November 21, 2004
Religion and politics
Don Herzog, Herzog: "A Christian Nation?": November 21, 2004
Well, right, that's a huge topic -- or, better, a cluster of topics. I flinch, for instance, every time people champion or condemn "the separation of church and state," because that could mean lots of things, some of them good, some not. (I teach first amendment and begin the section on the religion clauses with a quick battery of cases designed to show the students that "separation" can't settle anything. Even though some of the justices have thought it can: there are inadvertently hilarious moments in the cases, with for instance Frankfurter meeting a challenge to religious teachers coming into Illinois public schools by intoning, "Separation means separation, not something less." Gee, thanks.)
So here's one topic, or anyway a smaller cluster. Lots of people on the right complain that this is a Christian nation and liberalism makes us lie and pretend it isn't. "Christian nation" has to mean more than "a nation in which lots of Christians live." The smartest version of the argument I know is in Richard John Neuhaus's The Naked Public Square, which has some great vignettes: the TV cameras went off, he reports, whenever Martin Luther King started talking scripture, and King remarked sadly -- I'm going by memory here -- "they want to know what we're doing, but not why we're doing it; so they'll never really understand what we're doing."
So what would change if we agreed that we are a Christian nation? Well, I'd get jittery: but why? I asked a really smart conservative Christian student of mine what would change. He didn't know. I asked if the University of Michigan could impose a religion test on hiring faculty, on the theory that we are entrusted with educating the young and a Christian nation doesn't trust diffident Jews and atheists with that task. He was horrified: "of course not!" I asked if only Christians should be permitted to serve on juries. More horror, this time laced with the suspicion that I was teasing. I asked if people who could demonstrate regular church attendance or home prayer should be given income tax deductions. Now he knew I was teasing.
But I wasn't. I really wanted to know what would change. The right likes to lampoon the left for its infatuation with identity politics. Now there must be more to "Christian America" than right-wing identity politics. It seems too skeptical, too derisive, to think that if people weren't bridling under the perception that "liberal elites" sneered at them, we wouldn't face demands for school prayer, creationism, and the like. So what else is there?
secular humanism
Don Herzog: November 21, 2004
Is America succumbing to secular humanism? And is secular humanism a(nother) religion?
Again I want to ask, what's the ism? For sure, lots of pedagogy underplays or erases the role of religion. A favorite example of mine is Washington's Farewell Address. From grade school on, Americans learn that the grand old man counselled no entangling alliances in foreign policy. As indeed he did. But -- to overstate the point only slightly -- that's almost an afterthought in the speech. Washington wonders whether the American republic can survive without staunch Christianity (read: Protestantism). He concedes there may be a few people (read: Jefferson) who can be counted on to be virtuous without religion, but says that America must depend on Christianity. That gets whitewashed out of the historical record. It shouldn't be: that's indefensible Orwellian Newspeak, every bit as unbelievable as the poster in my daughter's third-grade classroom that listed the four principles of the founding fathers. The last on the list was "diversity." Yeah sure.
Is secular humanism the principle that dictates, "no prayer in public schools"? We don't -- and shouldn't -- follow quite that principle. No one races over to stop the kids in the lunchroom from saying grace before they devour the soggy french fries. And contrary to mythology, a mandated moment of silence at the beginning of the school day is perfectly constitutional, and should be. (Alabama ran into trouble when they amended their existing "moment of silence" statute to make it clear that prayer was permissible. The Court decided the legislature was doing a nudge-nudge-wink-nod routine to encourage or endorse prayer.)
But if the principle mandates that teachers or principals or school boards not encourage or require students to pray, it's a damned good one -- even though it outrages many. It's open to two readings. One: "prayer doesn't belong here." Two: "prayer is bad." Liberals read it the first way, some evangelicals the second. (Try comparing the rule, "no sex in school." Or, "no using cellphones in school.") Why?
For centuries, there have been two strands of liberalism. One is frankly, violently, gleefully anti-clerical. Diderot and Voltaire write this way, I suppose because of the whopping power and wealth of the Catholic Church in 18th-century France. The other is absolutely respectful of religion but anguished about maintaining social order and civility after the Reformation. No surprise, then, that some Americans hear echoes of the first tradition in such rules as "no prayer in schools," not least because some of us on the left are in fact anti-clerical, and stories about Rawlsian public reason and the like don't command wide allegiance or even comprehension.
We need to press the first reading of such rules as "no prayer in schools." I suppose there's room to enlist Christians worried about the perils of Caesarism: though the mainstream news media largely ignored them, many devoutly religious types were themselves outraged by talk of "flag desecration," not because it's all that awful to burn a flag or wear it on your butt, but because a flag is profane, not the sort of thing that can be desecrated. But this will remain an uphill struggle, even though one well worth pursuing.
December 02, 2004
public, private, and schools
Don Herzog: December 2, 2004
The public/private distinctions -- plural deliberately chosen, thank you very much -- are awfully slippery. That means they'll be hard to sort out crisply here, but more important that it will always be easy for political actors to play fast and loose with them.
If a public school teacher can decide that a 7-year-old student has misbehaved for explaining to a classmate that he has two mothers, who are gay, something has misfired dreadfully. But I bet some people will think allowing students to share such information in school, let alone encouraging -- or requiring -- them to treat the messenger and the news with respect, counts as "promoting a homosexual lifestyle," or some such bugbear.
Susan Okin wanted the liberal state to use the public schools to declare war on gender formations, which she saw as radically unjust on their own terms and as having dreadful larger political implications. The argument is a political nonstarter, or, worse, counterproductive. (Can't you hear Rush Limbaugh sneering?) Still asking the public schools to keep silent on everything that's controversial -- evolution, gender, you name it -- or simply to report multiple positions -- evolution and creationism, equality and homophobia, &c -- is indefensible.
Some battles here have to be fought. These days some serious conservatives, and some serious reactionaries, have mobilized to take over school boards. If you were troubled by the news that some states are watering down evolution, and some textbook publishers are too, just wait. This is one of many reasons it's politically suicidal, as well as indefensible on grounds of principle, for liberals to spend so much time and energy whispering in the ears of appellate court judges.
December 08, 2004
inner city blues
Don Herzog: December 8, 2004
I wouldn't say that symbolic issues don't matter politically. They clearly motivate people and it would be crazy to say that as a general matter they shouldn't. But I sometimes ruefully think we are fiddling while Rome burns. (I think gay marriage matters. I think flag-burning, to invoke another proposed constitutional amendment that gets people excited, basically doesn't.)
Everyone knows the dreadful facts about the state of many inner-city communities: unemployment rates running 30, 40 percent; lots of crime; broken families; dismal schools.... The litany goes on, and we know how to recite it, and nothing is happening. And there are demographic problems in some of these cities: the population of Detroit proper (not its wealthy suburbs) is down well over half from its peak, and it's very hard to run a decent city with block after block of vacant buildings. As long as we can warehouse an astonishing proportion of young black men in the criminal justice system, as long as the thin blue line will guard those of us lucky enough to live elsewhere, we don't care.
So -- this is a serious question -- what can and should be done? I don't know if Jack Kemp's proposed enterprise zones would have worked, but boy I would have loved to see some state experiment with them. I think it is overstated to say that the Great Society was a failure, overstated too to quip that its real success was in hiring black Americans as federal employees and moving them into the middle class as bureaucrats. The left is often ridiculed, sometimes rightly so, for ritually intoning "there ought to be a law" in response to one social problem after another. Should there be new laws? or what?
December 09, 2004
equality of opportunity: one
Don Herzog: December 9, 2004
In 1573 England, John Fortescue was irritated by Lord Grey's hunting on his property. He asked him to stop. "Stuff a turd in your teeth," the lord said breezily. (No points for guessing how we say that today.) "I will hunt it, and it shall be hunted in spite of all you can do." Fortescue wouldn't have gotten anywhere with a trespass action. Peers of the realm couldn't be arrested except for treason, felony, and breach of the peace; they couldn't be forced to appear in court on most writs; they didn't have to testify under oath; they didn't sit on juries. Their status as aristocrats made them magically exempt from these requirements. And what we call equality under the law was born as a campaign to strip people of special privileges -- and burdens -- based on their status.
In 1762 Toulouse, Jean Calas was broken on the wheel and executed after being found guilty of the murder of his son, Marc-Antoine. Marc had been found dead in the family's apartment after excusing himself from dinner. The family didn't immediately claim he'd committed suicide: they hadn't wanted to, they explained, because the bodies of suicides were cast ignominiously on the trash heap outside town. But really, they said, that's what he had done. Why? Well, he was depressed about his inability to practice law. As a Huguenot (or Protestant), he couldn't be admitted to the bar: you couldn't practice law in France without proving that you'd recently accepted the Catholic sacraments.
The authorities had another theory of the case. Scrupulously following contemporary procedure, they posted signs offering to reward testimony not just that family members had been heard threatening Marc, but that he had been planning to convert to Catholicism to become a lawyer. And anyway it was well known that Luther and Calvin had taught their followers that it would be better to murder a Protestant than allow him to leave the true faith and roast in hell as a papist. The evidence was forthcoming, Jean convicted, and an old annual parade celebrating St. Bartholemew's Day massacre, a bloodbath of Huguenots in 1572, was revved up again.
No special privileges at law for aristocrats, no special disabilities for Catholics, and so on: that campaign for equality under the law has been spectacularly successful, even though it struck conservative contemporaries as simple lunacy, a threat to the very possibility of social order. So too for the closely connected ideal of equality of opportunity, which also flatly prohibits forbidding Protestants from becoming lawyers. It isn't fair.
In the popular image, everyone has to run the race by the same rules. And then we get a familiar contrast -- there's an especially hilarious version in Kurt Vonnegut's "Harrison Bergeron," where a nastily leftist future USA handicaps the talented and superior to drag them down to everyone else's level, or, rather, the level of the least talented. (For the record, egalitarians looking at fancy universities for the elite did not burn down the universities. They campaigned for universal education.) Equality of opportunity is great; equality of outcome -- somehow trying to ensure that everyone crosses the finish line together, or that everyone earn $28,967 a year, live in an 1100-square-foot apartment, and have 2.28 children -- is wildly unjust and tyrannical.
So far so good. But (hey Rocky! watch the nerdy professor pull a rabbit from his hat!) the usual story continues in the following way. Here I want only to set out the abstract argument. Over the next few weeks, I'll try putting it to work on concrete policy issues.
It's not enough to stop handicapping some runners and privileging others. Equality of opportunity seems to depend on some version of equality of starting points. If the son of J. Paul Getty starts life with millions and goes to a fabulous school, and you start life in Watts and go to a "school" that is mostly about social control, it's worse than facetious to say, "okay, the two of you now should run the race; ready, set, go!" Yes, it's possible that you'll beat out the wealthy kid. But those of us who are standing on the sidelines betting will require pretty long odds to take you. Head starts in the race aren't fair, either.
Equality of starting points can't literally mean identity of starting points, for the same reason that equality of outcomes is repulsive. No one in his right mind should want to homogenize schools, communities, and the like, and anyway it's impossible. So in the usual story line, which I'm mechanically following -- and which you are obviously free to challenge -- the best interpretation of equality of starting points is setting some decent minimum or floor below which no one may fall. There's endless room for disputes in various domains about where that floor is. But I'll 'fess up: it seems to me we're not meeting it. We pay lip service to equality of opportunity, and it's an invaluable ideal -- it's hard to know how even to challenge it, though again, be my guest if you'd like to -- but once you see that it requires more than getting rid of the rules that benefitted Lord Grey and harmed Marc-Antoine Calas, once you see that it requires some version of equality of starting points, you realize we have a long way to go.
December 10, 2004
true confessions & cesspool alert
Don Herzog: December 10, 2004
I've been drily amused by some of (must I emphasize "some of"?) the comments here about what leftists are like. I do not resent the talented and their accomplishments; I admire them; I am not an egalitarian because of envy, resentment, the grubby desire to destroy superiority when I run into it. This egalitarian character, or caricature, is fun to read about in von Mises and Rand, but I don't even know anyone like him.
Nor am I a big Hollywood fan. In fact, I've not watched any movies for twenty years now. The only TV I've watched in that period is presidential conventions, debates, and election returns. Much of popular culture, when I do bump into it, appalls me. Those of you who share the sentiment but adore markets had better not blame Hollywood: they're just responding to consumer demand, right? Those of you who think I am free to use the off button, or not turn it on in the first place, are obviously right, because that's what I've done: but you might think about the fact, for it is a fact, that this culture is importantly common. It affects even those of us who choose to ignore it. And no, this leftist does not think the state should be in the business of solving this problem. Nor that if only people were as superior and enlightened as I, they would read Henry James and listen to John Coltrane.
So I can't comment first-hand on either of the movies being "discussed" here. But the "discussion" left me genuinely ill. Last I saw Pat Buchanan, he was raging on about taking back our culture block by block, and somehow I was sure I wasn't in the "our" he was talking about, even though I suspected we had some common worries. Now I see he's dived into the cesspool and is happily swimming around. Shame on him. And woe is us, if this is what television commentary has come to.
December 13, 2004
don't tax, spend anyway
Don Herzog: December 13, 2004
Why oh why is this administration so bent on flagrantly irresponsible tax cuts?
Conservatives have long bemoaned transfer payment programs. Decades before the New Deal, William Graham Sumner was already thundering that A and B should stop putting their heads together and forcing C to do something for the sake of D. (Kudos to the Liberty Fund, an outlet that has saved my students lots of money over the years by publishing their beautiful subsidized editions of classical liberal texts, for posting his book online.) At least C has a voice in a democratic process.
The real problem with these torrential deficits is not that
December 15, 2004
an incurably ignorant public?
Don Herzog: December 15, 2004
Americans seem clueless about basic political facts. It's easy to document this in one arena after another, but I'll choose just a couple. For some thirty years, foreign aid has been under 0.5% of the federal budget (see Table Figure 8 here; LATER THAT DAY: yikes! I really did screw this up, sorry; they are quoting it as %age of GDP, not %age of federal budget; but that won't change anything that matters, given how much of GNP the feds chew up and how small the foreign aid percentage has been for many years; I'll try to take more care next time, promise). But asked what the facts are, Americans consistently wildly overestimate. In one December 2001 poll (subscription required), only 2% of respondents correctly said it was under 1%. 22% of respondents figured it was 11-25%; 29% thought it was 26% or more. More such results are reported here, including this dubious gem: 64% of respondents in one poll thought foreign aid the "largest area of spending by the federal government." And including this salutary reminder: people with graduate degrees were way off the mark, too.
Similarly, in 2000 (go here, register, and enjoy poking around) fewer than 11% of respondents could identify what William Rehnquist does for a living (variable 1449a, though I needed help from the local experts to be sure I was deciphering the data set correctly). They were questioned from September to December, and endless media coverage of the Florida debacle must have driven up the number from a more feeble baseline.
In a 1920s exchange that would be repeated endlessly, Walter Lippmann argued that "The world we have to deal with politically is out of reach, out of sight, out of mind." People have to rely on what they're told. Politics is far away, not of everyday concern, threatening too, and so individuals fall back on stereotypes, codes, comforting blind spots, and the like. In The Public and Its Problems, which alas seems not to be online, John Dewey made his usual wonderful move, and argued that instead of seeing brute facts of human psychology, we should see contingent social practices. What kinds of changes, he asked, would make people better informed, more politically intelligent? Alas, Dewey made the argument in his usual curious dialect, noticed with hilarious derision by Mencken before he turned to his take-no-prisoners attack on Thorstein Veblen. But it's still a good argument. Better, surely, than throwing in the towel.
So how could we be smarter? Here are some baldly peremptory assertions, to kick off discussion. One: the news media could and should do much better. Instead of the more or less constant intensive focus on the day's breaking news, whatever has just changed, they could and should more often set events in context, remind the reader of basic facts, and so on. And the media is often confused about objectivity. They should firmly embrace a Weberian conception and dig up facts embarrassing any and all partisan points of view, instead of presenting us with putative experts who disagree and then saying nothing in their own voice.
Two: political campaigns play to the world according to Lippmann, and the game has become contemptibly Pavlovian. Check those focus groups: which catchphrases will trigger the desired response? ("It's hard work," "I have a plan," yadayada.) This helps make us stupider by giving us every reason to tune out. Little-d democratic politics deserves better.
December 20, 2004
market fundamentalism
Don Herzog: December 20, 2004
Okay, gang, quiz time. (Look, no moaning. You're reading a blog written by professors. What did you expect?) Identify the authors of these snippets. Using Google is cheating and will be savagely punished:
- Vanity drives the struggle for wealth. The rich want "to possess those decisive marks of opulence which nobody can possess but themselves."
- Market society is profoundly inegalitarian. "For one very rich man, there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many."
- There's nothing fair or evenhanded about the role of government in any of this. The government, "so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all."
- The division of labor is profoundly dehumanizing. "The man whose whole life is spent in performing a few simple operations ... generally becomes as stupid and ignorant as it is possible for a human creature to become." Eventually he becomes "incapable of relishing or bearing a part in any rational conversation [or] of conceiving any generous, noble, or tender sentiment, and consequently of forming any just judgment concerning many even of the ordinary duties of private life." Instead of abandoning the workers to their "drowsy stupidity," the state ought to supply public education.
Some comments in threads on this blog dutifully recite decades-old and once-plausible right-wing indictments of The Leftist. This creepy character thinks the state a wonderful engine for designing society from scratch. He distrusts private initiative and longs for giant bureaucracies to run people's lives for them. I don't doubt that much of the Western left cozied up to the Soviet Union for much too long, or that you can still find people willing to say nice things about the Khmer Rouge or the glory days of Enver Hoxha's Albania. But please, people. We bloggers are not sketching evil cackling capitalists with top hats and watch fobs. Some of us lefties think markets are great. I sure do. Why?
The fundamental point is worked out in the debate about whether state socialism could be economically efficient. (I'm thinking of von Mises, Lange, Taylor, Knight, and others.) Decades later, Hayek wrote a profound distillation of the case for markets as vehicles for assembling farflung information that no central planner could conceivably get his hands on. I'm 100% sold on this case. And markets have other virtues. They are wealth-creating devices, and in a world where poverty remains endemic, no one should sneeze at that, no matter what you think about distribution. And -- a point Murray Rothbard has pressed -- if you get the state out of the business of handing out benefits to vociferous firms, they actually have to compete with each other instead of rent-seeking. There are yet more virtues of markets, which I'm sure readers here can and will produce, but in the meantime, let's continue the quiz: who wrote this?
- "The cruellest of our revenue laws, I will venture to affirm, are mild and gentle, in comparison of some of those which the clamour of our merchants and manufacturers has extorted from the legislature, for the support of their own absurd and oppressive monopolies. Like the laws of Draco, these laws may be said to be written all in blood." The state should be wary in responding to these capitalists, because they "have generally an interest to deceive and even to oppress the publick."
Now there's a huge literature debating when or whether markets fail -- will they provide public goods? and because of network effects and the like, will they create monopolies not disciplined by the threat of entry? And then there are questions about whether the state can improve on even failed markets. Leave that stuff aside. The real question, I think, is: what are the proper boundaries to the market? What do we want to buy and sell, and what do we want to allocate in other ways?
Once we bought and sold people. Slavery is one way to have a market in labor, and we rejected it. Now employers can purchase your labor, but not you. Richard Posner has proposed buying and selling babies, or "parental rights," to get rid of those noxious queues at adoption agencies: most of us flinch, even though he's got to be basically right about the queues. The state assigns each adult citizen the nontransferable right to cast one vote. We could have a market in votes: the state could assign initial property rights by mailing you a coupon that says, "bearer has the right to cast one vote." You could "consume" your property by casting the vote yourself; you could donate the coupon to the political charity of your choice; you could sell it to Ross Perot. But we reject any such market, and we don't budge when an economist observes that prohibiting free transfer generates deadweight loss. Citizenship itself isn't for sale. The usual way to get it is by being born here, which has nothing to do with merit or accomplishment or hard work or consumer demand. Fans of the Boston Red Sox had to wait for their team to win the right games at the right times to win the World Series; they couldn't pool together and raise enough money to buy the title from the Yankees.
The list of nonmarket goods is awfully long and wonderfully diverse. A liberal society isn't just a free market underwritten by a night-watchman state. It has lots of different institutions -- churches, universities, clubs, you name it. Market fundamentalists, as I'll cheerfully dub them, want to envision all of society in the market's image. There are other kinds of fundamentalists out there. A certain kind of participatory democrat wants all of society to be run democratically: she'll demand, why don't workers get to make decisions at firms? and why should the Roman Catholic Church be so hierarchical? Christians have occasionally suggested that all of society should run on an ethic of brotherly love. And so on.
We should reject all these fundamentalisms, and instead respect the idea of boundaries between different social settings. (That's not the same as maintaining whatever the current boundaries are. When the state ditches slavery or makes sexual harassment actionable, it redraws the boundaries of the market.) And we should reject the view that whatever the state does is coercive, and whatever society or the market does is voluntary. The state can write rules that expand our options, and no, not by grabbing and redistributing things that others are entitled to. The legal rules for writing a will let you do something magical and bestow your property after you're dead. And social relations can be coercive. Oh, if you're anxious about your grade, for extra credit you can identify the author of this passage:
- Labor markets are fundamentally coercive. Wealthy employers can outlast their workers in the event of disputes. "It is not ... difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms."
Notice the right-wing complaint that crazed political correctness is silencing people on campuses and elsewhere, even costing them their jobs. True or false, it sure does depend on the view that you can find coercion outside the state. Your action isn't voluntary if you had no reasonable alternatives, and it doesn't take a law to deprive you of such alternatives. Once we wrest free of market fundamentalism, we can see problems with state action and possibilities for it that have nothing to do with market failure, economic inefficiency, regulatory capture, and the like. And we can see a host of political problems -- controversies over the legitimacy of authority in farflung social domains -- that have nothing to do with the state.
Oh yeah, my quiz. I'll trust you to grade yourself with the answer key: every single passage is from Adam Smith, The Wealth of Nations. I wonder how many of those energetic young right-wing lobbyists sporting Adam Smith neckties know what he actually says.
December 22, 2004
a Christian nation?
Don Herzog, Herzog: "A Christian Nation?": December 22, 2004
A while ago I wondered what would change if we publicly affirmed that this is a Christian nation. My dilemma shapes up this way. I don't want to believe that the people urging that are doing right-wing identity politics, slinging around vacuous slogans; I assume they want concrete policy change, not feel-good gestures. But on the other side, I don't want to believe that the people urging that are what I'd style extremists who might think, for instance, that a public university could fire me as a faculty member if I couldn't demonstrate that I was a Christian in good standing. (If there are people who'd do that, I'd argue against them. Strenuously. Not just label them extremists. But hey I'd do that too. Any port in a storm.) So I keep looking around for some position that skirts the horns of that dilemma.
And then I found this language from the 2004 Texas Republican party platform:
Christian Nation – The Republican Party of Texas affirms that the
United States of America is a Christian nation, and the public
acknowledgement of God is undeniable in our history. Our nation was
founded on fundamental Judeo-Christian principles based on the Holy
Bible. The Party affirms freedom of religion, and rejects efforts of
courts and secular activists who seek to remove and deny such a rich
heritage from our public lives.
Free Exercise of Religion – The Party
believes all Americans have the right to practice their religious faith
free from persecution, intimidation, and violence. While recognizing
one’s freedom from religion, this recognition should not limit others’
free expression of their religious beliefs. Our Party pledges to exert
its influence to restore the original intent of the First Amendment of
the United States Constitution and dispel the myth of the separation of
Church and State. We support the right of individuals and state and
local governments to display symbols of our faith and heritage. We call
on Congress to sanction any country that is guilty of persecuting its
citizens because of their religious beliefs.
Religious Institutions –
The Party acknowledges that the church is a God–ordained institution
with a sphere of authority separate from that of civil government;
thus, churches, synagogues and other places of worship, including home
Bible study groups, seminaries and similar institutions should not be
regulated, controlled, or taxed by any level of civil government,
including the Social Security Administration and the Internal Revenue
Service. We reclaim freedom of religious expression in public on
government property, and freedom from governmental interference.
Now we don't in this country have what political scientists describe as "responsible party government": this language is manifestly not a concrete set of policy proposals that the Texas GOP pledges to try to pass in the next session. Obviously much of it is just exhortation about federal policy, and I assume more generally that all party platforms in this country are some mix of what the activists really believe and what they think will appeal to their members and the broader public, spiced heavily with declarations of victory over vanquished party factions.
I don't suppose that the Texas GOP would adore me or my politics. And their language isn't boilerplate. (Here's the only mention of Christianity in the 2004 national party platform: "America is a working example of religious liberty, home to millions of Christians, Jews, Muslims, and people of many other faiths who live in harmony and contribute to our culture." Yes, I suppose they could have included atheists and agnostics, but we're a long way from Texas. I dug up half a dozen other state GOP platforms and none of them whispered a syllable about Christianity.) But none of this language makes me shudder or grimace or roll my eyes derisively. I don't support a blanket exclusion of religion from public or government settings. (Neither does current first amendment doctrine.) I think it contemptible to teach American history and pretend Christianity has made no difference, though I also think some people overplay or misunderstand the differences it has made. But that's just business as usual in the liberal arts, where we try carefully to sort out the merits of competing views. (When Pat Robertson applauds Jefferson for his "eternal enmity against every form of tyranny over the mind of man," I want to say, wait! Jefferson was talking in part about priestcraft.) I do worry about the state throwing its weight behind one religion, or religion generally, if that looks like carving the community into first- and second-class citizens. (So does current doctrine.) And I think the position that all religious institutions must not be taxed or regulated, no matter what, isn't right, but actually most jurisdictions are pretty hands-off. So maybe under this proposal the Texas GOP would favor doing some things that I'd strenuously oppose; maybe not. It's too early to tell on the basis of language this abstract.
I guess I'm still looking for some position that skirts the horns of my dilemma. And though I fear some of you will think I'm facetious, I really don't want to believe all this talk of Christian America is cheap identity politics. I'd like to find some concrete policy proposals that reasonable people could disagree about. I'll keep looking. Meanwhile, call this a lack-of-progress report.
December 25, 2004
equality of opportunity: two
Don Herzog: December 25, 2004
A while ago, I started thinking about equality of opportunity. I suggested that the familiar contrast between equality of opportunity and equality of outcome is too quick. So is the familiar maneuver of accusing the left of being committed to equality of outcome, a gruesome ideal that requires endless coercion for no point. Instead, I suggested that any viable conception of equality of opportunity requires some accompanying conception of equality of starting points, and in turn that any viable account of the latter has to focus on a minimally acceptable floor, not literal equality.
Here I want to (barely) sketch a case for the scope, reach, and justification of antidiscrimination laws. A historical point first: these are not some new and odd incursion on private property. Common-carrier doctrines stretch back centuries in the common law: if you held yourself out to serve the general public in transporting goods, people, or messages, you couldn't simply turn prospective customers away and say, "it's my property, I can do as I like." Those principles were quickly extended to inns, taverns, and the like: places offering "bed, board, and hearth" to travellers similarly couldn't turn prospective customers away. There were exceptions: you didn't have to take someone diseased and contagious, say, into a coach or an inn. But the general rule was, no discrimination against paying customers.
A line from Blackstone's Commentaries -- "There
is nothing which so generally strikes the imagination and engages the
affections of mankind, as the right
of property ; or that sole and despotic dominion which one man claims
and exercises over the external things of
the world, in total exclusion of the right of any other individual in
the universe" -- is sometimes cited as a prize nugget of classical
liberal insight on property rights. But Blackstone invokes it only to
launch a long and complicated history of how this intuition properly
gives way to wide-ranging historical developments.
These historical points don't settle what we should do; I introduce them only to continue my nefarious project of showing the deep continuities between us left-liberals and our classical-liberal ancestors. If you're a libertarian, you're free to argue that the line in Blackstone is (more or less) right as it stands. And then we have the usual fun dilemmas: should I be permitted to buy a donut ring of property surrounding yours and then refuse to allow you to leave your lot, on the grounds that it would be trespass? Less whimsically, absolutism about property has always yielded in the face of pollution. In Anarchy, State, and Utopia, Nozick has a brief discussion oddly set off in italics. A subordinate clause -- "Since it would exclude too much to forbid all polluting activities" -- gives away the game. On the absolutist view, if a single propertyholder refuses to consent to having pollutants enter her property, that should be enough to shut down industry and other polluting activities. If you think that view wacky, you're now playing the same game we always do, the game I'm about to continue: what sorts of property rights ought to be extended in what sorts of social settings with what sorts of conditions and exceptions? In the modern image, property is a bundle of rights, not a simple unitary right, and it is shrill and misleading to think of the spectacularly complicated rules about the bundle as the eradication of private property.
I think antidiscrimination norms ought to be extended in some public settings -- in line with the Civil Rights Act, to labor markets and public accommodations. Here "public" doesn't mean, "title held by the government." It means, "generally open to strangers." (Notice that in the former sense, all the firms of a capitalist economy are private; in the latter, we distinguish the private ones, owned say by the founding family, from the public or publicly traded ones, where anyone can plunk down cash to buy shares of stock.) Critics on the right and left have complained that antidiscrimination laws make their alleged beneficiaries think of themselves as victims and spend a lot of time whining. I think that criticism overplayed. And yes, you can write down simple models in which markets will weed out and punish discrimination. But you can also write down models -- George Akerlof has -- in which markets won't do that. (Diagnostic test: you can tell whether your attachment to free markets is principled or tactical by asking, would I stick with markets even if I thought that they'd never eradicate unjust discrimination?) A market with antidiscrimination norms will not somehow guarantee that blacks and Hispanics will earn as much as whites, women as men, and so on. But it will guarantee everyone a fair shot at success, the kind of starting point I think is required by equality of opportunity. Likewise, antidiscrimination regulations in housing markets, which I also support, needn't produce desegregation. If each household wants to live in a neighborhood that is just 51% people "like us," you'd observe 100% segregation; if people have varying preferences, you'd observe varying patterns. So no equality of outcome is in the cards, and that's just plain fine.
Are there limits to what I'd have the state do here? You bet. First, there are many settings in which I wouldn't legally impose antidiscrimination rules. Not in churches, not in small private clubs, not at people's dinner tables or wedding parties, and so on. The workplace and public accommodations, though, are settings where everyone needs and deserves access on equal terms. There are as always lots of controversies at the margins. I might disagree for instance with facets of current American contract law. But I also see no reason to think the regime is fundamentally wrongheaded.
Second, contempt for any number of pariah groups -- women, workers, Jews, blacks, gays and lesbians, the disabled, hairdressers (yes, really, at least in Britain around 200 years ago), &c ad nauseam -- has a viciously lively life of its own in many social settings. I don't believe that equality under the law or antidiscrimination legislation is enough to eradicate that contempt, but I wouldn't have the state go further. I would never sentence people who offend against antidiscrimination norms to attend classes in sensitivity training -- yuck! I'd just tell them to shape up or ship out. Objects of contempt are still going to have to struggle for dignified public standing, but I think those struggles should be left to private actors, not legislators and bureaucrats, and fought with such nonlegal tactics as debates, cartoons, novels, rallies, sermons, leafleting, and the like. This, for me, is a crucial example of a political struggle the state should have nothing to do with.
"But the state doesn't belong in the free market!" Well, if that means the state shouldn't be slapping on tariffs to protect Harley-Davidson bikes or steel, shouldn't be imposing wage-price controls or subsidizing tobacco, I quite agree. But the state is of course extensively involved in setting up the legal framework of the market: so the law of contract, property, and tort. I see antidiscrimination laws as the same kind of ground rules. They "intrude" on the market if and only if they're unjustifiable. So yes, when the Civil Rights Act bans racial discrimination in the workplace or in public accommodations, it does indeed limit the property rights of employers, hoteliers, and the like, and if needed the state will exert coercion by intervening or supplying private rights of action as remedies. But if the Act's provisions are justifiable, there's no more room for complaint about the coercive might of the state than there is when the state strips slaveholders of the rights to buy and sell people, or strips aristocrats of the right to conduct private wars with their armed retainers, or refuses to enforce contracts based on fraud. And once we give up on absolutism about property, it's easy to see the case for antidiscrimination measures.
December 28, 2004
earthquakes
Don Herzog: December 28, 2004
That one, too, killed tens of thousands. That one, too, featured tsunamis that flabbergasted eyewitnesses. But the Lisbon earthquake of 1755 is now remembered mostly for sparking a debate between the likes of Rousseau and Voltaire on providence and theology. Voltaire, bless him, found it impossible to believe this was the best of all possible worlds.
Today, we turn to seismologists, not philosophers, to illuminate the earthquake: no one who writes for this blog is fielding any calls from The New York Times, thank you very much. And that is a happy sign of progress.
But we do mix together scientific and political perspectives. We don't think of an earthquake as a trial and tribulation sent by God or nature before which we can only repent for our sins or cower. Instead, as Amartya Sen did in his pathbreaking work on famine, we ask what could and should have been handled differently, what background policies made the natural events go the way they did. It's heartbreaking to learn, for instance, that Western scientists with advance warning couldn't alert regional governments because "it's hard to find contact information." It's heartbreaking to think of the mix of poverty, infrastructure, communications, and the like that means that thousands more will now die of the likes of cholera.
I want to suggest that we can take up both "scientific" and "political," or "explanatory" and "critical," perspectives on all kinds of social problems, too. (And no, I don't say this because I'm languishing by my phone waiting for that damned Times reporter to call.) Consider teen pregnancy, urban violence, rapes, drug use and deaths from drug overdoses.... "The left" often takes up explanatory perspectives. So for instance the proposal that we think of school shootings and other gun killings as a public health problem. "The right" often insists on responsibility, blame, reward, punishment, and derides "the left" as spineless wimps, while "the left" cheerfully reciprocates by marveling at how callous "the right" is about the unfortunate circumstances that produce social pathologies.
But these aren't rival perspectives, at least not in any wholesale way. They're compatible. Think of Tony Blair's "tough on crime, tough on the causes of crime." We can punish terrorists and we can think about how to reform the social contexts that produce terrorists. There's nothing paradoxical about smashing al-Qaeda and moving against the unholy alliance of repressive Arab governments, madrassas vigorously promoting fundamentalism and violence, and so on.
Why do we act as if we have to choose one or the other? It may sound goofy, but I suspect it's all about gender. "The right" has a pose that is tough-minded, macho, masculine, and "the left" has one readily derided as feminine, even effeminate. Snort at the conjecture all you like; snort at me for offering it, too, if you like beating up on academics doing armchair political psychology. But next time you find yourself presented with what's supposed to be an either/or choice, do me a favor and think again. One of the deep structural conflicts between left and right is just a mirage. Jack Sprat could eat no fat, his wife could eat no lean: a recipe for turning any roast into a happy dinner.
December 30, 2004
school choice
Don Herzog: December 30, 2004
Here is one more reason the left -- and the right! -- ought to be gleeful about charter schools. I know one of the two founders, an astonishingly talented and committed guy. But it's a cautionary reminder of how hard and expensive it can be to turn things around for kids in blighted communities. As the latest fundraising letter says, "our program costs more than a traditional school and more than we receive through our public charter school funding. We rely on private contributions to support the range of services we offer."
January 04, 2005
tone-deaf to dignity
Don Herzog: January 4, 2005
Thomas Sowell closed out the year with a column on gay marriage that left me baffled, given how smart he is. There's lots more to say about gay marriage -- though I'll declare immediately that I'm firmly in favor -- than I'll say here. But it's worth getting clear on what some of the fundamental issues are.
Here's Sowell: "Marriage is a restriction. If my wife buys an automobile with her own money, under California marriage laws I automatically own half of it, whether or not my name is on the title. Whether that law is good, bad, or indifferent, it is a limitation of our freedom to arrange such things as we ourselves might choose. This is just one of many decisions that marriage laws take out of our hands." The contrast he summons up is freedom of contract. Live with whomever you want, on whatever terms you like. "Why then," Sowell wonders, "do gay activists want their options restricted by marriage laws, when they can make their own contracts with their own provisions and hold whatever kinds of ceremony they want to celebrate it?"
Now marriage brings instrumental benefits that individuals can't contract for. It changes the household's tax status, and no, there's not a "marriage penalty" for everyone: it depends on how much each partner is earning. Depending on state law, it may make all the difference on adoption placement, access to loved ones in the hospital, and on and on.
I don't want to dismiss any of those instrumental benefits. They matter. But surely the brouhaha over gay marriage is triggered by the expressive side of marriage. The question isn't just, what are the consequences of being married? It's also, what does it mean to be married? "Approval" isn't quite right, I think, or at least it's terribly unfocussed. (Did the state "approve" of Anna Nicole Smith's marriage?) But "dignity" and "legitimacy" are right. If we extend marriage rights to gays and lesbians, we are saying that in the eyes of the law their relationships are worthy of respect, equal to those of straight couples who want to make the same commitment.
Sowell briefly sees this too, I think, but his response is odd. He complains, "The time
is long overdue to stop word games about equal rights from leading to
special privileges -- for anybody -- and gay marriage is as good an
issue on which to do so as anything else." But what's "special" if the comparison is being treated the same as straight couples? Then Sowell promptly drifts back to the consequences of gay marriage, and what he says is worse than odd: " What the
activists really want is the stamp of acceptance on homosexuality, as a
means of spreading that lifestyle, which has become a death style in
the era of AIDS." This is even wackier than the occasional suggestion that gay marriage would increase gay monogamy and so decrease the spread of AIDS. Surely we can distinguish unprotected sex, whether engaged in by straights or gays, married or unmarried, from the legal status of marriage.
Conservatives used to be stunningly forthright in their contempt for equality and dignity. Here's Edmund Burke in 1791 -- once again, kudos to the good folks at the Liberty Fund for getting this stuff online -- sputtering over democratic citizenship and officeholding: "I can never be convinced, that the scheme of placing the highest powers of the state in churchwardens and constables, and other such officers, guided by the prudence of litigious attorneys and Jew brokers, and set in action by shameless women of the lowest condition, by keepers of hotels, taverns, and brothels, by pert apprentices, by clerks, shop-boys, hair-dressers, fiddlers, and dancers on the stage ... can never be put into any shape, that must not be both disgraceful and destructive."
Liberals and democrats won the battle on voting rights, and the sky didn't fall. (A conservative friend once confided in me that no, the universal franchise "wasn't a great idea," but he sighed and agreed it was ludicrous to contest it now. A minor but delicious historical irony is how conservatives of a traditionalist stripe embrace the victories of yesteryear's liberals, the ones their own ancestors so bitterly contested.) Against frantic opposition and predictions of doom, liberals and democrats also won the battle against restricting marriage to same-race couples. (In the trial that launched those legal proceedings, the judge declared, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.") The ongoing battle over gay marriage is just farther down the same road, which is not to say that gay marriage stands or falls with voting rights or interracial marriage.
The equality on offer here has nothing to do with mean-spirited resentment or envy. It isn't an insidious assault on talent or accomplishment. It doesn't redistribute any wealth. It doesn't set up giant bureaucracies to regulate people's private lives. It doesn't make the world deadeningly monochromatic: it adds diversity. It doesn't encroach on freedom: it adds an option that some gays and lesbians want without taking away any options from anybody.
Again, there's a limit to what the state can and should do. If we permit gays and lesbians to marry, we will not be done with controversies about homosexuality, nor with contempt for it, nor with debates about whether marriage is repressive or fulfilling, nor with extramarital sex, divorce, teen pregnancy, and so on. But we will extend legal equality and dignity to gay and lesbian Americans. Past time, say I: and to remind you, I haven't pretended to make a case for that here. But we should settle down to talk about equality and dignity, and not about freedom of contract and "special privileges."
January 05, 2005
winning the peace in Iraq
Don Herzog: January 5, 2005
Here's a detailed and sobering -- no, make that gutwrenching -- account from The Economist of how the war is going on the ground. They have been vigorous supporters of the war itself, but not, as you'll see, uncritical of its conduct.
Let's hope for much better news this year. (Whatever you make of our launching this war, it would be repugnant to wish for it to go badly, surreal not to care.) My fondest hopes are that this administration's insistently cheery refrains on the war are all about managing domestic public opinion, that they know better, and that they are flexible and imaginative enough to hammer out changes that will put our troops -- and the Iraqis -- in much less excruciating situations.
I just wish I had more to base those hopes on, let alone that I could have fonder hopes than that our leaders are lying to us.
Am I sprinting toward America-bashing? Nope. Not even tiptoeing. In one of the wilder and woollier episodes of life on the left, Jean-Paul Sartre drew up articles -- for a war crimes tribunal fronted by Bertrand Russell, no less -- accusing the US of pursuing genocide in Vietnam. How so? Sartre claimed that the North Vietnamese were fighting a popular war -- that is, one all the people were involved in, not one that people there liked -- and that in their inability to follow the classic rules distinguishing combatants from noncombatants, the US was left with a choice. They could capitulate or they could embark on a campaign of extermination. Their intention, he continued, was made manifest in the fact that they hadn't capitulated.
That argument is absurd. It fails to explain, just for instance, why we didn't follow General Curtis LeMay's advice (if indeed he gave it) to "bomb them back into the Stone Age." Or why we didn't greet accounts of the My Lai massacre with jubilation. And no, I don't introduce the memory so we can all jump up and down or point fingers or hurl accusations about Vietnam. "Lessons" from history are always tricky, but our troops are indeed in an awful fix when they can't clearly identify who the insurgents are, who might be supporting them, and who is a passive or even friendly civilian. (And we should be able to notice that they're in a fix without having our patriotism impugned: indeed my anguish about that fix is all about devotion.) I'm no expert on military affairs, but it looks like that fix is the basic problem producing the episodes The Economist reports. Again, let's hope we can solve it.
January 07, 2005
just trust us
Don Herzog: January 7, 2005
One thing the Patriot Act does not do is to allow the investigation of individuals "solely on the basis of activities protected by the First Amendment to the Constitution of the United States." We know that it does not do that. And even if the law did not prohibit it, the Justice Department has neither the time nor the inclination to delve into the reading habits or other First Amendment activities of our citizens. Despite all the hoopla to the contrary, for example, the Patriot Act, which allows for court-approved requests for business records, including library records, has never been used to obtain records from the library, not once.
--John Ashcroft, addressing the Federalist Society, 11/15/'03
The Patriot Act is huge. (You gotta love its name, right? for what it insinuates about opponents. But these political games are old. The House leadership juggled to make sure the lend-lease act of World War II came out numbered HR1776.) And it's hard to read, not just because it's in legalese, but because it inserts endless amendments into other statutes, and sometimes you have to look up the statute being amended to figure out what's going on. Just for instance, section 802(a)(2)(B) amends legislation from the Clinton administration that prohibited supplying "material support or resources" to terrorists. The amendment adds "expert advice or assistance" to the earlier definition, and its directly reaching speech raises first amendment issues that have gotten courts involved.
Here Ashcroft was referring to section 215, and this much legalese you owe it to yourself to work through:
(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. ...
(b) Each application under this section ...
(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.
(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
Under this language, the feds don't have to think you're involved in terrorism; they just have to think your records would be useful in tackling terrorism. That the order they get is "ex parte" means you aren't represented when the agent asks a judge or a magistrate to authorize a search, and the connected gag orders are there to ensure you don't find out. No wonder those doughty radicals of the American Library Association resolved to urge member libraries to protect patron privacy, nor that plenty of libraries are now routinely purging digital records.
All this may or may not be good policy, and that's worth arguing about, though I share David's concerns about cosmic clashes between liberty and security. But I'm more interested here in thinking about how we properly decide when to trust the government and when not to.
A certain kind of ("law and order") conservative is happy to trust the government on domestic and national security, but suspects that public education, social welfare programs, and the like are shot through with inefficiency, corruption, and endless scandals papered over with bureaucratic mumbles and lies. Maybe. But surely we have to watch out for wishful thinking. It can't be the case that if we think the government should do something, we therefore can trust it. Nor that if we think it shouldn't, we should scowl in disbelief at whatever good results it reports.
Nor is it a matter of your best hunch about the motives of state actors, or whether power corrupts and absolute power corrupts absolutely, or anything like that. And please, no more stale refrains about how the left instinctively adores the state and wants it to run all of society. Here's the key. The domestic programs scorned by some are open to public inspection. Enlightenment liberals insisted on sunlight, transparency, the "precious talisman of Publicity," as the Edinburgh Review put it in 1818, so that citizens could unearth abuses and correct them. In the domestic and national security context, though, it is hard, sometimes impossible, to find out what the government is up to. Since I firmly endorse that old liberal belief, I know when I'm most inclined to distrust the government: when ex parte proceedings and gag rules are at the disposal of faceless assistant special agents and magistrates.
So I don't find Ashcroft's assurances all that consoling. Neither should you.
free press for sale
Don Herzog: January 7, 2005
I think this is an easy call from left to right, but I'm (all too) ready to be surprised: this is blatantly impermissible. The state shouldn't offer. The press shouldn't accept. (Indeed the press should promptly report any such offer as a scandal.)
This sort of abuse goes way back. In the 1790s, with Tom Paine's radical publications exciting many British workers, the government paid George Chalmers five hundred pounds -- a pretty penny indeed -- to write a scurrilous and, shall we say, inventive biography of Paine, to discredit him. And of course he had to keep the arrangement hush hush, else no one would have given his work a moment's notice.
So the Bush administration was relying on secrecy, too, a further sign that what they did was shameful. The government has plenty of ways of getting out its message without stooping to paid ventriloquist acts.
January 11, 2005
a Christian nation? the case of the remarkable Mr. Bartlett
Don Herzog, Herzog: "A Christian Nation?", The Bartlett Files: January 11, 2005
Valiantly continuing my quixotic quest to figure out what's at stake in talk of ours being a Christian nation, I stumbled on the House debate on the constitutional amendment to prohibit gay marriage, 9/30/'04. Here's a morsel:
Mr. BARTLETT of Maryland. Mr. Speaker, there seems to be some confusion as to what constitutes marriage. In the Christian community, and we are a Christian Nation, you can affirm that by going back to our Founding Fathers and their belief in how we started, among Christians, marriage is generally recognized as having started in the Garden of Eden. You may go back to Genesis to find that and you will note there that God created Adam and Eve. He did not create Adam and Steve. A union between other than a man and a woman may be something legally, but it just cannot be a marriage, because marriage through 5,000 years of recorded history has always been a relationship between a man and a woman.
Roscoe G. Bartlett styles himself a "citizen-legislator," but he's now in his sixth term in the House of Representatives, and some might think he's just another professional pol. (If you have access to Nexis, you can read a 10/10/'04 profile of the representative and his district in the Washington Post.) Regardless, he is forthright in his declarations that this is a Christian nation -- and his belief that you can justify controversial public policies on that basis. (He was one of the congressmen embarrassed to learn that he had participated in a ceremony in which the Rev. Sun Myung Moon crowned himself the Messiah, but I don't doubt his claim that he'd no idea that that was going on.) From a House debate on whether to prohibit faith-based institutions receiving funds from community service block grants from discriminating on religious grounds in employment, 9/5/'03:
Mr. BARTLETT of Maryland. Mr. Chairman ... our Founding Fathers would be amazed that we were even discussing this. This Congress, for the first 100 years of our existence, voted money every year to send missionaries to the American Indians. The Continental Congress bought 20,000 volumes of the Bible, copies of the Bible to distribute to their new citizens. For the first 200 years the New England Primer taught the alphabet to our students by using Bible text. In the McGuffrey Reader, the author of that says that he borrowed more from scripture than any other source, and he made no apologies for that. Our Founding Fathers were devoutly Christian. They would be amazed that we are even discussing this. President Adams said that this Constitution was prepared for a Christian Nation which served the purposes of no other. Mr. Chairman, they would be amazed that we are even discussing this today.
Addressing the House in 1/7/'03 to denounce the efforts of Michael Newdow to have the words "under God" removed from the pledge of allegiance, Rep. Bartlett strung together another parade of great American public figures saluting God and Christianity. I won't vouch for every one of his historical examples; in fact one of them is clearly wrong. Bartlett revealed to his colleagues,
In 1811, there was a case the People v. Ruggles. This was a person who had publicly slandered the Bible. This case got to the Supreme Court and this is what they said: "You have attacked the Bible. In attacking the Bible, you have attacked Jesus Christ. In attacking Jesus Christ, you have attacked the roots of our Nation. Whatever strikes at the root of Christianity manifests itself in the dissolving of our civil government."
Well, no, though the same story surfaces on the internet and I suppose elsewhere. The 1811 case of The People v. Ruggles, 8 Johns. 290, is from the Supreme Court -- of New York. It affirms a conviction and 3-month prison term for Ruggles's uttering an entirely nasty bit of blasphemy typical of contemporary freethinkers. It does not say anything like what Bartlett reports.
But it does say this: "The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters. Besides, the offense is crimen malitiae, and the imputation of malice could not be inferred from any invectives upon superstitions equally false and unknown."
"Almost the whole community"? There's the rub. It's not clear why the numbers should be decisive here. Even a scant handful of Muslims, Jews, atheists, agnostics, &c. &c. are entitled to be equal citizens, not second-class citizens tolerated by the first-class members of the community. Courts and other government bodies should not be decreeing that other religions are false superstitions: that grotesquely exceeds their competence. Then too, the numbers today aren't what they were in 1811. Sensing this, I think, Rep. Bartlett made a curious and crucial concession:
By the way, I would like to note that it might be appropriate in today's environment to use the words Judeo-Christian. Those words were apparently not used by our Founding Fathers, but I am sure recognizing the origin of all of these beliefs from the Bible, which is clearly Judeo-Christian, that Judeo-Christian might be a better way. But I am reading the actual words of our Founding Fathers. Please read Judeo-Christian when they say Christian.
The historian in me wants to point out that the founders might well have balked at Bartlett's easy and now familiar hyphenation. (Here's Jefferson in the Notes on Virginia: "Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue." Meaning, in part, that the Jews aren't the chosen people.) History aside, expanding from "a Christian nation" to "a Judaeo-Christian nation" isn't good enough. It excludes Muslims. It excludes atheists and agnostics. It excludes Buddhists, Hindus, and on and on.
A nation as religiously diverse as ours (quite happily!) is can't afford to define its identity in religious ways. Domestically, because it threatens to inflame religious conflict, and you don't need to study the civil wars of early modern Europe to realize how threatening that is. And internationally, because our cause is ill served by identifying ourselves as a (Judaeo-)Christian nation. That's why it was an awful slip when President Bush referred to the war on terrorism as a "crusade." That's why it was worse than embarrassing to learn about General Boykin's statements that our enemy is Satan, fighting us because we are, you guessed it, a "Christian nation," and that our God is "real" but Allah is "an idol." You can be sure that all that inflammatory language still circulates on the Arab street. You can be sure that the retractions and apologies don't.
So consider another bit of founding fathers' wisdom. The Tripoli treaty of 1796, a response to piracy committed by Muslims of the Barbary coast, included this assurance: "As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries." (This article was spectacularly botched in the Arabic version and modified in the renegotiated treaty of 1805. But it was still a first-rate idea.)
Representative Bartlett means well. But he's playing with dynamite.
January 12, 2005
the president's view
Don Herzog: January 12, 2005
This from today's Washington Times:
"I fully understand that the job of the president is and must always be protecting the great right of people to worship or not worship as they see fit," Mr. Bush said. "That's what distinguishes us from the Taliban. The greatest freedom we have or one of the greatest freedoms is the right to worship the way you see fit.
"On the other hand, I don't see how you can be president at least from my perspective, how you can be president, without a relationship with the Lord," he said.
If the president was offering a private or personal reflection -- something like, "boy it sure helps to have a good marriage when you're in this stressful job," or "regular workouts are great," and no, I don't say either to demean his faith -- then I've no objections whatever. But if he's proposing that we should think of religious faith as a crucial qualification for the position, say because we can't trust unbelievers or they can't seek divine guidance on vexing policy matters, then I sure do. And what's tricky is that, despite Clinton's unctuous lament that "even presidents have private lives," it sure can be hard to tell the difference when the occupant of the Oval Office holds forth.
Then again, I don't see us electing any atheists or agnostics any time soon.
January 14, 2005
what's up at the universities?
Don Herzog: January 14, 2005
Breaking news from CBN, 11/16/'04:
PAT ROBERTSON: With us now to talk about what seems to be the nonsense that is permeating many of our institutions of higher learning is Dr. Jim Black. He is a distinguished scholar and author of many books. His recent book is called Freefall of the American University. Jim, good to have you here.
JIM BLACK: Thank you. My pleasure to be here.
ROBERTSON: Free fall? That means free fall, nothing catching it.BLACK: Right. I think we are in that state, Pat. It may be a shocking word to use, but, in fact, universities have been going downhill for the past 30 years. It started in the 1960s, but in the 1970s it went underground. We thought that when the riots ended, that perhaps the dangers went away. But the dangers are now worse, because they are now ideological dangers and philosophical dangers, and ideas that crept in, especially from France. Things like postmodernism and moral relativism. Now it has seeped into every course, and in every curriculum in the university campuses.
ROBERTSON: What are they teaching at these secular universities? I was watching a couple of interviews with Tom Wolfe, who’s written a book essentially on the sexual morality and other things about the current crop of college students. What are they teaching?
BLACK: Well, basically, what they are not teaching are the things you and I learned at college. They are not teaching freshman English nor American history, nor basic mathematics and science. They are teaching radical courses about sexuality, and benign courses on vampires and the undead. That is actually the name of one course.
Meanwhile, back on planet earth, the universities I know are still teaching freshman English and American history, math and science. (You can check out the University of Michigan's liberal arts offerings here.) And I don't think the baleful emanations of postmodernism and moral relativism have penetrated, oh, the courses on introductory astrophysics and boundary value problems for partial differential equations.
Even though I don't think CBN should be peddling arrant nonsense, I don't mean to suggest that everything going on in American universities is beyond reproach. There are plenty of problems, including some that the broader public has been less interested in: the recent report on plagiarism by academics is horrifying, and I'm much troubled by the increasing use of a two-tiered faculty, with lower-paid lecturers doing lots of teaching. A demurrer: I don't study American universities. On these issues, I'm a native, not an anthropologist. So I am no position to assess how pervasive any problems are. I've taught undergraduates, graduate students, and law students for over 20 years now; I opportunistically compare notes with colleagues elsewhere and pick up the occasional horror story making the rounds, like the one Marinewife pointed me toward. For now, here are one professor's principles, very bluntly stated -- I'm happy to refine them in response to comments, also to think about your criticisms -- about what's appropriate.
May professors take political positions in the classroom? Sure, if it's relevant to the material. (Math profs shouldn't be taking time out to denounce or endorse the Bush administration for the same reason they shouldn't be fondly recalling an Ornette Coleman concert or telling stories about their cute preschoolers. They should be teaching math.) Do they then need to permit -- to invite -- critical discussion of their views? Do they need to permit -- to invite -- pointed disagreement? You bet. When I teach a seminar, I sometimes tell the students what I think and why I think it, once in a while to launch a topic, usually midstream. Then I throw things back to them, and intercede occasionally. (And sometimes, especially when a flaccid consensus is emerging, I lie about what I believe, which is more effective than saying, "Suppose someone were to say...," though I do that too.) When I teach large lecture courses, the kind where the students just sit and take notes, I don't take politically controversial stands: they have no chance to talk back. Then again, I bet my colleagues in economics spend lots of time touting free markets, and critics of mainstream neoclassical approaches -- Austrians, radical political economists, and so on -- are underrepresented in and out of the classroom. And I don't think economics classes should always start over from ground zero to consider fundamental alternatives.
May professors silence or sneer at some positions? I think so, though there's a reasonable case on the other side. I once had an undergraduate in American political thought who wanted to explain, at great and tiresome length, that there really are witches and we really should burn them. I decided one round of that was plenty. And I would probably shut down defenses of chattel slavery or the Holocaust. But I will, and have, let students defend a radically exclusive franchise, or socialist expropriation, or the night-watchman state, or anarchism. The raging controversies about political correctness, I think, aren't about whether anything is ever out of bounds; they are about whether the current bounds are too narrow, whether reasonable positions entitled to a hearing are being ruled out. And if half the horror stories are half true, that's happening, and it is plain outrageous. Whether legislatures ought to get involved is a topic for another thread -- this post is more than long enough already.
Are students entitled to classrooms or campuses where they won't be offended? No way. That's a recipe for turning vibrant free speech into mindless pablum, given how many people have exquisite sensibilities on tons of issues. Not that you need exquisite sensibilities to take exception to some things that get said. There have been some grievous episodes of hate speech on campuses. But every speech code I've ever seen, including the one from Michigan struck down in '89, is impossibly hamhanded. Probably the best bet is to give up on such formal codes and sanctions, not on the Looney-Tunes view that free speech means anyone can say anything however and whenever he likes, but because we can't trust the authorities to make sensible decisions. There are horror stories too about what jittery and spineless university administrators will do to protect students' sensibilities: it was ludicrous to shut this down.
But are we suffocating in PC orthodoxies? In my experience there's tons more room in the classroom than critics imagine. I wouldn't open my seminar on liberalism and its critics by asking about affirmative action, because they might clam up. But I routinely teach affirmative action in that class -- I assign a book for and a book against; several years ago it was these two -- and by a few weeks into the term, I have successfully shown the students that we will argue in earnest and fairly about heated questions while continuing to treat each other civilly. And believe me, they do, in earnest, and unpredictably, and hilariously. (White guy: "Okay, so let's think about why we really have affirmative action." Black woman: "Oh, that's easy. We're here to soak up the Cs on the curve.") One reason I doubt that students are being brainwashed is that they are too spunky, too skeptical. They know that we professors are at least faintly ridiculous anyway.
Do I think there is some singularly silly scholarship in the humanities and social sciences? Yup. (But my list might not be the same as yours.) If I could, would I drum it out of the universities? No way. I am skeptical of my own judgment, and I assume that large, diverse disciplinary communities having vibrant arguments will do a far better job over time sorting out what makes sense than I could ever do on my own. So when those communities are not diverse -- politically diverse, methodologically diverse too -- there's a problem. This is just boilerplate John Stuart Mill: without the clash of competing views, we can't make progress. So like Elizabeth Anderson, I believe universities ought to be intellectually diverse. If everyone doing political theory on your campus is a Straussian, or a Marxist, or a liberal, or a conservative, or an analytic philosopher, or a postmodernist, or an intellectual historian, that's a problem. Some colleges are so small they can't do much about it, at least field by field. And some smaller places try to carve out niches for themselves in the profession: Rochester's political science department, for instance, is famously devoted to rational choice and formal modeling. That gives them some advantage in the graduate school market, but it's a clear loser for undergrads.
Does every individual class need to be diverse? No. Not by topic: It's fine if there is a course in Marxism, another course on conservatism, and so on. And not by viewpoint: It's fine if one course on Marxism is taught by an enthusiast, another by a staunch critic. It's even fine if everyone in the sociology department treats gender as socially constructed, in the fashionable buzzword, and you have to saunter over to biology or psychology to learn about physiology. More generally, if every class is a smorgasbord, students never have an opportunity to grapple with a sustained and deepening exploration of a view. But it's also great if there are individual classes that stage collisions between competing views. Over the years, with my political theory hat on, I've taught the likes of Marx, Freud, and Nietzsche; Smith, Hayek, and Nozick; Locke, Montesquieu, and Mill; Schmitt, Habermas, and Foucault; and on and on. Sometimes in juxtaposition, sometimes not. In all these cases I ask students to read with enough sympathy to follow what the author is up to, enough criticism not to just fall for it hook line and sinker, and enough judgment to try to figure out how much to salvage and how to weave it together with their other commitments -- and what other commitments they might want to revise.
Are we politically indoctrinating our students? I'll speak for myself, and confidently, though you may dourly suspect that I'm delusional: I'm not. I couldn't care less what their politics are, though if they're just echoing what I think (or, more likely, what they think I think) in order to get a good grade or to relieve themselves of the burdens of having to think, I get pretty damned testy pretty damned quickly. My real passion is teaching them how to read and write and argue, more generally to turn them on to ideas. The promise of the liberal arts, too, is that the truth shall set you free. Is that politically neutral? Not all the way down, because there are political visions in which rational argument is a pernicious practice leading to bizarre results. I'm happy to let my students critically evaluate -- and endorse, if they like -- those visions, too. But they have to do it with arguments, not by making blunt assertions. Within that formal constraint, they can defend whatever they like. That's the name of the game.
January 18, 2005
legislating an academic bill of rights
Don Herzog: January 18, 2005
A while ago, David V. posted a piece on the Academic Bill of Rights. That was the first I'd heard of it. (Yes, I need to get out more.) Here I want to say something about what's troubling in legislatures adopting the bill of rights -- assuming, that is, they really mean to assign legal rights and legal remedies to aggrieved parties.
A straightforward question about policy is, what's the right rule? And the ideals of the academic bill of rights are mostly admirable. My own views differ in part: for instance, I wouldn't require that each and every course cover all competing views. But rather than pick away at what might be objectionable about the substantive policies the bill recommends, I want to focus on another question, or set of questions, which we sometimes underplay. Who should decide? Who should be permitted to revisit the initial decision? What considerations would justify overriding it? Here we need to think about institutional competence, incentives, and downside risk.
I don't doubt that many professors brandish "academic freedom" as a club, to oppose more or less anything they dislike. But it's a dreadful idea to have legislatures or bureaucrats enforce the academic bill of rights; it's a classic invasion of academic freedom, understood as the right of academic institutions to govern themselves. If there's a controversy in or about a biology class or a comparative literature seminar, I don't trust even well-intentioned legislators or functionaries to get it right. I worry that legislators aren't competent to assess the issues in biology or literature. I worry too about the incentives of legislators. Even as they pay lip service to the ideals of enquiry, they will be tempted to grandstand for their constituents by finding targets to pillory and others to applaud for illicitly political reasons of their own. And so I really worry about the downside risks. If you want a community of academics and students to be able to follow arguments wherever they may lead, to be willing to explore dangerous and forbidden ground, you don't want state functionaries peering over their shoulders. The mere existence of a legal charter in the background would chill free speech.
David Horowitz misses the point in responding to a query about teaching evolution. He says, rightly, that if religious students are offended, "that's their problem." But he goes on to say,
What is the harm in mentioning the design theorists, particularly the works of scientists like Behe challenging evolutionary theory? In fact, this would be quite educational and would not impact the professor's ability to teach evolutionary theory just as he had before.
The question is not just, is it a good idea to teach intelligent design or creationism in biology? The question is also, who gets to decide? Suppose the biologists think it's a bad idea. (They usually do.) That may be for good reasons: with their expert knowledge of biology, they may think intelligent design is a hopeless theory, or that it departs so far from the criteria for scientific explanation that it doesn't even qualify as biology. That may be for bad reasons: they may be atheists hellbent on propagandizing their students. Yes, I can imagine the possible world in which the biologists act for bad reasons and the legislators, somehow more discerning about biology, force them to reverse the call and get it right. But it seems extravagantly unlikely, and again adopting the rules that would enable that would license abuse and chill discussion. In comments on a bill discussed in Colorado, the American Association of University Professors sees the point clearly. (