DeGirolami, “Virtue, Freedom, and the First Amendment”

I’ve recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.

Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.

One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.

Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.

But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”

The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

Reflections from the City of God: On the Role of Religion in Inculcating Civic Virtue

I’ve been delayed in writing about my next selection from the City of God–this view_of_rome_as_the_city_of_god_poster-r332f2a9125be4d48b9f3d29d2e055265_wve_8byvr_512one from early in Book II, a book devoted to exploring the extent to which the Roman gods did not protect Romans from sundry disasters. But the particular disasters Augustine has in mind are moral disasters–not disasters of the body but disasters of the soul–and he highlights the vice and civic decay not only enabled but positively stimulated by the Roman gods. Here is Book II, Chapter 6, in full:

This is the reason why those divinities [MOD: in the previous chapter Augustine discusses Cybele, the “Earth Mother,” in particular] quite neglected the lives and morals of the cities and nations who worshipped them, and threw no dreadful prohibition in their way to hinder them from becoming utterly corrupt, and to preserve them from those terrible and detestable evils which visit not harvests and vintages, not house and possessions, not the body which is subject to the soul, but the soul itself, the spirit that rules the whole man. If there was any such prohibition, let it be produced, let it be proved. They will tell us that purity and probity were inculcated upon those who were initiated in the mysteries of religion, and that secret incitements to virtue were whispered in the ear of the elite; but this is an idle boast. Let them show or name to us the places which were at any time consecrated to assemblages in which, instead of the obscene songs and licentious acting of players, instead of the celebration of those most filthy and shameless Fugalia [MOD: civil feasts] (well called Fugalia, since they banish modesty and right feeling) [MOD: I think that Augustine is relying here on the root, ‘fuga,’ meaning ‘flight’], the people were commanded in the name of the gods to restrain avarice, bridle impurity, and conquer ambition; where, in short, they might learn in that school which Persius vehemently lashes them to, when he says:

Be taught, ye abandoned creatures, and ascertain the causes of things; what we are, and for what end we are born; what is the law of our success in life; and by what art we may turn the goal without making shipwreck; what limit we should put to our wealth, what we may lawfully desire, and what uses filthy lucre serves; how much we should bestow upon our country and our family; learn, in short, what God meant you to be, and what place He has ordered you to fill.

Let them name to us the places where such instructions were wont to be communicated from the gods, and where the people who worshiped them were accustomed to resort to hear them, as we can point to our churches built for this purpose in every land where the Christian religion is received.

One of the interesting features of the this chapter and, indeed, the entire book is the extent to which Augustine believes it to be religion’s role to inculcate virtue–including civic virtue–in its adherents. The morality that Augustine is discussing is not a private or interior morality, at least not solely. In the previous chapter, he castigates the Romans for bestowing their finest citizens with the honor of a statue of “that demon Cybele.” Robert Dodaro writes: “[E]ven Rome’s best citizens are deceived by Cybele, the ‘Mother of the Gods.'” Dodaro, Christ and the Just Society in the Thought of Augustine 45. And here, Augustine specifically mentions the morality not of individuals, or even of families, but of “cities and nations.” The context in which he condemns Roman vice is not personal, but public–the feast of Fugalia, which so far as I can tell is a civic feast celebrating the expulsion of the Roman kings. And the fragment he quotes from the stoic Roman satirist Persius concerns both private and public virtue (“how much we should bestow upon our country and our family”).

Augustine clearly believes that it is an important function of religion to inculcate civic or public virtue and honor. Religion is not a privatized or purely personal phenomenon, and any religion worth its salt must do more than “whisper” “secret incitements to virtue” “to the elite” (notice that by highlighting the “elite,” Augustine is emphasizing the importance of religion’s influence on the powerful, including the politically powerful). It must inform their private and public lives. It must provide a public forum–a place of assembly–for the discussion of virtue to occur (not just a private “whispering”). And it must “vehemently lash” public men. Christianity, Augustine believes, performs these functions, while the Roman gods failed to do so.

A final aside: I was struck by the fragment of Persius, because it sounds so much like the words that Dante puts into the mouth of Ulysses in Canto XXVI of Inferno as he sails to the ends of the earth (118-20):

Considerate la vostra semenza:

Fatti non foste a viver come bruti,

Ma per seguir virtute e canoscenza.

“Consider your origins: You were not made to live like beasts, but to pursue virtue and knowledge.” Unfortunately for wandering Ulysses (at least in Dante’s telling), he was not in the end able to discover “by what art we may turn the goal without making shipwreck.”

%d bloggers like this: