Yale Law School, like others, makes provisions for prospective employers to interview students on campus. In December 1994, the Christian Legal Society (CLS), a national organization that has hired Yale students before and has many Yale graduates as members, applied to take part in the February 1995 interview process. The Yale application form stipulates that employers must take a pledge not to discriminate on the basis of, inter alia, religion. With its application, CLS sent a letter pointing out that it is of course a religious organization, that it takes religion into account in hiring, and that it assumes Yale recognizes the pertinent exemption for religion stipulated in, for instance, Title VII of the Civil Rights Act and other laws.
Not at all, responded Barbara Safriet, associate dean of the Law School. "While I do not question the sincerity of your organization's beliefs, I must affirm Yale Law School's equally strong commitment to the views articulated in its nondiscrimination policy." CLS is excluded from the hiring program. Gregory Baylor, assistant director of CLS, promptly wrote back that Yale's position means that "CLS must alter its religious beliefs to gain access" to the program. "Does Yale Law School really intend to pressure religious nonprofits like CLS to alter their religious beliefs? If so, why? We assume that it is not because you disagree with our interpretation of Scripture or because you believe that Scripture is not a reliable basis for decision making." He again cited laws and court decisions upholding religious exemptions from nondiscrimination regulations.
The curt answer from Safriet was uncompromising: "We cannot offer our placement services to employers who, for whatever reason, do not abide by our nondiscrimination policy in its entirety." A few months later, in July 1995, CLS wrote again, pointing out that Harvard Law School had at first excluded CLS from its interview program, but when a couple of Harvard law professors got wind of it they promptly went to the front office and had that policy reversed. The Harvard professors, it should be noted, were Mary Ann Glendon and Alan Dershowitz, who disagree on many things but are strongly opposed to antireligious bigotry. No matter. The answer from Yale was that Harvard is not Yale.
By this time, a number of prominent Yale alumni and experts on religion and law had written Yale's dean, Anthony Kronman, protesting the school's exclusionary policy. The experts included such worthies as Marc Stern of the American Jewish Congress, Dean Kelley of the National Council of Churches, and Forest Montgomery of the National Association of Evangelicals. "A public institution," they pointed out, "would be prohibited from penalizing religious employers for exercising their rights under the First Amendment as well as federal statutes." The implication was that independent institutions, such as Yale Law School, should be able to go farther than government agencies in respecting diversity, especially the free exercise of religion.
Beginning with Dean Kronman's response of August 8, 1995, it would become evident that quite the opposite is the case. One of the pleasures of a private school is that you can be as discriminatory (against religion) as you wish. "The Law School has made a lasting commitment to oppose discrimination against its students on the basis of race, sex, and sexual orientation, among other considerations. . . . To do anything else would be to act contrary to our own ideals and sense of community," declard Kronman. Nonetheless, the dean said he would take up the CLS matter with a faculty committee. Since Kronman had raised the question of sexual orientation, Baylor responded for CLS that a religious organization has a right to take "sexual conduct" into account when making hiring decisions. He awaited the outcome of the faculty's deliberation.
And he waited. Four months later, on December 8, he wrote inquiring what was happening, since Kronman had said that the faculty would consider the matter "at an early date." The dean responded with a brief note explaining that the pertinent committee "has been late getting started." Yet another six months passed and CLS had still heard nothing. On June 6, 1996, Baylor wrote: "I do appreciate the possible sensitivity of this issue on your campus and the suitability of a careful analysis. However, the long delay is becoming increasingly unacceptable, especially given the remarkable consensus among religious groups of divergent ideologies and faiths on this issue. Although I can only speculate, it is difficult to imagine that Yale would procrastinate so badly on a matter involving some other 'constituency.'"
A month later, Dean Kronman came back with the definitive answer. The committee had concluded that Yale should allow no exemptions on religious or other grounds. "Exclusion on any of these grounds would be antithetical to the community the Law School aspires to create. . . . The ideal of community that animates the life of the School demands this." If Yale's view of nondiscrimination gets in the way of the free exercise of religion, too bad for the free exercise of religion. Constitutional protections of free exercise may be fine for government and lesser institutions, but they do not fit Yale's "ideal of community." As Chevy Chase might have said, "We're Yale Law School-and you're not."
As it happens, Dean Kronman deems himself something of an expert on the ethics of civil community. In a 1993 book, published, one notes, by Harvard University Press (The Lost Lawyer: Failing Ideals of the Legal Profession), the dean is eloquent on the need for "political fraternity." "Tolerance, unaccompanied by the spirit of sympathetic fellow-feeling that distinguishes the condition of political fraternity, is not enough," he declares. "For political fraternity to exist, it is not necessary that the different views which the members of a community take of its values and purposes all be assessable from some common point of view. Indeed the demand for political fraternity is likely to be greatest in just those situations where the competing conceptions of the disputants are not comparable in this way." It is necessary "to see the concerns of others in their best light." We are sometimes presented with "a conflict among incommensurable values, and if a community is to survive such disagreements, it is reasonable to think that it needs something more than disinterested toleration. What it needs is political fraternity."
Precisely. As, for instance, in trying to engage in "the spirit of sympathetic fellow-feeling" and to understand in the "best light" the "incommensurable values" of Christians and Jews who think that organizations devoted to advancing their religious purposes should reasonably take religion into account in hiring people. Or, to put it more simply, as in having a decent respect for the free exercise of religion.
It turns out that Dean Kronman's "spirit of sympathetic fellow-feeling" is rather anemic. It certainly does not extend to the millions of fellow-citizens whom he consigns to the darkness of the "Religious Right." He was invited to give a lecture, in February 1996, at Cumberland School of Law in Birmingham, Alabama. He chose as his topic "Civility." The quality of the dean's civility is very strained indeed. The members of what he calls the religious right are not legitimate participants in the political community, he asserts, because they "treat politics in a strictly instrumental fashion" for promoting other ends, namely, the family and church. The "decrease in the appetite for citizenship," Kronman claimed, "correlates with an increasing devotion to family and church." It follows that such people are not really concerned for the "common good."
Set aside for the moment that this ludicrous claim is contrary to all we know from the social sciences, and contrary to the keenest analyses of American democracy from Tocqueville to the present day. Set aside, I say, Dean Kronman's thoroughly muddled understanding of how our society and polity work. One is even more struck by the irony that his exclusive identification of authentic citizenship with concern for the polis as a whole is logically antithetical to his own flaunting of Yale's private status, by virtue of which it has the right to defy both constitutional protections and common decencies when it comes to respecting the free exercise of religion. It would seem that the "decrease in the appetite for citizenship" does indeed correlate with a rigid devotion to "the ideal of community that animates the life" of Yale Law School. The confused contentions of Dean Kronman suggest that he-and, according to him, his colleagues-are prone to an antireligious bigotry that is the enemy of the civility he claims to champion.
At age eighty-four, Mr. Park Chamberlain of Woodside, California, now retired from practice, has had a lot of time to think about matters judicial, and he has been especially pleased by our pressing the question of the judicial usurpation of politics. From 1934 to 1937 he studied at Yale Law School under worthies such as William O. Douglas, Abe Fortas, Thurman Arnold, and Fred Rodell. That was during the New Deal when the Nine Old Men on the Supreme Court were threatening what today would be called Big Government. His worthy teachers-all "liberals" according to the nomenclature of the day-drummed into their students the premier lesson of "the wickedness of judicial resistance to the popular will."
The times were exciting, Mr. Chamberlain writes. "To be young was very heaven. Over the teacups in our lounge we debated ways of bringing the lawless judges to heel, and similar discussion filled the law journals and newspaper editorials." The great question so urgently posed then was: Can democracy survive under so powerful a nonelected body? As it happened, FDR managed to restructure the Court and the sense of crisis subsided. Folks at Yale settled back to enjoy what was anticipated as a golden age of judicial restraint. "How then can it be," writes Mr. Chamberlain, "that now some six decades later, the Supreme Court and its judicial underlings have taken over the minutest detail of state and federal prison administration, state criminal procedure, state educational systems, the approval or disapproval of books in public libraries and lastly-indeed as a necessity to support the grandiose programs ordained-even the taxing power."
The great change came, Mr. Chamberlain believes, with the Warren Court and the 1954 Brown decision. Before that, judicial review entailed a negative veto power; in striking down a law, the Court simply said, "You can't do that." Now the Court began to exercise what Chamberlain calls a "positive veto." After saying what could not be done, the Court now adds: "And therefore you must do this, and exactly this and only this; and to see that you do, we will pursue you like avenging furies over the years, directing and overseeing your each and every act, and furthermore (and what a furthermore) if what we command you to do costs more money than you can legally raise, we will not only order you to raise taxes, but specifically compel you to levy taxes as we shall dictate."
In what Mr. Chamberlain terms a "creeping coup d'etat," the Court transformed its judicial role into a legislative role, and assumed executive powers in implementing its own laws. As for the People, sometimes referred to as "the fourth branch of government," they can safely be ignored by judges who are accountable to nobody but themselves. Chamberlain writes, "What we have seen, of course, is a coup d'etat-just as blatantly a coup d'etat as any lawless takeover of government in a banana republic. The principal difference is, of course, that it has not been sudden and bloody, but mostly peaceful and bit by bit."
And as for his revered teachers, Douglas, Fortas, Arnold, Rodell, et al., they quickly appreciated the great good that could be done (at least by their lights) through judicial ukase, and reversed their principles of constitutional interpretation, drumming into the heads of another generation of students the great wickedness of popular resistance to the judicial will, precisely the opposite of what they taught Mr. Chamberlain and his classmates. So what is to be done? Mr. Chamberlain notes that in California a long-suffering but finally enraged electorate reasserted its right to govern by booting three imperial judges off its Supreme Court. "Let us hope that some day (after my time, alas) we will see a restoration of the power in the people to mete out the same fate to federal judges who have been faithless to their trust."
A creeping coup d'etat. Not a bad phrase, that. Also useful is the distinction between a negative and positive veto, between the Court's proscriptive and prescriptive powers. William F. Buckley has recently written: "Some of the issues raised by First Things point to ultimate divisions; others derive from temperamental reflexes. In the abstract, the point is obviously reachable when a rogue society forfeits the loyalty of responsible and courageous citizens. It is not always easy to recognize that point, which often passes by societies that wake to find a despotism in power."
As we have insisted in these pages, this government has not forfeited the loyalty of its citizens, but the judicial usurpation of politics does constitute a despotism in the making, and partly in place. It is gratifying to see other publications taking up this question with the urgency that it deserves. Thanks in part to the timely action of a federal judge in California who decided that his one vote nullifies the judgment of 55 percent of the electorate who voted to end racial and other discriminations in the form of affirmative action. Some readers have complained that the discussion of judicial usurpation so far has been short on remedies. As the discussion continues, possible remedies will be canvassed with care. For starters, however, it is no little thing that we be aroused from sleep.
R. R. Reno got it exactly right. He writes, "The end result is the situation which drives traditionalists to distraction: modern theologians who repudiate the authority of Christian doctrine but insist upon a role in teaching and proclaiming that doctrine." That is the end result, says Reno, who teaches theology at Creighton University in Omaha, of the entire project called modern theology. And it is most particularly the end result of contemporary feminist theology, which is solidly in the tradition of Kant's theological work, Religion within the Limits of Reason Alone. In that work, Christian belief and practice is subjected to rigorous critique by Kant's moral vision.
Reno's article in the current issue of Pro Ecclesia, "Feminist Theology as Modern Project," gives particular attention to the work of Elizabeth Johnson, who is very much in the mainstream of academic theology (she is a former president of the Catholic Theological Society of America), and Rosemary Radford Ruether, who for decades has been one of the shapers of the feminist project. Like Kant, both subject the entirety of the Christian tradition to a moral critique. In a book that Reno calls her feminist summa, She Who Is, Johnson sets forth the normative theological principle: "In the course of this program [of feminist theology] one criterion recurs as a touchstone for testing the truth and falsity, the adequacy and inadequacy, the coherence and incoherence of theological statements and religious structures. This criterion, variously enunciated, is the emancipation of women toward human flourishing."
Applying that criterion, says Johnson, results in "a new experience of God" which is "a new event in the religious history of humankind." Some critics claim that, in fact, it results in a new religion that is not Christianity. To that, Johnson and others respond that they are the ones who are faithful to the tradition, rescuing its "essence" and "true meaning" from the constricting shell of "literalism," also known as fundamentalism. Reno states their position this way: "Precisely because the dogmatic form of received formulations is intrinsically defective, the tradition requires the red pencil of the modern theologian. Without the ministrations of the modern theologian, without the critiques and correctives born of the distinctive genius of the present age, the apostolic tradition would be a dead letter. When the day is done, modern theology holds the key which unlocks the gospel."
In all this, the feminist theologians are faithful epigones of Immanuel Kant. They cannot abide the particularity of revelation, as in the particular person of Jesus as God incarnate or in the possibility that the finite language of doctrine is capable of bearing the infinite truth about God. "Witness Kant's treatment of Jesus," Reno writes. "Kant affirms Jesus as a representative of moral rectitude, but that affirmation is hollow, for the part of Jesus which makes him a person rather than a principle is precisely that part which Kant seeks to excise from his reading of Scripture."
So with Johnson and others, particulars such as Jesus' cross and resurrection are but symbols to be judged as useful or not, depending on whether they advance contemporary understandings of the emancipation of women. Reno incisively makes the point that this leaves us without any authentic communion with God, since the only fixed point of reference is not God and his revelation but the "inner self." "Thus, the anchor becomes oneself, and one clings to one's sentiments and experiences with a tenacity born of knowing that otherwise one is adrift." I have offered here but a sampling of insights from an article that is an intelligently sympathetic, but finally devastating, critique of the dominant forms of feminist theology now current in the academy.
As Reno knows, the children of Kant are hardly limited to feminists. The family of modern theology embraces all those who have attempted for purposes ideological, political, or psychological to hijack the Christian tradition. A good rule of thumb is that, whenever you hear a theologian speak about "the essence" of Christianity, he is probably promoting something other than Christianity. Christianity is not an essence or principle but the story of the world, and is composed of the inconvenient historical particularities of God's revelation of Himself in Israel and the Church. Establish a criterion by which you strip away what is difficult and you end up with a new but very old religion that is, finally, the idolatrous worship of the Self.
I don't know if the editors intended the juxtaposition, but the same issue of Pro Ecclesia includes another, although very different, display of "religion within the limits of morality alone." Michael J. Baxter of Notre Dame offers a blistering critique of the way historians have construed the Catholic experience in America. "Writing History in a World Without Ends" is in some ways a brilliant polemic against major historians of American Catholicism, including the late John Tracy Ellis, Jay Dolan, and David O'Brien. All of them, writes Baxter, portray American Catholicism as a success story because Catholicism ended up by fitting neatly into their understandings of the American Way of Life. Baxter's title points to the fact that these historians assumed that there is no conflict over "ends" between Catholicism and Americanism. Part of Baxter's argument is that Rome was right when, at the turn of the century, it condemned "Americanism." American bishops and intellectuals dismissed Americanism as a "shadow heresy," but that, Baxter suggests, is only because they were so deeply implicated in it.
It is a provocative thesis and well worth an argument. Among Baxter's villains is Father John Courtney Murray, the Jesuit who did more than anyone else to make the case, finally ratified by the Church, that the kind of democratic pluralism experienced in the United States is compatible with Catholic teaching. Murray, says Baxter, made Christian truth claims safe for, and subordinate to, Americanism. This is hardly a new criticism of Murray. While Baxter is a pacifist and would on most questions be located on the left, the same charge is relentlessly pressed by such as David Schindler and the Communio circle, who are viewed as champions of Catholic conservatism.
Like all things human, Murray's was a limited achievement. Contra Baxter and other critics, Murray was well aware that a conflict over "ends" could come into political play when the moral assumptions of a society are badly fragmented. See, for instance, Murray's posthumously published article in these pages, raising an alarm about the Supreme Court's school prayer decisions and the ascendancy of a militant secularism in our public life ("A Common Enemy, A Common Cause," October 1992). Baxter himself, albeit in a footnote, quotes Murray as writing, "It has been remarked that only in a disintegrating society does politics become a controversy over ends; it should simply be a means to ends already agreed on with sufficient unanimity."
During most of Murray's life, he believed, and rightly so, that that agreement marked the happy circumstance of American public life. Under the pressure of the judicial usurpation of politics, but under other pressures as well, it is now evident that ours has become what Murray called "a disintegrating society." Baxter warns against judging earlier thinkers by the standards of our own time, but I'm afraid that he does precisely that in the case of Murray and others.
Consider, for instance, Man and the State, a 1951 work by the French philosopher Jacques Maritain, who stood in a line running from John Carroll to Tocqueville to Murray, all of whom celebrated the happy circumstance that made politics in America a matter of means rather than ends. Procedural rather than ideological politics was possible in America, according to this view, because shared moral convictions and habits of civic virtue were so secure. The question of ends was defined and secured by religion, and permeated the body politic. Those who today read Maritain and others on the American circumstance can easily accuse them of being pathetically naive. Much too easily. The right lesson to be drawn is not about their naivete but about how far the disintegration of society has progressed in the past four decades.
Baxter's article contains penetrating criticisms of Catholics who subordinate the faith to being of "service" to social establishments of which they have no fundamental criticism. Although they had somewhat different views of what constitutes progress, Baxter writes, Ellis, Dolan, and O'Brien all assume that "the Church's destiny lies in finding its home in the United States of America." He is particularly scathing in his judgment of the National Conference of Catholic Bishops (NCCB), whose activities David O'Brien, picking up on Martin Marty's idea of "public church," praises as exemplifying "public Catholicism." Baxter writes: "'Public Catholicism' never seriously considers a scenario in which the United States of America proves incapable of adhering to the teachings of the gospel, or to the precepts of the natural law, or even to the watered-down natural law principles regularly churned out by the NCCB in the form of public policy recommendations." The story told by Ellis et al. "should be read as a neo-Constantinian narrative." Readers will recognize here the influence of Methodist ethicist Stanley Hauerwas and his familiar condemnation of "doing ethics for Caesar," which is not surprising since Baxter is a student of Hauerwas.
"Writing History in a World Without Ends" is a bracing polemic, and much of what Baxter says should be taken to heart. But finally one must ask whether it is not true here, as Reno says is true of feminist theology, that "modern theology marches to Kant's orders." Philosophically and theologically, Baxter is light years removed from Kant. But he, too, offers a version of "religion within the limits of morality alone." For instance, he again and again excoriates Ellis for thinking it a good thing that the Catholic bishops did not collectively take sides in the Civil War. Thus, says Ellis, they preserved the unity of the Catholic Church, rather than dividing along political lines as happened in major Protestant denominations. Catholics fought on both sides, sometimes in positions of high command.
Baxter does not think that a good thing. "What kind of ecclesiology is it," he asks, "that allows Ellis to suggest that the Church is united even as its members are arrayed against each other in battle?" At another point, he notes scornfully that in 1784 John Carroll reported that there were 15,800 Catholics in Maryland, of whom 3,000 were slaves. What kind of Church is it, Baxter taunts, where people could buy and sell their brothers and sisters in Christ?
What kind of Church is it, indeed? Forget the way in which Baxter egregiously and, I am afraid, smugly imposes contemporary moral criteria upon the past. Should the bishops in 1860, in the manner of today's NCCB, have taken sides or employed "watered-down natural law principles" in the form of policy recommendations? And should they have taken the side of the North or the South? Given that history is written by the victors, most would say they should have sided with the North. But if doing ethics for Caesar is such a bad thing-and I think it a deeply problematic thing-it shouldn't matter whether the Caesar in question wins or loses. Should the Catholic Church have declared with magisterial authority that the cause of the North was legitimate and the cause of the South illegitimate, and therefore no Catholic could fight for the South? I very much doubt it.
"What kind of ecclesiology is it that allows Ellis to suggest that the Church is united even as its members are arrayed against each other in battle." It is, quite simply, an ecclesiology that is not "within the limits of morality alone." It is an understanding of Christ and the Church that is constituted by revealed truth, dogma, sacramental bonds, ordered ministry, and diverse traditions of discipleship. What kind of ecclesiology is it, Baxter wants to know, that suggests that the Church is united even as some members are free and others are slaves? For an answer to that question, one might read again St. Paul's letter to Philemon. Obviously, I am not making an argument for slavery or for the cause of the South. Rather, it is an argument for a doctrine of the Church that rests on more than the one pillar of ethics. The Church is constituted more by mystery than by morality.
There are many dimensions of Christian existence and of living ecclesially-doctrinal, sacramental, liturgical, institutional, affective. It is a thin and fragile ecclesiology that cannot survive the tragic circumstance in which brothers in Christ-arriving at different positions in moral dispute-find themselves arrayed against one another in battle. Finally, Baxter, like Elizabeth Johnson and Rosemary Radford Ruether, is a child of Kant, a modern theologian who critiques the entirety of the tradition by a criterion of his choosing. His criterion is pacifism, joined to a cluster of moral sensibilities on other issues. To be fair, he would say that pacifism is not a criterion of his choice but is made imperative by the gospel. This is the argument that is so powerfully, if unconvincingly, advanced in The Politics of Jesus by John Howard Yoder, whom Baxter thanks for help with his essay. To be fair again, Johnson, Ruether, and their feminist colleagues would also claim that their understanding of the emancipation of women is made imperative by the gospel.
Unlike Johnson and Ruether, Baxter would no doubt deny that he is part of the modern theology project. And on most questions of theological substance I am sure he is right to deny it. But there is the formal similarity that he and those of like mind take a piece of the Christian reality through time, and by that piece they critique the whole. There are, of course, points of reference by which the tradition can and should be held accountable. These points of reference-Scripture, councils, the sense of the faithful-are themselves part of the tradition and their use, which makes possible the development of the tradition, is defined by the tradition. It is all very complex, and how it works is set forth by, for instance, John Henry Newman on "the development of doctrine," an argument that has been formally embraced by the Catholic Church. This is not the place to go into the details of that argument, except to note that-pace Johnson, Ruether, Baxter, and Kant-it is in no way reducible to "religion within the limits of morality alone." (Father Baxter is currently engaged in a mighty battle with the theology department at Notre Dame. The above criticisms notwithstanding, I'm on his side. More on that next month.)
Thirty-nine organizations and coalitions filed amicus curiae briefs urging the Supreme Court to reverse lower-court rulings bestowing constitutional status on physician-assisted suicide (PAS). Here are excerpts you might want to keep handy when the topic comes up for discussion.
"American Geriatrics Society: 'Proponents of a constitutional right to PAS expect the practice to be limited to persons who are acting voluntarily, without undue influence or coercion. The image is that of an independent, capable person thoughtfully evaluating his or her options, unaffected by biased third parties or other circumstances. This is so far from the experience of dying as to be fanciful. Dying persons are often very weak, prone to strong emotions, and vulnerable to the suggestions, expectations, and guidance of others.' Sen. Orrin Hatch, Chairman of U.S. Senate Judiciary Committee, et al.: 'Giving choices to the vulnerable is not always liberating. A young woman is not more "free" if the law allows her to contract with a pimp; a young man is not more "free" if a pusher can sell him crack cocaine; a child is not more "free" if he or she can "consent" to sexual advances by adults; people are not more "free" if they can voluntarily sell themselves into slavery. Nor is an ill person necessarily more "free" if he can agree to kill himself. Indeed, the mere availability of assisted suicide as a socially legitimated alternative may impel some who would prefer to live to accept this course out of feelings of guilt or shame about the burdens (financial and otherwise) that the choice of continued living would impose on their families.' American Medical Association et al.: 'Patients come to physicians and nurses at times of greatest need and vulnerability, depending upon these professionals to respond to their needs capably and faithfully. The rule against physician-assisted suicide is an extraordinarily valuable protection against temptation to seek an immediate solution to a burdensome problem that health care professionals, no less than any other human being, can feel. Many patients may understandably wonder, finding themselves badly injured and in the care of a physician they do not know but who is licensed to assist in taking the lives of patients, whether that physician will truly act only to preserve their lives.' U.S. Catholic Conference et al.: 'Any notion that the state has less interest in protecting a person's life against a lethal intervention when that person is very sick would itself do violence to the principle of equal justice under the law. . . . This is simply another way of saying that (a) the state may decide in the first place whose life warrants greater or lesser protection (a dangerous proposition by any standard), and (b) as a matter of constitutional law, sick people, in particular, have lives less worth protecting than others. Such a governmental determination would be a direct assault on the fundamental equality and dignity of each and every person.' Agudath Israel of America: 'We do not mean to suggest that constitutionalizing a right to assisted suicide is likely to lead to the type of moral collapse that occurred in the German medical profession earlier this century. . . . However, we may not ignore the lessons of that dark era: "What makes the administrative mass killings so outstanding is not their numbers, their efficiency, or their cruelty, but the fact that they occurred in an epoch when nobody thought it was humanly or socially possible. Therein lies their deepest lesson. If it was possible then, why not again? What has fundamentally changed? The curtain may have gone down-but only for the intermission." F. Wertham, The German Euthanasia Program 31 (1980). In the decisions below, we detect-ever so faintly, ever so benignly, but ever so ominously-the rustling of the curtain once again.'"
The redoubtable Harvey Mansfield of Harvard comments on the new book by the incorrigible Ronald Dworkin of Oxford and New York University, Freedom's Law: The Moral Reading of the American Constitution (Oxford University Press). Now you would expect a journal such as this to be wholeheartedly in favor of a moral reading of the Constitution, wouldn't you? After all, injecting clear moral argument into public discourse is part of the raison d'etre of our mission. Yes, but . . . The Constitution is the specified framework within which that discourse is conducted. The Constitution institutionalizes the rules by which democratic deliberation and decision-making can take place. That such decisions are democratic means that they are decisions of the majority, with constitutionally specified and democratically supported protections for minorities. In elections, legislation, referenda, and other decision-making, the people are free to make whatever moral (or immoral) arguments they wish, always within the framework of the Constitution.
Professor Dworkin, along with the putatively progressive judiciary of our time, has moved well beyond such old-fashioned ways of understanding the American order. Their "moral reading" of the Constitution is a wondrously pliable hermeneutic in which judges, lawyers, and legal scholars make the Constitution say whatever they think it should say. In this way, the moral judgments of the mandarins of the knowledge class are not only "privileged"-to use the favored term of critical scholars- but in fact are declared to be what the Constitution actually says (with a wink and nudge to the knowing who understand that texts cannot really "say" anything). As Dworkin has so memorably put it, judges are like novelists collectively writing an open-ended story and making it up as they go along. The great task in preserving "Freedom's Law" is to make sure that the people-as in dreaded "majoritarianism"-do not interfere with the important work of the small minority of privileged storytellers.
Mansfield recalls the familiar story in which a lady asked Benjamin Franklin whether the American constitutional convention had produced a republic or a monarchy. Franklin replied: "A republic-if you can keep it." Ronald Dworkin, says Mansfield, would have replied: "A moral system, madam, if you can argue." Mansfield notes, "He would have added quickly that any implication of sexism in his response would be corrected by a future generation arguing more morally than his." Mansfield sums up his critique of Dworkin this way: "The American Founders, whom Dworkin ignores, had a concern for the risk of majoritarianism similar to his. But their remedy was different. They did not reject majoritarianism, because they knew that popular government is necessarily majority rule. They did make it difficult to collect a majority by compelling it to show both determination towards its goal and flexibility in the means. This they did through federalism and separation of powers, two obvious features of the American form of government not discussed by Dworkin. The Founders thus imposed a formal necessity of compromise on the people, not regrettable, as Dworkin says, but moral because done with respect for the right of consent. The rights of a minority are better protected by the right of consent fixed in separated powers, they thought, than by 'parchment barriers'-let alone extreme principles constructed of professors' arguments."
That summary warrants a careful second reading. A surprising number of Americans, including readers of this journal, are uneasy about the notion of democracy. Don't we know that the American order is republican and not democratic? they ask. The question reflects the simplistic distinction indicated in the names of our two major parties, partisan distinctions necessarily being simplistic. The American constitutional order, however, is democracy exercised through republican means. That is to say, political sovereignty is vested in the People, and the People are free to indicate any higher sovereignty to which they hold themselves and the political order itself accountable (as in "one nation under God").
So also with the protection of minorities. It is only the majority itself that can protect against the dangers of majoritarianism. Can a majority exercise such self-limitation? Most of the political history of the United States provides a resounding answer in the affirmative. Certainly the majority has demonstrated itself much more capable of self-limitation than have the judicial and academic elites that have usurped political power in the name of protecting against majoritarianism. The Founders understood, and the American people understand, the need for compromise. The same cannot be said of the Dworkins who would impose their smug certitudes in the name of "the moral reading of the Constitution."
Critical scholarship of our time is much enamored of the ironic, and quite blind to the ironies in its own presumption of a right to govern. In claiming to protect minorities against the dangers of raw majoritarianism, the aristocracy of the articulate appeals to what the Founders called the "parchment barriers" of the Constitution, thus turning the Constitution against the People who alone give it legitimate authority. Turning democratic theory on its head, they assume that legitimate authority is derived from the minority rather than the majority. Further, they assume they have a monopoly on defining which minority has political and legal standing. In the case of abortion, they declare that the minority to be protected is not the children who are aborted but the women who want abortions. In the case of affirmative action, whites, males, and heterosexuals who are discriminated against cannot be a minority unfairly treated, for, after all, whites, males, and heterosexuals, when counted together, are part of the majority, and the Constitution is designed to protect only minorities. We must not, however, lose sight of the fact that the chief minority protected by "the moral reading of the Constitution" championed by Dworkin & Co. is the minority of Dworkin & Co. who are so touchingly solicitous in protecting the majority from the perils of self-government.
By such definitional tricks, the champions of "extreme principles constructed of professors' arguments" present themselves as the defenders of threatened minorities, disguising in moral pretension their raw ambition to rule. They have kept the game going for some time and played it with remarkable success over the last thirty years and more. But now the people, so amazingly patient and forbearing, have caught on and the jig is up. The great irony and the great mistake of the self- appointed aristocracy was to pit the "parchment barriers" of the Constitution against the People while, simultaneously, deconstructing those same parchment barriers by the hermeneutics of the aristocracy's will to rule. Dworkin and his ilk on the bench and in the law schools are in the process of discovering that they have taken on the impossible task of convincing the American people that they are bound by a Constitution that means whatever their certified betters say it means, and the one thing their betters say it means for sure is that the majority must not rule.
Faced with this implausible argument for despotism, some Americans came to believe it and have, as a result, rejected the Constitution. Many more, we hope, their patience run thin at last, will let Professor Dworkin and his judicial courtiers have their say before politely, or perhaps not so politely, inviting them to desist from trying to undemocratically impose on the majority what they so naively call "the moral reading of the Constitution," thus permitting a self-governing people to resume the difficult work of keeping the republic bequeathed them by the Founders.
Faced with another of the humongous volumes coming out of The Fundamentalism Project that is generously funded by the MacArthur Foundation and edited by Martin E. Marty, Peter Berger got to wondering about this intense interest in fundamentalism. Of course, Marty and the MacArthur people might reply that fundamentalism is obviously an important and strange phenomenon, and academics are obliged to try to understand the alien worlds from which it arises.
Berger writes: "But here came another question: Who finds this world strange, and to whom must it be made understandable? The answer to that question was easy: people to whom the officials of the MacArthur Foundation normally talk, such as professors at American elite universities. And with this came the Aha! experience: The concern that must have led to this Project was based on an upside-down perception of the world. The notion here was that so-called fundamentalism (which, when all is said and done, usually refers to any sort of passionate religious movement) is a rare, hard-to-explain thing. But in fact it is not rare at all, neither if one looks at history, nor if one looks around the contemporary world. On the contrary, what is rare is people who think otherwise. Put simply: The difficult-to- understand phenomenon is not Iranian mullahs but American university professors. (Would it, perhaps, be worth a multimillion- dollar project to try to explain the latter group?)"
Berger confesses that ages and ages ago he played a part-a very considerable part, we would add-in the development of the "secularization theory" that has now been shattered by reality. Although there are complexities and apparent exceptions, it would seem that the great development of our time is not the secularization but the desecularization of the world. His earlier confidence in secularization theory has made Berger chary of grand generalizations and more open to surprises. He writes: "Finally, in religion as in every other area of human endeavor, individual personalities play a much larger role than most social scientists and historians are willing to concede. Thus there might have been an Islamic revolution in Iran without the Ayatollah Khomeini, but it would probably have looked quite different. No one can predict the appearance of charismatic figures who will launch powerful religious movements in places where no one expects them. Who knows- perhaps the next religious upsurge in America will occur among disenchanted postmodernist academics!"
The Berger essay appears in the National Interest, an excellent journal that I took to task some time back for editorially declaring that at the end of the twentieth century religion is largely irrelevant to an understanding of international affairs. Without presuming to take credit, one notes with satisfaction that the editors have since been making up for it. The same issue includes two long discussions of Samuel Huntington's important new book The Clash of Civilizations and the Remaking of World Order (Simon & Schuster). Huntington is one of the seminal thinkers of our time, and his book will be receiving major attention in these pages. I note here only that Berger's essay, "The Decline of Secularism," is closely related to Huntington's chief argument that world affairs-chiefly determined by the nation-state in the nineteenth century and by ideology in the twentieth-will in the next century be dominated by the conflict of civilizations, with civilizations typically being defined by religion.
This is Big Think of a very large order that might easily be dismissed coming from a thinker less manifestly capable than Samuel Huntington. As its first commentator, the National Interest has Pierre Hassner, a French analyst, who dislikes the book intensely and, one suspects, intently. He is understandably troubled by Huntington's suggestion that the West will have to give up its pretensions to being the universal, and universalizing, civilization. (As Huntington affirms international multiculturalism, he also calls us to resist the domestic multiculturalism that undermines the West in the new world of civilizations in conflict.) Really big theories are terribly vulnerable to nit-picking on the details, and Hassner makes the most of the opportunity. The French, having long since lost their once eminent role in world affairs, do not take kindly to being told that even the West, in which they still have a not unimportant place, may be marginalized.
More interesting is the discussion by Wang Gungwu of the Institute of Southeast Asian Studies in Singapore. In the coming world of clashing Confucian, Islamic, Buddhist, and Christian Civilizational Powers that Huntington foresees, Gungwu detects similarities with the impact of Machiavelli. He writes: "At the end of my second reading of this engrossing book, I was reminded of Machiavelli. What Machiavelli did for the world of princely states, Huntington may well be doing for the multi-civilizational world order. The old political rules remain for the most part, but the protagonists of larger polities, or groups of polities, have been provided with a new logic and language of behavior. I reflected, too, on what Machiavelli's contemporaries thought of The Prince when it was first published. The Church authorities who represented the universalism of the day were appalled, but was it because he had elevated the princely states above God's plan, or for some other reason? Did his secular contemporaries think otherwise, that his image of the prince and his princely state represented the real world? Were they puzzled and a little frightened by the new paradigm that accepted the princes for what they were?
"By analogy, the Western powers today might respond to Huntington like the Universal Church and reaffirm that universalism is an absolute good. But less powerful civilizations may be encouraged by Huntington to believe that they might become new princes, with greatly enlarged and elevated parts to play. In the end, this is what is so stunning about The Clash of Civilizations: It is not just about the future, but may actually help to shape it."
Needless to say, these are questions of the greatest moment for the world of the future, which, all unsuspecting, may already be the world of the present. Again, you will be hearing more about the Huntington thesis in these pages. For the moment, I note the connection with the desecularization of world history, and with the emergence of the Catholic Church, especially in this pontificate, as the chief voice of a universalist reading of the future of the human project. Not so incidentally, the Ramsey Colloquium sponsored by our institute is embarked upon a major study of human rights aimed at the observance of the fiftieth anniversary of the Universal Declaration of Human Rights in 1998.
Is the idea of a common human project, and of universal human rights in particular, an outdated vestige of a temporary Western hegemony? Is it possible that secular intellectuals in the West will in the future ally themselves, however uneasily, with the Catholic Church as the world's chief institutional champion of the idea of the universal? Might the church of Enlightenment universalism, which has reigned so confidently over these last two centuries, enter into restored communion with the Church from which it broke? Can the Christian proposal comprehend, without threatening, the universalist aspirations within other religio- cultural forms of what Huntington calls Civilizational Powers? Big questions all. But then, what's the point of reading a journal called First Things if one doesn't want to take on the big ones?