The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

Billioud and Thoraval, “The Sage and the People”

In August, the Oxford University Press will release “The Sage and the People: The Confucian Revival in China,” by Sébastien Billioud (University Paris-Diderot, Sorbonne Paris Cité) and Joël Thoraval (Research Center on Modern and Contemporary China, School for Higher Studies in Social Sciences (EHESS)). The publisher’s description follows:

After a century during which Confucianism was viewed by academics as a relic of the imperial past or, at best, a philosophical resource, its striking comeback in Chinese society today raises a number of questions about the role that this ancient tradition might play in a contemporary context.

The Sage and the People is the first comprehensive enquiry into the “Confucian revival” that began in China during the 2000s. Based on extensive anthropological fieldwork carried out over eight years in various parts of the country, it explores the re-appropriation and reinvention of popular practices in fields as diverse as education, self-cultivation, religion, ritual, and politics.

The book analyzes the complexity of the “Confucian revival” within the broader context of emerging challenges to such categories as religion, philosophy, and science that prevailed in modernization narratives throughout the last century. Exploring state cults both in Mainland China and Taiwan, authors Sébastien Billioud and Joël Thoraval compare the interplay between politics and religion on the two shores of the Taiwan strait and attempt to shed light on possible future developments of Confucianism in Chinese society.

Sobecki, “Unwritten Verities”

This March, Notre Dame University Press released the fascinating lookingSobecki volume, Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463-1549, by Sebastian Sobecki (University of Groningen). The publisher’s description follows.

In Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463-1549, Sebastian Sobecki argues that the commitment by English common law to an unwritten tradition, along with its association with Lancastrian political ideas of consensual government, generated a vernacular legal culture on the eve of the Reformation that challenged the centralizing ambitions of Tudor monarchs, the scriptural literalism of ardent Protestants, and the Latinity of English humanists.

Sobecki identifies the widespread dissemination of legal books and William Caxton’s printing of the Statutes of Henry VII as crucial events in the creation of a vernacular legal culture. He reveals the impact of medieval concepts of language, governance, and unwritten authority on such sixteenth-century humanists, reformers, playwrights, and legal writers as John Rastell, Thomas Elyot, Christopher St. German, Edmund Dudley, John Heywood, and Thomas Starkey. Unwritten Verities argues that three significant developments contributed to the emergence of a vernacular legal culture in fifteenth-century England: medieval literary theories of translation, a Lancastrian legacy of conciliar government, and an adherence to unwritten tradition. This vernacular legal culture, in turn, challenged the textual practices of English humanism and the early Reformation in the following century. Ultimately, the spread of vernacular law books found a response in the popular rebellions of 1549, at the helm of which often stood petitioners trained in legal writing. Informed by new developments in medieval literature and early modern social history, Unwritten Verities sheds new light on law printing, John Fortescue’s constitutional thought, ideas of the commonwealth, and the role of French in medieval and Tudor England.

The Merchants of Venice

unde origo inde salus

Photo Courtesy of Gianmario Guidarelli

I’ve enjoyed Nate’s posts this month on the importance and benevolence of the market as a human institution. The market can indeed promote tolerance, cooperation, and peace, to say nothing of wealth. And its importance in our culture only increases. The market continues to expand its reach, governing many aspects of life we once thought beyond it. A few decades ago, prenuptial agreements were void as against public policy. Courts would not enforce agreements in contemplation of divorce. Now, prenups are routine. There are many other examples.

As the market expands, it seems inevitable that competing commitments will shrink, at least as a matter of public life. Religion may be among these commitments. In fact, as Nate explains, reducing religion’s hold on people may have been the point all along. Voltaire, for example, anticipated that the expansion of commerce would cause religious commitment to atrophy. People would come to see the market, not the church, as important, and identify as buyers and sellers rather than believers. After all, in the marketplace, it doesn’t matter whether one is a good Christian, Jew, Muslim or pagan. All that matters is whether one can pay.

In the passage Nate quotes, Voltaire offers eighteenth-century London as the model of a benevolent, religiously indifferent, commercial society. (Voltaire overstated things. In 1780, two years after he died, London was convulsed by the vicious, anti-Catholic Gordon Riots, in which mobs terrorized the city for days while Londoners huddled inside their homes, afraid to face them. “Such,” Johnson observed, “is the cowardice of a commercial place.”) When one thinks of the prototype of a mercantile society, though, one usually thinks of another city a thousand miles away. It’s Venice, more than any other place, which conventionally epitomizes the commercial society.

I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of Eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.

And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.

And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent.  Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”

The commitment to tradition was brought home to me when I was visited the famous basilica of Santa Maria della Salute on the Grand Canal. The basilica was built in the seventeenth century to commemorate the Virgin’s help in ending one of the periodic plagues that struck Venice. As architectural historian Gianmario Guidarelli explained to me, at the very center of this church, there is an inscription (above) that captures the Venetian understanding of life: Unde Origo Inde Salus, “Where is the Origin, There is Salvation.” The inscription refers to the legendary founding of Venice on March 25, the Feast of the Annunciation to the Virgin in the Western calendar. But I think the inscription must allude more generally to the saving power of the past. Salvation doesn’t come from novelty or change. To preserve the city, one must return to history, to ancient customs, to the origins. You can’t get more traditional than that.

With their dual commitment to markets and tradition, the merchants of Venice held the gorgeous East in fee. The state they created, the Venetian Republic, lasted for more than a thousand years. In the West today, we have kept and expanded markets, but seem ever more eager to jettison tradition. I wonder how long we’ll last.

“Catholic Legal Theory: Aspirations, Challenges, and Hopes” at Villanova Law School

I’m delighted to be participating over the next couple of days in this year’s John F. Scarpa Conference on Law, Politics, and Culture at Villanova Law School: Catholic Legal Theory: Aspirations, Challenges, and Hopes. My subject is “Tradition and Catholic Legal Theory.”

“Dissent on Core Beliefs” (Chambers & Nosco, eds.)

This May, Cambridge University Press will release “Dissent on Core Beliefs: Religious and Secular Perspectives” edited by Simone Chambers (University of Toronto) and Peter Nosco (University of British Columbia).  The publisher’s description follows:

Dissent on Core BeliefsDifference, diversity and disagreement are inevitable features of our ethical, social and political landscape. This collection of new essays investigates the ways that various ethical and religious traditions have dealt with intramural dissent; the volume covers nine separate traditions: Confucianism, Buddhism, Christianity, Judaism, Islam, liberalism, Marxism, South Asian religions and natural law. Each chapter lays out the distinctive features, history and challenges of intramural dissent within each tradition, enabling readers to identify similarities and differences between traditions. The book concludes with an Afterword by Michael Walzer, offering a synoptic overview of the challenge of intramural dissent and the responses to that challenge. Committed to dialogue across cultures and traditions, the collection begins that dialogue with the common challenges facing all traditions: how to maintain cohesion and core values in the face of pluralism, and how to do this in a way that is consistent with the internal ethical principles of the traditions.

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

Remedies and the Religion Clauses: Reflections on the Jurisprudence of Tradition

The past few days have seen many criticisms from academic quarters of the Supreme Court’s reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.

True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz’s phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions are empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications mean that equality and neutrality are empty or a fraud. Because, like Rick Garnett, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice’s historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.

Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.

In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:

[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.

The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.

The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”

In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.

Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:

Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.

And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.

The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.

The Traditional Frame: Justice Kagan’s Dissent and Justice Alito’s Concurrence in Town of Greece

In this post, I’ll offer a few comments on Justice Kagan’s principal dissent in Town of Greece v. Galloway, which was joined by Justices Breyer, Sotomayor, and Ginsburg (Justice Breyer also dissented separately). I’ll also briefly consider Justice Alito’s concurrence, which takes on some of the points in the main dissent. I should add that in these posts I am only describing what I take to be notable features of these decisions. I am not intending to evaluate them on the merits, with one small exception at the end of this post.

The most unexpected feature of the dissent is that it accepts the traditional frame propounded by the majority. The dissent explicitly repudiates strict separationism: “I do not contend that principle [of religious equality] translates here to a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers upholding the Nebraska legislature’s tradition of beginning each session with a chaplain’s prayer.” Justice Kagan makes a point later of saying that she thinks Marsh was correctly decided. Indeed, not a single justice of this Court accepted the Brennan/Marshall position in Marsh.

That’s remarkable, inasmuch as Marsh is frequently described in rather unflattering terms by many of my esteemed colleagues: outlier, carve-out, aberration, inconsistent with the doctrine, unprincipled, a vestige of a bygone age–these are generally representative of the legal academy’s dim view of Marsh. And, indeed, it is true that Marsh seems to stand alone against the coursing flow of modern establishment doctrine. Here was a chance for those members of the Court that felt something like this way about Marsh, or worse, to say so–to take a stand in favor of lopping off this traditionary annoyance without very much hurt at all to the primary stream of contemporary establishment doctrine. Yet nobody did.

Instead, the methodological path of the dissent is to accept the traditional frame and then to argue that the facts in this case do not fit within a correct interpretation or reading of that tradition: “And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Where I depart from the majority is in my reply to that question….[T]he prayer in Greece departs from the legislative tradition that the majority takes as its benchmark.”

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