Over at Concurring Opinions, Gerard Magliocca has an interesting post on how Supreme Court Justice Pierce Butler’s Catholicism may have influenced his dissent in Buck v. Bell, the famous 1927 case upholding sterilization of the mentally handicapped. Apparently Justice Oliver Wendell Holmes, who wrote the majority opinion in the case (“Three generations of imbeciles are enough”), thought Catholicism did influence Butler’s vote. Check it out.
Storrow on Religion, Feminism and Abortion
Richard F. Storrow (City U. of N.Y. School of Law) has posted Religion, Feminism and Abortion: The Regulation of Assisted Reproduction in Two Catholic Countries. The abstract follows.
Perspectives on abortion and religious values have been two primary influences on the development of the various regulatory regimes that govern assisted reproduction around the world. This article examines why two countries with similar histories of allegiance to Roman Catholicism have developed highly divergent legal regimes to regulate assisted reproduction. Italy has enacted one of the most restrictive regimes known, Spain one of the most permissive. The comparative analysis employed here will afford insight into how the development of legislative responses to assisted reproduction correlate with religious commitments, feminist sentiment and the regulation of abortion. This article concludes with a discussion of what implications its analysis might have for the regulation of the infertility industry in the United States.
Conversations: Andrew Preston
Last week, we reviewed Cambridge historian Andrew Preston’s very worthwhile new book on religion in American foreign policy, Sword of the Spirit, Shield of the Faith. In the book, Preston (left) addresses religion’s complex, but constant, role in American diplomacy from colonial times to the present. This week, Preston kindly agrees to answer some questions from CLR Forum. He discusses historians’ tendency to ignore the influence of religion, the place of “Christian republicanism” and anti-Catholicism in American foreign policy, and the ways in which today’s secular human-rights campaigners echo the universalist notions of nineteenth-century Protestant missionaries. He also discusses the impact of post-War secularization, tensions between the religious right and religious left, and the place of religion in President Obama’s foreign policy.
CLR Forum: Andrew, you note that, although religion has greatly influenced the formation and execution of American foreign policy, most diplomatic histories neglect its role. Why do you think that is? Does the neglect reflect a realist approach that denies the importance of ideology in foreign relations generally or a failure of diplomatic historians to come to terms with religion in particular?
Preston: It’s an impossible question to answer definitively, but I think the general neglect of religion reflects both the prevailing dominance of the realist approach and the fact that religion is still poorly understood, and even seen as strange and alien, by most academic historians of international relations and foreign policy. This is despite the cultural turn’s phenomenal impact on diplomatic history, which now avidly incorporates non-traditional categories of historical analysis such as race, gender, and post-modernism.
CLR Forum: An important theme in Sword of the Spirit is the impact on American foreign policy of what you call “Christian republicanism,” a unique “blend of Protestant theology and democratic politics.” According to this worldview, Christianity is compatible with political freedom; indeed, Christianity is the source of political freedom. How did this ideology develop, and how is it distinctively American?
Preston: I’m not sure it’s distinctively American, though its endurance in American political thought for several centuries is unique. But the ideology of Christian republicanism developed out of the English and Scottish Reformations, when Protestant reformers argued that anyone who put Read more
Preston, “Sword of the Spirit, Shield of the Faith”
From Knopf, an interesting new book by Cambridge historian Andrew 
Preston, Sword of the Spirit, Shield of the Faith: Religion in American War and Diplomacy (2012). Preston addresses a topic historians often neglect: the role of religion in American foreign policy. Americans are, by and large, a religious people, and this has influenced the way their government has acted on the world stage for centuries. Religion’s influence has been complex, inspiring progressive internationalists like Franklin Roosevelt (Prestons’s discussion of FDR’s religiosity was for me the most unexpected and intriguing part of the book) and conservative nationalists like George W. Bush. Nonetheless, Preston identifies a unifying theme, “Christian republicanism,” which he defines as “a blend of Protestant theology and democratic politics.” This worldview prizes religious liberty as the foundation of democracy and views it as the most important of human rights. Indeed, Preston shows how the protection of religious liberty abroad has been a constant theme in American diplomacy. In the nineteenth century, the State Department advocated for missionaries, including Mormons, with foreign governments, even though the Department often found the missionaries a nuisance. In the twentieth century, Henry Kissinger’s attempts to get Congress to grant the Soviet Union most-favored-nation status failed largely because Kissinger underestimated American sympathy for the plight of Soviet Jews. CLR Forum readers will be interested in the shifting perceptions of Catholicism. Although for much of American history, the Catholic Church was seen as adverse to Christian republicanism – McKinley famously justified the annexation of the Catholic Philippines in order to “Christianize” the Filipinos – that view changed during the Cold War, perhaps as a result of a common enemy America and the Church had in Communism. Preston closes his book with a prediction: although religion “may not always determine the direction” of American foreign policy, it “will be an ever-present factor.” That seems a good bet.
Berger on Religious Liberty in the United States
Peter Berger’s column from a couple of days ago is (as always) worth a read (agree or disagree). The comparative point about the condition of religious liberty in the United States as opposed to many other places in the rest of the world is certainly correct. Berger makes clear that he is not at all “in tune with the vehemence” of the “campaign” of the USCCB on this issue. But he also makes the very reasonable and, to my mind, highly persuasive point that there is an important difference between agreement about the scope of government power or the cultural conditions in which religious tolerance best flourishes and agreement about matters of specific theology or policy. Here’s a bit from the conclusion:
Beyond the legal matter of cases that require new clarifications of the first amendment, there is a broader issue here—that of an increasingly intolerant culture of secularism, trying to use the state to enforce its values—itself part of the even broader issue of government over-reach. The Roman Catholic Church has been a major target of this secularist agenda, because its sexual ethics has been repugnant to many people (the ever widening scandal of pedophile priests has clearly fed the repugnance). There is a very real issue of religious freedom here—a good reason to support the Catholic bishops, even if one completely disagrees with their views on issues south of the navel.
The Donation of Constantine
Last week, Marc posted about the fantastic exhibit of the Vatican archives currently underway at the Capitoline Museum in Rome. One of the documents on display is Lorenzo Valla’s definitive refutation of the so-called “Donation of Constantine.” Forgotten today, except by historians of law and religion, the Donation played an important role in justifying papal assertions of temporal power in the Middle Ages.
The Donation was a purportedly an imperial decree, signed by the Emperor Constantine, granting the entirety of the Western Roman Empire to Pope Sylvester I and his successors. Constantine supposedly made this gift in 
gratitude for Sylvester’s actions in miraculously curing him of leprosy and baptizing him in the Christian faith. Throughout the Middle Ages, the Donation was taken as authentic, and it played a major role in justifying papal assertions during the investiture crisis that Harold Berman famously described in Law and Revolution. By the Renaissance, however, scholars within the Church had begun to have doubts. On the basis of textual analysis, Valla, a priest, demonstrated that the Donation was a forgery in the fifteenth century. Protestant reformers made much of the forgery in their arguments against the Catholic Church.
All this is fun for law-and-religion nerds, but, back when people believed it to be true, the Donation was the subject of some powerful art. On the Coelian Hill near the Colosseum, off a very quiet street, stands a medieval church called Santi Quattro Coronati. In the church’s courtyard, a separate entrance leads to the Oratory of St. Sylvester, where — after giving a small donation — you can see a series of medieval frescoes that tell the whole story: Constantine’s illness, his subjects’ despair, his miraculous cure by Pope Sylvester, and the Donation itself (above). In their credulity, the frescoes are really rather charming. It’s definitely worth going out of your way to see them — even if you’re not a law-and-religion nerd, and even if the story is a complete hoax.
The Vatican Secret Archives
Yesterday, Mark, our dean Michael Simons, and I went to the Capitoline Museums in Rome. The Capitoline is one of the most famous of Rome’s museums, but we actually spent most of our time at the absolutely incredible exhibition of the Vatican Secret Archives (there was an amusing note explaining that in Italian “segreto” just means “private,” not “secret”…but they felt pretty secret to me). For those interested in law and religion, you really couldn’t ask for a more exciting exhibit.
Among the many highlights:
- The Dictatus Papae of Pope Gregory VII
- A petition from many members of the House of Lords asking Pope Clement VII to grant Henry VIII’s divorce from Catherine of Aragon, to which they attached their individual seals
- Leo X’s papal bull excommunicating Luther, and Charles V’s corresponding imperial edict divesting Luther of any civil protection
- A surprisingly obsequious letter by Voltaire to Pope Benedict XIV telling him in ornate terms how great he was (in fact, he was pretty great)
I surreptitiously (‘segretamente’) took a few pictures of some additional documents of special relevance, which I’ll put up when I get back.
Müller, “The Criminalization of Abortion in the West”
Fordham historian Wolfgang P. Müller has written a new book on the origins
of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.
Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.
In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.
Liveblogging the Religion and Civil Society Conference: Hertzke, Elshtain, and Hittinger
This morning the conference continued with three presentations. Allen Hertzke (University of Oklahoma) gave a talk on religious advocacy in American national politics. Political advocacy by religious groups began in earnest in the aftermath of Employment Division v. Smith, when groups organized to lobby for RFRA; the networks formed at that time have continued and even expanded internationally. He discussed the findings in a recent study he did for the Pew Forum on religious groups’ lobbying operations in Washington, DC; this study revealed sophisticated, well-funded (at least $350 million annually) efforts. He ended with some questions about the future of political advocacy by religious groups; in particular, he wondered whether, by focusing on politics, some religious groups were forfeiting their role in transforming civil society.
Jean Bethke Elshtain (University of Chicago) then spoke about the false dichotomy between the terms “religious” and “secular.” She maintained that a more fruitful debate would be one between “traditionalist” and “progressive.” This debate would turn on a right conception of human nature – as between traditionalists and progressives, who would offer the more persuasive account of human nature, its good and bad features? Progressivism, she suggested, operates on the basis of a naïve anthropology that dismisses the human capacity for evil; traditionalism, at least a wise version of traditionalism, offers a better account by accepting the good and bad of human nature.
Russell Hittinger (University of Tulsa) concluded the morning session with a paper on the changing conception of the state in Catholic social theory. Since the First Vatican Council in 1870, he maintained, the Catholic Church has had a nebulous, ambiguous understanding of the state (as opposed its conception of “church,” and “family,” which have remained robust). The Church is not quite sure, he said, how to define “politics” within the broader category of “social life.” He discussed the problems that this confusion poses for church-state relations in the 21st Century.
Religion and the Wisconsin Recall
Here’s a very interesting analysis, written just before the results, of the religious cross-currents in yesterday’s Wisconsin recall attempt. The author, a political scientist at the University of Wisconsin-Whitewater, points out the divisions among and within Wisconsin’s religious communities, which, he says, reflect divisions in the electorate as a whole. For example, on the central issue in the recall attempt, the right of public sector unions to bargain collectively, the Catholic archbishop of Milwaukee wrote a letter supporting collective bargaining rights, while the Catholic bishop of Madison wrote a letter stating that reasonable people could disagree on the matter. In the end, most Catholics supported Governor Scott Walker: exit polls had him winning the Catholic vote by 10 points. This could portend a shift in Wisconsin politics, where Catholics traditionally vote Democratic, in contrast to Dutch Reformed Protestants, who typically vote Republican. The article contains one great quote that has nothing to do with the recall attempt, but that is nonetheless reflective of the American penchant for non-sectarianism we have discussed elsewhere on CLR Forum. At his inaugural prayer breakfast, the Born-Again Christian Scott Walker declared, “The great creator, no matter who you worship, is the one from which our freedoms are derived, not the government.” Can’t get more American than that.