On “Social Crusading”

On Thursday, I’m delighted to be participating with Professor Bob Nagel, on a panel, moderated by Prof. Matt Franck, on Professor Keith Whittington’s new book, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present (2019). The event gives me a chance to return to see my old friends at the James Madison Program at Princeton University, where I spent a delightful and productive spring as a visiting fellow.

The book provides detailed empirical support for the proposition that the Supreme Court, far more often than not (at a rate of about 3:1), upholds congressional statutes than it strikes them down. Whittington extends, but also modifies and enriches, the thesis proposed by Robert Dahl, Mark Graber, and Barry Friedman, among others, that the Court is fundamentally a political institution that very often operates in accord with the other political branches. The counter-majoritarian difficulty famously discussed by Alexander Bickel, in Whittington’s hands (and as one of my exceptional students, Joe Brandt, put it in our Constitutional Theory seminar this fall), becomes a majoritarian difficulty.

I’ll have more to say about the book later, but for the moment I want to call a little attention to a small, but interesting, line in the book discussing Reynolds v. United States (1878), where the Supreme Court upheld the federal Morrill Anti-Bigamy Act against a constitutional challenge by the LDS community on the ground that the Act violated its religious freedom. Polygamy was church practice at the time. Whittington counts this as an example right in line with his general thesis, and I think he is right about that.

But he describes the case in these terms:

“As Congress embarked on new social crusades, the Court stood aside. The Republican Party denounced the polygamy practiced by the Mormons in the West as equally barbaric as the slavery practiced by the slavocracy in the South. When the postbellum Congress turned its attention to bringing the Church of Jesus Christ of Latter-day Saints to heel, the Court gave it a free hand.” (170)

It may be a small point, but to describe the Congress as “embark[ing] on new social crusades” by enacting this legislation seems to me not quite right. If anyone was embarking on new social crusades, it was the religious organization, not Congress. I mean that entirely descriptively. Laws against bigamy and polygamy were nothing new in the late 19th century. Indeed, I should think that they would have been regarded as perfectly ordinary and unremarkable, and that is exactly how the Supreme Court regarded them in Reynolds: “At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.” Enforcing long-standing social understandings by law against novel social arrangements is not social crusading. Quite the opposite.

But perhaps this difference of perspective illustrates a broader point about these sorts of descriptions. What we characterize as “social” or “moral” “crusading” (somehow, crusading has taken on unequivocally negative connotations…tant pis) will depend upon a baseline of what we value in existing social conditions and what we deem ordinary legislation to protect those conditions. “Moral” or “social crusading,” then, doesn’t seem to have much meaning beyond something like, “pursuing moral or social objectives I think illegitimate.” If that’s what it means, maybe we should just argue about those first-order disagreements directly (“which morality is best?”), rather than present those disagreements in second-order dismissals (“stop imposing your morality on me!”).

The Standing Argument in the New Abortion Case

In our latest Legal Spirits podcast, Mark and I discuss June Medical Services v. Gee, the latest case about abortion picked up by the Supreme Court. This is a 5th Circuit case reviewing a Louisiana law requiring doctors to obtain admitting privileges at area hospitals in order to continue performing abortions at clinics. The 5th Circuit upheld the law, distinguishing a facially similar law in Texas that the Supreme Court struck down three years ago by a vote of 5-3 in Whole Woman’s Health v. Hellerstedt. In the podcast, Mark and chat about the lower court opinion, the petition, and the cross-petition.

I want to say just a little more in this post about the cross-petition, which advances an argument about standing–the constitutional requirement that a claimant allege a concrete and particularized injury that was caused by the defendant and can be redressed by the Court. One widely recognized rule of standing–a “prudential” rule rather than a constitutionally compelled rule (meaning that Congress could, if it wished, legislate around the prudential doctrine)–is that one cannot assert claims on behalf of other parties; that is, so-called “third party standing” or jus tertii is generally impermissible. There are exceptions to the rule. For example, a parent may assert a claim on behalf of a child. But in the main, third party standing has been rejected by the Court as adequate.

One of the exceptions to the third party standing prohibition was carved out by the Court in 1976, after Roe v. Wade, in a case called Singleton v. Wulff. In Wulff, the Court held that two Missouri physicians had standing to challenge a law excluding abortions that were not “medically indicated” for purposes of Medicaid coverage. A majority of the Court found adequate standing for the doctors themselves because of the financial consequences they might face in the absence of Medicaid coverage. But a plurality of the Court went further: in an opinion by Justice Blackmun, it held that physicians have the right to assert third party standing on behalf of women whose rights may be affected by a particular law because it thought that the interests of physicians and their patients in the abortion context are “inextricably bound up” and thus there exists a “close relationship” between them, that doctors are “effective advocates” for their patients, and that women may not be effective advocates of their own rights in this area.

The Gee cross-petition takes aim at this plurality holding in Wulff. Citing Justice Thomas’s dissenting opinion in Whole Woman’s Health (which only he signed), it argues that the Court should revisit the third party standing rule of Wulff and that the interests of women and physicians are actually adverse in this case (it claims that many of the doctors simply do not want to obtain admitting privileges, which would enhance patient safety). It also argues that because the issue of prudential third party standing was not explicitly raised below, the physicians have waived that standing, while the physicians say that it is the state that has waived its right to object to third party standing.

As we discuss in the podcast, there is also an amicus brief in the case submitted by Senator Josh Hawley of Missouri, a former clerk of Chief Justice John Roberts. It argues that the effect of this third party standing rule is to give physicians a heightened standard of review that they would not ordinarily get if they were asserting their own injuries. On their own, the law would be reviewed for a rational basis, but through third party standing, it is now reviewed under the higher undue burden standard of Planned Parenthood v. Casey. And it also argues that even if the physicians are granted third party standing, they cannot satisfy the undue burden standard as fleshed out by Casey and WWH because they cannot show that the statute affects a “large fraction of women,” which is the language used in the cases.

The Court could certainly use this case as a chance either to rethink or to rein in the Wulff rule. Option A: it could revisit the rule altogether and reject the plurality portion of the Wulff rule. Option B: it could narrow the Wulff rule to situations in which there is evidence that a “large fraction of women” might be affected by the legislation in question, and that there is insufficient evidence in Gee. Note that rejecting the third party standing rule altogether would abrogate that part of Whole Woman’s Health concerning standing (doctors brought the challenge there too), while the remainder of the “law” of WWH would remain in effect. Probably there are other possibilities. But resolving the case on the basis of third party standing doctrine might give the Court a way to chip away at existing abortion law without going directly after the likes of Casey. “They’ve narrowed Singleton v. Wulff!!” just doesn’t have the same sky-is-falling quality for abortion rights supporters that a more direct attack might. Going in this direction would also track some of the skepticism with which some members of the Court view its broader standing doctrines (see, for example, Justice Gorsuch’s views on standing in the Bladensburg Cross opinion).

It will be interesting to see just what the Court does with the standing claim. Stay tuned. And for more on the case generally (including some speculation about the standing claim), have a listen to our podcast!

The Religion of Prison Abolition

A stirp of liberation theology, as it were. A new book discussing religious features or religious phenomena attending the movement from the far left to abolish all prisons. The book is Break Every Yoke: Religion, Justice, and the Abolition of Prisons (Oxford), by “activist-scholars” Joshua Dubler and Vincent Lloyd.

“Changes in the American religious landscape enabled the rise of mass incarceration. Religious ideas and practices also offer a key for ending mass incarceration. These are the bold claims advanced by Break Every Yoke, the joint work of two activist-scholars of American religion. Once, in an era not too long past, Americans, both incarcerated and free, spoke a language of social liberation animated by religion. In the era of mass incarceration, we have largely forgotten how to dream-and organize-this way. To end mass incarceration we must reclaim this lost tradition. Properly conceived, the movement we need must demand not prison reform but prison abolition.

Break Every Yoke weaves religion into the stories about race, politics, and economics that conventionally account for America’s grotesque prison expansion of the last half century, and in so doing it sheds new light on one of our era’s biggest human catastrophes. By foregrounding the role of religion in the way political elites, religious institutions, and incarcerated activists talk about incarceration, Break Every Yoke is an effort to stretch the American moral imagination and contribute resources toward envisioning alternative ways of doing justice. By looking back to nineteenth century abolitionism, and by turning to today’s grassroots activists, it argues for reclaiming the abolition “spirit.””

A Defense of Religious Freedom from the Human Rights Perspective

At our 2014 conference in Rome with LUMSA on international religious freedom and the global clash of values, we were delighted to meet Professor Heiner Bielefeldt, then the United Nation’s Special Rapporteur on Freedom of Religion or Belief. He gave an impassioned talk at the conference.

Professor Bielefeldt, who teaches at the University of Erlangen-Nuremberg, has a new co-authored book: Religious Freedom Under Scrutiny (University of Pennsylvania Press), together with Michael Wiener.

“Freedom of religion or belief is deeply entrenched in international human rights conventions and constitutional traditions around the world. Article 18 of the Universal Declaration of Human Rights enshrines the right to freedom of thought, conscience, and religion as does the International Covenant on Civil and Political Rights, which the United Nations General Assembly adopted in 1966. A rich jurisprudence on freedom of religion or belief is based on the European Convention on Human Rights, drafted in 1950 by the Council of Europe. Similar regional guarantees exist in the framework of the Organization of American States as well as within the African Union. Freedom of religion or belief has found recognition in numerous national constitutions, and some governments have shown a particularly strong commitment to the international promotion of this right.

As Heiner Bielefeldt and Michael Wiener observe, however, freedom of religion or belief remains a source of political conflict, legal controversy, and intellectual debate. In Religious Freedom Under Scrutiny, Bielefeldt and Wiener explore various critiques leveled at this right. For example, does freedom of religion contribute to the spread of Western neoliberal values to the detriment of religious and cultural diversity? Can religious freedom serve as the entry point for antifeminist agendas within the human rights framework? Drawing on their considerable experience in the field, Bielefeldt and Wiener provide a typological overview and analysis of violations around the world that illustrate the underlying principles as well as the relationship between freedom of religion or belief and other human rights.

Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.”

On the Hospital

Here is an extremely interesting book on the rise of the hospital in the twelfth and thirteenth century, and how it owes its origins to Christian commitments and medieval political economy. The book is The Medieval Economy of Salvation: Charity, Commerce, and the Rise of the Hospital (Cornell University Press), by Adam J. Davis.

“In The Medieval Economy of Salvation, Adam J. Davis shows how the burgeoning commercial economy of western Europe in the twelfth and thirteenth centuries, alongside an emerging culture of Christian charity, led to the establishment of hundreds of hospitals and leper houses. Focusing on the county of Champagne, he looks at the ways in which charitable organizations and individuals—townspeople, merchants, aristocrats, and ecclesiastics—saw in these new institutions a means of infusing charitable giving and service with new social significance and heightened expectations of spiritual rewards.

Hospitals served as visible symbols of piety and, as a result, were popular objects of benefaction. They also presented lay women and men with new penitential opportunities to personally perform the works of mercy, which many embraced as a way to earn salvation. At the same time, these establishments served a variety of functions beyond caring for the sick and the poor; as benefactors donated lands and money to them, hospitals became increasingly central to local economies, supplying loans, distributing food, and acting as landlords. In tracing the rise of the medieval hospital during a period of intense urbanization and the transition from a gift economy to a commercial one, Davis makes clear how embedded this charitable institution was in the wider social, cultural, religious, and economic fabric of medieval life.”

Against Federalism

Federalism, the enduring political and legal arrangement that government in the United States is an affair divided between the states and the nation–and, indeed, the broader idea that decentralization, diffusion of power, and local experimentation are positive political goods–sometimes seems to come and go into and out of favor depending upon the political trade-winds. It is invoked as an instrument of resistance by states when the national policy is for some substantive reason thought objectionable; it is decried as an instrument of obstruction when the national policy is for some substantive reason thought attractive. These pragmatic considerations in favor of and against federalism often rear their heads in the law and religion context (think, e.g., sanctuary cities now, decisions about religious displays and legislative prayer, and so many others, at other times). Of course there are some committed theoretical types that champion federalism systematically, one reason for which is to lower the national blood pressure on very contentious issues in the face of increasing political polarization.

But some people seem to want to go the other way for the sake of various substantive objectives, and it is not too surprising to see “equality” as one of these. This new book against federalism is The Divided States of America: Why Federalism Doesn’t Work (Princeton University Press), by Donald F. Kettl.

“Federalism was James Madison’s great invention. An innovative system of power sharing that balanced national and state interests, federalism was the pragmatic compromise that brought the colonies together to form the United States. Yet, even beyond the question of slavery, inequality was built into the system because federalism by its very nature meant that many aspects of an American’s life depended on where they lived. Over time, these inequalities have created vast divisions between the states and made federalism fundamentally unstable. In The Divided States of America, Donald Kettl chronicles the history of a political system that once united the nation—and now threatens to break it apart.

Exploring the full sweep of federalism from the founding to today, Kettl focuses on pivotal moments when power has shifted between state and national governments—from the violent rebalancing of the Civil War, when the nation almost split in two, to the era of civil rights a century later, when there was apparent agreement that inequality was a threat to liberty and the federal government should set policies for states to enact. Despite this consensus, inequality between states has only deepened since that moment. From health care and infrastructure to education and the environment, the quality of public services is ever more uneven. Having revealed the shortcomings of Madison’s marvel, Kettl points to possible solutions in the writings of another founder: Alexander Hamilton.

Making an urgent case for reforming federalism, The Divided States of America shows why we must—and how we can—address the crisis of American inequality.”

If God did not exist, it would be necessary to invent him

So spoke Voltaire, and Maximilien Robespierre agreed, for he recognized the need that the new world brought on by the French Revolution would have for an alternative godhead now that Catholicism had been deposed. From that insight sprang the “Cult of the Supreme Being” whose principal tenets concerned a kind of rationalist faith and republican civil religion. The Cult itself did not last too long before Napoleon did away with it. But its effects have been…long-lasting.

Here is a new history of the French Revolution that is sure to touch on these and many other matters concerning religion in the 18th century French world order: A New World Begins: A History of the French Revolution (Basic Books), by Jeremy Popkin.

“The principles of the French Revolution remain the only possible basis for a just society — even if, after more than two hundred years, they are more contested than ever before. In A New World Begins, Jeremy D. Popkin offers a riveting account of the revolution that puts the reader in the thick of the debates and the violence that led to the overthrow of the monarchy and the establishment of a new society. We meet Mirabeau, Robespierre, and Danton, in all of their brilliance and vengefulness; we witness the failed escape and execution of Louis XVI; we see women demanding equal rights and black slaves wresting freedom from revolutionaries who hesitated to act on their own principles; and we follow the rise of Napoleon out of the ashes of the Reign of Terror.

Based on decades of scholarship, A New World Begins will stand as the definitive treatment of the French Revolution.”

“Thy Godlike crime was to be kind…And strengthen Man with his own mind”

In America, the spiritual seekers and do-it-yourselfers can claim as ancestors American transcendentalists like Emerson and Whitman. But there is also a distinctively English analogue of the late Victorian period. That is the subject of this new book, The New Prometheans: Faith, Science, and the Supernatural Mind in the Victorian fin de siècle (University of Chicago Press), by Courtenay Raia. [For the lines in the title of this post, and much more in the same high Romantic vein, see Lord Byron, “Prometheus”]

“The Society for Psychical Research was established in 1882 to further the scientific study of consciousness, but it arose in the surf of a larger cultural need. Victorians were on the hunt for self-understanding. Mesmerists, spiritualists, and other romantic seekers roamed sunken landscapes of entrancement, and when psychology was finally ready to confront these altered states, psychical research was adopted as an experimental vanguard. Far from a rejected science, it was a necessary heterodoxy, probing mysteries as diverse as telepathy, hypnosis, and even séance phenomena. Its investigators sought facts far afield of physical laws: evidence of a transcendent, irreducible mind.

The New Prometheans traces the evolution of psychical research through the intertwining biographies of four men: chemist Sir William Crookes, depth psychologist Frederic Myers, ether physicist Sir Oliver Lodge, and anthropologist Andrew Lang. All past presidents of the society, these men brought psychical research beyond academic circles and into the public square, making it part of a shared, far-reaching examination of science and society. By layering their papers, textbooks, and lectures with more intimate texts like diaries, letters, and literary compositions, Courtenay Raia returns us to a critical juncture in the history of secularization, the last great gesture of reconciliation between science and sacred truths.”

A New Defense of Religious Freedom Drawing on Maimonides, Ibn Rushd, and Tertullian

Several years ago, Professor Winnifred Fallers Sullivan wrote an influential book titled, The Impossibility of Religious Freedom. Sullivan’s core thesis was that protecting “religious” freedom was impossible in contemporary America because nobody can agree, for purposes of the law, about what religion is.

Here is a new book that represents at least an implicit critique of the Sullivan thesis, drawing on very ancient sources to define religious freedom today: The Possibility of Religious Freedom: Early Natural Law and the Abrahamic Faiths (Cambridge University Press), by Karen Taliaferro.

“Religious freedom is one of the most debated and controversial human rights in contemporary public discourse. At once a universally held human right and a flash point in the political sphere, religious freedom has resisted scholarly efforts to define its parameters. Taliaferro explores a different way of examining the tensions between the aims of religion and the needs of political communities, arguing that religious freedom is a uniquely difficult human right to uphold because it rests on two competing conceptions, human and divine. Drawing on classical natural law, Taliaferro expounds a new, practical theory of religious freedom for the modern world. By examining conceptions of law such as Sophocles’ Antigone, Maimonides’ Guide of the Perplexed, Ibn Rushd’s Middle Commentary on Aristotle’s Rhetoric, and Tertullian’s writings, The Possibility of Religious Freedom explains how expanding our notion of law to incorporate such theories can mediate conflicts of human and divine law and provide a solid foundation for religious liberty in modernity’s pluralism.”

La Querelle des Anciens et des Modernes

The enduring quarrel between the ancients and the moderns is about which group has the greater wisdom. Here is a posthumous book of essays by the great writer, Umberto Eco, that tackles that question through the themes of beauty, ugliness, the absolute and the relative, the sacred, and many others: On the Shoulders of Giants (Harvard University Press).

“In Umberto Eco’s first novel, The Name of the Rose, Nicholas of Morimondo laments, “We no longer have the learning of the ancients, the age of giants is past!” To which the protagonist, William of Baskerville, replies: “We are dwarfs, but dwarfs who stand on the shoulders of those giants, and small though we are, we sometimes manage to see farther on the horizon than they.”

On the Shoulders of Giants is a collection of essays based on lectures Eco famously delivered at the Milanesiana Festival in Milan over the last fifteen years of his life. Previously unpublished, the essays explore themes he returned to again and again in his writing: the roots of Western culture and the origin of language, the nature of beauty and ugliness, the potency of conspiracies, the lure of mysteries, and the imperfections of art. Eco examines the dynamics of creativity and considers how every act of innovation occurs in conversation with a superior ancestor.

In these playful, witty, and breathtakingly erudite essays, we encounter an intellectual who reads comic strips, reflects on Heraclitus, Dante, and Rimbaud, listens to Carla Bruni, and watches Casablanca while thinking about Proust. On the Shoulders of Giants reveals both the humor and the colossal knowledge of a contemporary giant.”

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