The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden.

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