Loathing Ourselves

An interesting feature of a society built on the intellectual and cultural cornerstone of a progressive philosophy of history–the view that a society advances linearly toward a more universally just, rational, and equal world–is that it tends to excite hatred of the customs and practices of its past, imperfect self. The phenomenon is particularly acute for more mature, materially and socially successful societies, because it is these societies that can afford a well-to-do, highly educated, elite social stratum, which separates itself from those self-same customs and practices. The seeds of self-loathing are therefore contained within the successful society and a cyclical marker of its decline.

Something like this seems to be the thesis of an interesting new book: Western Self-Contempt: Oikophobia in the Decline of Civilizations (Cornell University Press) by Benedict Beckeld.

Western Self-Contempt travels through civilizations since antiquity, examining major political events and the literature of ancient Greece, Rome, France, Britain, and the United States, to study evidence of cultural self-hatred and its cyclical recurrence. Benedict Beckeld explores oikophobia, described by its coiner Sir Roger Scruton as “the felt need to denigrate the customs, culture and institutions that are identifiably ‘ours,'” in its political and philosophical applications. Beckeld analyzes the theories behind oikophobia along with their historical sources, revealing why oikophobia is best described as a cultural malaise that befalls civilizations during their declining days.

Beckeld gives a framework for why today’s society is so fragmented and self-critical. He demonstrates that oikophobia is the antithesis of xenophobia. By this definition, the riots and civil unrest in the summer of 2020 were an expression of oikophobia. Excessive political correctness that attacks tradition and history is an expression of oikophobia. Beckeld argues that if we are to understand these behaviors and attitudes, we must understand oikophobia as a sociohistorical phenomenon.

Western Self-Contempt is a systematic analysis of oikophobia, combining political philosophy and history to examine how Western civilizations and cultures evolve from naïve and self-promoting beginnings to states of self-loathing and decline. Concluding with a philosophical portrait of an increasingly interconnected Western civilization, Beckeld reveals how past events and ideologies, both in the US and in Europe, have led to a modern culture of self-questioning and self-rejection.

The Catholic (or catholic?) and the Common Law traditions

Taking a break from the regular book posts to flag a very interesting article by Professor Samuel Bray (Notre Dame Law School). The piece is The Influence of the Catholic Tradition on the Common Law, and it discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term “Catholic intellectual tradition” is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor’s conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan’s opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the “anachronistic narrowness” point quoted above in the abstract. On what he calls the “generative” influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law–the Western Christian or Christian apostolic tradition unbound by today’s anachronistic divisions.

There are some comparatively small questions I had about some of Sam’s more specific claims. He says, for example, that each “side”–“Roman” and “non-Roman”–argued in “Newmanesque” fashion that “whoever did not change or augment the deposit of faith was the truly catholic side.” But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist. But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman’s own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam’s perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). “[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters,” Sam contends, “it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time.” As I say, just when that “later time” began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive.

At any rate, check out this very fine piece.

“Mysterizing Religion”

A draft of a short paper for a recent symposium I participated in at Notre Dame Law School. Here’s the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

Legal Spirits Episode 044: Traditionalism Rising

In this episode, Mark interviews Marc about his new article, “Traditionalism Rising,” on an important, emerging method of constitutional interpretation embraced by the Supreme Court across the domains of constitutional law, including in law and religion, and especially so in the most recent term. Marc explains some of the basics of the method, which emphasizes the endurance of political and cultural practices over time as presumptive determinants of constitutional meaning. The two discuss some of the reasons to adopt this approach to understanding the Constitution and several objections that might be made to it, considering a few responses. Constitutional law and interpretation is, and has always been, fraught with political controversy, and Marc and Mark think through some of the political valences of traditionalism to conclude the discussion. Listen in!

Legal Spirits Episode 043: The New Thoreaus

In this episode, Marc interviews Mark about his new article, “The New Thoreaus,” on the rise of the Nones and its impact on free-exercise law. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

“Traditionalism Rising” at the Volokh Conspiracy This Week

At Eugene’s kind invitation, I’ll have several posts this week at the Volokh Conspiracy excerpting and summarizing my new article, Traditionalism Rising. The first post is here, defining traditionalism and locating it in the Court’s 2021 term cases. Here’s a bit:

The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I’ve been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court’s work this past term; (2) compare traditionalism and originalism, particularly what the paper calls “liquidated originalism”; (3) address traditionalism’s “level of generality” problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism’s politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

What is traditionalism? When people hear the word tradition connected to law, they sometimes think of judicial restraint, or deference, or minimalism (or “Burkeanism”), or some vaguer injunction to “go slow” or respect stare decisis and the interests served by it. Or they may think of approaches to particular clauses or parts of the Constitution—to the Due Process Clause, for example, or to Justice Frankfurter’s “tradition” approach to inherent executive power.

Traditionalism is different from all of these. Traditionalism is a unified approach to determining constitutional meaning and constitutional law with two central elements: (1) concrete practices, rather than principles, ideas, judicial precedents, legal rules, and so on, as the determinants of constitutional meaning and law; and (2) the endurance of those practices as a composite of their age, longevity, and density, evidence for which includes the practice’s use before, during, and after enactment of a constitutional provision.

“Traditionalism Rising”

The title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

Weinberger on Church Autonomy: A Matter of Jurisdiction?

Our friend Lael Weinberger, who has just finished an Olin-Searle-Smith Fellowship at Harvard Law School and begun a clerkship with Justice Neil Gorsuch, has posted a new draft, Is Church Autonomy Jurisdictional?, on SSRN. The draft, prepared for a symposium last spring at Loyola University Chicago Law School, carefully analyzes the use of the word “jurisdictional” in discussions of church autonomy and shows that the term conveys a number of different meanings, only some of which are apposite. Very much worth reading! Here’s the abstract:

The First Amendment’s religion clauses create what courts have called church autonomy doctrine, protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate. Scholars meanwhile have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This paper engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial jurisdiction. Jurisdiction in the conceptual sense can be a helpful a way of talking about institutional authority relevant to church autonomy. But church autonomy is not properly jurisdictional for purposes of civil procedure. Second, this paper proposes unbundling the array of procedural issues that could be resolved under the label of jurisdiction. This paper argues that it is a mistake to try to use the term jurisdiction to solve the interesting problems. It is better to disaggregate the issues that sometimes come under the label of jurisdiction and instead consider them one at a time. The paper concludes by looking to another quasi-jurisdictional body of law—sovereign immunity—for clues as to how to handle issues such as interlocutory appeals, waiver, and forfeiture in the church autonomy space.

Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!