Just a quick piece of happy Center news. I’ll be a visiting fellow at the James Madison Program in Princeton University’s Department of Politics next spring. Mark has enjoyed a very fruitful period there this spring, and I’m looking forward to learning from all of the wonderful folks who run and will participate in the program, as well as taking advantage of all that Princeton has to offer. I’ll be working on a book project (with my sometime co-author, Kevin Walsh) investigating the church-state worldview of George Washington, Patrick Henry, and John Marshall, and what happened to it over time, and why it did so.
Reynolds, ” The Qu’ran and the Bible”
From Yale University Press, here is a new comparative study of the scripture of three religions – Christianity, Islam, and Judaism. The author is the noted Notre Dame scholar Gabriel Said Reynolds. The book is The Qu’ran and the Bible: Text and Commentary. Here is the publisher’s description:
While the Hebrew Bible and the New Testament are understood to be related texts, the sacred scripture of Islam, the third Abrahamic faith, has generally been considered separately. Noted religious scholar Gabriel Said Reynolds draws on centuries of Qur’anic and Biblical studies to offer rigorous and revelatory commentary on how these holy books are intrinsically connected.
Reynolds demonstrates how Jewish and Christian characters, imagery, and literary devices feature prominently in the Qur’an, including stories of angels bowing before Adam and of Jesus speaking as an infant. This important contribution to religious studies features a full translation of the Qur’an along with excerpts from the Jewish and Christian texts. It offers a clear analysis of the debates within the communities of religious scholars concerning the relationship of these scriptures, providing a new lens through which to view the powerful links that bond these three major religions.
Bandoch, “The Politics of Place”
Here is an interesting-looking new book from the University of Rochester Press: The Politics of Place: Montesquieu, Particularism, and the Pursuit of Liberty, by scholar Joshua Bandoch. One typically thinks of the Enlightenment as a universalist project, meant to apply everywhere in the same way. That is one of the project’s main flaws. This book argues that Montesquieu, at least, saw things differently. Here is the description from the publisher’s website:
Many Enlightenment thinkers sought to discover the right political order for all times and all places, and scholars often view Montesquieu as working within this project. In this reassessment of Montesquieu’s political thought, Joshua Bandoch finds that Montesquieu broke from this ideal and, by taking into account the variation of societies, offered a more fruitful approach to the study of politics.
Through a careful reading of Montesquieu’s political writings, Bandoch shows that for Montesquieu the politics, economics, and morals of a society must fit a particular place and its people. As long as states commit to pursuing security, liberty, and prosperity, states can — indeed, should — define and advance these goals in their own particular ways. Montesquieu saw that the circumstances of a place — its religion, commerce, laws, institutions, physical environment, and mores — determine the best political order for that place. In this sense, Montesquieu is the great innovator of what Bandoch calls the “politics of place.” This new reading of Montesquieu also provides fresh insights into the American founding, which Montesquieu so heavily influenced. Instead of having discerned the “right” political order, Bandoch argues, the Founders instituted a good political order, of which there are numerous versions.
Rhodes, “The Debasement of Human Rights”
Several recent books, most notably Patrick Deneen’s “Why Liberalism Failed,” argue that liberalism is collapsing on itself, a victim of its own success. These arguments are resisted by classical liberals, who maintain that the problem is not liberalism, but newer, progressive corruptions. A new book from Encounter, The Debasement of Human Rights, by author Aaron Rhodes, fits into the latter camp. Rhodes sees a problem with contemporary human rights law – one of liberalism’s great achievements – but says the problem is that human rights law has departed from its natural law roots and become statist. Readers can judge for themselves. Here is the publisher’s description:
The idea of human rights began as a call for individual freedom from tyranny, yet today it is exploited to rationalize oppression and promote collectivism. How did this happen? Aaron Rhodes, recognized as “one of the leading human rights activists in the world” by the University of Chicago, reveals how an emancipatory ideal became so debased.
Rhodes identifies the fundamental flaw in the Universal Declaration of Human of Rights, the basis for many international treaties and institutions. It mixes freedom rights rooted in natural law—authentichuman rights—with “economic and social rights,” or claims to material support from governments, which are intrinsically political. As a result, the idea of human rights has lost its essential meaning and moral power.
The principles of natural rights, first articulated in antiquity, were compromised in a process of accommodation with the Soviet Union after World War II, and under the influence of progressivism in Western democracies. Geopolitical and ideological forces ripped the concept of human rights from its foundations, opening it up to abuse. Dissidents behind the Iron Curtain saw clearly the difference between freedom rights and state-granted entitlements, but the collapse of the USSR allowed demands for an expanding array of economic and social rights to gain legitimacy without the totalitarian stigma.
The international community and civil society groups now see human rights as being defined by legislation, not by transcendent principles. Freedoms are traded off for the promise of economic benefits, and the notion of collective rights is used to justify restrictions on basic liberties.
We all have a stake in human rights, and few serious observers would deny that the concept has lost clarity. But no one before has provided such a comprehensive analysis of the problem as Rhodes does here, joining philosophy and history with insights from his own extensive work in the field.
Schwartz & Tatalovich, “The Rise and Fall of Moral Conflicts in the United States and Canada”
From down here, South of the Border, Canada seems a remarkably quiet place, especially when it comes to religious and social conflict. American politics is continually roiled by fights over moral issues like abortion and same-sex marriage; Canada, not so much. Perhaps that is because Canada is a more secular place and there is less to quarrel about; perhaps Canadians are just more peaceable. A new book from the University of Toronto Press, The Rise and Fall of Moral Conflicts in the United States and Canada, compares the two countries. The authors are sociologist Mildred Schwartz (University of Illinois-Chicago) and political scientist Raymond Tatalovich (Loyola University Chicago). Here is the publisher’s description:
In The Rise and Fall of Moral Conflicts in the United States and Canada, sociologist Mildred A. Schwartz and political scientist Raymond Tatalovich bring their disciplinary insights to the study of moral issues. Beginning with prohibition, Schwartz and Tatalovich trace the phases of its evolution from emergence, establishment, decline and resurgence, to resolution. Prohibition’s life history generates a series of hypotheses about how passage through each of the phases affected subsequent developments and how these were shaped by the political institutions and social character of the United States and Canada.
Using the history of prohibition in North America as a point of reference, the authors move on to address the anticipated progression and possible resolution of six contemporary moral issues: abortion, capital punishment, gun control, marijuana, pornography, and same-sex relations. Schwartz and Tatalovich build a new theoretical approach by drawing on scholarship on agenda-setting, mass media, social movements, and social problems. The Rise and Fall of Moral Conflicts provides new insights into how moral conflicts develop and interact with their social and political environment.
Mitchell, “The Limits of Liberalism”
For this June Friday, a book right down the Tradition Project fairway, which may be 
useful reading for the upcoming gathering of the Project in Rome, Italy, in the winter of 2018 (more soon about this): The Limits of Liberalism: Tradition, Individualism, and the Crisis of Freedom (ND Press), by political scientist Mark T. Mitchell.
In The Limits of Liberalism, Mark T. Mitchell argues that a rejection of tradition is both philosophically incoherent and politically harmful. This false conception of tradition helps to facilitate both liberal cosmopolitanism and identity politics. The incoherencies are revealed through an investigation of the works of Michael Oakeshott, Alasdair MacIntyre, and Michael Polanyi.
Mitchell demonstrates that the rejection of tradition as an epistemic necessity has produced a false conception of the human person–the liberal self–which in turn has produced a false conception of freedom. This book identifies why most modern thinkers have denied the essential role of tradition and explains how tradition can be restored to its proper place.
Oakeshott, MacIntyre, and Polanyi all, in various ways, emphasize the necessity of tradition, and although these thinkers approach tradition in different ways, Mitchell finds useful elements within each to build an argument for a reconstructed view of tradition and, as a result, a reconstructed view of freedom. Mitchell argues that only by finding an alternative to the liberal self can we escape the incoherencies and pathologies inherent therein.
Greenfield, “Corporations Are People Too (And They Should Act Like It)”
Citizens United v. FEC (2008) and Burwell v. Hobby Lobby Stores (2014) were important Supreme Court cases in establishing corporate rights of free speech and religious freedom (the former constitutionally, the latter statutorily). They were and are also loudly criticized for extending these rights of “personhood” to the artificial person of the corporation. Certainly in the religious freedom context, but also in the speech context, the disagreement over corporate rights tracks a more fundamental difference with respect to the fundamental location of the right of religious liberty: the “church” or the individual.
Here is a new book that argues that corporations do have rights under certain 
circumstances, but that this imposes on them certain responsibilities–responsibilities which, the author claims, are imposed on individuals as rights-bearers. I’m curious to see just which responsibilities he has in mind. The book is Corporations Are People Too (And They Should Act Like It) (Yale UP) by Kent Greenfield (image only available in the Yale catalogue at present).
Are corporations people? The U.S. Supreme Court launched a heated debate when it ruled in Citizens United that corporations can claim the same free speech rights as humans. Should corporations be able to claim rights of free speech, religious conscience, and due process? Kent Greenfield provides an answer: Sometimes. With an analysis sure to challenge the assumptions of both progressives and conservatives, Greenfield explores corporations’ claims to constitutional rights and the foundational conflicts about their obligations in society. He argues that a blanket opposition to corporate personhood is misguided, since it is consistent with both the purpose of corporations and the Constitution itself that corporations can claim rights at least some of the time. The problem with Citizens United is not that corporations have a right to speak, but for whom they speak. The solution is not to end corporate personhood but to require corporations to act more like citizens.
Some Reflections on Animus and “Adjudicatory Bodies”
Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of “animus” might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who “objected to a requested cake on the basis of conscience” (this was said by the Court to be an “indication of hostility” to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips’ religious views, comments which were never subsequently disavowed (more evidence of animus).
I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting “animus”: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading “seems more likely.” I really don’t understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to “compromise.” Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner’s comments were hateful? I wonder if the Court’s approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.
And speaking of “adjudicatory bodies.” In describing the state of jurisprudential play with respect to “animus” evidence, the Court said this:
Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.
The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the “animus” discussion. Indeed, the “animus” discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?
The explanation offered here seems to be that Lukumi dealt with “lawmakers” while this case deals with the “very different context” of “adjudicatory bod[ies] deciding a particular case.” It is true that in the following section of the opinion, the language about “adjudicatory bodies” does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that “the government’s” “neutrality” may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.
But the application of these factors in this case to an adjudicatory body which ruled on this particular case–the Commission–does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of “animus” analysis that did not get a majority in Lukumi, but only when one is dealing with “adjudicatory bodies deciding a particular case.”
If that reading is right (and it of course may not be), what could explain a new, special animus rule for “adjudicatory bodies”? Admittedly this is speculation, and I don’t have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis–its susceptibility to manipulation, for example–those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.
Again, just a speculation. We’ll see how, if at all, the “adjudicatory bodies” language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.
Ginsburg & Huq, “How To Save a Constitutional Democracy”
It’s democratic soteriology week here at the Forum. Frankly, it’s astonishing just how many books are being published by academics–legal and otherwise–on the subject of saving democracy. But it seems most of them have in mind the saving of particular kinds and forms of democracy, rather than democracy itself, since the threats most of them warn against and advise about are not principally those of democracy but of other 
perceived evils. That seems to be the case with this new book as well, How to Save a Constitutional Democracy (Chicago UP) by University of Chicago Law School professors Tom Ginsburg and Aziz Huq. The “rigidity” of the Constitution, and its consequent empowerment of the Supreme Court to “infringe” people’s rights, are blamed.
Democracies are in danger. Around the world, a rising wave of populist leaders threatens to erode the core structures of democratic self rule. In the United States, the election of Donald Trump marked a decisive turning point for many. What kind of president calls the news media the “enemy of the American people,” or sees a moral equivalence between violent neo-Nazi protesters in paramilitary formation and residents of a college town defending the racial and ethnic diversity of their homes? Yet we can be assured that the Constitution offers safeguards to protect against lasting damage— or can we? How to Save a Constitutional Democracy mounts an urgent argument that we can no longer afford to be complacent. Tom Ginsburg and Aziz Z. Huq show how constitutional rules can either hinder or hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—do not necessarily succeed as bulwarks against democratic decline. Rather, Ginsburg and Huq contend, the sobering reality for the United States is that, to a much greater extent than is commonly realized, the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had the unforeseen consequence of empowering the Supreme Court to fill in some details—often with doctrines that ultimately facilitate rather than inhibit the infringement of rights. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator, who can degrade the public sphere by wielding hateful language that would be banned in many other democracies. But we—and the rest of the world—can do better. The authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk of democratic decline.
7-2 is the new 5-4*
Lots will be written about the decision today in Masterpiece Cakeshop. Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices’ voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).
The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration.