Rosen, “William Howard Taft”

9781250293695We round out this week’s book posts with a new biography of William Howard Taft, who managed to serve both as President and Chief Justice of the United States and who was, incidentally, the last American President to deny the divinity of Jesus Christ. (It’s true. He was a Unitarian. You could look it up). The publisher is Macmillan and the author is law professor Jeffrey Rosen. Here’s the description from the publisher’s website:

The only man to serve as president and chief justice, who approached every decision in constitutional terms, defending the Founders’ vision against new populist threats to American democracy

William Howard Taft never wanted to be president and yearned instead to serve as chief justice of the United States. But despite his ambivalence about politics, the former federal judge found success in the executive branch as governor of the Philippines and secretary of war, and he won a resounding victory in the presidential election of 1908 as Theodore Roosevelt’s handpicked successor.

In this provocative assessment, Jeffrey Rosen reveals Taft’s crucial role in shaping how America balances populism against the rule of law. Taft approached each decision as president by asking whether it comported with the Constitution, seeking to put Roosevelt’s activist executive orders on firm legal grounds. But unlike Roosevelt, who thought the president could do anything the Constitution didn’t forbid, Taft insisted he could do only what the Constitution explicitly allowed. This led to a dramatic breach with Roosevelt in the historic election of 1912, which Taft viewed as a crusade to defend the Constitution against the demagogic populism of Roosevelt and Woodrow Wilson.

Nine years later, Taft achieved his lifelong dream when President Warren Harding appointed him chief justice, and during his years on the Court he promoted consensus among the justices and transformed the judiciary into a modern, fully equal branch. Though he had chafed in the White House as a judicial president, he thrived as a presidential chief justice.

Catlos, “Kingdoms of Faith”

97804650558761It’s often impossible to know whether religious conflicts are a cause or a symptom of wider social dysfunction. A new history of Muslim Spain from Basic Books, Kingdoms of Faith: A New History of Muslim Spain, by Brian Catlos, maintains that disputes among Christians, Jews, and Muslims during the centuries of Islamic rule were typically not about religion. It also offers a corrective to the many popular histories that assert that Al-Andalus was a sort of tolerant religious paradise. Readers can assess the arguments for themselves:

A magisterial, myth-dispelling history of Islamic Spain spanning the millennium between the founding of Islam in the seventh century and the final expulsion of Spain’s Muslims in the seventeenth.
In Kingdoms of Faith, award-winning historian Brian A. Catlos rewrites the history of Islamic Spain from the ground up, evoking the cultural splendor of al-Andalus, while offering an authoritative new interpretation of the forces that shaped it.
Prior accounts have portrayed Islamic Spain as a paradise of enlightened tolerance or the site where civilizations clashed. Catlos taps a wide array of primary sources to paint a more complex portrait, showing how Muslims, Christians, and Jews together built a sophisticated civilization that transformed the Western world, even as they waged relentless war against each other and their coreligionists. Religion was often the language of conflict, but seldom its cause–a lesson we would do well to learn in our own time.

 

Schlereth, “An Age of Infidels”

spring2018catalogcoverHere is an interesting-looking new book from the University of Pennsylvania Press on conflicts concerning religious liberty in the early Republic, An Age of Infidels: The Politics of Religious Controversy in the Early United States. The author, University of Texas at Dallas historian Eric R. Schlereth, maintains that Americans in the Framers’ generation decided to handle religious accommodation as a political rather than a legal matter. Here is the description from the publisher’s website:

Historian Eric R. Schlereth places religious conflict at the center of early American political culture. He shows ordinary Americans—both faithful believers and Christianity’s staunchest critics—struggling with questions about the meaning of tolerance and the limits of religious freedom. In doing so, he casts new light on the ways Americans reconciled their varied religious beliefs with political change at a formative moment in the nation’s cultural life.

After the American Revolution, citizens of the new nation felt no guarantee that they would avoid the mire of religious and political conflict that had gripped much of Europe for three centuries. Debates thus erupted in the new United States about how or even if long-standing religious beliefs, institutions, and traditions could be accommodated within a new republican political order that encouraged suspicion of inherited traditions. Public life in the period included contentious arguments over the best way to ensure a compatible relationship between diverse religious beliefs and the nation’s recent political developments.

In the process, religion and politics in the early United States were remade to fit each other. From the 1770s onward, Americans created a political rather than legal boundary between acceptable and unacceptable religious expression, one defined in reference to infidelity. Conflicts occurred most commonly between deists and their opponents who perceived deists’ anti-Christian opinions as increasingly influential in American culture and politics. Exploring these controversies, Schlereth explains how Americans navigated questions of religious truth and difference in an age of emerging religious liberty.

Pincus, “The Heart of the Declaration”

bfd9b38e919a99d3dddede54acc5eb14In recent years, members of traditionalist religious groups have come to see activist government as one of the greatest threats to their religious freedom. And so they have made common cause with libertarians, who, on the face of it, would seem to have little in common with them, ideologically. Both groups would presumably have much to argue with in a new book from Yale University Press, The Heart of the Declaration: The Founders’ Case for An Activist Government, by Yale historian Steve Pincus. Here is the description from the publisher’s website:

An eye-opening, meticulously researched new perspective on the influences that shaped the Founders as well as the nation’s founding document

From one election cycle to the next, a defining question continues to divide the country’s political parties: Should the government play a major or a minor role in the lives of American citizens? The Declaration of Independence has long been invoked as a philosophical treatise in favor of limited government. Yet the bulk of the document is a discussion of policy, in which the Founders outlined the failures of the British imperial government. Above all, they declared, the British state since 1760 had done too little to promote the prosperity of its American subjects. Looking beyond the Declaration’s frequently cited opening paragraphs, Steve Pincus reveals how the document is actually a blueprint for a government with extensive powers to promote and protect the people’s welfare. By examining the Declaration in the context of British imperial debates, Pincus offers a nuanced portrait of the Founders’ intentions with profound political implications for today.

Cooper, “Citizenship, Inequality, and Difference”

Debates about religious accommodation often pose two values against one another: equality and freedom. Equality suggests that the state should apply the law uniformly to all citizens, without exceptions. Freedom, by contrast, suggests that citizens should be accommodated in their religious beliefs and practices. Balancing these two values, which often lead to different results, proves difficult in many cases.

A new book from Princeton University Press, Citizenship, Inequality, and Difference: Historical Perspectives, by NYU historian Frederick Cooper, shows that the debate on what equal citizenship means, and how equality relates to other values like multiculturalism, goes back a very long way. Here’s the description from the publisher’s website:

A succinct and comprehensive history of the development of citizenship from the Roman Empire to the present day.

Citizenship, Inequality, and Difference offers a concise and sweeping overview of citizenship’s complex evolution, from ancient Rome to the present. Political leaders and thinkers still debate, as they did in Republican Rome, whether the presumed equivalence of citizens is compatible with cultural diversity and economic inequality. Frederick Cooper presents citizenship as “claim-making”–the assertion of rights in a political entity. What those rights should be and to whom they should apply have long been subjects for discussion and political mobilization, while the kind of political entity in which claims and counterclaims have been made has varied over time and space.

Citizenship ideas were first shaped in the context of empires. The relationship of citizenship to “nation” and “empire” was hotly debated after the revolutions in France and the Americas, and claims to “imperial citizenship” continued to be made in the mid-twentieth century. Cooper examines struggles over citizenship in the Spanish, French, British, Ottoman, Russian, Soviet, and American empires, and he explains the reconfiguration of citizenship questions after the collapse of empires in Africa and India. He explores the tension today between individualistic and social conceptions of citizenship, as well as between citizenship as an exclusionary notion and flexible and multinational conceptions of citizenship.

Citizenship, Inequality, and Difference is a historically based reflection on some of the most fundamental issues facing human societies in the past and present.

Gray, “Seven Types of Atheism”

Now this will be fun. I first encountered the work of John Gray about 10 years ago, and was struck by his description of the “agonistic liberalism” of Isaiah Berlin. Gray’s Two Liberalisms picked up on and developed the themes in the book on Berlin in ways which influenced the way I thought about “tragedy” in law. I enjoyed Straw Dogs as well, but by this point there was an acidic quality in Gray’s writing that differed from the earlier books (I am not criticizing, just observing).

I have also noted Gray’s essays here at the forum before, always with admiration–Graywhether on secular eschatology, Machiavelli and the weakness of law, or (my own favorite) the ubiquity of evil. He is iconoclastic, brilliant, bracingly skeptical, and deeply learned. And now comes a new must-read for law and religion types: Seven Types of Atheism (Farrar, Straus and Giroux). Here is an early review (h/t Paul Horwitz) by Terry Eagleton in “The Guardian” (more positive, I think, than Eagleton’s very critical review of Straw Dogs). And here is the publisher’s description.

For a generation now, public debate has been corroded by a shrill, narrow derision of religion in the name of an often very vaguely understood ‘science’. John Gray’s stimulating and extremely enjoyable new book describes the rich, complex world of the atheist tradition, a tradition which he sees as in many ways as rich as that of religion itself, as well as being deeply intertwined with what is so often crudely viewed as its ‘opposite’.

The result is a book that sheds an extraordinary and varied light on what it is to be human and on the thinkers who have, at different times and places, battled to understand this issue.

“The Contested Place of Religion in Family Law” (Wilson, ed.)

Here is a new volume of essays edited by our friend and a participant in our law and Family Law.jpgreligion colloquium a few years ago, Robin Fretwell Wilson, dealing with religion and family law–obviously an issue that has always been rather complicated but has become even more so in recent years. The Contested Place of Religion in Family Law (CUP), with essays by Orrin Hatch, Elizabeth Sepper, Michael Helfand, Brian Bix, John Witte, and many others.

Like many beliefs, religious views matter across an individual’s life and the life cycle of a family – from birth to marriage, through child-rearing, and, eventually, death. This volume examines clashes over religious liberty within the personal realm of the family. Against swirling religious beliefs, secular values, and legal regulation, this volume offers a forward-looking examination of tensions between religious freedom and the state’s protective function. Contributors unpack some of the Court’s recent decisions and explain how they set the stage for ongoing disputes. They evaluate religious claims around birth control, circumcision, modesty, religious education, marriage, polygamy, shared parenting, corporal punishment, faith healing, divorce, and the end of life. Authors span legislators, attorneys, academics, journalists, ministers, physicians, child advocates, and representatives of minority faiths. The Contested Place of Religion in Family Law begins an overdue conversation on questions dividing the nation.

Strossen, “HATE”

It’s hate speech week here at the forum. Here’s another forthcoming book on the idea of Hatehate and hate speech, this time by former president of the ACLU and current professor of law at NYU, Nadine Strossen. This volume appears to be less a critical examination of the concept of hate (it appears to assume that there is such an idea) than a defense of the current state of play in First Amendment law. The book is HATE: Why We Should Resist It With Free Speech, Not Censorship (OUP) (title emphasis in the original, of course).

HATE dispels misunderstandings plaguing our perennial debates about “hate speech vs. free speech,” showing that the First Amendment approach promotes free speech and democracy, equality, and societal harmony. We hear too many incorrect assertions that “hate speech” — which has no generally accepted definition — is either absolutely unprotected or absolutely protected from censorship. Rather, U.S. law allows government to punish hateful or discriminatory speech in specific contexts when it directly causes imminent serious harm. Yet, government may not punish such speech solely because its message is disfavored, disturbing, or vaguely feared to possibly contribute to some future harm. When U.S. officials formerly wielded such broad censorship power, they suppressed dissident speech, including equal rights advocacy. Likewise, current politicians have attacked Black Lives Matter protests as “hate speech.”

“Hate speech” censorship proponents stress the potential harms such speech might further: discrimination, violence, and psychic injuries. However, there has been little analysis of whether censorship effectively counters the feared injuries. Citing evidence from many countries, this book shows that “hate speech” laws are at best ineffective and at worst counterproductive. Their inevitably vague terms invest enforcing officials with broad discretion, and predictably, regular targets are minority views and speakers. Therefore, prominent social justice advocates in the U.S. and beyond maintain that the best way to resist hate and promote equality is not censorship, but rather, vigorous “counterspeech” and activism.

“Hate, Politics, Law” (Brudholm & Johansen eds.)

What could be less lovable than the “hateful”? What person–and, indeed, what people–Hate.jpegcould feel anything but hate for the hateful? At a period of deep cultural and political fracture, the concept of the hateful performs important rhetorical and political work, providing the state with at least something, or some set of views, that serves as a unifying object of civic opprobrium, vilification, and even disgust. Here is a new book whose contributors appear to turn a helpfully critical eye on the concept of “hate” in law–Hate, Politics, Law: Critical Perspectives on Combating Hate (OUP), edited by Thomas Brudholm and Birgitte Schepelern Johansen.

References to hate have become ubiquitous in the modern response to group defamation and violence in liberal democracies. Whether expressed in speech, acted out in criminal conduct, or seen as the fuel of terror and extremism, hate is persistently considered a vice, an evil, and a threat to the modern liberal democracy. But what exactly is at stake when societies oppose hate?

In Hate, Politics, Law: Critical Perspectives on Combating Hate, Thomas Brudholm and Birgitte Schepelern Johansen have gathered a group of distinguished scholars who offer a critical exploration and assessment of the basic assumptions, ideals, and agendas behind the modern fight against hate. They explore these issues and provide a range of explanatory and normative perspectives on the awkward relationship between hate and liberal democracy, as expressed, for example, through anti-hate speech and anti-hate crime initiatives. The volume further examines the presuppositions and ideological roots of fighting hate, as well as its blind spots and limits. It also includes discussions on the definition and meaning of hate, the longer and broader history of the concept of hate, and when and why fighting hatred became politically salient. While most research on hate crime is written and published in order to prevent and combat hate, Hate, Politics, Law takes a much-needed theoretical, historical, and exploratory approach to hatred.

Lieberman & Patrick, “Objection”

The role of disgust in the law is ancient and vital. Disgust has often been thought a marker of the bounds of the civilized. It is one of those signals in, for example, criminal law that warn of entry into the territory of the deeply transgressive, and that constitute a particularly distinctive corner of criminal prohibition. Disgust aligns with and supports those “creedal prohibitions” without which, as Philip Rieff once said, “our law cannot help us govern ourselves.”

Yet one of the major projects of liberal modernity in law and politicsDisgust.jpeg has been to overcome disgust, denigrate as simply a backward and unenlightened emotion, and replace it with a fully rationalized and ostensibly more humane system of governance. See, for example, here. And here is another book with a similar object, albeit from a different disciplinary perspective, though I do wonder whether “gross” and “wrong” are really as often confused together as the blurb below suggests–Objection: Disgust, Morality, and the Law (OUP) by psychologists Debra Lieberman and Carlton Patrick.

Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed “obscene” and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as “unnatural,” it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking?

In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be “disgusting” (corpse desecration, bestiality) – and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses “gross” with “wrong.”

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