Notre Dame CEC Conference Panel on “Shield or Spear: The Power of Speech”

Here is the video of my panel with Michael Moreland and Rick Garnett at a recent conference at Notre Dame, discussing the current condition of free speech. For those disinclined to read the paper below, you can get a rough sense of some of the points in it in the video. I appreciated the chance to chat with Mike and Rick to get a sense of where we agree (on many issues) and perhaps see things a little differently (a smaller, but interesting and important, set of issues) as to the First Amendment.

New paper: “The Sickness Unto Death of the First Amendment”

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

Courtenay, “Rituals for the Dead”

Yesterday’s book note concerned the place, if any remains, of religion in the modern 9780268104948university–religious or otherwise. Here is a related entry about the rather more integrated role of religion in the medieval university, in which religious ritual played an important part and in which prayer for deceased colleagues helped to preserve the connection between the living and the dead. But perhaps it isn’t so much that religion as such has left the modern university, as that the nature of university rituals has simply changed to reflect very different religious commitments.

The book is Rituals for the Dead: Religion and Community in the Medieval University of Paris (Notre Dame Press) by William J. Courtenay.

In his fascinating new book, based on the Conway Lectures he delivered at Notre Dame in 2016, William Courtenay examines aspects of the religious life of one medieval institution, the University of Paris, in the thirteenth and fourteenth centuries. In place of the traditional account of teaching programs and curriculum, however, the focus here is on religious observances and the important role that prayers for the dead played in the daily life of masters and students.

Courtenay examines the university as a consortium of sub-units in which the academic and religious life of its members took place, and in which prayers for the dead were a major element. Throughout the book, Courtenay highlights reverence for the dead, which preserved their memory and was believed to reduce the time in purgatory for deceased colleagues and for founders of and donors to colleges. The book also explores the advantages for poor scholars of belonging to a confraternal institution that provided benefits to all members regardless of social background, the areas in which women contributed to the university community, including the founding of colleges, and the growth of Marian piety, seeking her blessing as patron of scholarship and as protector of scholars. Courtenay looks at attempts to offset the inequality between the status of masters and students, rich and poor, and college founders and fellows, in observances concerned with death as well as rewards and punishments in the afterlife.

Rituals for the Dead is the first book-length study of religious life and remembrances for the dead at the medieval University of Paris. Scholars of medieval history will be an eager audience for this title.

Judge Diane Sykes at the Colloquium in Law and Religion Today

We are delighted to welcome the Honorable Diane S. Sykes to the Colloquium in Law andDiane Sykes.jpeg Religion today!

Judge Sykes will be discussing a number of her opinions involving law and religion, including Korte v. Sebelius (a contraception mandate for-profit RFRA case before Burwell v. Hobby Lobby); CLS v. Walker (an equal access/speech case before CLS v. Martinez); Books v. Elkhart County (involving state-sponsored religious displays); and Tagami v. City of Chicago (concerning the role of a moral tradition in satisfying intermediate scrutiny for both expressive conduct and Equal Protection Clause purposes).

Welcome, Judge Sykes!

Wolterstorff, “Religion in the University”

The work of Nicholas Wolterstorff, whether it concerns religious arguments in public discussion, political theology, aesthetics and religion, justice, liberal democracy, or many others, is always worth reading. A few years ago, I participated in a very worthwhile conference concerning Professor Wolterstorff’s short book, The Mighty and the Almighty: An Essay in Political Theology (here’s my little reaction)–an important meditation on the continuing relevance of political theology today written from a distinctively liberal Christian perspective.

And now comes Wolterstorff’s newest book, Religion in the University (Yale University 9780300243703.jpgPress). It’s a timely and rather fraught subject, and I’m sure that whatever Wolterstorff says will be enlightening.

What is religion’s place within the academy today? Are the perspectives of religious believers acceptable in an academic setting? In this lucid and penetrating essay, Nicholas Wolterstorff ranges from Max Weber and John Locke to Ludwig Wittgenstein and Charles Taylor to argue that religious orientations and voices do have a home in the modern university, and he offers a sketch of what that home should be like. He documents how, over the past ve decades, remarkable changes have occurred within the academy with regard to how knowledge is understood. During the same period, profound philosophical advancements have also been made in our understanding of religious belief. These shifting ideals, taken together, have created an environment that is more pluralistic than secular. Tapping into larger debates on freedom of expression and intellectual diversity, Wolterstorff believes a scholarly ethic should guard us against becoming, in Weber’s words, “specialists without spirit and sensualists without heart.”

“Rethinking Open Society” (Ignatieff & Roch, eds.)

Here is a very interesting collection of essays, one of which is a discussion between liberal public intellectuals Michael Ignatieff and Mark Lilla about the prospects for and substantial challenges to the idea of the “open society”–in the US and around the world. That exchange was so interesting that I chose it as one of the essays we will discuss at our upcoming Tradition Project conference in Rome this December, at a workshop on “Nationalism, Populism, and Traditionalism.”

The book (which contains contributions from the likes of Thomas Christiano, Stephen Open SocietyWalt, and Roger Scruton) is Rethinking Open Society: New Adversaries and New Opportunities (Central European University Press).

The key values of the Open Society – freedom, justice, tolerance, democracy and respect for knowledge – are increasingly under threat in today’s world. As an effort to uphold those values, this volume brings together some of the key political, social and economic thinkers of our time to re-examine the Open Society closely in terms of its history, its achievements and failures, and its future prospects. Based on the lecture series Rethinking Open Society, which took place between 2017 and 2018 at the Central European University, the volume is deeply embedded in the history and purpose of CEU, its Open Society mission, and its belief in educating sceptical but passionate citizens.

Wilken, “Liberty in the Things of God”

It’s perhaps somewhat early to notice this new and important book, scheduled for summer of 2019, but it deserves at least two book notes from us. We were lucky enough to host Professor Robert Louis Wilken at the Center for Law and Religion’s Colloquium a few weeks ago to discuss several draft chapters of this new book, a deep study of the Christian Patristic period for early arguments concerning religious liberty. Arguments which, Professor Wilken writes, can be connected to several others of the Protestant Reformation many centuries later and are the true foundation for our American conception of religious freedom.

Congratulations to Robert on this major achievement. The book is Liberty in the Things of God: The Christian Origins of Religious Freedom (Yale University Press). Look out for it Wilken.jpgnext year.

In the ancient world Christian apologists wrote in defense of their right to practice their faith in the cities of the Roman Empire. They argued that religious faith is an inward disposition of the mind and heart and cannot be coerced by external force, laying a foundation on which later generations would build.

Chronicling the history of the struggle for religious freedom from the early Christian movement through the seventeenth century, Robert Louis Wilken shows that the origins of religious freedom and liberty of conscience are religious, not political, in origin. They took form before the Enlightenment through the labors of men and women of faith who believed there could be no justice in society without liberty in the things of God. This provocative book, drawing on writings from the early Church as well as the sixteenth and seventeenth centuries, reminds us of how “the meditations of the past were fitted to affairs of a later day.”

Center for Law and Religion at Notre Dame this Week

Mark and I will both be in South Bend this week, at the Notre Dame Center for Ethics and Culture’s annual conference. This year’s conference, organized by Carter Snead with his usual flair and skill, is Higher Powers. The theme picks up on a remark by Aleksandr Solzhenitsyn in a memorable address at Harvard 25 years ago, and the conference takes the occasion to reflect on Solzhenitsyn’s life and thought.

Mark will be speaking about “Church and State in a Time of Polarization,” while I will be speaking about “The Higher Purposes of Free Speech.” The full schedule for the conference is here. We hope to see many of our readers and friends!

Milton et al., “Toward a Westphalia for the Middle East”

It isn’t my area, but this book proposes an interesting thesis: that a series of agreements Westphalia.jpegakin to the Peace of Westphalia following the 30 Years War is needed today for the Middle East. The book is Towards a Westphalia for the Middle East (OUP), by Patrick Milton, Michael Axworthy, and Brendan Simms.

It was the original forever war, which went on interminably, fuelled by religious fanaticism, personal ambition, fear of hegemony, and communal suspicion. It dragged in all the neighbouring powers. It was punctuated by repeated failed ceasefires. It inflicted suffering beyond belief and generated waves of refugees. No, this is not Syria today, but the Thirty Years’ War (1618-48), which turned Germany and much of central Europe into a disaster zone.

The Thirty Years’ War is often cited as a parallel in discussions of the Middle East. The Peace of Westphalia, which ended the conflict in 1648, has featured strongly in such discussions, usually with the observation that recent events in some parts of the region have seen the collapse of ideas of state sovereignty–ideas that supposedly originated with the 1648 settlement.

Axworthy, Milton and Simms argue that the Westphalian treaties, far from enshrining state sovereignty, in fact reconfigured and strengthened a structure for legal resolution of disputes, and provided for intervention by outside guarantor powers to uphold the peace settlement. This book argues that the history of Westphalia may hold the key to resolving the new long wars in the Middle East today.

Micah Schwartzman at the Colloquium in Law and Religion Today

We are delighted to welcome Professor Micah Schwartzman to the Colloquium in Law Micah.jpegand Religion today.

Micah will be discussing his co-authored piece with Professor Leslie Kendrick about the Masterpiece Cakeshop case, The Etiquette of Animus, forthcoming in the Harvard Law Review. Welcome, Micah!

%d bloggers like this: