Last month in New York, Sir Roger Scruton gave the keynote speech at our second Tradition Project conference, “Tradition, Culture, and Citizenship.” A video of Sir Roger’s speech is now available below:
Last month in New York, Sir Roger Scruton gave the keynote speech at our second Tradition Project conference, “Tradition, Culture, and Citizenship.” A video of Sir Roger’s speech is now available below:
Here is a story with some details of the Center’s Tradition Project conference last week-end, which also links to pictures of the event and various recent reflections by conference participants.
And here is Professor Michael McConnell’s lecture, “Tradition and the Constitution”:
I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). Though my subject is not the same as Professor Muñoz’s, the two are related in several ways, and I’ll have a post or two about the connections soon. Here’s the abstract:
A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.
Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.
This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.
First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.
Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.
Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.
Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”
In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.
I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?
It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”
Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.
The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.
In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.
So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.
For those who are interested, a draft version of my article, “Of Human Dignities,” is now available on SSRN. The article will appear in a forthcoming symposium issue of the Notre Dame Law Review. Here’s the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
You can download the paper (more than once!) here.
At the First Things site this morning, I have an essay about young Evangelicals’ use of the phrase “Spiritual but Not Religious” to describe themselves, and what that suggests about tradition in America. Here’s an excerpt:
Paradox also characterizes our American religious tradition—a tradition in which Evangelical Christianity, broadly defined, is such an important element. On many cultural and political issues, tradition appeals to Evangelicals; they are the “traditional values” people. But Evangelicalism sits uneasily with the idea of tradition. Evangelicalism stresses personal faith, unimpeded by custom and “human” inventions. Wariness about tradition seems at the core of Evangelical spirituality, a characteristic that separates it from other forms of Christianity, like Catholicism and Orthodoxy, in which tradition has a much greater role.
The popularity of “Spiritual but Not Religious” among young Evangelicals today is a good example. Many young Evangelicals apparently wish to signal their distance from religious tradition, even their own. Tradition for them is not a benign thing; it is a snare to be avoided. True, one might distinguish religious traditions from other sorts. People might minimize tradition in their Christian life but honor it in politics, for example. But I have to think that wariness about tradition in religion influences how people see tradition in other areas of life, too.
I continue to think tradition may be ready for a revival. But I acknowledge the obstacles it faces. In America, it’s not only secular individualists who are suspicious of tradition, but many Christians as well. Tradition will have to overcome not only the objections of skeptics, but many believers, too.
You can find the full essay here.
Some thoughts of mine on Justice Scalia at Commonweal. A bit from the end that is connected with our Tradition Project:
His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.
In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.
Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:
Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.
Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”
So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.
In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.
I completed my law and tradition cycle of posts today at Liberty Law with this one, Gratitude for Legal Traditions. Here is the rest of the cycle in one place:
And here’s a little bit from the beginning of the most recent post, which responds in part to Mark’s post on the subject:
The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.
Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”
Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.
At the First Things site today, I have post about why the future of tradition, and traditional institutions, may be brighter than we imagine. Notwithstanding the power of markets and technology to weaken tradition, I argue, the human need for stability and continuity with the past remain:
Moreover, traditions and traditional institutions have survived, and will continue to survive, because they speak to human nature. They fulfill basic human needs: family; community; a sense of belonging; an attachment to place; a link to the transcendent. Perhaps some people can do without these things, or can invent them for themselves. The Nones, I gather, think they can fashion their own religions. But most of us cannot. Most of us need the stability the past provides, the guidance of received wisdom. Some very smart people think technology is on the brink of altering human nature forever—that we are about to create a new sort of being, a transhuman hybrid of man and computer, that will inherit the future. Well, it hasn’t happened yet. For the moment, old-fashioned human nature endures; and tradition, however much we neglect or try to erase it, endures too.
Read the whole thing here.
I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional interpretation. The first post uses Town of Greece v. Galloway while in the second I’ll talk about the NLRB v. Noel Canning. The point of the posts is not to defend these decisions, but merely to distinguish them as traditionalist in interpretive method. Here’s a bit from the end:
How is [traditionalism] different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision [in Town of Greece] was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:
It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.
In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.
And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.
Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.