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How the imperialism of creedal secular liberalism is destroying democratic pluralism

10 Apr

Anthony Dearduff reviews John Inazu’s book:

Liberty’s Refuge: The Forgotten Freedom of Assembly

"First amendment area Muir Woods" by Brandt Luke Zorn

To many in the law, the First Amendment “right of the people peaceably to assemble” may seem little more than the aspirational vestige of a bygone era. It may have fortified early generations who had reason to fear forced dispersion of dissident political assemblies, but has little practical application in our more enlightened and progressive age. Nowadays, as law students (and Wall Street occupiers) quickly learn, the heavy lifting is done by “the freedom of expressive association” and “forum analysis”—concepts that, if less tightly moored to the First Amendment’s text, are nevertheless firmly anchored in contemporary jurisprudence.

In Liberty’s Refuge: The Forgotten Freedom of Assembly, Washington University (St. Louis) law professor John Inazu skillfully argues that we have lost something critical in this shift from assembly to expressive association; namely, the benefits of a meaningful pluralism. The reorientation toward our present-day associational hermeneutic, Inazu contends, has elevated a particular conception of stability and social cohesion at the expense of group autonomy. The result has been “the loss of meaningful protections for the dissenting, political, and expressive group” (4). Nowhere is this clearer than when group autonomy comes into conflict with antidiscrimination or equality-promoting statutes. In the 2010 case of Christian Legal Society v. Martinez, for example, “the Supreme Court relied on a muddied area of free speech doctrine to deny the right of a religious student group to limit its membership to those of its choosing, the right to retain control over its own message—the right to exist” (5).

More specifically, a five Justice majority held that California’s Hastings College of the Law could deny official recognition to a Christian Legal Society group on the grounds that the group’s required “statement of faith” regarding sexual morality was incompatible with the school’s requirement that club leadership positions be open to all students regardless of sexual orientation. Applying its First Amendment “forum analysis” rubric, the majority determined that Hastings’ requirement was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Concurring, Justice Kennedy emphasized that Hastings could reasonably consider a belief-affirming or outside conduct requirement to be “divisive for student relations” and inconsistent with an atmosphere of free and open discussion. “The era of loyalty oaths,” he proclaimed, “is behind us.”

Even granting that cases like Martinez may reflect a streak of liberal paternalism, one might nevertheless invert Inazu’s proposal and ask why we should protect group autonomy at the expense of stability, equality, and inclusiveness. He responds with a powerful observation from Yale law professor Stephen Carter: “Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic” (5).  Furthermore, Inazu notes, the expressive association analysis is “underwritten by a political theory of consensus liberalism, which purports to be ‘procedural’ or ‘neutral’ but whose espoused tolerance extends only to groups that endorse the fundamental assumptions of liberal democratic theory” (11). Thus, the associational hermeneutic does not merely sacrifice group autonomy for the sake of stability and social cohesion generally, but rather for the realization of a very particular conception of those goods as envisioned by Rawlsian academic elites. If followed to its natural conclusion, Inazu notes, such a view marginalizes not only all-Christian student groups, but also “all-female sororities, all-female health clubs, and all-gay social clubs. In other words, it leaves us without a meaningful pluralism” (11).

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Do our duties extend beyond our consent?

10 Apr

From Randy Barnett:

[In my Am I “imperiling” originalism? A reply to Joel Alicea, I offered to post any response he may have. What follows is his reply.]

I am grateful to Professor Barnett for offering me the opportunity to respond to his criticism of my recent essay in National Affairs, as well as for the very kind comments at the beginning of his post. Professor Barnett’s criticism is characteristically thoughtful and probing, and I think it helps sharpen the points of agreement and disagreement between us.

We agree that the legitimacy of written law requires an answer to the question, “Why should we, the living, obey those long-since dead?” And we agree that there are circumstances under which one can rightly refuse to obey the dead. Barnett thinks that these commonalities render our approaches “not fundamentally different.”

But both of these areas of agreement are mere starting points from which we take radically different paths. That we ask the same questions does not mean that we reach the same answers. I believe the obligation of the living to obey the dead inheres in a regime of written law, especially one based on notions of popular sovereignty. But, more fundamentally, I think it inheres in the nature of an ordered society, which is man’s natural state and which comes with attendant obligations and duties to our forebears. Barnett misunderstands me, then, when he says that my purpose in the essay was to “defen[d] constitutional originalism against the common legal academic trope that it consists of adherence to the ‘dead hand of the past.’” My purpose was not to defend originalism against the dead hand of the past; my purpose was to justify the dead hand of the past. Or, as the title of the essay terms it, the rule of the dead.

This is a foundational disagreement between us. Barnett’s theory begins byrejecting the rule of the dead; he disclaims any right of the dead to bind the living. Rather, Barnett thinks that the living—quite apart from any duties to the dead—should obey the past only insofar as (1) the living affirmatively consent to such authority or (2) the decisions of the dead are necessary and proper.

This divergence in views is rooted in different conceptions of man and his relationship to society. In my view, man is, by nature, a social animal born with reciprocal duties and responsibilities that he does not affirmatively choose. I argue in my essay that the best and most traditional accounts of written law and originalism assume these premises. Barnett, by contrast, sees each individual as his own sovereign, a mini-society unto himself. Obligations must be consented to or, at least, not be an affront to one’s sovereignty.

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The decline of the West is due to a disease, a spiritual disease (Christopher Dawson)

20 Mar

On the Great Historian (and prophet?) Christopher Dawson (excerpt):

The Roman Empire and its Hellenistic civilization had become separated from any “living religious basis” and, although Augustus attempted to restore that basis, he was unsuccessful. In spite of the high material and intellectual culture, “the dominant civilization became hateful in the eyes of the subject Oriental world,” and indeed its own greatest minds were alienated from it, a “price that every civilization has to pay when it loses its religious foundations, and is contented with a purely material   success.”[47]

Western civilization now faces a grave spiritual crisis at the very time when it has, by conquest and technology and trade tended to unify the entire world.[48] If our culture is to survive it must obtain some religious roots, either by conversion back to Christianity or by finding some new spiritual principle. Dawson was no fatalist; he believed either alternative possible if men would seriously make the attempt. Naturally, he thought the more desirable would be to return to Christianity. Thus the challenge is issued to Christians:

The new Babylon is threatened by an even more catastrophic and suicidal end than any of the world empires of the past. Thus we find ourselves back in the same situation as that which the Christians encountered during the decline of the ancient world. Everything depends on whether the Christians of the new age are equal to their mission—whether they are able to communicate their hope to a world in which man finds himself alone and helpless before the monstrous forces which have been created by man to serve his own ends but which have now escaped from his control and threaten to destroy him.[49]

Dawson proposed a first step towards solution of the problem of secularism. He believed that higher education should be of most concern to the Christian. “It is in this field that the secularist danger is most formidable…[for] if (Christianity] loses the right to teach it can no longer exist.” Moreover, education is also the weak point of secularism: “The only part of Leviathan that is vulnerable is its brain.”[50] Dawson devoted one of his last books to the proposal to institute, in private, Catholic colleges, a program for the study of Christian culture.[51] It is a proposal that strikes one as hopelessly inadequate, at least in the United States, in view of the increasing problems private colleges have in merely surviving. But those difficulties do indeed point to the immediacy of the issue for our churches; their right to teach is being rapidly eroded away.

Original and full Article

The line of demarcation in all of politics

5 Mar

“The great line of demarcation in modern politics, Eric Voegelin used to point out, is not a division between liberals on one side and totalitarians on the other. No, on one side of that line are all those men and women who fancy that the temporal order is the only order, and that material needs are their only needs, and that they may do as they like with the human patrimony. On the other side of that line are all those people who recognize an enduring moral order in the universe, a constant human nature, and high duties toward the order spiritual and the order temporal.” Russell Kirk

On the love of country. The limits of partriotism

4 Mar

From Bruce Frohen:

Patriotism, or its lack, has been in the news again, as happens every now and then in our hotly contested political culture. President Obama’s persistent references to what he deems to be the history of oppression in our nation, and in western civilization more generally, have led some to question his “patriotism,” by which is meant his love of country. Such arguments may or may not be useful as a means of carrying on political debate. But they certainly throw light on varying conceptions of our duties toward our country and nation. I mention country and nation separately to highlight the particular object of my concern, namely, the question of just what it is to which we owe our “patriotic” loyalty. Is it a geographical unit? A cultural unity or people? Or is it a specific political regime that we think has a rightful call on our love? And what form, and extent, should this love take?

Americans in particular have a reputation for placing love of “country” high on their list of self-described virtues. Yet our conception of that country often is described in specifically political terms. The Pledge of Allegiance, written in the late nineteenth century by the Christian socialist minister Francis Bellamy and adopted by the US Congress in 1942, aims to reinforce loyalty “to the republic for which” the flag “stands.” A significant strain in American ideology connects the greatness of the United States to political principles, usually equality and democracy, putatively found in the Declaration of Independence and reinvigorated by various political figures (especially Abraham Lincoln) and political movements (like the civil rights movement).

The claims for this political conception of patriotism are strong in the United States, to which so many people came in search of the freedom to lead lives of faith and virtue disallowed in their homelands, and in which people from a variety of ethnic backgrounds have been joined by their pursuit of economic well-being in the context of ordered liberty. But critics of this formulation may point to the darker side of an ideology that posits a particular set of principles as the definition of a nation and the thing to which we owe “allegiance.” Various ideologies, from communism to socialism to fascism, have demanded the loyalties of the people, who have been formed into various youth, neighborhood, and other “patriotic” associations to further the cause.

Dissenting persons and communities have been stripped of their legal and customary rights and even exterminated on the grounds of “disloyalty” to a ruling political dogma—again, usually some form of equality. Many Americans would deny the danger of any such ideology in our country, particularly given the attachment of our political religion to democratic forms. But dissenters from contemporary “progressive” ideologies continue to be shunned and have their careers ruined. It also is worthwhile noting the involvement of the United States in a variety of “wars of liberation” and “nation-building” adventures that have resulted in tens of thousands of deaths and have their roots in the vision of patriotism as a kind of political loyalty transcending practical questions of human decency and affection.

The conviction that Americans by nature are committed to specific political principles generally is presented as a necessary bulwark against various forms of “blood and iron” patriotism, like that of Otto von Bismark. It was Bismark who consolidated Germany into a Prussian-dominated nation state in part through a kulturkampf waged against the Catholic Church and culture. Racism, ethnic violence, and various forms of antidemocratic politics are said to arise from too close an identification of the nation with a specific culture or people. And it clearly is the case that such forms of violence, even genocide, have resulted in part from the capturing of political power by one group that chooses to identify its racial or ethnic makeup as deserving and requiring supremacy over others identified as disloyal by their very being.

The choice, then, seems a stark one; one not likely to encourage attachment to any form of patriotism. In the first case we see a kind of political religion, in which ideological commitments trump all other attachments and may even justify immoral actions for the greater good they promise. Religion itself, in the sense of a way of life binding a community to a particular conception of the good and how it can be pursued with virtue, becomes a tool of the state. Lost, then, are the natural checks on power provided by religious institutions and standards of conduct meant to restrain human appetite and pride in the name of faith, hope, and love.

In the second case, we see a civil religion, in which the people is identified as a political as well as cultural highest good, to which all other goods must be subordinated. Many proponents of civil religion deny the dangers of such identification by ignoring or denying its cultural component. Robert Bellah, for example, identifies “civil” religion as a form of quasi-religious attachment to American democratic principles. He deems this form of public religion largely benign if kept subordinate to his chosen political principles (equality), thereby confusing civil with political religion. But true “civil” religion, or attachment to “the best of” a people, is merely an invitation to turn ethnic, geographical, or other attachments into a kind of higher calling, akin to that of politics, and Bellah’s “civil” religion is merely a political replacement for its civil counterpart.

What then, of the patriot? If both civil and political religion result, in effect, in a religious attachment to a regime that justifies moral enormities in the name of ideology (including an ideology of ethnic identity) is there no virtue in the love of country? Is the soldier either a fool or a cad, willing to kill for inhumane reasons?

Of course not. Patriotism merely means love of one’s own. It is an attachment to one’s land and people, as well as the form of life (including the political form of life) they lead. This form of love is virtuous to the extent that it is well ordered. One naturally loves one’s own—the people with whom one has grown up, the form of life in which one is raised, the political and economic customs one shares with one’s fellows. The desire to improve one’s own is natural enough, though increasingly promoted by contemporary ideologies. That desire generally and properly is rooted in the customs, principles, and assumptions already present in one’s culture.

Thus the political structures of medieval Europe were constantly under pressure from the demands of the Church both as an institution and as a set of moral, political, and legal principles formulated through canon law, codes of honor (the chivalric code was a very real, active motivator of human conduct for many), and political debate. The principles were internal in the sense that they were generated by forces within the culture. At the same time, they transcended merely political and merely ethnic loyalties and considerations. One’s patriotism, or love of country, was properly limited and even conditioned by love of God, of Church, and of other associations within the political, ethnic, and geographical horizon. Particularly at a time before “country” had been consolidated and simplified into the territorial nation state, love of one’s own pulled one in many directions, subjected one to many sets of duties, and allowed one to pursue the split and conflicting loyalties natural to a good life in a manner capable of spurring one to virtue and decency as great deeds for what might or might not be truly great causes.

The danger of patriotism is not its love, or even the willingness it provides to people to sacrifice for their country. The danger comes about when the nation state, the people, or some other specific unit within a society claims sovereignty over all others, demanding loyalty to itself above all. For such loyalty belongs to God alone and is properly put into effect only through the balancing of moral duties to those around him, in all the rich variety of circumstances and associations provided by a decent life.

Original source

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

Perhaps we should stop listening to secularists in our fight against ISIS

26 Feb

From Dr. Paul Miller in The Federalist (excerpt):

In truth, the Islamic State’s (ISIS’s) religious nature is banal because it is so obviously true. The Islamic State is difficult to comprehend only for secularists who believe religion is an aberration in the modern world. It isn’t: they are. Ignoring the religious nature of jihadists is the simple arrogance of those who dismiss as “false consciousness” the sincere devotion of the faithful. I read Graeme’s piece and felt like Captain Renault being shocked—shocked!—to find gambling going on in Rick’s Cafe. You’re only shocked if you’ve been deluding yourself for a decade.

But the religious nature of the Islamic State—and of jihadist terrorism generally—feeds into some disturbing chatter I’ve heard among conservative friends and colleagues. People rarely say it publicly, but in private conversations and emails among friends, I’ve heard more mutterings about the problems with “Islam,” about how the Islamic State proves Islam is not a “religion of peace.” I heard someone wonder when we were going to recognize the threat from “them” and start tracking Muslims in America to protect ourselves from their plots.

We are right to dismiss the White House’s pablum as vacuous nonsense. But rejecting one idea does not mean we have to affirm its opposite. It is false that jihadism has nothing to do with Islam; but that does not mean that Islam is nothing but jihadism. The tiresome, politically-correct cliche about the vast majority of Muslims not being terrorists….is true.

…jihadist religious claims are certainly relevant. Success in war depends on knowing your enemy. Social scientists who dismiss the religious claims of jihadists, treating religion as epiphenomenal to some other “real” cause, betray a materialist, secularist bias and do not help us understand our enemy. The secularist view—that jihadism is the product of frustrated rational actors lashing out at their disempowerment in corrupt, poor, repressive societies left behind by globalizing modernity—is true but incomplete, the shallow understanding of secular modernity unable to come to grips with the enduring power of religious identities.

Religion powerfully intermixes with politics in all societies in the world, including the United States—whether it is the religion of Christianity or the religion of Enlightenment secularism.

Why everyone should have at least a love – hate relationship with the sexual revolution

19 Feb

College students are consistently taught that the sexual revolution victimless even in human history. A costless benefit to everyone. Of course, the truth is more complicated than, even quite the opposite of, that. Rod Dreher explains in an excellent piece from the NYT:

“Viewed from one angle, the sexual revolution looks obviously egalitarian. It’s about extending to everyone the liberties — the freedom to be promiscuous, to pursue sexual fulfillment without guilt — that were once available only to privileged cisgendered heterosexual males. It’s about ushering in a society where everyone can freely love and take pleasure in anyone and anything they want.

But viewed from another angle, that same revolution looks more like a permission slip for the strong and privileged to prey upon the weak and easily exploited. This is the sexual revolution of Hugh Hefner and Larry Flynt and Joe Francis and roughly 98 percent of the online pornography consumed by young men. It’s the revolution that’s been better for fraternity brothers than their female guests, better for the rich than the poor, better for the beautiful than the plain, better for liberated adults than fatherless children … and so on down a long, depressing list. At times, as the French writer Pascal-Emmanuel Gobry recently suggested, this side of sexual revolution looks more like “sexual reaction,” a step way back toward a libertinism more like that of pre-Christian Rome — anti-egalitarian and hierarchical, privileging men over women, adults over children, the upper class over the lower orders.”

Full article

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