My latest compilation is Modern Iran: A Basic Bibliography.
Concurring in the McCullen decision last Thursday, Justice Scalia joined by Justices Kennedy and Thomas and Justice Alito, concurring in a separate opinion, argued that the Massachusetts law prohibiting persons except employees, patients, police and the like from entering a 35-foot buffer zone to the streets and sidewalks around the entrances to abortion facilities was a form of content discrimination. See Dorf On Law. He gave two arguments: one is difficult for me to take seriously; the other seems dead on. Nonetheless, the conclusion Scalia draws from the existence of content discrimination strikes me as inhumane – bereft of human feeling - and is symptomatic of a disease which afflicts First Amendment jurisprudence which in this case takes a gendered form.
Justice Alito give most of his attention to Justice Scalia’s second argument. The idea is that by permitting hospital employees into the buffer zones while preventing anti-abortion advocates in the zones, the statute permits those who favor abortion into the zones while keeping out those who oppose abortion. This, so the argument goes, is content discrimination. Chief Justice Roberts answer to this argument is entirely unsatisfactory. Out of whole cloth he produces the argument that employees acting within the scope of their duties are not permitted to speak favorably about abortion when they are in the buffer zone. Really? I would have thought it was the job of employees to help the patient in this traumatic time, and that one of the ways to do so might be to address the abortion issue in a favorable way from the perspective of the employer. It comes as a surprise that the statute silently set about to regulate the speech of the employees.
Assuming the Chief Justice is speaking out of his hat, it is doubtful that this differential effect is content discrimination. The reason is that the employees are permitted to be there, not because of the content of their communication, but their status as employees of the hospital. Consider the Perry case. A union had access to the mailboxes of teachers who it represented. A rival union sought access to the boxes. The Court rejected the claim of the rival union and argued that the union with access had the status of bargaining representative and was therefore rightly given exclusive union access to the boxes. No doubt the exclusion of the rival union had differential content effects, but those different effects did not amount to content discrimination.
The other argument made by Scalia and Alito was far better. This argument at its best focuses on the purpose of the Massachusetts legislature. No doubt a part of the purpose was to prevent obstruction and physical harassment. But is it not likely that a strong part of the legislative purpose was to protect women from officious strangers who would seek to talk with them about abortion in unwanted ways at a stressful time. Justified or not, this latter purpose clearly is a regulation of content. Chief Justice Roberts response to this strikes a false note. Beyond the obvious point that the statute on its face does not discriminate on the basis of content, he supposes that the statute is confined to stopping abuses that do not flow from content such as obstruction and physical harassment, but that strikes me as a deliberate oversimplification.
So let’s assume Roberts is wrong. Why is he so obtuse? And what follows from the argument if Scalia and Alito are right. Roberts wants to avoid the content discrimination label because regulations involving content discrimination require almost-always-fatal-strict-scrutiny. It might come as a surprise that the concept of strict scrutiny was unknown to the Framers and did not appear in the First Amendment cases for most of our history. It does not appear, for example, in the cases involving advocacy of illegal action, defamation, or obscenity. Those cases wisely understood that the interest in free speech may or may not outweigh other interests when they come into conflict. So if the 35-foot buffer zone is content discrimination, it is unconstitutional; but so then would be the floating 8 foot buffer zone upheld in Hill v. Colorado, and that is what the skirmish over content discrimination is really about. That is what Scalia is bound and determined to overturn.
The Colorado regulation upheld in Hill tried to protect women entering health facilities by prohibiting advocates and the like from approaching them within an 8 foot buffer zone without permission. Scalia regards this as a First Amendment horror story. From his perspective there is no right in a public street or sidewalk to be left alone. Indeed Scalia claims that protecting people from speech they do not wish to hear is not a function the First Amendment allows the government to undertake on streets and sidewalks. He states that explicitly and when faced with the question of harassment turns the rhetoric up even higher: “Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions? Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at ‘reproductive health care facilit[ies],’ of course) for so vague an offense as ‘follow[ing] and harass[ing].’"
So here is my answer. If Ms. McCullen approaches Justice Scalia as he approaches a fertilizer factory after being told not to, that is rude. If she does so a third or fourth time, that is harassment. But a reproductive health facility is not a fertilizer factory. And the person approaching the facility is not a swaggering bully, but a vulnerable pregnant woman at a particularly traumatic point in her life.
Colorado was well within its rights to protect such women by stating that you may not come close to them without permission (I have no stake in whether 8 feet is the right amount of space). To suggest that you have a First Amendment right to come near them when they have specifically denied permission even once, let alone two, three, or four times means that harassment is a First Amendment right (even if your are too blind to know harassment when you see it) and to suppose that our Constitution enshrines this principle is to adopt a form of First Amendment idolatry which converts that principle into a Religious principle instead of a principle of government. And it must be said that religion sacrifices women on an altar of insensitivity.
The Court’s treatment of the attempt of Massachusetts to protect the safety of abortion patients and to prevent obstruction and harassment by prohibiting persons (with the exception of employees, patients, police and the like) from entering 35 feet buffer zones around hospitals that provide abortions raises intriguing issues. On the one hand, it seems reasonable –at least to me – that in this vulnerable moment, an abortion patient should not be compelled to face the torrent of abuse hurled upon them by angry anti-abortion advocates, let alone be forced to walk along a gauntlet of such abuse in close quarters. On the other hand, the plaintiffs in the case built an admirable record showing that they did not seek to abuse, but to counsel alternative in a quiet voice at a time when many patients experience buyer’s remorse, and the record showed that many patients had been persuaded by these plaintiffs to seek alternatives to abortion.
Last Thursday, McCullen v. Coakley authored by Chief Justice Roberts, joined by the not quite liberal wing of this conservative court, ruled that the Massachusetts statute did not meet the standards for place restrictions on speech because it was not narrowly tailored to meet the government objectives. After all, the government could prosecute violators who interfered with the safety of patients, obstructed them from getting through, or harassed them. In addition, the Court reaffirmed cases like Schenck and Madsen where federal courts established buffer zones against those persons who had previously engaged in obstruction. Finally, the Court did not question (but did not reaffirm) a prior case in which persons were prohibited from entering an 8 foot floating buffer zone without the patient’s consent with whom the counselor wished to speak.
Given the record, I think the compromise forged by the Court is not unreasonable though it overstates the efficiency of the alternatives. What is unusual about the majority opinion is that it gives teeth to the narrow tailoring aspect of the time, place, and manner test, teeth not heretofore seen in the hands of the Court. Moreover, this aspect of the test is joined by Justice Alito and would have been joined by the opinion of Justice Scalia, joined by Kennedy and Thomas, JJ., except in a fit of childish pique, he did not formally reach the issue. It is not remarkable that the liberals would want to pour life into the time, place, and manner test. They traditionally have supported dissenters of all stripes. The conservatives, however, in the absence of content discrimination, have a lousy record in this regard. They have devised tests to deny access for dissenters to government property where demonstrations would naturally take place, and the time, place, and manner test has been interpreted in ways that provide music to the ears of those bureaucrats seeking to keep dissenters away. Mike Dorf rightly remarks that if the treatment afforded to the time, place, and manner test in McCullen is here to stay, it will be a significant jurisprudential development. I hope it is here to stay, but I suspect the conservative support for the dissenters in this case is a product of their empathy for those who oppose abortion, an empathy they could not muster in favor of those who protested national policy toward the homeless or for those who offered sexually-oriented speech in their theaters. The Court sat idly by when government authorities nationwide moved to shut down the Occupy Movement. Its behavior in the anti-abortion cases is markedly different. For those who think, I am accusing the Court of favoring their friends while turning a deaf ear to others. You got me exactly right.
More on McCullen probably tomorrow
the long fly ball to center field
takes its time
the runner on first looks up
at a passing cloud
after the grand slam
the umpire busy
with his whisk broom
—Cor van den Heuvel (b. 1931)
Van den Heuvel “discovered haiku in San Francisco in 1958 when he heard Gary Snyder talking about short poems at a Sunday gathering of the Robert Duncan/Jack Spicer poetry group in North Beach.” He “was known as ‘Dutchy’ when he played catcher in the late 1940s for the Comets, a sandlot team in Dover, New Hampshire.” From a volume of baseball haiku edited by Van den Heuvel and Nanae Tamura (W.W. Norton & Co., 2007).
I could not resist drawing attention to poetry that so skillfully joins a fondness for both baseball and haiku. And it seems this might be considered serendipitous, as haiku is a combination of two words: haikai (literally, ‘comic,’ ‘unorthodox’) and hokku, the latter a three line stanza and the former meaning “sportive” or “playful.” Bashō, a haikai master, sought to exemplify in his poetry both comic playfulness and spiritual depth, an uncommon blend of the vita contemplativa, which he practiced on his own terms, with the vita activa, evidenced in his willingness to take seriously “the ordinary, everyday lives of commoners,” portraying such figures as the beggar, the traveler and the farmer.
The first “baseball haiku” (1890) issues from the brush of the first modern haiku poet, Masaoka Shiki (1867-1902), whose “writings on baseball later helped to popularize the game throughout Japan.”
this grassy field makes me
want to play catch
On the origins of haiku, see “A Note on Haikai, Hokku, and Haiku,” appended to Robert Hass, ed., The Essential Haiku: Versions of Bashō, Buson, and Issa (Hopewell, NJ: The Ecco Press, 1994).
The Supreme Court decision on cell phones yesterday was a welcome development, but the Court has a long way to go before its privacy principles are anything other than warped. After yesterday’s decision, before searching your cell phone the police need a search warrant on the ground that a cell phone search is a deep intrusion into one’s private life. But without a warrant and without any justification, as a matter of constitutional law (in the absence of statute), police can get your bank records (including your credit card records), your telephone records (who you called and who called you), find out who sent you mail and who you sent mail to, and secure information from your internet provider about your use of the computer and even search your trash. They can get all this information without justification on the specious premise that there is no search despite the deep intrusion into your privacy. The theory is you had no reasonable expectation of privacy because you exposed the material to a third person, eg., the bank. Of course, living a modern life would not be possible without relying on institutions like banks, the postal authorities etc. to respect your privacy. Living a modern life requires precisely such reliance and expectations, and it requires that those expectations be reasonable. The notion that such a dragnet foray into a person’s private life is not a search is nothing less than a cynical departure from constitutional values. The cell phone decision is welcome, but it should not divert us from the recognition that Fourth Amendment jurisprudence is corrupt to the core.
“Modern neuroscience is validating observations about the mind that Buddhists have known for thousands of years. When I first began to study Buddhism, it was common to hear put-downs of Western psychology and...psychotherapy in major Buddhist centers. There was a widespread belief that meditation would answer everyone’s problems, and if you were a really good Zen or Vipassana or Vajrayana practitioner, you wouldn’t need therapy. Now I could give you the names of abbots of those same centers who are themselves seeing therapists—they have realized there’s a complementarity between meditation and the interpersonal skills of Western psychology.”—Jack Kornfield, in a forum discussion, “Is Western Psychology Redefining Buddhism?,” Buddhadharma: The Practitioner’s Quarterly, Summer 2014 (Vol. 12, No. 4).
The latest draft of “Buddhism & Psychoanalysis: a basic reading guide,” is available here. As noted at the link, I have related compilations on “Buddhism,” “the Emotions,” and secondary literature on “Freudian and Post-Freudian Psychology.”
Some readers of this blog might be interested in a letter to the editor that I had published in the current issue of the New Yorker. Click here and scroll down. The comment to which I was responding is here.
UPDATE: The text on the New Yorker website has now been corrected to reinsert two important words that had been accidentally deleted from my original letter.
The reconciliation of science and religion is one of the most compelling tasks confronting religious believers today. For we are truly faced with a pair of hostile, warring camps. Many religious believers have drifted into a kind of pietistic mistrust of science that seeks comfort in demonstrably false propositions like young earth creationism. On the other hand, we find a number of scientist who dismiss the possibility of a spiritual dimension to human existence. Some dismiss faith altogether as an outdated mode of explaining the inexplicable. Religion is superstition, they contend, and empiricism must finally triumph over the irrational.
Thus I picked up Amir Aczel's book, "Why Science Does Not Disprove God," with eager anticipation, hoping that he might make peace between these contending factions. Alas, I sighed, upon finishing the book, the chasm remains unbridged. Rather than grappling with the truly challenging, foundational questions, Aczel, I discovered, preferred to recite middle-brow explanations that might give consolation to people of faith but that never really come close to achieving a reconciliation of science and faith. Certainly, no one who is not already a believer will find much that is persuasive in these pages.
Let's just consider a couple of Aczel's arguments to see his method at work. Take evolution. Aczel's chapter on evolution opens with a nod to Charles Darwin's early training in theology. It notes that in the second edition of Darwin's "On the Origin of Species" someone -- Darwin himself, perhaps, or an anonymous editor -- inserted acknowledgement of a "Creator." So, the argument goes, Darwin maybe did not see an essential incompatibility between his findings and conventional Christian faith.
Aczel might have used these interesting historical nuggets as a way of opening a broader conversation about faith and evolution. Instead, however, he becomes distracted, devoting precious pages to expressing his own misgivings about evolutionary theory. Thus he goes on at great length about how he thinks evolutionary biology has failed to give an adequate account of the origins of human altruism, which we display not only towards beloved family members, but to animals: "How often do we hear about a person who jumped into the icy water of a lake to save the life of a dog, or a fireman who returned to a burning house to rescue a cat?" (pp. 203-204). The idea seems to be that since no genetic benefit is conferred by such acts, this impulse does not fit the evolutionary model and evolutionary theory is thereby weakened.
There are other thinkers, of course, who have attempted a sophisticated reconciliation of evolution and religion. Classically, there was Pierre Teilhard de Chardin (1881-1955). A world-class paleontologist as well as a Jesuit priest, Teilhard de Chardin relied on evolutionary theory and extended it to propose an ever-expanding "noosphere" -- an inter-connected realm of cognition and consciouness that aims finally at the Omega Point, which constitutes ultimate knowledge of the universe, and of God.
Aczel mentions Teilhard de Chardin, but refuses to engage the complexity of his thought. He merely quotes Teilhard on the compatibility of religion and evolution and leaves it at that. Why? Why are evolution and religion compatible? One longs to have the "why" question answered. But Aczel does not venture a reply.
This is small potatoes, however, compared to Aczel's condemnation of the concept of the multiverse. The multiverse is a trending subject of investigation among cosmologists and theoretical physicists. Relying variously on notions of cosmic inflation and quantum mechanics, exponents of the multiverse posit the existence of many universes -- perhaps even an infinite number of them. We happen to inhabit a universe that is not inherently hostile to sentient life, but a strong mathematical case can be made for the simultaneous existence of other universes where the parameters for life are simply absent. And while we may never come into contact with these universes, what we know of the physical laws governing our own point to their existence.
Aczel notes that some of the so-called "New Atheists" find intellectual refuge in the theory of the multiverse. And for that reason, it seems, he attacks the very proposition that such infinite complexity is possible. Aczel writes: "Just because we don't know how to 'stop' inflation doesn't mean that it creates other universes. And just because we understand so little about the wave function of quantum mechanics doesn't mean that a wave can live on in other worlds." (p. 145).
Aczel disputes the existence of the multiverse, finally, because it is not subject to strict experimental verification. We will never be able to observe its attributes, and so we should conclude that there is no such thing. There is an obvious fallacy lurking in this denialism. God, also, is not subject to strict verifiable proof. God's existence cannot be discerned by experiment. God and the multiverse alike are matters of inference, intuition, perceiving insight.
Aczel can be an informative and entertaining writer. I have particularly benefited from some of the articles he has written for Huffington Post. Thus I learned a good deal from his essay on Albert Einstein's concept of God and what has become of it. And even if I remain unconvinced, I think his essay on some of the more speculative elements of theoretical physics offers some cogent criticisms.
In the end, I wonder if Aczel was motivated to reject certain contentions, such as the multiverse, chiefly because some New Atheists have found such claims congenial to their cause. Honestly, whether we live in a singular, one-and-only universe uniquely and finely tuned for life, or in a microscopically small, habitable corner of an infinitely expanding multiverse, I do not believe that science has disproved God. To make that case, however, would require another book.
How do we describe a sociopath? It is someone who has no regard for the well-being of others. Someone who looks only to his own needs and treats other people as mere instrumentalities, as means to achieving personal gratification. It is someone who acts with cold calculation. Someone who is entirely lacking in remorse. Someone who can kill and think nothing more of it than the best means of disposing of the evidence.
Compare this understanding of the sociopath with the comments of Oscar Cardinal Rodriguez Maradiaga at a conference I was privileged to attend at the headquarters of Bread For the World this past June 3rd. I paraphrase the Cardinal's comments: "This economy kills." "The poor are superfluous." "What we are faced with is a phenomenon that is different than marginalization. At least when a person is marginalized, there is a place for that person, on the fringes. This economy excludes. And exclusion brings death." "We are not made for the market. The market is made for us. Thus, the market must become a humane market."
As I indicated, this is a paraphrase, but I think a fairly close one. The Cardinal posed a challenge: How do we make a more humane market? There are many things we might do to begin to reintroduce Christian principles to the marketplace. I might suggest three ideas to start the conversation.
First: Catholics -- and all Christians and persons of good will -- must take the principle of the living wage to be a non-negotiable right. Pope Leo XIII said as much in his encyclical Rerum Novarum, where he taught that all workers were entitled to wages sufficient to support a family.
The great Catholic economist Msgr. John A. Ryan developed this point in his book, "A Living Wage: Its Ethical and Economic Aspects" (1912). A living wage, he persuasively argued, is a natural right. It is absolute. It is a right that arises from the sacredness of the person. Every human being is entitled to be a fully integrated member of society. And this is only possible where people can support themselves, as well as dependents such as children or elderly relatives.
Ryan does not advocate a general leveling of wages. He understood that there will always be wage differentials and that such differences are not in themselves wicked. But where a plutocracy aggregates to itself an ever-increasing share of wealth at the expense of the vast mass of the working poor, then that system is unjust.
At a bare minimum, we must support the campaign to raise the minimum wage to fifteen dollars an hour. This campaign has already succeeded in some localities. Seattle just days ago raised its minimum wage to fifteen dollars an hour, but the phase-in provision (permitting businesses that employee fewer than 500 workers up to seven years to comply) dilutes its effectiveness. Even so, this is an important victory, and Christians should bring this campaign to other cities.
Second: We must re-legitimize trade unions. Catholics especially have a long and honorable history of supporting unions. John McGreevy, the Catholic historian, has documented the depth of this involvement. (See "Catholicism and American Freedom: A History," 2012). According to McGreevy, "priests across the country spent the 1930's encouraging their parishioners to join unions." (p. 163). Archbishop Edward Mooney of Detroit even argued that Catholic laborers had an affirmative duty to organize.
In today's economic environment, we need a revival of trade unionism. A robust trade-union movement must be premised on recognition of the right that all persons have to come together for economic purposes. If the interests of capital have the right and privilege of organizing and pooling resources, then so too do workers.
In truth, unions and corporations ought to share the same set of rights and privileges under the law. Today, all power flows to capital. In the nineteenth century, corporations were strictly limited entities. They were bound by their charters to fulfill certain public purposes and would be punished for failure. Today such language is considered antiquated.
Corporations today exist for the purpose of making money for their shareholders. At the same time, they enjoy limited liability. Shareholders are immunized from virtually all risk of loss. Thanks to a category error committed by the John Roberts Supreme Court (in which the Court mistook the fictitious, limited legal personality of a corporation for a real human being) corporations enjoy political rights that would have been unthinkable a century ago. We may soon learn whether for-profit business corporations even have a right to their own religion.
We need an equal playing field, and unions have proven historically to have been an effective means of achieving this end. Today, there is a nascent trade union movement organizing especially in immigrant communities. Led by forceful personalities like the Catholic protege of Cesar Chavez, Maria Elena Durazo, this movement deserves the support of all Christians and persons of good will.
Third: We must reinvigorate the traditional Catholic conception of the state. The medieval philosophers and canon lawyers well appreciated that the state was a natural extension of human sociability and the means by which we achieved a measure of justice in the temporal sphere. The Second Vatican Council ratified this understanding of the state when it declared that the state is the means by which we effectuate "the common good." It is the instrument by which "individuals, families, and organizations . . . achieve complete and efficacious fulfillment."
This insight returns us to the sociopathic economy. The forces of money and capital are not natural phenomena. They are not the winds and the tides. The sociopathic market has assumed the shape it has because we have allowed the legal system to become skewed in its favor. A reinvigorated state would bring to bear in the regulation of the marketplace a set of humane values. It would rebalance the marketplace so as to fairly serve the interests not of capital alone, but of all employees and all interested human beings.
When I read Timothy Cardinal Dolan's essay in the Wall Street Journal, in which he asserted that "the answer to problems with the free market is not to reject economic liberty in favor of government control" I can only say, with all due respect, that he misunderstands Church teaching on both economics and the role of the state. For millions of American workers, trapped in a world of wage theft and poverty conditions, the economy is not free. And the government is not the problem, as the libertarian right wing would have it, but the instrument Catholics have traditionally relied on to remedy such afflictions.
Paul Raushenbush is right. Religious progressivism is probably the most exciting and most significant religious movement in much of today's world. Certainly, the religious right is a discredited shell of its former self. And the most important task confronting religious progressives is to subdue "the economy that kills."
Marc DeGirolami, a distinguished law and religion scholar at St. John’s co-hosts an important law and religion blog clrforum.org with his outstanding colleague Mark Movsesian, and he recently posted an intriguing short essay (http://clrforum.org/2014/06/05/olivier-roy-on-the-closing-of-the-rights-mind/) part of which I strongly disagree. In that post, he calls attention to a New York Times column by Oliver Roy. The essence of the column is that the Christian parties of the right in Europe have secularized and have lost contact with Christian values. At the same time the right is claiming that Europe is Christian – meaning anti-Islam. In the end, the Right’s formal embrace of Christianity gives a blasphemous cover for discrimination.
What aroused my disagreement was DeGirolami’s criticism of Oliver’s column, namely its embrace of the notion of separating church from state. DeGirolami contends that this separation theme has not only been rejected by the current Supreme Court (it has), but also rested on assumptions that were foreign to the European experience: “The notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. I take it that has not been the European historical experience.”
To be sure, this undeveloped claim appears in a short post. In a way though, this claim is consistent with DeGirolami’s sophisticated commitment to a Burkean respect for the long-standing customs, habits, and traditions of a society. And in fairness, I am sure that DeGirolami would not suggest that such corruption is no part of the European experience. Nonetheless, I think his claim is wide of the mark.
To begin with, Madison’s claim that supported churches become dependent, compliant, lazy, bloated, and corrupt was itself a reflection on the European experience, and criticism of clergy and church corruption was a recurring theme leading up to the Enlightenment and the French Revolution. When churches are tied to unpopular and dictatorial governments, there is good reason to regard those ties as corrupt, to doubt their commitment to moral values and to think that these ties erode support for the churches in question. So it seems obvious, as Jose Casanova has detailed, that the Catholic Church did itself no favors when it supported or was perceived to support corrupt Kings of the past, or Franco, Salazar, Mussolini, and Vichy France. Similarly, the Church’s quiescence with respect to Hitler’s Germany undermined respect for the Church. At the same time, when the Church sided with the people against the Polish dictatorship and stood on the side of Irish nationalism, its unwillingness to be tied to the state was regarded as exhibiting strong moral leadership. That prophetic stance resonates even today though other factors have since undercut the moral force of the Church primarily in Ireland.
The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful. The Church’s ties to Constantine surely enhanced its numbers despite the character of his dictatorship (though as Hauerwas has argued that partnership sapped the church of its prophetic character).
I admit the sociological complexities. But, with Casanova, I do think that various kinds of religious corruption have been a major part of the European experience.
Highly recommended: Penelope Andrews, “A Champion for African Freedom: Paul Robeson and the Struggle Against Apartheid” (May 28, 2014). Albany Law Review, Vol. 77, No. 1, 2014.
From Part V, “Paul Robeson and Contemporary South Africa:”
“If Paul Robeson was around today, what might he say about the ‘rainbow nation’ and its transformative constitutional project? He might join in the chorus of applause about the text of South Africa’s constitution, the formal imprimatur of rights, and the mostly impressive series of judgments handed down by the Constitutional Court. He would no doubt celebrate the peaceful transition in South Africa from apartheid and authoritarianism to democracy, and particularly the significant role of the Truth and Reconciliation Commission.
But he might pause and ponder the dissonance between the fine constitutional text and its accompanying court decisions, and the limited signs of a human rights culture, as evidenced by widespread violence, particularly against women, African migrants, and homosexual South Africans. He might wonder why the Mandela government and its successors have openly embraced the ‘Washington consensus’ and a form of unregulated capitalism that has resulted in great wealth for some and the persistent impoverishment of others? He might wonder why the kind of crony capitalism euphemistically labeled ‘Black Economic Empowerment’ empowers and enriches only so few, and continues to fan the flame of black resentment—but now leveled against their black compatriots.
Paul Robeson would no doubt be shocked at the specter of black miners being shot by police officers in a manner reminiscent of Sharpeville and the dark days of apartheid. He might wonder what happened to that wonderful African concept of dignity—ubuntu—and why it often seems in such short supply.
Paul Robeson would no doubt ponder the bundle of contradictions that make up South Africa: first world and third world; contemporary and traditional; great wealth and extreme poverty; hope and despair.
And he would no doubt wonder why the promise of dignity, equality, and rights for women, including the right of security in the public and private domain, still eludes so many South African women, particularly those who are poor.
Yes—Paul Robeson may have celebrated and he may have lamented—but his legacy has shown that even as one struggle ends, new ones surface. And that the project of justice, human dignity, and equality requires ongoing vigilance and continuous struggle.”
A note regarding the aforementioned “peaceful transition in South Africa from apartheid and authoritarianism to democracy:”
Although the transition in South Africa was perhaps “peaceful” in broad historical and comparative terms, there was in fact a considerable amount of violence, the bulk of which was not committed by the ANC’s armed wing, Umkhonto weSwize (‘Spear of the Nation,’ or ‘MK’ as it was commonly known). From February 1990 to April 1994, roughly 14,000-15,000 people died as a result of such violence. In fact, as Janet Cherry points out, “more people died in the four-year transition, after MK had suspended its armed struggle, than in the preceding three decades.”
In my last post, I argued that had the Supreme Court -- a la Justice Thomas's concurrence in the Town of Greece case -- never "incorporated" the Establishment Clause against the States, it might still have developed broadly similar limits on state authority by way of the Free Exercise Clause. (It might also have done so by way of Equal Protection or Due Process or otherwise, but I'm going to focus on Free Exercise here.)
I want here to suggest three observations -- not so much full-blown arguments as data points -- supporting that counterfactual conclusion.
Here, though, I just want to look at the first part of Justice Thomas's provocative dissent. Justice Thomas argues there that the Establishment Clause is "best understood as a federalism provision" denying Congress "any power to regulate state establishments" and, for that reason, should never have been "incorporated" via the Fourteenth Amendment's Due Process Clause to apply against the states it was originally meant to protect. Thus: "If the Establishment Clause is not incorporated, it has no application here [in a suit against the Town of Greece], where only municipal action is at issue." Case closed.
There are good reasons to doubt Justice Thomas's view that the Establishment Clause should never have been incorporated. But let's assume, just for the sake of argument, that he's right. Would that really be the end of the story? No.
Justice Thomas ignores two important, related, points.
The Isla Vista mass murder was a preventable tragedy. It was the destruction of innocent life without need or reason. It is proof, as if more proof were needed, that we are past the time to break the nexus between guns, murder, and mental illness. And we should do that by enacting rigorous new gun-control legislation that takes account of an individual's fitness to own lethal weapons in light of what we are learning about the human brain.
Our knowledge of the human brain is increasing exponentially. Consider just a few recent advances: The Human Connectome Project is in the process of mapping the brain. And the maps the Project is producing are not the rough, schematic sketches of just a few years ago but a detailed guide to "every twist and turn of the 86 billion neurons in the human brain." The mapping, it is suggested, will be helpful in diagnosing not only brain trauma, such as concussions or strokes, but a wide variety of psychiatric conditions "such as post-traumatic stress disorder, autism, and dementia."
Scientists are not yet able to read people's minds. Such a task involves multiple levels of consciousness and would be difficult to accomplish. On the other hand, neuroscientists have demonstrated the capacity to access the visual contents of dreams. And neurologists are also exploring ways in which deep brain stimulation can be used to relieve if not eliminate entirely the symptoms of major depressive disorder, Parkinson's disease, and even Alzheimer's.
"Can We Predict Crime Using Brain Scans?" So asked the headline of an article in Psychology Today, dated April 17, 2013. A neuroscientist from the University of New Mexico conducted brain scans of 96 convicted felons about to be released from prison. The scans focused on identifying neurological signatures of the convicts' impulsiveness, since it is known that poor impulse control lies at the root of many types of crime. The scans revealed that telltale markers in the anterior cingulate cortex correlated with poor impulse control and high recidivism rates. Indeed, "the level of brain activation predicted how long it would take before the person committed the [next] crime."
Brain science, in other words, has advanced to the point where we can see into the brain, alleviate the symptoms of mental illness, and even make credible predictions about future misconduct.
Now, what do we know about Elliot Rodger? We know that he displayed psychological difficulties from an early time in his life. He was in therapy, it seems from the age of 8 or 9. He found it difficult to interact with other people and displayed aloofness.
These difficulties only intensified as Elliot entered adolescence. He informed all who would listen to him of his perceived problems in attracting women. Elliot, however, was not experiencing normal teenaged social anxiety but was instead slipping free of the bonds of reality. His problem was not awkwardness or clumsy interpersonal skills. It was a thought disorder that led to grandiose views of what he was entitled to and a deep sense of grievance that he was somehow being deprived of his birthright.
Much has been said about the Isla Vista massacre as a crime of privilege. And I think that there is much truth in these observations. Elliot Rodger absorbed misogynistic and racist attitudes from the ambient culture, and he expressed these repugnant thoughts in Web postings and videos. He enjoyed all the privileges of wealth. On the night of the murders, he was driving a BMW that was a gift from his father. It seems that he saw women as the one material possession he could not have, and he felt deprived. The imaginings of his mind, in other words, were fueled by an unrestrained sense of entitlement.
His parents and therapists came to understand the dark and dangerous turns he was making in the way he viewed the world. He posted threatening videos. His parents contacted the police, requesting that they intervene. The police arrived at young Elliot's door, asked a few polite and deferential questions, and closed the investigation.
The police, it seems, never bothered to inquire about whether Elliot had any weapons. Elliot, however, acknowledged in his own writings that had the police sought weapons, it would have been all over for him. The larger question thus presents itself: How in the world did such a disturbed young man come to own an arsenal of deadly weapons?
Elliot, indeed, had equipped himself with the best weapons money could buy -- handguns retailing in excess of $1,000 a piece. And this gets us to the question of guns. Elliot had never crossed the threshold that would have prevented him from buying or owning guns. Had he made a credible "threat of violence against specific, identifiable victims to a psychiatrist, the psychiatrist would have been required to report it to law enforcement, and Rodger could have been banned from owning guns for five years." Elliot, however, had merely made non-specific threats. This was not enough to take his guns away.
This is an outrageous state of affairs. We must get serious about guns. Guns are not playthings. They are not ornaments. They are lethal weapons. The whole point and purpose of a firearm is to put holes in objects -- including living human beings.
We need to shift the presumption about gun ownership in this country away from a rights-based perspective. Gun ownership must be premised on responsibility. And we can draw on brain science as a means of determining fitness to own a gun. Can someone control his or her impulses? Do they have violent tendencies? If they do, they should not own a gun.
Sorry, gun ownership should not be the universal right and privilege of every so-called red-blooded American. The presumption should always favor public safety, and that means keeping guns out of the hands of people who may abuse them. With rational gun control laws tied to what science can tell us about human behavior, we might hope to put a limit to the senseless, needless tragedy of gun violence.
Those who study free speech are well aware that in the clash of privacy and free speech interests, the U.S. as a general part of free speech idolatry of free speech routinely permits the public disclosure of embarrassing details of a person’s private life. Thus the sex lives of public persons are open season along with the details of their health and finances. Those newspapers publishing the names of rape victims have been constitutionally protected. Although the Court has left open the possibility that it might not be permissible in some circumstance to publish the names of such victims, newspaper editors can breathe easy. Conservatives and liberals both engage in free speech worship when privacy rights are at stake.
Europe, on the other hand, is far more sensitive to the dignity of human beings even famous human beings, and their right to privacy. So, for example, when a British paper published a photograph showing Naomi Campbell emerging from a meeting of Narcotics Anonymous, the House of Lords found that the paper had impermissibly invaded her privacy. The press was free to report that she had a cocaine problem (only because she had said she was not like other models who took drugs), but the report of her involvement in Narcotics Anonymous was beyond the pale. The Campbell case is not an aberration in Europe. It is typical, and the privacy right has even deeper roots in France and Germany than it does in England.
My strong view is that the European approach is superior to the U.S. which elevates the interests of a voyeuristic culture over human dignity. But I must say that the relatively recent development of the “right to be forgotten” strikes me as stepping over the edge. The right began with the notion that a person who puts up a photograph on Facebook and regrets it should have a right to have it removed from his own page and to the pages of others who shared it. The latter is more controversial than the former, but the right has gone much further.
In a recent case the European Court of Justice ruled that a plaintiff had a right to compel Google Spain to remove from the list of links found in a search for the plaintiff’s name a link to an online newspaper story referring to an auction selling materials of the plaintiff because of his failure to pay debts some 16 years ago. The problem for me is not the result, but the sweeping character of the right in which the result is embedded, at least without appropriate procedural protections. Essentially persons have a right to removal of a link if it is false, or not up to date, or if the privacy concern is not outweighed by Google’s economic interest and the public interest in having it on the list. The vagueness of the general right is palpable.
I think, however, that this concern could be mitigated by providing for a hearing officer to adjudicate complaints when Google does not remove links that unnecessarily invade privacy. Google searches provide revealing glimpses into an individual’s private life. Europe rightly supposes that there should be protection for the privacy rights of individuals. Free speech cheerleaders may scoff at this. But Google is not a newspaper; it assembles data. Google should not have unqualified power to determine what it will or will not remove. But Google should not have to guess at its peril what counts as privacy in a balance. A reasonable procedure should be in place to afford an aggrieved a remedy when Google is intransigent, but Google should be able to rely on that procedure as dispositive.
Here is a link to a revised paper (from 2011): “Natural Law ‘Externalism’ v. Law as Moral Aspiration.” This paper makes an argument against Thom Brooks’ characterization of the natural law tradition’s concept of justice as “external” to the law, in contrast with Hegel’s peculiar “internalist” conception of natural law. I’m not so much interested in Brooks’ interpretation of Hegel on this score as his rendering of the concept and conceptions of justice and law as found generally in natural law traditions and formulations.
“As it turns out, Marx himself, at least in his early years, recognized the relationship between the rule of law and substantive equality. In 1842, Marx criticized the Prussian censorship laws in rule of law terms, claiming that such ‘laws without objective norms are laws of terrorism, such as those created by Robespierre’ and ‘positive sanctions of lawlessness.’ Going on, he criticizes the law as ‘an insult to the honor of the citizen’ and ‘a mockery directed against my existence,’ in virtue of the fact that it is ‘not a law of the state for the citizenry, but a law of a party against another party’ which ‘cancels the equality of citizens before the law.’”
“One law for the lion and for the ox is indeed oppression, if that law requires everyone to eat meat or to grow a mane. And in a world where some people have a lot, and others are destitute, treating people how equals ought to be treated means taking from the former and giving to the latter. As it turns out, this is the correct interpretation not just of the ideal of distributive justice, but of the proposition that all are to be equal under the law. And this is a valuable discovery independent of distributive justice theory.”
“The rule of law is both an unqualified human good and a tool in the fight against social injustice.”—Paul Gowder
These quotes from a recent paper by Paul Gowder, “Equal Law in an Unequal World,” while not about natural law theory proper, suggest if not capture that type of natural law reasoning about the “moral ideal of the rule of law” and justice found in the natural law tradition and thus help illustrate how notions of justice and morality are not, pace Thom Brooks, “extrinsic” to its conception of the rule of law.
Please note: The SSRN link I provide to Brooks’ paper in my essay no longer allows its download (only the abstract), apparently because it is now part of a collection of essays in a volume edited by Brooks: Hegel’s Philosophy of Right (Wiley-Blackwell, 2012): 167-179.
Here is a link to my essay, “Poetry & Islam: An Introduction,” which was posted in two parts here several years ago and an earlier and shorter draft of which and published in CrossCurrents (March 2011). Clarification: It seems I was mistaken! This is virtually identical (I edited a few things) to the published version, which I had not looked at for some time.
There’s a wonderful post on the role of imagination in perception in Indian philosophy by Douglas Berger at the Indian Philosophy Blog.
Not mentioned in the post and subsequent discussion (as it’s confined to imagination vis-à-vis perception in philosophy) is an intriguing fact: within the four major schools of Sanskrit poetics (Alaṅkāra, Rīti, Dhvani, and Rasa), according to V.K. Chari, imagination (pratibhā, ‘poetic genius’) is not used in the definition of poetry, “although nearly all critics paid homage to it.” Indeed, pratibhā is simply cited as “only one of the causes of poetry, together with training (śikṣā) and understanding of the world (vyutpatti).”* Chari himself thinks that what others see here as a failure to do justice to the intuitive or imaginative parts of poetic creation is rather an analytic virtue of the scholastic approach of Sanskrit critics, for imagination “is at best a dubious concept, and its usefulness for criticism has not been proved.” The second half of the coordinating conjunction is likely true, although I disagree with the proposition that imagination is “at best a dubious concept.”
* Sanskrit manuals, writes Chari, make a firm distinction between “the cause of poetic creation (kāvya-hetu), the ‘fruits’ accruing from it (kāvya-phala) or the purpose served by it (kāvya-prayojana), and the nature of poetry (kāvya-lakṣaṇa).”