Rediscovering Conservatism

One of the questions we addressed in the first meeting of our Tradition Project back in 2016 was this: is it possible to speak of an American conservatism? Isn’t what we call conservatism in America really just classical liberalism, a philosophy committed to individual rights, the free market, and a limited state that maintains neutrality with respect to religion and other big issues? In a new book from Regnery, Conservatism: A Rediscovery, Yoram Hazony (Edmund Burke Foundation) argues that American conservatism and classical liberalism are two separate things. Here’s the publisher’s description:

The idea that American conservatism is identical to “classical” liberalism—widely held since the 1960s—is seriously mistaken.

The award-winning political theorist Yoram Hazony argues that the best hope for Western democracy is a return to the empiricist, religious, and nationalist traditions of America and Britain—the conservative traditions that brought greatness to the English-speaking nations and became the model for national freedom for the entire world.

Conservatism: A Rediscovery explains how Anglo-American conservatism became a distinctive alternative to divine-right monarchy, Puritan theocracy, and liberal revolution. After tracing the tradition from the Wars of the Roses to Burke and across the Atlantic to the American Federalists and Lincoln, Hazony describes the rise and fall of Enlightenment liberalism after World War II and the present-day debates between neoconservatives and national conservatives over how to respond to liberalism and the woke left.

Going where no political thinker has gone in decades, Hazony provides a fresh theoretical foundation for conservatism. Rejecting the liberalism of Hayek, Strauss, and the “fusionists” of the 1960s, and drawing on decades of personal experience in the conservative movement, he argues that a revival of authentic Anglo-American conservatism is possible in the twenty-first century.

Universities Past and Future

In preparing for teaching a new course about freedom of speech and freedom of inquiry (about which more soon), I was reflecting on the nature and aims of the university–historically one of the central sites for the freedom of inquiry. Of course, this is a perennial topic and it is striking to see different conceptions and ideas of the university across time–stretching from the ancient model of learning (which one can read in the work of Plato and Aristotle, especially); to the medieval and renaissance Christian intellectual strongholds of Bologna, Paris, and others; to the 19th century modern period beginning with the German model and Cardinal Newman’s still-insightful “Idea of a University”; all the way to the 20th century model whose characteristic expositor remains John Dewey. And today, the university is under new pressures to change and become something else–something quite different from what it was even relatively recently.

It was in this spirit that I noticed and look forward to reading Professor William C. Kirby’s new book, Empires of Ideas: Creating the Modern University from German to American to China (Harvard UP). Professor Kirby, an expert on China, focuses his attention on the 19th and 20th centuries and on the future, which he sees as especially powerful in Chinese universities as American universities recede in importance.

The modern university was born in Germany. In the twentieth century, the United States leapfrogged Germany to become the global leader in higher education. Will China challenge its position in the twenty-first?

Today American institutions dominate nearly every major ranking of global universities. Yet in historical terms, America’s preeminence is relatively new, and there is no reason to assume that U.S. schools will continue to lead the world a century from now. Indeed, America’s supremacy in higher education is under great stress, particularly at its public universities. At the same time Chinese universities are on the ascent. Thirty years ago, Chinese institutions were reopening after the catastrophe of the Cultural Revolution; today they are some of the most innovative educational centers in the world. Will China threaten American primacy?

Empires of Ideas looks to the past two hundred years for answers, chronicling two revolutions in higher education: the birth of the research university and its integration with the liberal education model. William C. Kirby examines the successes of leading universities—The University of Berlin and the Free University of Berlin in Germany; Harvard, Duke, and the University of California, Berkeley, in the United States—to determine how they rose to prominence and what threats they currently face. Kirby draws illuminating comparisons to the trajectories of three Chinese contenders: Tsinghua University, Nanjing University, and the University of Hong Kong, which aim to be world-class institutions that can compete with the best the United States and Europe have to offer.

But Chinese institutions also face obstacles. Kirby analyzes the challenges that Chinese academic leaders must confront: reinvesting in undergraduate teaching, developing new models of funding, and navigating a political system that may undermine a true commitment to free inquiry and academic excellence.

Our Credentialed Court

Earlier this year, Encounter Books published a new history of the membership of the Supreme Court from its first years to today, The Credentialed Court, by University of Tennessee Law Professor Benjamin H. Barton. Barton points out that the current membership is historically narrow in terms of life experience. All justices but one have gone to Ivy League law schools; most have been lower court judges; an increasing number are former law clerks. Nothing wrong with any of that–but perhaps something is lost when the justices’ backgrounds are so circumscribed and similar. For example, do the backgrounds of the justices influence their work in religion clause cases? It’s hard to see why that would not be the case. Would the Court’s jurisprudence over the last 50 years have looked different with the graduate of an evangelical college on the bench–or a yeshiva or madrassa?

Looks very interesting. Here’s the publisher’s description:

The Credentialed Court starts by establishing just how different today’s Justices are from their predecessors. The book combines two massive empirical studies of every Justice’s background from John Jay to Amy Coney Barrett with short, readable bios of past greats to demonstrate that today’s Justices arrive on the Court with much narrower experiences than they once did. Today’s Justices have spent more time in elite academic settings (both as students and faculty) than any previous Courts. Every Justice but Barrett attended either Harvard or Yale Law School, and four of the Justices were tenured professors at prestigious law schools. They also spent more time as Federal Appellate Court Judges than any previous Courts. These two jobs (tenured law professor and appellate judge) share two critical components: both jobs are basically lifetime appointments that involve little or no contact with the public at large. The modern Supreme Court Justices have spent their lives in cloistered and elite settings, the polar opposite of past Justices.

The current Supreme Court is packed with a very specific type of person: type-A overachievers who have triumphed in a long tournament measuring academic and technical legal excellence. This Court desperately lacks individuals who reflect a different type of “merit.” The book examines the exceptional and varied lives of past greats from John Marshall to Thurgood Marshall and asks how many, if any, of these giants would be nominated today. The book argues against our current bookish and narrow version of meritocracy. Healthier societies offer multiple different routes to success and onto bodies like our Supreme Court.

On the Intellectual and Moral Virtues

Dean John Garvey, longtime President of Catholic University of America as well as a noted First Amendment scholar, is retiring this year from his position at CUA. He has this new book, The Virtues (Catholic University of America Press), collecting essays and speeches over the years that reflect on the practical and intellectual virtues. Something particularly interesting is Garvey’s Aristotelian emphasis on habit, and the importance of habituation to the virtues.

An ancient question asks what role moral formation ought to play in education. It leads to such questions as, do intellectual and moral formation belong together? Is it possible to form the mind and neglect the heart? Is it wise? These perennial questions take on new significance today, when education — especially, higher education — has become a defining feature in the lives of young people.

Throughout his more than 40 years in academia, John Garvey has reflected on the relationship between intellectual and moral formation, especially in Catholic higher education. For 12 years as the President of The Catholic University of America, he made the cultivation of moral virtue a central theme on campus, highlighting its significance across all aspects of University culture, from University policy to campus architecture.

During his two decades of presiding at commencement exercises, first as Dean of Boston College Law School and then as President of The Catholic University of America, Garvey made a single virtue the centerpiece of his remarks each year. The Virtues is the fruit of those addresses. More reflective than analytical, its purpose is to invite conversation about what it means to live well.

Following Catholic tradition, The Virtues places the theological virtues of faith, hope, and love at the center of the moral life, and the cardinal virtues — justice, temperance, fortitude, and prudence — with them. Alongside these major virtues, Garvey considers a collection of “little virtues,” habits that assist and accompany us in small but important ways on the path to goodness.

Though he treats each virtue individually, a common thread unites his reflections. “The intellectual life depends on the moral life,” Garvey writes. “Without virtue we cannot sustain the practices necessary for advanced learning. In fact, without virtue, it’s hard to see what the purpose of the university is. Learning begins with love (for the truth). If we don’t have that, it’s hard to know why we would bother with education at all.” The Virtues invites its readers, especially students, to appreciate that the cultivation of virtue is indispensable to success, academic or otherwise, and more importantly, essential to their ultimate aim, a life well lived.

A New Biography of Jefferson

The figure of Thomas Jefferson looms large in American law and religion. A man of immense public achievement and great personal failings, at once candid and disingenuous, familiar and remote, his approach to church and state was influential and controversial in his own time and in ours–especially at the Supreme Court, which has occasionally treated Jefferson’s separationism as the correct theory of the Establishment Clause. A new biography from Yale, Thomas Jefferson: A Biography of Spirit and Flesh, focuses on Jefferson’s spiritual inner life. The author is historian Thomas Kidd (Baylor). Here’s the publisher’s description:

Thomas Jefferson was arguably the most brilliant and inspiring political writer in American history. But the ethical realities of his personal life and political career did not live up to his soaring rhetoric. Indeed, three tensions defined Jefferson’s moral life: democracy versus slavery, republican virtue versus dissolute consumption, and veneration for Jesus versus skepticism about Christianity.

In this book Thomas S. Kidd tells the story of Jefferson’s ethical life through the lens of these tensions, including an unapologetic focus on the issue where Jefferson’s idealistic philosophy and lived reality clashed most obviously: his sexual relationship with his enslaved woman Sally Hemings. In doing so, he offers a unique perspective on one of American history’s most studied figures.

Modernity’s Religious Inheritance

From the eminent philosopher, Michael Rosen, comes this fascinating looking intellectual history of religion’s profound and enduring influence on modernity–focusing especially on the 18th and 19th centuries, post-Kantian German Idealism, and the idea of “historical immortality.” The book is The Shadow of God: Kant, Hegel, and the Passage from Heaven to History (Harvard UP 2022).

Once in the West, our lives were bounded by religion. Then we were guided out of the darkness of faith, we are often told, by the cold light of science and reason. To be modern was to reject the religious for the secular and rational. In a bold retelling of philosophical history, Michael Rosen explains the limits of this story, showing that many modern and apparently secular ways of seeing the world were in fact profoundly shaped by religion.

The key thinkers, Rosen argues, were the German Idealists, as they sought to reconcile reason and religion. It was central to Kant’s philosophy that, if God is both just and assigns us to heaven or hell for eternity, we must know what is required of us and be able to choose freely. In trying to live moral lives, Kant argued, we are engaged in a collective enterprise as members of a “Church invisible” working together to achieve justice in history. As later Idealists moved away from Kant’s ideas about personal immortality, this idea of “historical immortality” took center stage. Through social projects that outlive us we maintain a kind of presence after death. Conceptions of historical immortality moved not just into the universalistic ideologies of liberalism and revolutionary socialism but into nationalist and racist doctrines that opposed them. But how, after global wars and genocide, can we retain faith in any conception of shared moral progress and, if not, what is to become of the idea of historical immortality? That is our present predicament.

A seamless blend of philosophy and intellectual history, The Shadow of God is a profound exploration of secular modernity’s theistic inheritance.

Religion and the American Constitutional Experiment (New Edition)

Last month, Oxford released a new, fifth edition of Religion and the American Constitutional Experiment. Our friend Rick Garnett (Notre Dame) joins our friends John Witte (Emory) and Joel Nichols (St. Thomas) on this edition, which is current through 2021 and covers the COVID-19 epidemic, among other recent developments. Here’s the publisher’s description:

This accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom – liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom – covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests.

Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.

Religious Freedom at the Founding

Here’s a new book right in the heartland of our projects at the Center by longtime Center friend and contributor Professor Vincent Phillip Muñoz, Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses (Chicago Press forthcoming). I had the pleasure of reading a good chunk of this manuscript, and it is excellent on both the historical and theoretical sides of things. The work is deeply informed by Phillip’s prior work on the idea of natural rights at the founding and of their proper scope. It is probably fair to say that the scope of natural rights on Phillip’s account, at least for some of the significant rights we discuss today, is generally (not always) significantly narrower than what we tend to believe today. Tough and chewy, but small and digestible, might be a possible description (the blurb below says “minimalist”). That view of natural rights certainly has a powerful impact on the claims in this worthwhile book.

The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.  

Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.

A New History of the Transcendentalists

The 19th century Transcendentalists cast a long shadow in American religious culture. Their insistence that the individual is the sole measure of religious truth has greatly affected our law as well, notwithstanding Chief Justice Burger’s famous dismissal of Henry David Thoreau in Wisconsin v. Yoder. And you might say Transcendentalism is having a moment today, with the rise of the Nones, a movement that represents a mainstreaming of many ideas bruited about in Concord parlors in the 1830s and 40s.

A new history from Farrar, Straus and Giroux, The Transcendentalists and their World, by Robert Gross (University of Connecticut) situates the Transcendentalists in their hometown, showing the ways that their daily interactions influenced their ideas. Looks very interesting. Here is the publisher’s description:

In the year of the nation’s bicentennial, Robert A. Gross published The Minutemen and Their World, a paradigm-shaping study of Concord, Massachusetts, during the American Revolution. It won the prestigious Bancroft Prize and became a perennial bestseller. Forty years later, in this highly anticipated work, Gross returns to Concord and explores the meaning of an equally crucial moment in the American story: the rise of Transcendentalism.

The Transcendentalists and Their World offers a fresh view of the thinkers whose outsize impact on philosophy and literature would spread from tiny Concord to all corners of the earth. Ralph Waldo Emerson, Henry David Thoreau, Nathaniel Hawthorne, and the Alcotts called this New England town home, and Thoreau drew on its life extensively in his classic Walden. But Concord from the 1820s through the 1840s was no pastoral place fit for poets and philosophers.

The Transcendentalists and their neighbors lived through a transformative epoch of American life. A place of two thousand–plus souls in the antebellum era, Concord was a community in ferment, whose small, ordered society founded by Puritans and defended by Minutemen was dramatically unsettled through the expansive forces of capitalism and democracy and tightly integrated into the wider world. These changes challenged a world of inherited institutions and involuntary associations with a new premium on autonomy and choice. They exposed people to cosmopolitan currents of thought and endowed them with unparalleled opportunities. They fostered uncertainties, raised new hopes, stirred dreams of perfection, and created an audience for new ideas of individual freedom and democratic equality deeply resonant today.

The Transcendentalists and Their World is both an intimate journey into the life of a community and a searching cultural study of major American writers as they plumbed the depths of the universe for spiritual truths and surveyed the rapidly changing contours of their own neighborhoods. It shows us familiar figures in American literature alongside their neighbors at every level of the social order, and it reveals how this common life in Concord entered powerfully into their works. No American community of the nineteenth century has been recovered so richly and with so acute an awareness of its place in the larger American story.

Free Speech Today as a “Problem” for “Democracy”

Here’s an interesting collection of essays, Social Media, Freedom of Speech, and the Future of Our Democracy (OUP forthcoming), edited by Columbia President Lee C. Bollinger and University of Chicago Law Professor Geoffrey R. Stone. It frames debates about free speech today, particularly on social media, as reflecting a “problem” for American democracy–the problem of “bad speech”–in need of urgent reform and new solutions. Contributors include Hillary Clinton, Senators Amy Klobuchar, Sheldon Whitehouse, and Mark Warner, together with a host of legal academics who are highly critical of the contemporary, speech-protective American legal regime. It’s a fascinating collection and choice of contributors purely as a matter of academic sociology, reflecting the prevailing skepticism among many experts about American First Amendment protections as well as what is felt to be an outsized cultural commitment to free speech that damages the more fundamental commitments thought by many scholars to be truly constitutive of the American polity. The title of one essay, in particular, was striking in the table of contents: Dean Erwin Chemerinsky’s chapter (co-authored with his son, it appears), “The Golden Era of Free Speech.” For many skeptics, a highly speech-protective regime was once very attractive and even necessary to dismantle the then-existing cultural superstructure, but is far less so today. I discussed the matter of free speech as posing a civic problem in this piece a few years ago–“the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether.” It was a problem that was largely forgotten in the 20th century, but it has now been remembered.

One of the most fiercely debated issues of this era is what to do about “bad” speech-hate speech, disinformation and propaganda campaigns, and incitement of violence-on the internet, and in particular speech on social media platforms such as Facebook and Twitter. In Social Media, Freedom of Speech, and the Future of our Democracy, Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors–including Hillary Clinton, Amy Klobuchar, Sheldon Whitehouse, Mark Warner, Newt Minow, Tim Wu, Cass Sunstein, Jack Balkin, Emily Bazelon, and others–to explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of “bad” speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote “the public interest.” Featuring a variety of perspectives from some of America’s leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.