Schwartz & Tatalovich, “The Rise and Fall of Moral Conflicts in the United States and Canada”

9781442637269From 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 Liberalismuseful 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 Yalecircumstances, 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 Democracy Saviors.jpgperceived 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.

Rosenbluth & Shapiro, “Responsible Parties”

Here is another in the burgeoning “What’s Wrong With Democracy?” canon, co-authoredShapiro by the distinguished political scientists Frances McCall Rosenbluth and Ian Shapiro: Responsible Parties: Saving Democracy From Itself (Yale UP). Interestingly, in an age of renewed calls for federalism, decentralization, and local political decisionmaking ostensibly to resist the populist and nationalist tides, the authors argue for precisely the opposite: centralization of political power in major political parties and decreased popular control.

In recent decades, democracies across the world have adopted measures to increase popular involvement in political decisions. Parties have turned to primaries and local caucuses to select candidates; ballot initiatives and referenda allow citizens to enact laws directly; many places now use proportional representation, encouraging smaller, more specific parties rather than two dominant ones. Yet voters keep getting angrier. There is a steady erosion of trust in politicians, parties, and democratic institutions, culminating most recently in major populist victories in the United States, the United Kingdom, and elsewhere.

Frances Rosenbluth and Ian Shapiro argue that devolving power to the grass roots is part of the problem. Efforts to decentralize political decision-making have made governments and especially political parties less effective and less able to address constituents’ long-term interests. They argue that to restore confidence in governance, we must restructure our political systems to restore power to the core institution of representative democracy: the political party.

Armanios and Ergene, “Halal Food”

9780190269050To round out the week, here is an interesting-looking book from Oxford, Halal Food: A History, on the Islamic law of halal food, and how the interpretation of that law has varied over time. The authors are Middlebury College historian Febe Armanios and University of Vermont historian Bogac Ergene. Here’s the description from the Oxford website:

Food trucks announcing “halal” proliferate in many urban areas but how many non-Muslims know what this means, other than cheap lunch? Here Middle Eastern historians Febe Armanios and Bogaç Ergene provide an accessible introduction to halal (permissible) food in the Islamic tradition, exploring what halal food means to Muslims and how its legal and cultural interpretations have changed in different geographies up to the present day.

Historically, Muslims used food to define their identities in relation to co-believers and non-Muslims. Food taboos are rooted in the Quran and prophetic customs, as well as writings from various periods and geographical settings. As in Judaism and among certain Christian sects, Islamic food traditions make distinctions between clean and impure, and dietary choices and food preparation reflect how believers think about broader issues. Traditionally, most halal interpretations focused on animal slaughter and the consumption of intoxicants. Muslims today, however, must also contend with an array of manufactured food products–yogurts, chocolates, cheeses, candies, and sodas–filled with unknown additives and fillers. To help consumers navigate the new halal marketplace, certifying agencies, government and non-government bodies, and global businesses vie to meet increased demands for food piety. At the same time, blogs, cookbooks, restaurants, and social media apps have proliferated, while animal rights and eco-conscious activists seek to recover halal’s more wholesome and ethical inclinations.

Covering practices from the Middle East and North Africa to South Asia, Europe, and North America, this timely book is for anyone curious about the history of halal food and its place in the modern world.

Tuininga, “Calvin’s Political Theology”

9781107171435Christian political theology is always characterized by a dualism between church and state–a dualism which, of course, is found in the Gospels themselves. In late antiquity, Pope Gelasius famously wrote of “two powers,” church and state (somehow, the reference is always to “two swords,” though Gelasius didn’t actually use that phrase); much later, the classical Reformers spoke of “two kingdoms.” A new book from Cambridge, Calvin’s Political Theology and the Public Engagement of the Church: Christ’s Two Kingdoms, explores the Calvinist version of the two-kingdoms doctrine which, obviously, had a huge influence in colonial New England and, through colonial New England, America itself. The author is Matthew J. Tuininga of Calvin Theological Seminary. Here is the description from the publisher’s website:

In Calvin’s Political Theology and the Public Engagement of the Church, Matthew J. Tuininga explores a little appreciated dimension of John Calvin’s political thought, his two kingdoms theology, as a model for constructive Christian participation in liberal society. Widely misunderstood as a proto-political culture warrior, due in part to his often misinterpreted role in controversies over predestination and the heretic Servetus, Calvin articulated a thoughtful approach to public life rooted in his understanding of the gospel and its teaching concerning the kingdom of God. He staked his ministry in Geneva on his commitment to keeping the church distinct from the state, abandoning simplistic approaches that placed one above the other, while rejecting the temptations of sectarianism or separatism. This revealing analysis of Calvin’s vision offers timely guidance for Christians seeking a mode of faithful, respectful public engagement in democratic, pluralistic communities today.

Loeffler, “Rooted Cosmopolitans”

aca1146015d05fa2dd74a8f8d12d3f33Lately, scholars have begun to pay serious attention to the Christian roots of current international human rights law–Samuel Moyn’s interesting work comes to mind. One shouldn’t be surprised to learn about Christian roots; Christians like Maritain and Malik were instrumental in the post-war human rights revolution, to cite just a couple of names. A new book from Yale University Press, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century, by University of Virginia historian James Loeffler, makes the point that contemporary human rights law has Jewish roots as well. Here’s the description from the Yale website:

A stunningly original look at the forgotten Jewish political roots of contemporary international human rights, told through the moving stories of five key activists

The year 2018 marks the seventieth anniversary of two momentous events in twentieth-century history: the birth of the State of Israel and the creation of the Universal Declaration of Human Rights. Both remain tied together in the ongoing debates about the Israeli-Palestinian conflict, global antisemitism, and American foreign policy. Yet the surprising connections between Zionism and the origins of international human rights are completely unknown today. In this riveting account, James Loeffler explores this controversial history through the stories of five remarkable Jewish founders of international human rights, following them from the prewar shtetls of eastern Europe to the postwar United Nations, a journey that includes the Nuremberg and Eichmann trials, the founding of Amnesty International, and the UN resolution of 1975 labeling Zionism as racism. The result is a book that challenges long-held assumptions about the history of human rights and offers a startlingly new perspective on the roots of the Israeli-Palestinian conflict.

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