Thursday, March 21, 2019

My op-ed on the Bladesnburg Cross

3/21/2019--My op-ed on the peace cross appeared in the Washington Examiner today. Here is the original version (some minor changes and omissions in the paper).
How the Court Should Rule in Favor of the Cross

The cross in Bladensburg isn’t going anywhere. That was clear from the oral argument in The American Legion v. American Humanist Assoc. The Court may even be unanimous that the cross can stay on public land.

That is not surprising. The cross is an almost hundred years old WWI memorial without further religious reference. Crosses have symbolized the dead of The Great War since John McCrae’s epic 1915 poem, Flanders Fields.

What matters is how the cross stays—do the Justices add to American divisions or begin the process of healing?

Thanks to President Donald Trump, there is a pro-religion majority on the Court. That majority could abolish the requirement of a secular purpose in Establishment Clause cases—the Lemon test—and substitute a no coercion test. That would allow the government to endorse religion, and even endorse Christianity. This would be seen as a big win for one side in the culture wars.

Treating religion as either/or goes back a long way. The legal theorist Ronald Dworkin once asked whether America would be a religious country tolerating non-belief or a secular country accommodating believers. This is like asking who’s the real American. You could hardly be more divisive.

Even Justice Antonin Scalia, much more sensitive to the clash of constitutional values, tended to see these matters as tragedy, in which some valid claims would have to be disregarded.

These cases pit believers against non-believers because the Court has never asked seriously what secular meaning a religious symbol can have. Religious symbols don’t just endorse sectarian commitments. Religious symbols also, and just as clearly, stand for a whole set of other commitments.

The national motto, In God We Trust, for example, means the God of the Bible for the monotheistic believer. But it also means that we live in a trustworthy universe and not in chaos. That is the reason why John Dewey, not himself a religious believer, never gave up the word, God.

Those Ten Commandments displays that so often end up in court remind the religious believer that God is the foundation of human law. But they also proclaim that law must serve Truth. They echo Dr. Martin Luther King Jr..’s teaching that the arc of the moral universe bends toward justice. These displays are as much a rebuke to value-free originalism as they are to materialism.

Upholding religious imagery for its common, secular meaning is not bringing back the much derided “ceremonial deism,” which claims that religious symbols no longer have religious meaning. Nor is it the sanitized claim that religious imagery symbolizes a “religious heritage,” as if religion is now just a museum trip.

It is the claim instead that the real division in this country is not between religion and non-religion, but between those who see meaning and purpose at the heart of the universe and those who do not. Religious symbols communicate very well on this level to both believers and non-believers.

America is well on its way to becoming a secular society. The question is, what kind of secular society are we going to be? The opioid crisis, the spike in suicides, the general hopelessness and anger in American society, strongly suggest that our secularism will be nihilism. We will just have to get used to the idea that we are alone in an indifferent universe.

But there is another possibility. We can be secularists who still embrace transcendent norms. Many naturalists are experimenting with that kind of secularism.

Government should not be neutral with regard to the question of meaning. It should endorse cosmic purpose. It should proclaim hope. Religious symbols are not the only way to do that, but they are one way.

Any judicial decision in favor of religion versus non-religion will only be temporary. It will ensure that some future secular majority will insist on a naked public square. But a decision that fills that public square with common meaning for all of us will endure.

The Justices have a choice. They can participate in, and further, our divisions or they can help us find common ground and healing. It depends on how they rule in favor of the cross.

Sunday, March 17, 2019

The Response to My anti-Court-Packing Message

3/17/2019—Just back from the well-organized and insightful symposium on voting rights at the Memphis Law School—maybe the most impressive law school building in the nation (the old customs house in downtown Memphis). Thanks to the marvelous law review staff.

I was the final speaker, late in the day. But energy did not flag when people realized what I was talking about. The responses depended on the orientation of the questioner.

Certainly, the major response was surprise. People had no idea that Court-packing was so likely to be attempted. It helped that Beto O’Rourke endorsed something like it when he announced.

The response by moderates was agreement—I did not hear from anyone really on the Right. I suppose they would have been even more grim. And the agreement was not just about Court-packing, but my more basic point about the destruction of democratic life itself.

There was also the fatalist response—this too shall pass. People are always doing terrible things and we don’t self-destruct—an absolutely true observation, until we do destruct.

Finally, there is the response from the Left—you are telling us to disarm while the Republicans win. This will be the response most difficulty to overcome. Steven Mulroy, a speaker and professor at Memphis, made a creative suggestion that the Democrats use Court-packing as a threat to force bipartisan agreement on an amendment to create term limits for Justices. Certainly that would be better than Court-packing and it would limit the control of the Court that Republican believe they will have for the next 25 or 30 years.

Hard to arrange though, unless you have already overcome the mutual anger of the moment.

Sunday, March 10, 2019

Best Column Even by Thomas Friedman

3/10/2019--The column is Ilhan Omar, Aipac and Me. I especially like its reminder of the disgraceful Congressional invitation to Netanyahu over the objections of our President. The column appeared on Thursday, I believe.

Thursday, March 7, 2019

Network Message Endorses Nihilism

3/7/2019—Despite impressive performances, especially by Bryan Cranston, and wonderfully effective staging, the fundamental problem with the play Network is the movie it is based on. At least as rendered, the message of the play is one of nihilism.

The news star, Howard Beale, goes through several attempts to figure out what the problem is—-he admits he does not know what should go in the telegrams that are going to the White House—-but ends the play with the peculiar idea that the problem is belief in absolutes.

No one in the play had believed in any absolutes. In fact, Beale had earlier said to the camera that we do what the tube tells us and believe nothing at all ourselves—-very much akin to the Das Man section in Heidegger’s Being and Time: we do what they tell us.

It is a cheap and unsatisfying ending. We have to disagree. Something like religion could not be the problem because no one we see in the play is religious.

The dramatic highpoint of the play is the remarkably staged “We’re mad as hell and we’re not going to take it anymore” sequence. But everyone in the theater is aware that just such a feeling of wanting to push over everything got Trump elected. The phrase now sounds like a real mistake. I believe somewhere someone connected with the play said he learned of the value of expressing anger. I doubt people in general agree with that given the way things are today.

It always was a mistake to just get mad. Beale says we’ll figure out later what to do. The main thing is to get mad. Well, now we’re mad all the time so that can no longer be said.

Beale experiments. It’s corporations. It’s individualism. It’s the nation-state.

What comes across is the exhaustion of our elites, specifically the writer, Paddy Chayefsky. Thankfully, Beale still believes in free speech, but not in any of our other values. He criticizes people for not reading books or newspapers, but does not try to educate anyone about anything—-until he has a personal interest in a Saudi takeover of the network. At that point, democracy proves very effective in stopping a merger.

Chayefsky predicted the rise of infotainment, but has no alternative to offer. It’s all a lot of magic thinking. There is some secret that will make the world better.

Network does not want to grapple with the hard work of self-government. It encourages us to demand answers from others—-our elected officials—-without any work on our part. Television makes us political consumers rather than participants.

It would be nice to think that this is what the play/movie is trying to show. That we need to be participants in working out the problems of our society. But that is not the play's point. Instead, fatalistically, we are told that there is nothing much to be done. Nothing beyond not believing in absolutes.

Sunday, March 3, 2019

The Power of Truth

3/3/2019—Why is it the Democrats cannot quite clear themselves of the charge of infanticide? The real reason is that human life begins at conception. There is no line after that one that makes any sense.

An abortion decision that centered on the life, health and safety of the pregnant woman would still be possible. But not abortion on demand, which is the problem. The issue is terminating a pregnancy that is just not in the person’s plans, but is otherwise no threat.

A lot of the issue here is sexism. The father’s life will continue more or less unaffected. Her life will radically change. If this were different, there would be much more support for abortion. But less demand for it, too.

Matters are quite otherwise with same sex marriage. Here the religious teachings are arbitrary and everyone can see it, which is why there is no longer any support at all for criminalizing this “sin”. Try that experiment with adultery and you will see that people will say it would be a bad idea to criminalize it, but there is still some support for some kind of legal sanction—a penalty in the divorce, for example.

I hope gay Methodist believers will stay and make the denomination throw them out. It may not happen. But even if it does, it will be homicide and not suicide.

Conservatives are always going on about traditional morality. But gay relationships are not actually immoral. Those other teachings are about practices that actually are, even though the teachings are rigid—-most sex outside marriage is exploitive and that which is not is often on the way to marriage and always went on.

So, life and love are the truth. When we go against them, we always run into difficulties. That is the power of truth.

Thursday, February 28, 2019

The Communitarian Collapse in America

2/28/2019—Ross Douthat wrote a column yesterday in which he discussed the changing view of the State on the Right. Conservatives traditionally defended limited government in order to allow civil society to flourish, including corporate life.

But now with all civil life in decline and corporations unmasked as bad citizens, some on the Right want to turn to government, to some extent at least.

A good column, but, as I wrote in a letter to the New York Times you won’t see, basically beside the point. You can’t adopt policies to address social decline when you have no idea why they happened in the first place.

The renewal, when it does come, will come by way of a secular acknowledgment of the crisis of meaning. With the death of God, the story of human life that was told in the West ended. Nietzsche knew what a momentous event that was. Secularists today are blasé.

The neo-pagans, like Anthony Kronman (Confessions of a Born Again Pagan) and John Gray (Seven Types of Atheism) tell us to cultivate our own gardens and to seek equanimity. No thanks. This is not good advice for this culture.

More helpful, maybe, is a work from 1981 by the German social observer Peter Sloterdijk, Critique of Cynical Reason. Sloterdijk also says that “the critical addiction to making things better has to be given up” but, he adds, “for the sake of the good, from which one so easily distances oneself on long marches.”

The long march is Communism. That may also stand for any other project of making things better. They threaten “the good.” But because Sloterdijk can still write of the good, he is still one of us wanting a better world. He is just saying with the doctors, first, do no harm.

Americans are stuck right now not daring to believe in a good that has power, in a truth that will be accepted. It is not all on us. There is a hidden order that all humans are bound to follow—are meant to follow. If you follow it, you have lived a good life and can die with the equanimity that the neo-pagans promise. But it is not just about you. It is about loving your neighbor.

There is a lot here. And not much has to do directly with politics.

Saturday, February 23, 2019

Opening of the Memphis talk on Court-Packing

2/23/2019--Here is the opening of the talk I will be giving at Memphis Law School in two weeks. I mentioned the themes back on January 29 below.
To Save American Democracy, Prevent Court-Packing
Bruce Ledewitz
The University of Memphis 2019 Law Review Symposium: Barriers at the Ballot Box

I never expected to have to ask for help in saving American democracy. And when I say saving democracy, I don’t mean something abstract, like curbing the power of courts or limiting the influence of big money. No, I mean help in preventing a military takeover.

For this can happen here. It might be closer than we think.

It is not news that American democracy is in trouble. Republicans and Democrats do not trust each other. Americans inhabit different narrative universes. We are bitterly divided even though the issues over which we differ appear to be quite ordinary.

The reason the threat to democracy is so clear to me is a 2018 book, entitled How Democracies Die, that compares the current American situation with historical examples of how democracies have actually ended. The authors, Harvard University political scientists Steven Levitsky and Daniel Ziblatt, show that democracies end when the norms of tolerance and forbearance are violated.

Tolerance means the acceptance that “the other side” will attain power from time to time. Forbearance is the related norm that when this situation occurs, the minority will not do everything within its legal powers to prevent the enactment of the policies of the other side.

Clearly American politicians are not practicing tolerance and forbearance today. In terms of tolerance, the 2016 election was regarded by some Republicans as the “the Flight 93 election: charge the cockpit or you die.” And most Democrats regarded the possibility that Donald Trump might be elected President as loathsome and unthinkable.

In terms of forbearance, the Republican majority in the Senate refused to even hold a hearing on the nomination of Judge Merrick Garland to the Supreme Court. More recently, the Democrats filibustered the nomination of Neil Gorsuch without much justification.

In a healthy democracy, you let the other Party enact its policies and then reverse them when your side is returned to power. You can always tear down a border wall, for example. A border wall not an existential threat.

The norms of tolerance and forbearance have been slowly weakening for a long time. Bill Clinton’s first budget, in 1993, for example, passed without a single Republican vote in Congress, for example. In 2013, Democrats ended the Senate tradition of the filibuster for many judicial and executive nominations.

Levitsky and Ziblatt place the major blame on the Republican Party. That may be part of the reason that their book has not had the same effect across the political aisle.

That limited appeal is unfortunate because “who started it” is quite irrelevant. Once tolerance and forbearance begin to slip, partisans on both sides are justified in claiming that every new outrage is just a response to a previous outrage by the other side. When you fight fire with fire, the whole world burns. When you fight the absence of tolerance with intolerance of your own, democracy is destroyed.

It takes real statesmanship to break this cycle. It is not clear that such statesmanship is available in America today.

We cannot expect help from the Supreme Court. In the first place, the Justices do not yet appreciate the danger to American democracy. That is obvious from their unwillingness to address gerrymandering on the merits.

But even if the Justices were cognizant of the danger, there is not much they can do. The decline of forbearance does not require illegality. It was not illegal to refuse Judge Garland a hearing. It was not illegal to limit the filibuster. It would be helpful if the Justices proclaimed the fragility of democracy. But in the end, the responsibility to sustain democracy lies with us.

How will American democracy end? In my paper, I describe two nightmare scenarios that could so undermine the legitimacy of the American governing structure that some kind of takeover would be inevitable. These two scenarios are the partisan manipulation of the Electoral College and the packing of the U.S. Supreme Court by increasing the number of Justices.

These two scenarios pose very different threats today. For the moment, the Electoral College looks safe. The current threat is much more likely to come from the Democratic Party packing the Supreme Court.

Saturday, February 16, 2019

John Yoo, War Criminal

2/16/2009—I just had a series of exchanges on Twitter concerning John Yoo, author of the 2002 Torture Memos that gave as a legal opinion the view that coercive techniques could lawfully be employed in the War on Terror. Yoo was Deputy Assistant Attorney General at the time.

There was a series of memoranda, but the fundamental ideas were three—a strained interpretation of illegality that defined waterboarding, for example, as not prohibited by statute or treaty, an understanding of executive power that concluded that any congressional limits would be an unconstitutional infringement of the President’s war powers and an interpretation of the necessity defense that would allow almost any actions to be justified by the threat of terrorism.

This period was a stain on the honor of the United States. And the author should be regarded as a war criminal.

Yet, somehow, Yoo has escaped all blame. He is the Emanuel S. Heller Professor of Law at Berkeley. In a world in which blackface disqualifies someone from public office and even the allegation of sexual assault is taken as condemnation, the justification of torture does not affect the public life of John Yoo.

I once tried to get the authors of my casebook at least to take any opinion of Yoo out of the book. You would think that the AALS would pass a resolution condemning him. That he would be shunned. But none of this has happened.

Nor has he ever apologized.

My Twitter exchange had to do with abortion. I will say here what I said there. A nation that tortures its enemies will never embrace the sanctity of life. It has already decided that the ends justify the means.

Tuesday, February 12, 2019


2/12/2019--My class in Philosophy of Law finishes Ishmael by Daniel Quinn this week. I've mentioned the book from time to time on this blog. I always try to assign it in some class or other.

The premise of the book is that the civilization that has its roots in the neolithic agricultural revolution--meaning the civilization of the whole world bar none--believes that the world belongs to man and man has to make it a suitable home. By following this bad belief, this worldwide civilization is destroying the world. Quinn calls this people the Takers.

The Takers think of ourselves as humans, but we broke off from a much longer human tradition, which Quinn calls the Leavers. These are all the indigenous cultures and peoples who ever lived. These cultures are now mostly destroyed by the Takers. In fact, the descendants of these indigenous peoples now are mostly embedded in Taker culture, often against their will or even knowledge.

The Leaver premise was that man belongs to the world and that the world was a garden for all. Following this belief, Leavers lived in harmony with the rest of the life community. Not because Leavers were any less violent, cruel and mean than Takers, but because they were living out a healthy story. Leavers were also happier and healthier.

Quinn believes Leavers were experimenting with civilization in the Americas when Takers arrived and killed and enslaved them. But these experiments are available for Takers to consider and change our way to be in this civilization.

But Quinn makes another point, you might say one about Taker politics. All of Taker civilization is a prison. The only liberation is liberation from that prison. Nevertheless, within the Taker prison, some people have more privileges than other inmates--like in any prison. The ones who have more privileges are wealthy white males. The teacher, Ishmael, a gorilla, warns the student not to become fixated on power within the prison. The point is liberation for the whole world from Taker destruction.

The symbol the author chooses for wealthy, white male privilege is Donald Trump. On page 252. In 1992. You could look it up.

Sunday, February 10, 2019

This Political Moment

2/10/2019—Bret Stephens wrote a good column urging Virginia Governor Northam not to step down. He wrote that at least in the case of non-criminal acts long ago, we should not judge people by their worst moments. You have to judge a whole life.

David Brooks wrote something similar about call-out culture that banishes people over lapses of judgment, like sending an unwelcome photo.

This is something to think about and I admit to mixed feelings. There is a phrase—to be like Caesar’s wife. Politicians should understand that standards for them will be higher. It’s too bad that President Trump got elected despite his horrible behavior—too bad he got nominated.

And Northam was not young—he was a medical school graduate. Plus, racism by doctors is especially heinous. Zero tolerance is sometimes a good thing. But the Germans decided that not all members of the Nazi Party were to be banned from public life. (Heidegger was a notable member).

Then there is the question of crime. Virginia Lt. Governor Justin Fairfax has been accused of conduct that was criminal. Sexual contact without consent is assault or rape—both serious crimes. But despite the unfairness of past standards, I don’t believe that you just say, always believe the woman. It is reasonable to look at the context and try to decide who is telling the truth.

If even they know. In the case of Dr. Tyson, engaged as they were in kissing in a hotel room, I suppose Fairfax might not have even known she did not want to go further. I can understand why she never said anything.

The case of Meredith Watson seems much worse in terms of potential crime. Her attorney called it rape; there was no consensual romantic activity; she immediately told her friends and posted that there had been date rape. If these things are all true, this was no misunderstanding by Fairfax. And it would have been rape pure and simple. He would still be in jail.

Fairfax has asked for an investigation and he deserves one—so do the people of Virginia. But unlike non-criminal conduct that is shameful, there should be no political statute of limitations on serious crimes. Serious criminal conduct should disqualify someone forever from public life.

So, yes, it’s a good moment to confront our own casual wrongs—racism and sexism and other wrongs. But the overwhelming majority of men have not committed rape or other serious crimes. It is not too much to say that conduct like that is a lot worse than a social error.

Saturday, February 2, 2019

Leaver Agriculture

2/2/2019--In the marvelous book Ishmael, which my students in Law and Philosophy read, Daniel Quinn points out that settlement and agriculture was known by indigenous peoples who lived sustainably within their areas. (Weren't the Iroquois an example of that?) People calls these people Leavers.

But the question has always been whether this model is of any use to us--Quinn's Takers.

There is now a model of the kind of agriculture that a Leaver might practice in our society. You can see it in the writing of California farmer Mike Madison that I ran across in a review by Verlyn Klinkenborg in the New York Review in the September 27 issue--Green and Pleasant Land (locked on the New York Review webpage).

The normal farmer mantra is kill everything but the crops, says Klinkenborg. And the average farmer is a complete slave to the likes of Monsanto--seeds are leased. But there are other ways to farm.

Here is a flavor of Madison's farming, with some quotes from Madison.

The point of all these lists and calculations is to help measure Madison’s efforts to keep his farm in balance with the world. “It is instructive,” he writes, “to draw a line around the perimeter of a farm and then to measure the movement of materials (or energy) across that line, onto and off the farm.” By this standard, conventional farms—heavily reliant on petroleum-based chemicals, fossil fuels, and leased seeds—are sinkholes of consumption. Madison’s goal is to make the farm operation as self-provisioning as possible, so that the farm supplies as many of its own requirements—energy and fertility, for example—as it can. This, of course, is one of the basic measures of sustainability. So is the “psychological well-being of the farm family,” a standard you’ll want to keep in mind while reading This Blessed Earth.

In America—thanks to its abundance of land—there have always been two kinds of farmers: movers and improvers. Movers were the ones who farmed out the fertility in a patch of ground and then moved along to the next patch. This is more or less how America was settled. Improvers were the ones who did everything they could to preserve and increase the fertility of their soil. The intensity of the debate over these methods reached its peak in the early nineteenth century.* In the long run, the improvers faded from the discussion, especially after World War II and the introduction of chemical fertilizers. The movers continue to move, but in a different manner these days. When farmers ran out of new land, they simply mined their way downward through the fertility of eroding layers of farmland until they reached the place we are now.

Farmland, instead of being a carbon sink, has been forced to surrender its carbon. Iowa’s once-black soils are now “a washed-out tan color from loss of organic matter.” All that lost fertility is replaced annually by injections of anhydrous ammonia, which is toxic to soil organisms and slowly acidifies the soil. You could argue that modern agriculture has brought about the most wholesale ecocide on the planet by killing the astonishingly rich microbial life of the soil. It’s worth drawing up another analytical model of the kind Mike Madison employs. Ask, simply, where soil is being replenished with organic matter—cover crops and manure, for instance—and where it is not. What you end up with is a perfect map of the division between conventional, large-scale, industrial agriculture and small-market farms. A map like that would also provide a stark reminder of how colossal the scale of conventional farming really is when compared to small, artisanal farming, something that’s easily forgotten when you’re shopping at the farmers’ market.

Madison believes that “farming is not a perversion of nature, but a natural development in our planet’s evolution.” There is a lot of optimism lurking in that thought. Anyone who can write “I expect to still be farming at age 80” is an optimist at heart, no matter how cautionary or skeptical he often sounds. In fact, I would say that Fruitful Labor may be the most optimistic book it is possible to write that also contains this sentence: “We are a flawed species unable to make good use of the wisdom available to us, and we have earned our unhappy destiny by our foolishness.”
It turns out that James Madison had a Leaver perspective. Read this last paragraph.

Madison’s fundamental argument about the deep ecology of farming is one that another Madison—James Madison—would have agreed with. In May 1818, while Cobbett was still living on Long Island, the former president—an improving farmer—gave a speech to the Agricultural Society in Albemarle, Virginia. He said something that has become almost unsayable in the world we inhabit now—unsayable at least by the sitting president and his environmental and agricultural appointees. “We can scarcely be warranted,” Madison said, “in supposing that all the productive powers of [Earth’s] surface can be made subservient to the use of man, in exclusion of all the plants and animals not entering into his stock of subsistence.” It is truly painful to leap ahead two hundred years and realize that one of Mike Madison’s reasons for continuing to farm is this: “In an increasingly unstable world it is important to keep the farm as a refuge for family and friends in times of economic collapse and social disarray.”

Tuesday, January 29, 2019

How to Save American Democracy

1/29/2019--Although we may think that this is the question everyone is asking, it isn't.

The question we are actually asking is how I can win.

The answer to that question will not save American democracy. Democrats today just want to win Congress and the Presidency. They have no intention of healing the wounds that brought Donald Trump the Presidency. Defeating Trump will not save American democracy. To do that, Americans must learn to trust each other again.

Saving democracy requires work on two-levels: philosophical and practical.

On the practical level, Steven Levitsky and Daniel Ziblatt explain in How Democracies Die that you have to restore tolerance and forbearance to save democracy. Tolerance means accepting that the other guy sometimes wins gets to govern. Forbearance means you do not do everything in your power legally to frustrate that.

Republicans long ago gave up tolerance and forbearance. They all voted against Clinton's first budget in 1993. Democrats were slower to give these norms up, but they are gone now.

The two worst examples of the lack of tolerance and forbearance are manipulating the Electoral College and packing the US Supreme Court. The Electoral College manipulation was tried and fortunately it failed. The idea was to have Republican States keep winner take all Presidential election but have States like Pennsylvania move to congressional district election. If this had succeeded, Republican minority Presidential rule would be made permanent.

This was a real conspiracy and I don't understand why all Republicans did not oppose it. Some did, which is why it failed.

Court packing is the next threat and I judge its chances to be 50/50. We have to take a stand against it now. It would end all semblance of the rule of law.

But that is why Court-packing is not unthinkable. We don't believe there is a rule of law. We believe with President Trump that there are Obama judges and Trump judges.

So we have to proceed to restore the rule of law as well as oppose Court packing. I will speak in a few weeks in Memphis on these points.

Saturday, January 26, 2019

Why There is No Left Federalist Society

1/26/2019—This question was put on Politico by Evan Mandery and then responded to on the Mother Jones blog by Kevin Drum. Mandery correctly points out that the lack of a large idea is a problem. Drum disputes this.

The direct reason for no liberal Federalist Society is that there is no such thing as liberal constitutional theory. But why is that? Why is there no organized alternative to originalism?

Liberal, or Left, constitutional theory is not hard to imagine. You just merge the pragmatism of the framers about the size of government—big enough to counter private power—with an intention to protect human rights, written and unwritten.

So, why is this simple formulation never, never communicated? Because it would require the Left to come clean about rights. The framers thought rights were real—that is, independent of human formulations about them. (think the arc of the moral universe and justice).

But the Left today is anti-essentialism. You cannot say what human nature is or what the universe is. Rights are just made up.

No one wants to admit that the approach of the Left to rights is the same pragmatism as the approach to government power. So, no discussion of Left constitutional theory.

Monday, January 21, 2019

Why Wasn't Fukuyama Right?

1/21/2019--Why didn't 1989 turn out to be the end of history? In retrospect, we think Francis Fukuyama was silly. But the consensus in 1989 was that the combination of government humanity had hit upon--representative democracy, judicial review (the rule of law) and market capitalism with a safety net--was about the best you could do and was not likely to be improved very much and did pretty well for people.

That conclusion did not turn out to be wrong. Although the political world is cracking up, no one has come up with a better ideology. I for one still believe in the system Fukuyama described. Is China a better system?

Fukuyama was destined to be wrong about history because of the rise of new powers--China, for example--the decline of old ones--America--and new threats--like climate change. But why did he turn out to be wrong about politics? Why didn't that three part consensus system prove stable?

The Left says economic inequality and the loss of jobs. But people did not actually get poorer. But yes, life did seem hopeless to many people and that is why Trump and Brexit won. But why did life seem hopeless? Economically things were not that bad for most people anywhere in the West.

Was it the dislocations of 2008?

The Right says two things. Too much government proved intolerable. That's what the rich say. The populist Right says what the Left says, plus nationalism and racism. "We" are disappearing. Here is the crisis of immigration.

I believe that the breakdown occurred because of what I have called The Crisis of Secularism--See my book, Church, State and the Crisis in American Secularism. The crisis is the failure to create what this blog calls Hallowed Secularism. In other words, life has no intrinsic meaning. Traditional religion--Christianity and Judaism--fail to remain vibrant and believable and no other account of meaning arises. So, Trump. Brexit. Nationalism. Populism. The dark forces that are always potentially present are no longer held in check by a myth of intrinsic meaning--a way to fit into the universe.

The way Michael Ignatieff puts this is to say that secular society inevitably disappoints. But that is because he cannot imagine an account of intrinsic meaning arising from naturalism. Alfred North Whitehead would disagree about that.

Sunday, January 20, 2019

Love Driven Politics

1/20/2018—Dr. Kathy Glass gave a wonderful Martin Luther King, Jr., Day Address on Friday. Her goal was to reintroduce us to the life and basic teachings of Dr. King. The striking image I took away was the love-driven politics of Dr. King. That is something we don’t do now, of course. What did Dr. King mean?

Well first of all, he meant agape love—in the Christian tradition—let’s say unselfish concern for the welfare of others I do not know. To have concern for the other at the heart of my politics.

And Dr. King meant in particular not just love for the stranger, but love for my enemy. That is, actual concern for the welfare of those who oppose me and seek to do me harm. That is obviously precisely what Jesus practiced, if the Gospels are reliable at all.

This is the foundation of Dr. King’s famous saying—-Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.

This is why Dr. King never sought to defeat his enemies, but to convert them. Not to Christianity per se, but convert them to more loving lives themselves.

In Dr. King’s hands, these were purely practical matters, not a matter of an ideal. If you want to see a very simple and direct version, look at his 1957 sermon here.

There are three basic steps to practicing loving the enemy. First, know your own faults and how you have contributed to breakdown of community. After all, in the loving community, we don’t have enemies. We are at fault is the number one requirement. If you cannot see your own hatred, you can’t help anything.

Second, know the good in your enemy. If you think there isn’t any, you are just dealing with caricatures, not people. Your enemy is trying to accomplish something that is not itself pure evil. (Hard to believe with President Trump, but we are instructed to try).

Third, when you have a chance to defeat your enemy, don’t do it. Don’t take your revenge when you can.

This is agape love. A creative force for good in the universe.

Dr. King ended the sermon with the question of why we should love our enemy. Three reasons. Love reduces the chain of hate in the universe. Hate warps the person who hates. And finally, love redeems. It is the only thing that actually improves our situation.

Dr. King gave this sermon in 1957. His life over the next ten years demonstrate the power of his message, and its truth.

Tuesday, January 15, 2019

What’s Wrong?

Came back to more bleakness. (But had a great trip)

1/15/2018—The answer, it seems, is everything. Political systems are obviously failing. See Trump, Brexit, Europe, China, Russia, etc. Economic systems are failing—see the frustration of ordinary people with the fruits of economies going to the wealthy while ordinary jobs disappear. At the same time, debt is growing—I heard last night $254 trillion worldwide. That is not sustainable. And, on top of all that, as David Brooks pointed out in today’s New York Times, people are increasingly cruel toward each other. Not just hatred toward immigrants but the call-out culture about everybody.

This is why the-world-is-getting-better crowd is having so little impact. See Steven Pinker. It doesn’t feel better.

And then there is global warming, which threatens to end civilization. See Florida flooded and Las Vegas abandoned. (If that is the end of civilization)

But of course all of this really is exaggerated. The world does always have problems and compared with WWII and the threat of nuclear annihilation, things have gotten better.

The reason it feels so much worse is the absence of a beneficent myth. Materialism and positivism are just not sufficient to sustain human life. Neither is science per se. Humans need to live in a meaningful universe. We evolved to believe that and now, with the death of God, we don’t. I know most of the world is composed of believers, but somehow even their beliefs have been undercut. Religion is now itself a source of hatred, rather than love.

So, all we need is a new understanding of reality. One that combines meaning with nature. Not impossible, but more on how later.

Friday, December 28, 2018

Holiday Travel

12/28/2018--Hallowed Secularism takes a break for two weeks because of travel. Happy New Year to all. Maybe the New Year will bring a spiritual reawakening to America. I do sense a change. Tom Krattenmaker, for example, is certainly getting a hearing he has not quite had before. It would be a good thing if we decided that President Trump is not the issue. Only a really spiritually bankrupt country would let a man like that anywhere near the White House. He is symptom not cause.

Biblical religion has a category understood as God's judgment. We are paying a price for the kind of country we have been and the kind of life we have practiced. Dr. King talked about the four evils: militarism, materialism, racism and poverty. America has promoted them all. The last speech Dr. King wrote, which he did not live to deliver, asked whether America was going to hell. Turns out we were.

But Biblical religion has another category--redemption. Exile does not last forever. We learn from our sins. We live better. I hope that will be true for all of us in the New Year.

Tuesday, December 25, 2018

The Parable that Ends the Novel, The Chosen is a Christmas Parable

12/25/2018--I don't have the novel in front of me, but Potok tells a parable akin to the Parable of the Prodigal Son. There is a son who renounces his father and lives a dissolute life. His father sends a servant to ask the boy to come home. He says, "I cannot." The father sends the servant a second time and says, "then come as far as you can, and I will meet you there."

In the classic Christian telling, that is what God did today all those many years ago. Humankind, cut off from God, cannot reach out to him. So, God goes to man, meeting him there, in human life.

Merry Christmas, 2018.

Sunday, December 23, 2018

More of the New Mark Lilla

12/23/2018—Can a person change his mind without ever acknowledging his prior error? Of course the answer is yes. This is what enables Mark Lilla to keep telling everyone what to do without any humility. Actually, he is the person he keeps criticizing.

Lilla was my bete noire in the original Hallowed Secularism book. Lilla had just published The Stillborn God and was writing New Atheist essays about how politics has to be thin, has to be about not harming each other. He argued that this keeps us from killing each other over issues of ultimate salvation. There are no universal truths of politics or morality. We Westerners are always in danger of returning religion to public life.

Everything Lilla stood for then has been proven wrong, or at least insufficient. As Michael Ignatieff has pointed out—see August 4, 2018 below—this kind of politics inevitably disappoints. It is not satisfying to people. We need a more robust commitment to truth.

Of course, this is obvious now that Donald Trump with his war on truth is President.

However, rather than acknowledging his mistake and learning from it, Lilla turned around ten years later and attacked identity politics in The Once and Future Liberal—as if identity politics was not inevitable if there were no universal truths.

Lilla is still confused about truth, but he criticized identity politics as too thin for modern life. Lilla wrote in that book that we need the universal solidarity that his own group, the New Atheists, helped undermine.

Weird. But now, in a essay in the New York Review, Lilla goes one more step in repudiating his former self without acknowledgment. He argues that because the French Left has never had much feel for Catholicism, it “is often caught unawares when a line has been crossed.”

That description fits Lilla and the secular America Left like a glove. Not being aware that a line was crossed—take the loss of tax exempt status for not recognizing same-sex marriage as an example—is the major reason Donald Trump was elected.

The point is that Lilla now recognizes the power and importance of religion, at least culturally and politically, and that he did not before. So, when does he fess up?

It would be helpful if he would, because Lilla’s confession of error might influence other secular leftists to stop going after religion.

Tuesday, December 18, 2018

The Continuing Disintegration of Politics in America

12/18/2018—Today, Paul Krugman published a column today attacking Judge Reed O’Connor’s decision not to sever the Affordable Care Act as “partisan.” This of course is precisely the same attack that was made by President Trump against the decision by District Judge Jon S. Tigar striking down the government’s asylum rules. Chief Justice Roberts responded to that attack by saying that there are not Obama Judges or Trump judges.

There is not even room here for a rule of law. Judge O’Connor may be wrong—-most legal observers believe he should have severed the law—-but there was certainly an argument for honest disagreement. Obamacare was always described as a carefully constructed whole, in which all the parts had to work together. No one thought a simple command that insurance companies refrain from raising rates for preexisting conditions would work without a lot of healthy people buying insurance. Hence the role of the mandate.

This changed when Republicans in Congress repealed the penalty for noncompliance. However, many people obey laws and there was still a command to buy insurance. That command was struck down in a perfectly reasonable decision by Judge O’Connor, given the decision by the US Supreme Court upholding the mandate only because there was a tax connected to it. (A decision I still regard as wrong, but hardly partisan).

The law without the mandate never made any sense. It is still limping along, but the decision not to sever is absolutely defensible.

I don’t believe we should leap to the conclusion that judges are partisan. What they are is ideological, which can lead to different results, but rarely do they vote Party. Bush v. Gore was the horrible exception.

Friday, December 14, 2018

What Will Post-Christianity Look Like?

12/14/2018—I guess I should ask, what does it look like, since we are already in it. The answer of course is that we don’t know. But Ross Douthat is wrong about one direction in may take.

Douthat wrote a column about paganism, which refers to Steven Smith’s new book contrasting Christianity—transcendent religion—with paganism—imminent religion: Pagans & Christians in the City. It’s a replay, says Smith, of an old story. Tony Kronman told a similar story in Confessions of a Born-Again Pagan.

But notice that both Smith and Kronman leave out a much simpler possibility—a secularized version of Christianity itself. This is something of the effort Tom Krattenmaker is taking up in his 2016 book, Confessions of a Secular Jesus Follower. Krattenmaker describes that effort as “translating the language of Christianity to make it accessible, meaningful, and believable to me.”

Now why does Douthat leave this out? Why do Smith and Kronman? In the case of Douthat and Smith, it is because they are traditional Christians. Paganism is no threat, but any sort of transformed Christianity would be—-or so they might think. Tragically, they are not asking the question Paul asked, the question that Dietrich Bonhoeffer asked, “What is God saying now?” Douthat in fact already has named the movements of this direction a Christian heresy in his book, Bad Religion.

In Kronman’s case, it is the opposite problem. He is Jewish and has never known Jesus. He thinks he knows Christianity and is reacting against it. But he has no experience of the greatness of Christianity. If I remember his book, which I need to look at again, Christianity is a comic book.

No, there is no pagan revival. Any religious movement today will be Christianized or anti-Christian. In other words, Jesus is the starting point. An imminent Christianity, but with the magical imminence of Alfred North Whitehead and the being of Heidegger. Something like that. Pretending Christianity never happened is sort of ridiculous.

Monday, December 10, 2018

The Democrats’ God Problem

12/102018—Michael Tomasky pointed out the problem in the New York Review in The Midterms: So Close, So Far Apart: Democrats cannot win back the Senate in 2020, and maybe cannot win the Presidency, unless they do better than 25% in rural counties. They have to come closer to 40%. (They aren’t going to win them.) Essentially, this is why Beto O’Rourke lost Texas and Sherrod Brown won Ohio.

Sure there are lots of differences between the two, but the math is hard to contest. It is hard to win a mildly red State unless you do OK at least in rural areas.

Tomasky calls for “a program for rural America.” But I’m not sure much is necessary. Democratic policies are not actually unpopular in rural America. The problem is twofold: cultural and legal.

The main thing the Republicans push in areas like these is the courts. And what is that supposed to do? Abortion and religious liberty.

There is no point in telling a political Party to reduce its support for its core constituency. Abortion is untouchable. The Party could be more open to pro-life Democrats, but the policy cannot change.

That leaves religious liberty. But there are actually two things going on here. One is a sense that Democrats hate religion, which is still very popular in rural areas—at least you can’t actually be against God and do well among voters. The other is the actual caselaw of religious exemptions.

I don’t know how far Democrats can go on religious exemptions. Same-sex marriage is another core Democratic Party position. I believe religious exemptions are no threat to same-sex marriage, but Democratic Party voters may disagree.

But how many votes do Democrats lose in rural areas because of the perception—increasingly a correct one—that the Party is hostile to religion itself?

There is no reason to lose those votes: “Paris vaut une messe,” as Henry IV said when he converted to Catholcism—Paris is worth a mass. You want to win 40% of the rural vote? Learn a religious language you can actually speak. There is natural religion. There are many meanings of God. Jesus is a great figure. Stop talking about reason and superstition. Cure the cultural problem and the political/legal one will follow.

Friday, December 7, 2018

Needed: A Party of Democracy

12/7/2018--The op-ed below was intended for a newspaper, but was never published. So, here it is.
Since the election of Donald Trump as President, Americans have worried about the end of democracy. Our main focus has been on the sins of “the other side.” Events since the Midterms, however, demonstrate that Americans as a whole have lost faith in democracy. We now need a political party dedicated to democracy itself.

Certainly, the Republican Party has shown contempt for democracy. From unnecessary Voter ID laws, to voting roll purges, to even outright threats and intimidation, Republicans have focused on suppressing opposing voters. Some Republicans even joke about making voting “a little harder.”

Unfortunately, in the 2018 election cycle, and its aftermath, the same willingness to violate democratic norms has been evident among Democrats. Three or four of the flipped seats that gave Democrats their majority in the House of Representatives came about because of a new Congressional map imposed by a four-vote Democratic-Justice majority on the Pennsylvania Supreme Court. That decision violated legal regularity: settled law was overturned without argument; a grossly compressed trial schedule was imposed; the Governor was none-too-subtly encouraged to avoid compromise with Republican leadership over a new map. Republican Justices Tom Saylor and Sallie Mundy protested, but only Democratic Justice Max Baer voted both to condemn gerrymandering without endorsing these violations of judicial norms. His was a vote for democracy.

In close elections in Florida, the same lust for victory at all costs could be seen. Democrats showed no concern with seeming irregularities in the vote-counting process. Even if no violations took place, it was obvious Democrats just wanted to win.

Other fallout from the Midterm elections also showed a lack of concern by Democrats about principle. While Democratic candidates for Congress scrupulously avoided talking about impeachment of President Trump on the campaign trail, calls for impeachment emerged almost immediately after the polls closed.

Then there was the willingness of the Democratic Party leadership in Congress to ignore the Constitution in condemning President Trump’s naming of Matt Whitaker as Acting Attorney General. The Attorney General’s job is not to check the President, but to carry out the President’s policies. Sharing the President’s political agenda, therefore, is not only proper, but necessary. Whitaker’s view of the Russia investigation as interminable and unnecessary is not a conflict of interest, but a political judgment. If President Trump shuts down the Russia investigation, it is up to Congress to impeach and remove him, not the AG to stop him.

However, the clearest indication of the decline of democratic commitment was a widely circulated, post-election column by New York Times columnist Paul Krugman, a mainstream Democratic Party voice, attributing recent failures in Senate races to the unrepresentativeness of the U.S. Senate.

It is true that the Senate over-represents white voters and rural interests. But, the Democrats in 2018 could not hold onto a Senate seat in Indiana—a State not entirely representative of the nation, but one won by President Obama in 2008. Similarly, Hillary Clinton lost the Presidency because she could not win Michigan, Ohio and Pennsylvania—not exactly foreign territory.

Yes, achieving a Senate majority for the Democratic Party will require convincing a genuinely national majority of the rightness of its policies and candidates. But, that kind of commitment is the heart of democracy.

Democracy is ultimately premised on a moral theory. It is not that the majority has the right to rule. Rather, Democracy is the belief that a majority is more likely to be right over time than is any collection of minority opinion. Democracy requires faith both in my fellow citizens to be reasonable, thoughtful and fair and faith that there are answers to political questions that are objectively right, or at least less wrong, than are other answers. Demographics is not destiny. The job of politics is to persuade people.

If Americans now believe that the universe is just a collection of forces and that political outcomes are just a matter of numbers and money, democracy cannot and will not endure. The Party of Democracy that we need is one dedicated to the kind of deep rationality and trust that truly made America great. That democratic faith has defined America historically. That democratic faith is what we are losing.

Saturday, December 1, 2018

"I Retired

12/1/2108—I don’t believe I’ve told this story on HallowedSecularism. A few years ago, I was visiting the Children’s Museum in Pittsburgh with our grandchildren, when I was approached by a man who was clearly a Lubavitch on one of their Mitzvah Missions. “Excuse me,” he said politely, but are you Jewish?” “I used to be,” I answered. “You know,” he mused, clearly intrigued, “I have asked that question thousands of times, but I have never before heard that answer.”

What followed was interesting in its own right, but it is not my point here. Rather, the point is the story itself. I assumed that I was the only one who might have such a tale to tell.

Imagine my surprise today, therefore, upon read what was essentially the same story in a review of a novel. Francine Prose quotes the vignette in a review of three novels by the Guatemalan writer, Eduardo Halfon. Here is the story—-Prose does not identify from which novel it originates:

"I really remembered only three or four words and a random prayer or two and maybe how to count to ten. Fifteen, if I really tried. I live in the capital, I told her in Spanish, to show that I wasn’t an American, and she admitted that she was confused because she hadn’t imagined there were any Jewish Guatemalans. I’m not Jewish any more, I said, smiling at her, I retired. What do you mean you’re not? That’s impossible, she yelled in that way Israelis have of yelling."

Talk about art imitating life—although, the same thing might have actually happened to Halfon—-it is apparently not easy to tell where the novels leave off and real life begins, with him.

This is going to be my way of telling my journey from now on—I’m not Jewish any more. I retired.

Sunday, November 25, 2018

Letter about Kornacki's book

11/25/2018--Unfortunately, the New York Times chose not to print this letter, but I thought my readers should see it. We have to remember that the degradation we see begins with the baby boomer generation.
To the Editor:

Steven Kornacki is right to choose Newt Gingrich and Bill Clinton as the symbols of the decline in American public life. (The Red and the Blue, Nov. 18). Their flaw, however, was not political, but spiritual. These two men, like most of their generation, lacked a demanding moral compass.

Bill Clinton ended welfare, had sex in the Oval Office and executed a mentally retarded man in a failed attempt to win the New Hampshire Primary. Newt Gingrich talked divorce with a hospitalized wife and broke every norm of decency in politics when it suited his ambition. Who is Donald Trump, another baby boomer, but a perfect amalgamation of these two?

When you answer to nothing outside yourself—even the baby boomer God indulged them—your politics will be whatever you need them to be. Thus, the baby boomers destroyed democracy and did nothing about global warming.

Too bad the Greatest Generation raised the Worst Generation. As a baby boomer myself, I feel like apologizing to every young and middle-aged person I meet for the mess we left.

Friday, November 23, 2018

Thanksgiving 2018

11/23/2018—Can we count regaining the House as something to be thankful for?

As we gather, our loved ones are all well and reasonably prosperous, as are we. The nation is mostly at peace. (when will all our soldiers come home from Afghanistan?). Many Americans who had not found work are working and though the tax cuts derailed the market rally and threaten recession, President Trump gets some credit for other polices that increased economic growth.

We can also be thankful that an unfit President like him has done as little harm as he has. We can survive more conservative courts, which might even be a good thing if that forces Democrats to seek policy change at the ballot box.

How much more damage might he do before he leaves office. I hope not too much. Trump is certainly tearing up international arrangements that brought peace and growth, but those arrangements found no defenders when he came. So we deserve the blame for that.

Maybe we will appreciate the world we had better when he is gone.

Trump’s hatefulness toward immigrants will be his least lasting legacy. Pittsburgh stands ready for immigrants from wherever. No demonization here.

All in all, much to be thankful for. And things could have been a lot worse.

Wednesday, November 21, 2018

Is the New York Times Right About China?

11/21/2018—The New York Times has run a series about China emphasizing how China confounded economic and political prevailing wisdom by accomplishing rapid economic growth and innovation without democracy, free speech, the rule of law, or a more or less free market. It did these things, in part, by improvisation—there actually is a free market and there is criticism of the government. And in part it was luck. But in part the conventional wisdom was just wrong.

Partly this is all correct and interesting. And the economic gains are undeniable. But I have not invested anything directly in China because I remain unconvinced. How many enterprises are one arbitrary arrest away from insolvency? How much of the Chinese economy teeters on the brink of contraction because of contradictions that no one can force the leadership to confront?

China has succeeded because it has one thing the US now lacks—a serious political leadership that is pursuing national policies that benefit the country. If you believe government is the problem, you cannot do this. If you believe government is the solution, you also cannot do this. We are irrational. China is not.

But I believe that the old critique is still valid and that China must change or suffer a real collapse. Prosperity is built on freedom and law. One quote from the China series haunts me. A businessman says, I make a profit and pay taxes, why would bureaucrats bother me? Because they can, as he will eventually find out.

Saturday, November 17, 2018

The Matthew Whitaker Appointment

11/17/2018--What is the Office of Attorney General? “The Attorney General is the head of the Department of Justice. Rev. Stat. § 346 (Comp. St. § 515). He is the hand of the president in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses be faithfully executed.” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922).

I mention this because, while there is legitimate speculation about the authority of President Trump to appoint Matthew Whitaker interim Attorney General, the thumb on the scale should be that the Attorney General works for the President and carries out the President’s policies. The AG is not a check on the President, except of course the check that any lawyer should be, refusing to act outside the law.

The opposition to the appointment of Whitaker has to do with his past stated opposition to the Russia collusion investigation. Again, people are missing the point. Nobody doubted that President Nixon had to be the one deciding whether to fire the independent prosecutor in the Saturday Night Massacre. The resignations had to do with whether a particular person was willing to be the person to do it. That is why Robert Bork ultimately did fire Archibald Cox. The action was ultimately ruled illegal by a court, but it was the President’s call whether to fire Cox and then test the legality of the action.

This is what it means that the Attorney General is not a check on the President. Ending the Russia collusion investigation may be a bad policy. It may even be obstruction of justice. But the President has the authority to attempt to perform these acts. Courts and impeachment are the checks. Within the Executive Branch, argument and even resignation are all that someone below the President should be able to do.

I say all this as a critic of the Russia investigation. It never made sense to me to assume that the Russians needed any go ahead from Donald Trump. They accomplished most of what they did illegally before he was even a serious candidate.

Besides, I dislike the whole idea of a genuinely independent prosecutor. Justice Scalia was right about that in the Morrison case. The President has to control the investigation of his subordinates and himself. That is one of the President’s natural advantages in conflicts with Congress. The only way to get rid of a President is a 2/3 vote in the Senate or, much more likely, voting the President out of office. I greatly look forward to that.

Friday, November 9, 2018

The Electoral College

11/9/2018—Republicans are busy trying to justify what they call the Electoral College. But what they are defending is not the framers’ Electoral College.

In the first place, no voters were supposed to select the President. The President was supposed to be selected by the delegates—electors—who were themselves elected however the State legislatures decided. That method did not matter that much because the President was not elected by the people. The framers did not want an election of any kind directly for the President because they feared would elect a demagogue. So the decision as to who should be President was left to a group of presumably smart and geographically dispersed men. Needless to say, such a group would never have selected Donald Trump in a million years. So this idea that dispersed voters should elect the President has nothing to do with the Electoral College.

Second, “strip out California” in order to give some democratic legitimacy to President Trump is truly politically immoral. The President was not supposed to be a policy maker. But now, unfortunately he is. All Americans are stuck with President Trump’s bad policies. Take tariffs—all those Californians are just as stuck with them as is everyone else.

The framers never selected minority rule. If they used an election, the winner was the person with the most votes. Period. So, if we now are going to have an election for President, which we do, the framers would never have said the loser should govern.

By the way, a much better argument for President Trump is that he campaigned intelligently in the system we have. If he had had to have had more votes, he would have tried to get them. He needed States, so he got those.

Sunday, November 4, 2018

The God Construct

11/4/2018—In 2007, as part of the New Atheist wave, Philip Kitcher wrote a book entitled Living with Darwin. Kitcher was making the point that the loving, all powerful God of the People of the Book, Christianity, Judaism and Islam, was not consistent with the awfulness of evolution. Evolution is violent and cruel, killing endlessly and in grotesque ways. A God worthy of worship would not work in this way.

I did not think about this too much. It was the sort of reason I did not believe in God, but it was hard for me to think that people of faith would be much troubled.

Now, 11 years later, I see that people do take Kitcher's challenge seriously indeed. The recent issue of Zygon magazine is devoted to the thinking of Christopher Southgate’s Evolutionary Theodicy. According to Denis Edwards, Southgate’s response to Kitcher has three aspects: First, evolution is the only way that a creative universe could go forward—-like the Vatican Astronomer I once heard say that God could create any way He chose, but if he wanted to create life with carbon, He had to wait for stars to explode; second, God as co-suffering—-God is with all creatures at all times; third, “pelican heaven”—the chick pushed out of nest participates in God’s eschatological fulfillment.

The reader can make of this what she will. It’s not for me. But I am not the audience.

For me, the word God must describe the world we know. But the world we know is in many ways miraculous and mysterious and that is about all that we can say. I mean that there are possibilities for truth and justice and beauty that should not happen, but do.

I have experienced miraculous interventions in my life, twice in fact. These were saving experiences. So, I know they happen. The universe has a loving aspect. But prayer won’t get you rain.

A God who could resurrect Jesus from the dead could create without pain. So, I cannot accept the God who resurrects from the dead in a literal sense. Yet resurrection does happen. Every spring, in fact. Hallowed Secularism is the search for where all this leads. Paraphrasing David Ray Griffin, Enchantment Without Supernaturalism. Or, as I wrote in the book, if you believe in magic, come along with me.

Saturday, November 3, 2018

A Society Without a Soul

11/3/2018—In a review/essay in the September 27, 2018 issue of the New York Review, Jackson Lears, Rutgers Professor of History and the editor of Raritan Magazine, wrote about the year 1968. Lears tried to capture the sense of the period just prior to 1968, when whatever promise there had been succumbed to violence, government undercover agents and political assassinations.

The sense that Lears emphasizes is religious. He likens 1967 to a moment of yearning for a new Reformation—-a more direct connection to the ultimate. He associates Martin Luther King, Jr. with Christian existentialism.

In one insight, Lears captures the ultimate critique of the technological world of management: He quotes King, “Somewhere along the way we have allowed the means by which we live to outdistance the ends for which we live.” And concludes, “A society of means without ends was a society without a soul.”

This conclusion seems very apt for us. But how can there be ends when all ends are arbitrary posits? Your ends. My ends. Even if a society had ends, they would just be a collection of arbitrary individual ends.

Unless the universe itself makes sense and has ends, we cannot. Not really.

Once, the end was to bring about the Kingdom of God. That was the heart of the Christian West. It did not survive WWI.

I suppose now it could be, without much difficulty conceptually, to build a society of prosperity, justice and peace in a world heading in those same directions. It is hard to see why that sort of movement has either never caught on or ran out of steam. Maybe materialism just does not give me a reason to care how anyone is doing other than myself.

Tuesday, October 30, 2018

Executing Robert Bowers

10/30/2018—We can start with the proposition that anyone who kills someone forfeits his right to live. That is why bad guys in movies are killed. That is why life imprisonment is the normal punishment for murder.

We can also agree that there is nothing redeeming about the killer in this case, Robert Bowers. He is not someone mentally ill or abused as a child. Bowers is just what he seems—a miserable, hate-filled killer.

It would have been satisfying if Bowers had stood his ground and then been killed in a shootout with the police. What is needed is for Robert Bowers to disappear.

The problem with the death penalty is that now we will have to think about Robert Bowers. And it will not be the Robert Bowers who pulled the trigger. It will be this other figure that appeared in court yesterday—-an empty shell in a wheelchair.

The US Attorney, Scott Brady, said, “We have a team of prosecutors working hard to ensure that justice is done.” But there is no real work to be done. They are just crossing all the t’s. Bowers is the killer and this is a hate crime. End of story. All the rest is inflation.

If there were no death penalty, the case would be over in a few weeks and we would never hear from, or think about, Robert Bowers again. And that is what I want. I don’t want my consciousness sullied by him. He is not worth it.

People who think they want the death penalty don’t understand how things work. What they really want is for someone to kill Bowers right now. Instead of that, the death penalty prolongs the killer's public life. The death penalty should be renamed to the Robert Bowers show. And this cannot be cured by speeding up the execution. The problem with the death penalty is that you cannot avoid attending to the killer, when the only important people are the victims.

One day, when we do get rid of the death penalty, we won’t even notice how good life will be without having to think about killers.

Sunday, October 28, 2018

The Shootings in Pittsburgh

10/28/2018—A story from the July 2, 2018 issue of Sports Illustrated, of all places, offers wisdom in light of yesterday’s killing spree at Tree of Life synagogue. The story was adapted from Ben Reiter’s book, Astroball, which is about how the Houston Astros won the World Series in 2017.

Before the season started, the Astros signed Carlos Beltran, an aging superstar, to a one-year, $16 million deal. Before spending that much money, the data-driven Astros wanted to know not just about Beltran’s hitting and fielding, but about team chemistry. But nothing about chemistry had ever been quantified, or even really studied.

The team examined all major league baseball team performance in terms of what are called fault lines—essentially differences among players, like race and age and compensation. They found that the teams that did best were neither those who were most alike or most different. Instead, two factors consistently aided winning: players who transcended fault lines—a older white, less compensated, player and players who were motivated to deactivate fault lines.

America has fault lines—on issues, on race, on compensation, on Parties—what some call tribal factors. And, of course, our politicians and interest groups thrive by emphasizing these fault lines, not by deactivating them.

So, you could say, that we need coalitions that transcend our fault lines: pro-choice Republicans, rich Democrats, etc. Of course such people exist, but not together. This analysis suggests that the decline of fault-transcending social networks is as bad for society as some sociologists have suggested—think of Bowling alone by Robert Putnam (2000). Of course, Putnam was weaker on what to do than on what had gone wrong, but he has a great deal to say.

As Putnam noted, religion was once one of the great networks building what Putnam called social capital. But now even religion tends to divide rather than unify.

So, the great task is for secularists to build fault-line transcending social groups—we can start by ending our demonization of religion, seeing religion as still an important societal resource—hear that Brian Leiter! I don’t know how to do that, any more than anyone else does, but it is clearly one of our great tasks—along with restoring the climate.

Tuesday, October 23, 2018

"Because He doesn’t exist"

10/23/2018—I go back through my old Sports Illustrated issues—long story—and I found a short essay by Ana Marie Cox about…well, it was about a lot: her dad, Sam, her addiction and recovery, and TCU football. It was the college football playoff issue (Embracing the Frog). I wish I could write like that.

The part about her slow recovery and her dad was just beautiful.

I trudged off to rehab lonely and in utter defeat, which turns out to be a great state of mind for starting to get better. I had met the enemy and it was me—so I surrendered. Studies show that extended intensive, in-patient treatment is one of the few methods with any success in treating addiction. But it’s prohibitively expensive—around $20,000 a month—and it wasn’t covered by my soon-to-be-ex-husband’s insurance. I had next to no money. So Sam cashed out some of his retirement funds and paid for all of it. I once tried to thank him for stepping in the way he did.

“Well, statistically, that’s what works,” he said. “Of course I paid for it.”

The foundational truths of my life today are these: I am sober. I am, finally, a fully functioning member of society. And my dad was there for me when I had given up on myself.

Now, Cox herself apparently eventually became a Christian. But the essay was not about that. It was about faith, though, at least faith in football team so bad for so long. (not anymore). One day Cox asks her dad about his atheism, expecting a story. Unsurprisingly, she doesn’t get one. Sam is too taciturn.

But when at some point during my own years of religious questing I decided to engage him about his lack of faith, it went like this: “Dad, why don’t you believe in God?”

“Because He doesn’t exist.”

And then he went back to reading the paper.

There is an important lesson here. If God means the kind of being who could be said to exist, like you and me, which is what Cox’s dad thinks, then of course He doesn’t exist. But I think religious people, thinkers at least, have always known this. If God is important at all, the word must be used to describe reality, not something made up. If we want to describe the triumph of the good, the power of compassion, the forgiveness of sin that we have experienced, the most we could say is that God happens. That is a kind of process language about God. And if some people experience that happening as personal, as if someone is there to answer prayer, well that is also part of the happening of God. But, certainly, God does not exist. I believe it was Paul Tillich, the great theologian, who said that to affirm that God exists, is to deny him.

All these years I have described myself as an atheist, I was describing the same kind of atheism Sam espoused. But this is really not very helpful. Beyond existence, we have to start talking about what reality, including history, is like. Then we may get somewhere. That is what I hope to begin doing in the Bends Toward Justice Podcast Series. More on that later.

Saturday, October 20, 2018

Absurdities of Anti-Religious Bias

10/20/2018—Here is a great instance of how anti-religious thinking becomes second nature among secularists. In last Sunday’s New York Times, there was a review of The Faithful Spy: Dietrich Bonhoeffer and the Plot to Kill Hitler, a book by John Hendrix. The review was written by M.T. Anderson, described as an “author of books for young readers including ‘Symphony for the City of the Dead: Dmitri Shostakovich and the Siege of Leningrad.’”

Here is the key paragraph:

For young readers, one could easily play the near-miss attempts to kill Hitler as a straightforward thriller. The plots involve deception, gut-wrenching timing and concealed explosives: a bomb in a gift package, a rigged docent conducting a tour of captured Russian weaponry and an explosive briefcase spirited into the heart of Hitler’s fortress, the Wolfsschanze. But Hendrix makes the bold and surprising decision to tell it as a tale of faith.

We are talking here about the life of one of the greatest theologians of the twentieth century, who, by all accounts, opposed Hitler as an act of Christian witness, and paid for it with his life. His account of his last days in Letters and Papers from Prison is a masterpiece of religious thought, inspiring countless believers. Bonhoeffer deeply pondered growing secularism, too, and has been instrumental in religious/non-religious dialogue. In other words, he was a shining beacon of faith, courageous and thoughtful, and died a martyr to Christ.

How else could the story of Bonhoeffer’s wrenching decision to turn to political violence be told except through his faith? Whatever one thinks of his decision, his faith was the context in which that decision was made. In other words, the plot to kill Hitler can be told in many ways, but the role of Bonhoeffer in it has to be told as a tale of faith.

So, what was Anderson talking about? He doesn’t seem to mean it is odd to tell the story about Bonhoeffer’s role in the plot—and there are other conspirators of religious conscience as well. So, what is surprising about the way Hendrix tells it?

I believe Anderson just means young people don’t care about religion. But he is wrong about that. Anderson may not care about religion. His friends may not. The readers of the New York Times may not. But children are instinctively religious. They understand better than Anderson what it means to live a life of faithfulness to God. If their thoughts are child-like, they are not childish. If their simple conception of God must change as they grow, it is not the only kind of thought of childhood that must be adapted as we grow.

What is “surprising” is that no editor at the New York Times could hear how odd and silly this review sounds.

Thursday, October 18, 2018

Rhodri Lewis Responds

10/18/2018--Rhodri Lewis, Professor of English at Princeton and author of Hamlet and the Vision of Darkness, responded to my blog post here last Friday. Since I did not obtain his permission, I will only set forth a paragraph from the book that he sent me in arguing that the book does not associate Shakespeare with an entirely nihilistic view. Shakespeare wrote Hamlet as an exercise in truth-telling, an actual way out of the collapse of classical humanism.

It might be objected that I am describing Hamlet as a work of nihilism, in which nothing signifies “but as ’tis valued”. Not so. Rather, this book has endeavoured to demonstrate the extraordinary pains that Shakespeare took to represent the cultural world of humanism as fundamentally indifferent to things as they really are, and as one in which the pursuit of truth is therefore all but an impossibility. All but: taken in new directions that Hamlet lays out for it, dramatic poetry might be able to offer a likeness of this cultural world in all of its self-deceit, illusion, and pretence. Humanist models of history, of poetry, and of philosophy cannot “show ... the very age and body of the time his form and pressure” (3.2.24-25), and are in large measure a part of the problem. By insisting on their own sufficiency, they impede the proper comprehension of the human lot. But precisely because Hamlet is a post-humanist work of tragedy (one might call it anti-humanist but for the fact that the fabric from which it is assembled is so consistently that of sixteenth-century convention), it is not bound by the sort of strictures that Shakespeare brings to bear on superficially imitative neo-classicism. In place of preordained moral reflections that show the world as the playwright and his authorities think it should be, Hamlet – as most clearly articulated in chapter 5 above – provides its readerly and theatrical audiences with the prompt to examine themselves, their presuppositions, and their beliefs about the status of humankind within the moral and physical universes. The audacity of Hamlet is to demonstrate by example, rather than theoretical disquisition, that in the humanistic world of which Shakespeare and his work were a part, dramatic poetry – not history, not philosophy, and certainly not theology – is the medium best fitted to telling the truth. Best fitted to revealing that in its attachment to various forms of theatrum mundi, humankind not only propagates its own ignorance and self-alienation, but ensures that it will remain unable to devise a better way in which to live. Kings, their challengers, and their impetuous heirs will come and go, but the nature of the masquerade will continue unchanged. Only by dramatizing this most self-reflexive of truths alongside the evasions and authority with which it ordinarily eludes scrutiny can fulfilment or progress become a possibility. What that progress might look like, Shakespeare does not say; nor will he do so in Othello, Macbeth, and King Lear. Instead, and to borrow a phrase from Lafew in All’s Well, his tragedies enjoin their audiences to “submit” themselves to “an unknown fear” – one that the canons of neither ancient nor modern wisdom can help them to allay.

Tuesday, October 16, 2018

Pittsburgh Foundation Grant

10/16/2018--Last week the Pittsburgh Foundation approved a $5000 grant to fund a pilot four podcasts in what I hope will become the Bends Toward Justice Podcast Series of 50 conversations with a variety of Americans about the teaching of Martin Luther King, Jr., that "the arc of the moral universe is long, but it bends toward justice. In my view, as readers of this blog know, American public life is in decline, and private life too, because of the decline of moral realism. These conversations represent an attempt to reintroduce justice and history as serious cultural categories.

The podcast series is a part of the Truth/Justice/Democracy Initiative intended to change American public life. Truth refers to the billboard in Erie, PA, this summer that focused on lying in politics. It announced that "tax cuts threaten social security." It was aimed at a particular lie--that tax cuts pay for themselves--but not only lying by one Party. I have Democratic Party lies, also, such as the we keep our doctors and plans under Obamacare, a claim President Obama undoubtedly believed at first, but kept repeating when he knew it was not going to be true.

The podcast series represents the justice part of the initiative.

The Democracy part has to do with all of my work recently about the looming threat to democracy. The immediate issue is partisanship that overshadows truth. That Republicans will not criticize President Trump about global warming. That Democrats will not acknowledge any good that President Trump is doing. My answer is the formation of a pro-democracy caucus among law professors promising to call out their own side. (Not much luck so far).

Here is the billboard and me in front of it. Photo by P. Ledewitz.

Friday, October 12, 2018

So, Shakespeare Is Now a Nihilist

10/12/2018—By nihilism, I mean the belief in the culture that claims of value are just matters of opinion, and are often just manipulations masking the will to power. I have been arguing for years that nihilism has infected the culture and that the effects are dire, especially in the political realm, leading to hyper-partisanship and the death of truth. Still, it is always a shock to see nihilism in an unvarnished state, certain of itself and unwilling to acknowledge its own uncertainty.

I received one of those shocks when reading a review by James Shapiro of Rhodri Lewis’s book on Hamlet, Hamlet and the Vision of Darkness in the April 19, 2018 issue of the New York Review. For Lewis, Hamlet is not the model of nascent subjectivity, inwardness, that he is often seen to be: “’He is instead the finely drawn embodiment of a moral order that is collapsing under the weight of its own contradictions.’” (Lewis’s words, quoted by Shapiro)

And the reason readers have largely missed this? Because we have been unwilling to acknowledge that Shakespeare himself rejected humanism:

Shakespeare repudiates two fundamental tenets of humanist culture. First, the core belief that history is a repository of wisdom from which human societies can and should learn…. Second, the conviction that the true value of human life could best be understood by a return ad fontes—to the origins of things, be they historical, textual, moral, poetic, philosophical, or religious (Protestant and Roman Catholic alike). For Shakespeare, this is a sham…. Like the past in general, origins are pliable—whatever the competing or complementary urges of appetite, honour, virtue, and expediency need them to be.

Shapiro notes that in Lewis’ view of Shakespeare’s vision, the search for absolutes by which to live and act is doomed to failure. In the search for meaning or fixity, one discovers nothing of significance.

Shapiro draws the natural conclusion from Lewis—“The absence of any moral certainties means that it’s a ‘kill or be killed’ world.” That is the jungle President Trump lives in, and increasingly, so do we. We can learn from Shakespeare that “the world has always been amoral and predatory.”

If I may say so, Professor Shapiro, renowned Professor of English at Columbia, seems unwilling to really criticize Lewis beyond acknowledging that “Lewis’s Hamlet is not mine.” I believe Shapiro generously wishes to give a newer generation its say without insisting on his own vision of Hamlet.

Fair enough—more than fair. But I have to ask, how is it that we can have “paid a steep political price for failing to heed Shakespeare’s warning” when we, including Lewis, basically share the vision that Lewis attributes to Shakespeare? We have paid a steep price, but we have paid it for accepting what Lewis is offering. We now need to expose this dark vision for the dead end it has proved to be.

Saturday, October 6, 2018

Journalism, Truth and Originalism

10/6/2018—I now see that Kimberley Strassel, columnist for the Wall Street Journal, did not mean what she wrote. But what she tweeted, which was retweeted by Randy Barnett, thus probably indicating his approval, demonstrates how nihilism infiltrates a culture, even a culture that thinks it believes in truth.

Here is the tweet: “Actually, the goal of journalism is presenting facts--and presenting them on both sides of any given issue. Americans then get to work out themselves, on the basis of those facts, the truth. We don't need press to divine it for us. Just try who/what/where/when/why/how”

The tweet was in response to Matthew Dowd, ABC News political analyst, who had written, “So kim so what do you think the goal of journalism if it isn’t the truth? Do you think we should have people on panels that argue the earth is flat?”

Now the reason I say that Strassel does not believe what she wrote is that she does not practice it on twitter. On twitter, she tells a story she believes to be true—-for example, that Democratic Party tactics over the Kavanaugh nomination were an unprecedented attack on a nominee.

That is a factual claim in a sense, but it is also an important truth claim. Any news report that, at least over time, did not make it clear that the Kavanaugh attacks were something new, would not be telling the story about the nomination.

Strassel might say here that twitter is not journalism, but the line between them is not particularly clear. A real reporter is always a reporter.

Notice that Strassel did not respond to Dowd’s actual example. You don’t put a flat earth person in a story and say neutrally that some people say the earth is flat. If there is a demonstration of people claiming the earth is flat, it would be poor journalism to present that claim as possibly accurate. The story would have to say that the flat earth position contradicts all that is known about the earth.

In the context of flat earth claims, the correction is not needed. But the broader point is that facts depend on values, as the philosopher Hilary Putnam showed years ago. That doesn’t make facts a matter of opinion, because those values—-consistency, integrity, beauty—-are themselves a matter of truth. Science does not advance based on facts, but on these values.

The goal of journalism is to present the relevant facts and explain their relevance. That is telling the story, which by the way is how journalism self-defines: telling the story.

When Walter Cronkite finally concluded and announced that the Vietnam War was being lost and that the government was lying, he was not violating journalistic norms. He was explaining the meaning of the relevant facts.

The reason Strassel wants to deny all this is that much of the media is biased. It claims that truth is on one side when there is actually room for perfectly reasonable disagreement—-that Justice Thomas is a sexual predator, for example, which is taken for a fact by much of the Left, but of course may be completely false.

But debating bias is hard. Denouncing truth is unfortunately easy. And so Strassel makes the big mistake of undermining truth.

The reason that Randy Barnett retweeted Strassel is that proponents of originalism make the same mistake she did. There is a truth of free speech, equal protection, free exercise, takings, etc. There is even a truth of fundamental, nontextual rights. Liberal jurisprudence has abandoned the search for these truths and just proclaims certain outcomes. Frustrated with that process, conservatives deny there is any truth to these values and so retreat to making historical claims about original public meaning (claims that often turn out to be disguised truth claims anyway, but that is for another day).

Showing that liberal claims are false is hard. In fact, conservatives are not even sure anymore that they are false. Denying truth, on the other hand, is easy.

Ironically, the framers themselves were liberals—-they thought there was a truth to free speech and would not be unhappy that we now know more about free speech than they did. The framers were not nihilists. Conservatives are turning themselves nihilists because they don’t understand their own position.

Randy Barnett wants to return to the Lochner era of judicial evaluation of economic legislation. But Randy does not ever want to defend such judicial outcomes on their merits. He wants to say that he is just returning to the framers’ understanding.

The framers, however, are all standing there saying, Randy, in a world of trillion dollar corporations and massive human populations that change the climate by their very existence, the meaning of individual liberty and limited government have to change. If you try simply to go back to us, you mistake us and undermine our goals.

Wednesday, October 3, 2018

Judge Kavanaugh Doesn’t Have a Judicial Philosophy: Only Randy Barnett Does

10/3/2018—Randy Barnett published a very thoughtful 1000 words in The Volokh Conspiracy arguing both that judicial philosophy is relevant to Senate votes on a judicial nominee and that Senators who vote against a candidate have an obligation to say for the record what it is about that philosophy they don’t agree with.

Randy also implied that a vote against Merrick Garland would have been justified by the Republican-majority on this basis. This is probably a bad idea because it means that no nominees will be confirmed unless the President and the Senate are controlled by the same Party.

But Randy’s idea is also unworkable for a simpler reason—judges don’t have judicial philosophies in the sense of “a proper method of interpreting our written Constitution.” Only legal academics like Randy have such a thing—because we don’t actually decide cases.

Judge Kavanaugh’s alleged legal philosophy is originalism—interpreting the Constitution according to its original public meaning and not changing that meaning until there is a constitutional amendment. But Kavanaugh would have voted the same way that Justice Gorsuch—another alleged conservative—voted in his first big case, Trinity Lutheran Church, in which the Court held that denying a taxpayer-funded grant for a playground to a church that was available to other nonprofits violated the Free Exercise Clause.

Without doing any research, I’m pretty sure that to the framers, Free Exercise just meant that government could not interfere with religious practice. It would not have required affirmative help by government. So, Justice Gorsuch changed the original meaning of the Free Exercise Clause without a constitutional amendment.

The reason he voted this way is that interpretations of the Constitution have to make sense today to the American people. Government involvement in the economy is now so vast that excluding churches from government programs really does deny Free Exercise. Lutheran Trinity Church was therefore a proper decision, but it was an example of the Living Constitution in action. (The Living Constitution is not a method of interpretation in Randy’s sense either).

Trinity Lutheran Church is just one example, but it is important because this claim to have a “method” of interpretation sometimes is used to absolve judges from having to defend their decisions morally. If a judge is perpetuating an injustice, that judge should have to answer for that and not pretend that some method forces the decision.

On a whole range of commitments—-forced unions membership violates the First Amendment, corporations have rights, advertising is more than a contract offer, property restrictions are a taking, Equal Protection bars gender discrimination—Judge Kavanaugh will predictably vote in ways that either clearly violate the original meaning of the Constitution or at least will vote without really worrying about whether such outcomes violate original meaning or not. In other words, Kavanaugh was picked because he would “simply reach all the outcomes that a [conservative Republican] would like the Supreme Court to reach… .” Not because he has some kind of philosophy.

I don’t want a judge who allows the government to violate fundamental rights whether or not the framers would have recognized the right as fundamental. The Ninth Amendment suggests that maybe the framers agree with me about that. My vote on Kavanaugh would in part depend on how he answered that question. Of course, neither I nor Randy are considering how the personal issues now also before the Judiciary Committee regarding Judge Kavanaugh will ultimately play out.