"All or Nothing" - The Boy Scouts and the Right of Association

I've posted a new article over at The Bell Towers.

It's reprinted here, but I'd appreciate if you visit the original site, too.

"All or Nothing" - The Boy Scouts and the Right of Association

Last month, the Boy Scouts of America (“BSA”) changed its long-standing yet controversial membership policy.  Whereas the BSA previously excluded openly homosexual youth and adults from its ranks—claiming homosexuality to be inconsistent with the principles of scouting—gay youth will now be permitted to retain their membership.  Gay Scouters, however, will continue to be disallowed.

While many have welcomed this change, the BSA has opened itself to a host of renewed legal challenges.  Under current First Amendment jurisprudence, the Scout’s new “semi-exclusionary” policy is unconstitutional.  Having explicitly eliminated any “moral agenda” from its membership guidelines, the BSA is no longer entitled to insulation from government efforts to eradicate discrimination in voluntary, private associational life.  While this reality might be a distortion of the Founders’ vision of limited government and individual liberty, it is reality nonetheless.

As a disclaimer, I should note that I am uninterested in discussing the merits of the Scouts’ exclusion or admittance of homosexuals as such.  My opinion on that matter is irrelevant to the present consideration of the legal implications of the BSA’s new membership rules.  Suffice it to say, though, I am skeptical that allowing gay youth to join, while continuing to exclude gay adults, will produce the much-desired revival of scouting.  It may instead lead to an exodus of traditionally minded families and chartering organizations—something that is apparently already happening.

In Boy Scouts of America v. Dale (2000), the Supreme Court found the BSA’s previous exclusionary membership policy to be constitutionally legitimate.  The case originated as an attempt by a gay Scoutmaster to contest his expulsion pursuant to a New Jersey public accommodations statute.  Writing for the Court, Chief Justice Rehnquist ruled for the BSA, finding it to be an expressive association whose efforts to disseminate aparticular conception of sexual morality would be significantly burdened by the forced inclusion of a homosexual leader.

The significance of the Dale decision cannot be overemphasized.  As Justice Stevens noted in dissent, prior to Dale the Court had never upheld a claimed right to associate in the discriminatory selection of members.  InRoberts v. U.S. Jaycees (1984), for example, the Court forced an all-male youth organization to admit women to full membership.  And in subsequent decisions, the Court upheld state-led efforts to foist inclusive policies on organizations as varied as the Rotary Club and private athletic associations.

The Court’s pre-Dale analysis not only turned on whether any one form of discrimination was integral to an organization’s expressive activity, but also required an independent investigation into whether any instance of membership discrimination was factually justifiable or merely based on stereotype.  It was only where further constitutionally protected rights and interests—viz., the free exercise of religion and participation in the political process—where discrimination would be considered legitimate.  Thus, the Court had found political parties and morally obnoxious groups, typically found on the extremes of the political spectrum, to be beyond the reach of public accommodations statutes.

All this was thrown into a state of confusion with Dale.  The BSA was certainly not a church, at least as typically understood, nor was it a formal “political” organization.  The Scouts had no further constitutional interests that would have required the insulation of membership practices from the otherwise “compelling” state interest in combating discrimination.

Even more perplexingly, the Dale Court abandoned its efforts to independently identify a group’s expressive message and the extent to which any one practice was integral to its dissemination.  Rehnquist deferred to the BSA, allowing it to define its own message.  Had the Chief Justice not done so, an independent inquiry would likely has revealed that no particular sexual morality was explicitly identifiable in the Scout Oath and Law.  Rather, the BSA’s particular conception of heterosexual masculinity was grounded in the implicit teachings of its partnered organizations—principally, Catholic, Methodist, and Mormon churches—and the vestiges of traditional sexual morality.

In the end, Dale carved out an exception for the Boy Scouts.  The Court simply assumed that the BSA was an expressive association whose message of traditional maleness would be irreparably damaged by the forced inclusion of a homosexual leader.  This result permitted the continuation of the BSA’s “position” on the morally objectionable character of homosexuality vis-à-vis its membership rules.

The BSA’s reformed membership policy, however, eviscerates any chance of adhering to Dale.  In conforming to the moral zeitgeist, the BSA has adopted an incoherent and fatal position.  Whereas an entirely “exclusive” policy signaled an implied condemnation of homosexuality, the new policy makes suspicious any claim to a continued moral agenda.  The Scout Law cannot have two concurrent, yet inconsistent, interpretations that vary according to an arbitrary distinction based on age.  If the BSA is no longer interested in inculcating boys with a particular conception of manhood and male sexuality, then for what reason has it changed its membership policy?  And if the promotion of heterosexuality is no longer a goal, then for what reason are homosexual leaders still excluded?

It seems to me that the only justification that can be proffered is that the inclusion of homosexual leaders would make parents and youth uncomfortable.  Indeed, this seems to be the opinion of most parents when interviewed by the news media.  Yet, while such sentiments are unsurprising, and as a practical matter something to which BSA executives should be sympathetic, they are constitutionally impermissible.  The notion that a homosexual adult would be any more prone to sexual misconduct with youth than his heterosexual counterparts is, legally speaking, grounded in animus and false assumptions.  No “moral” justification is likely to convince the more liberal members of the Court that the new “semi-exclusive” membership policy is constitutionally defensible.

The fatality of the BSA’s attempt to accommodate changing sexual mores should be troubling because, in the real world, it is not an unreasonable compromise, if still an imprudent one.  Why must the law impose an “all or nothing” requirement?  Even more importantly, though, we should question why anyone cares what the Scouts, as a private and voluntary organization, chooses to do.

The Dale case should never have reached the Supreme Court because Dale should never have had a cause of action in the first place.  Private individuals, and the organizations they constitute, are not (theoretically) bound by the demands of the Constitution, short of the Thirteenth Amendment.  And the more that government is permitted to abridge individual rights so as to promote vague notions of equality, or to squash “politically incorrect” viewpoints, the more likely it will oppress the free operation and spontaneous development of civil society.  This result is intolerable.

In an ideal world, individuals would be free to associate as they see fit, notwithstanding discriminatory or prejudicial views.  Insofar as social institutions remain voluntary and do not possess monopoly powers, thereby leaving ample space for new institutions to arise, the “problem” of exclusionary membership is self-resolving.  Disaffected members can simply leave and found competing organizations. 

There were countless examples of this sort of market-based reaction within the scouting movement after the Dale case.  Openly gay leaders and youth—and those who sympathized with their exclusion from the BSA—set out to form their own alternative scouting groups.  And in the wake of the most recent membership reforms, many traditional or religious families are starting to do the same.  The courts have no place interfering with this process and forcing a particular organization to change its ways, especially if it simply because that organization is the largest, wealthiest, or historically most prestigious.  The state needs to leave room for civil society to function as it should.

I suspect that the Founders envisioned the right of association to be enjoyed in that way.  And I am sure that they would be horrified at the prospect of government-mandated membership practices, let alone the prohibition of group conduct on the basis of a government-led effort to effect cultural change.  That change is inevitable, if the past sixty years have demonstrated anything, but a truly tolerant disposition cannot be statutorily imposed.

Shelby County v. Holder: Interview with Ilya Shapiro

Over at "The Bell Towers" you can now find my interview with the Cato Institute's Ilya Shapiro on Shelby County v. Holder.  Check it out!  (Shelby County v. Holder: The Future of Section 5 of the Voting Rights Act of 1965)

As I write in the introduction:

"Shelby County v. Holder is one of the more interesting, even controversial, cases at the Supreme Court this term.  It concerns the constitutionality of portions of the Voting Rights Act of 1965, an historic piece of civil rights legislation that has helped to reorder American society following the lamentable years of Jim Crow.  The Act itself represents an heroic effort to remedy the long-lasting effects of slavery and to fulfill the promises of Reconstruction.

Yet, much has changed since the end of Jim Crow, the dismantling of segregation, and the racially charged era of the 1960s and 70s.  Undoubtedly, racial discrimination is still a reality in many sectors of American society, but the obvious and intentional discrimination by the State in politically disenfranchising minorities is hardly commonplace.  There is a strong argument, then, that the circumstances originally justifying the unprecedented reach of the Voting Rights Act can no longer be used to defend the continued application of certain portions of the Act that infringe on traditional areas of state sovereignty, deny equal protection, and upset the Founders’ conception of federalism.

The arguments either way are complicated.  And given the racial dimension, public discourse about the Act’s continued constitutionality is hardly honest and open.  Race, among other things, impassions people and can blind us to the legal technicalities and nuances that mark the Court’s equal protection jurisprudence.  At “The Bell Towers,” we strive to present honest commentary that aids our readers in forming their own opinions on the legal and political issues of the day.  The following interview with Ilya Shapiro of the Cato Institute represents an effort to provide, you, the reader, with the basic fact and issues of Shelby County v. Holder, and to provide some hard-biting legal analysis from the conservative-libertarian perspective."

On Benedict XVI's Resignation

There has been a great deal of commotion over the recent announcement that the Holy Father, Benedict XVI, will be resigning his position as Bishop of Rome and Supreme Pontiff of the Catholic Church.  Thus far, I have avoided commenting on the situation, and I do not have very much to add to what has already been said by other commentators out there in the blogosphere.  But I have thought of a few things that I want to share, and some recent postings on such infamous websites as the National Catholic Reporter have inspired me to finally put something up on this site.

I was both surprised and saddened by the Holy Father’s announcement.  Having grown up through the pontificate of John Paul II, who physically deteriorated to the point of having effectively no command of his papacy, it seemed unimaginable that Benedict XVI would choose to resign for seemingly personal reasons.  I have since come to think that there must be health reasons that have compelled the Holy Father to come to his decision to resign.  Indeed, he has looked exceedingly weak in recent photographs, and apparently injured himself on one of his recent trips abroad.

Of course, at the same time, I do not begrudge the Holy Father’s decision to abdicate.  It was rumored that he had requested leave of the Holy Office at the end of John Paul II’s reign with the hope he would be reassigned to the Vatican Library or some other “academic” post.  This request was obviously denied.  I suspect Benedict XVI never wanted to be elected pope, but only accepted given the expectations of so many within the College that he would assume the Throne of Saint Peter.

Benedict XVI’s papacy has been, without a doubt, a smashing success.  It is true that he has been somewhat slow and obtuse about the abuse scandal, but I am not certain what more he could have done than what he, and other princes of the Church, actually did.  Nevertheless, we have much to celebrate: the clarity of his theological teachings; his encyclicals on the theological virtues (which will sadly go incomplete); his efforts to reach a rapprochement with the Society of Saint Pius X; his clarification on the legacy and interpretation of Vatican II; his reestablishment of traditional music, vestments, and liturgical practices; his ecumenical efforts, especially with the Orthodox (in particular, the Russians) and the Anglicans (three cheers for the Ordinariate!); the new English translation of the Novus Ordo; his episcopal assignments; his movement to reestablish orthodoxy in our seminaries and religious orders, especially amongst religious sisters and nuns; and finally, his leadership on such important issues as modernism, secularism, the decline of Western civilization, and the threat of radical Islam. (Orthodox priest, Fr. Johannes Jacobse, has written a fantastic piece on this last accomplishment and its relationship to the Regensburg Address.  Check it out.)  The list could go on and on!

Yet, while the Holy Father has accomplished a great deal, it has not been without difficulty.  The Vatican elite and the curial establishment are never exactly excited about reform, especially when it comes connected with a reinvigorated traditionalism.  Prominent members of the laity, especially politicians like Nancy Pelosi, and the popular media have been a thorn in his side, as have religious leaders.  Remember the hullabaloo over the Good Friday prayers in the 1962 Missale Romanum?  The pope is easily misunderstand and labels intended to be derogatory (“very conservative” or “reactionary”) are frequently thrown about by his opponents.  (J. L. Liedl has written an interesting article about this phenomenon over at Ethika Politka.)

The situation has improved little with the news of Benedict XVI’s resignation.  The whole situation has turned into a media frenzy, with a great deal of miscommunication and misunderstanding being spread by such eminent outlets as the New York Times, which seems intent on politicizing the whole ordeal by focusing on the sex abuse scandals.  Others have discussed whether this whole thing is smoke and mirrors—an effort to keep the pope safe from the reaches of the International Criminal Court.  Of course, this latter suggestion is beyond ignorant; the Holy Father already possess immunity as the sovereign of the Vatican City State, and if media attention were something he sought to avoid, he would have sooner abandoned ship, as it were.  And if the charges were personally directed against him, they would have surfaced by now.

Two big questions now remain.  First, what will become of Benedict XVI?  Second, who will be his successor?  As to the first question, I suspect the Holy Father will do as he has already announced: retire to a convent for prayer, meditation, and study.  My guess is he will avoid publishing anything further, or at least wait until his successor has had time to establish the tenor of his own pontificate.  I should hope that (soon to be) Ratzinger will complete his work on the theological virtues.  We may have to wait until his demise to read what he has to say, but it is bound to be enlightening!

The second question, of course, is what everyone is now focusing on.  A recently article from the National Catholic Reporter went through the “pros” and “cons” of a number of candidates: Scola, Ouellet, Sandri, Erdo, Turkson, and Dolan—to name a few.  Such speculation can only go so far.  As during the last conclave, there is a hope that the new pope will come from the global South.  This is a possibility.  If I had to bet where in the global South, I would guess Africa.  The theological tendencies of the Latin Americans would be too troublesome.  The African hierarchs are rock solid when it comes to the social issues that are at the forefront of public discourse, and they frequently are unafraid to defend the Truth as taught by the Church.  As much as I would love to see Cardinals Dolan or Burke as pope, this is also unlikely.  An American pope will be unlikely until such time as America is no longer a hegemonic power.  Of course, with another four years of the Obama Administration, this may be a reality sooner rather than later.

Earlier today, I read an article suggesting that Sean Cardinal O’Malley, the Archbishop of Boston, might be papabile.  There is certainly a strong case for why he would be an attractive candidate.  He is not too old and seems to be in good health.  He is a Capuchin friar and exceedingly modest.  He has suberb pro-life credentials.  He is one of the few church leaders (perhaps along with Cardinal Schönborn, Archbishop of Vienna) to have dealt head-on (and effectively) with the abuse scandals.  And he has done a great deal of good in Boston itself, what with its relatively full archdiocesan seminary, and the financial restructuring of parishes into a leaner, more effective “machine.”  At the same time though, O’Malley is a little distant.  Personally, I remain unconvinced as to his liturgical and theological conservatism.  This is especially disconcerting, since it is essential that Benedict XVI’s “reform of the reform” of the Latin Rite continue on schedule.

His Beatitude, Metropolitan Sviatoslav, Major-Archbishop of Kiev

My own dream would be to have Metropolitan Sviatoslav Shevchuk, Major-Archbishop of Kiev and leader of the Ukrainian Catholic Church assume the papal throne.  It would be a real life version of “Shoes of the Fisherman”! An Eastern Catholic prelate would demonstrate the true catholicity of the Church.  (Indeed, the last non-Latin pope was Zachary, a Italo-Byzantine deacon, who reigned from AD 741-752.)  Metropolitan Shevchuk’s rapid ascent through the hierarchy has been abnormal, to say the least.  He was only ordained as priest in 1994 and is 42 years old.  This is, of course, his major weakness—lack of experience.  His pontificate could last over sixty years, which might be a little too long.  Nor has he received the red hat, so his election would be doubly abnormal.  Nevertheless, his credentials remain impressive.  Perhaps at a future conclave...  Sadly, Lubomyr Cardinal Husar, his predecessor, is quite old and in poor health, and would not present the same sort of opportunity for dialogue with the Christian East.

Truly, these are exciting times in which to be a Catholic.  

The Murder of a Piano

Fr. Z of WDTPRS might call it the "Devil's Book," and the Left may consider it the "paper of record," but I cannot consider my morning complete without reading the daily edition of the New York Times.  Most of what it contains is pure drivel; the news reporting is obviously biased; and everything is skewed so far left.  I wonder sometimes whether the journalists and editors even realize the tenor of what they publish.

Of course, the NYT also has a lot of great material. It is, for starters, of great value insofar as it provides a unique insight into the mindset of the typical educated, dare I say, "intellectual" leftist.  But there are other things to appreciate.  The weekly dinning section, for example, is superb.  And the arts reporting can be interesting, at least when it doesn't involve coverage of some new exhibit featuring, say, unshaven co-ed hipsters giving monologues in the nude while performing taichi amongst piles of garbage on a black light-lit stage.  You know the sort of "art" to which I refer.

But even "modern" art and commentary can be thought-provoking, even touching.  I found the video below especially compelling.  It is an "opinion" video that I found via another blog.  The video auteur finds an abandoned piano outside his apartment video and he films it over the course of what seems to be two days.  It is fascinating to see how people interact with the instrument.  And it is all the more depressing to see what becomes of it.  No spoilers, I promise.  

But the video also provides a critique of just what we value in contemporary culture, especially when it comes to the average person's appreciation for the arts and his tendency to value the material over the sublime.  I may be reading "too much" into the video, and I don't mean to criticize economic motivation simpliciter, or self-interestedness as such.  Indeed, a love for free markets and homesteading (which is ultimately what can be used to describe the appropriation of this piano - oh darn, there's a spoiler!) doesn't commit one to dispel any and all appreciation for what is (popularly understood to be) of little economic value, or to somehow accept as given the cultural shift we've experienced towards greater (and more callous) consumerism and materialism.

Anyway, enjoy the video!

Language and Naming Conventions

An Icelandic girl has prevailed in court and will now be able to use her given name, the BBC reports.  Her name must be something ridiculous, right?  Perhaps, “Apple”?  Or “La—ah” (pronounced: “la-dash-ah).  Even better, the old classic “*&^”? 

Blaer Bjarkardottir (left), with mother, Bjork.

Believe it or not, the young lady has a perfectly unexciting name: “Blaer,” which in the Icelandic language means “light breeze.”  Unfortunately for Blaer, the name does not appear on the Icelandic government’s pre-approved database of given names.  Like the French language, Icelandic is carefully guarded and regulated by the government so as to preserve ancient grammar and pronunciation rules, and to protect the “integrity” of a language so close to what was spoken by the Vikings.  Certain names of foreign origin, which might be unisex, or which use symbols that aren’t part of the Icelandic alphabet are all excluded from the aforementioned database.  Once all is said and done, Icelandic parents are free to choose from a list containing around 1,800 names.

Fifteen years is a long time to go without a name.  The Icelandic court undoubtedly reached the right outcome, and for a number of reasons.  First and foremost, it seems far beyond the scope of any legitimate system of government to regulate naming conventions in such a strict manner as in Blaer’s case.  There might be some justification for limited enforcement of naming guidelines.  It would be rather difficult to have a spoken language should names consist merely of unpronounceable symbols.  And it is seems intuitively unfair for a child to have to suffer with a socially offensive name or, say, a name often attributed to the opposite gender.  At the same time, it isn’t immediately clear that the State should be the means of addressing these concerns.  Social pressure, for example, is amazingly capable of addressing these sorts of things.  In the past, the Church would refuse to baptize children who weren’t appropriately named.  And even without such pressure present today, most couples stick to traditional and popular names anyway.  The spontaneous and unplanned regulation of naming does happen, and deviance from the “norm” is infrequent.

A more important reason for resisting this sort of regulation is the effect it has on stifling the natural progression and development of culture, including language.  Words change meaning and social norms and expectations evolve.  Sometimes this is all for the better, and sometimes for the worse.  But to deny this obvious organicism is to ignore the reality and the naturalness of our very being and the modes by which we express that being.

Again, I can conceive of some instances where it might be justified for law to prevent a parent from naming their child something that isn’t really a name, at least as we presently understand it, e.g., “*&^.”  But it is a much harder case to argue for such intervention where a newborn baby’s name might be merely imprudent, offensive, or just plain stupid.  At the very least, the case of Blaer highlights the difficulty here, while also providing a first-hand example of the development of language and naming conventions.  A fascinating case!

Hagia Sophia: A Mosque Once Again?

Father Milovan Katanic has reposted an article from the Washington Times which reports that the Turkish Parliament is considering reconverting the Hagia Sophia, one of Christendom's greatest treasures, into a mosque.  At present, the site is operated as a museum.

Completed c. 360 AD, the great cathedral served as the center of Eastern Christianity for over a thousand years.  With the conquest of Constantinople in 1453 AD, the edifice was converted for use as an Islamic place of worship.  Accordingly, four minarets were added to accommodate muezzins who recite the adhan, or call to prayer, five times each day.  When the secular Turkish Republic was established at the close of the First World War, the government of General Ataturk transformed the Hagia Sophia into a museum, in part to pacify the Greek Orthodox faction which had long protested persecution at the hands of the Turkish Muslim majority.

In recent years, secular forces in Turkey have seemed to be on the retreat as Islamic fundamentalists and more "traditional" political parties rise to power.  A revitalized Turkish conservatism, which looks to the "more Islamic" political movements across the Middle East, has already accomplished radical reforms that would have been unimaginable only a short while ago.  The headscarf, for example, is now allowed in public institutions such as schools, as Reuters reports.  In short, laicite is in retreat.

On some level, I am sympathetic to Turkish Muslims who feel  that their religion and culture is threatened by the secular, republican forces that have dominated domestic politics since the disintegration of the Ottoman Empire.  As the political experience in France can attest, aggressive republicanism and laicism can be just as oppressive and obnoxious to liberty as the most oppressive monarchial or theocratic regime.  That being said, conservative Turkish politicians aren't really interested in accommodating religious practice and expression as we do in the United States.  Instead, as Fr. Milovan seems to suggest, they are motivated by "neo-Ottoman" aspirations.  Their goal is to use the power of the State to enforce religious law and practices, and reestablish, for all intents and purposes, an empire.  (This is somewhat analogous to the political situation in the Russian Federation, where Putin and Russian nationalists wish to retain the sphere of influence enjoyed by the Soviet government.)

This is most unfortunate.  And it provides a perfect example of how intoxicating political power can be.  As the Lord Acton suggested: "power tends to corrupt."  Any movement that bemoans a lack of liberty, if given the right opportunity, will appropriate political power to itself only to aggress and oppress those formerly in power.  It is, as they say, a vicious cycle.

There is also little doubt that this move is another effort to stamp out the great Christian culture that once thrived along the Bosphorus.  So frequently the battled is couched in terms of ethnicity: Greek vs. Turk.  But the heart of the matter concerns religion.  A few years ago, 60 Minutes ran a superb video interview with the Ecumenical Patriarch Bartholomew I.  In the final scene, he described his situation, and the way he feels, with a haunting word: "Crucified."  The status of the Orthodox is pitiful in Turkey.  They truly are treated as second-class citizens.  The restoration of the Hagia Sophia and its reconversion into a mosque will openly pour salt into an already ugly and festering wound.  It will ignite tension between Turks and those few Greek who remain in the area.  And, most importantly of all, it will represent another step towards an increasingly oppressive Turkish state.

Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping

I have the great pleasure of knowing a fine (future) lawyer studying at Cornell Law, Byron Crowe, who is the founder and president of that school's Society for Wine and Jurisprudence.  He was gracious enough to invite me to write a little piece for SWJ's new blog.  The article, "Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping," has just been posted on-line.  Go ahead and check it out.  I don't usually write "humorous" articles, at least since my stint as Opinion Editor at the University of San Diego Vista.  But I thought I'd try my hand at a little levity.  I even decided (finally) on a drinking motto: Vinum merum rubrum et Hiberniæ aqua vitæ

With Byron's prior permission, I'm reposting the article here.  A big thanks to him and his fellow officers and web editors for tech checking what I sent them, which was mostly just links to news articles.  They even added real citations!

Be warned that the version that follows is my original article.  Unlike the one at SWJ (linked above), this "uncensored," "unedited," and "uncut."  Not that this means anything terribly serious.  My political opinions just shine forth a little more brightly.  And I'm my usual verbose self.

*  *  *

I’m a law student and — knock on wood — a future lawyer.  Along with the bench and bar, we try to claim a monopoly on legal expertise.  But you don’t need to go to law school for three miserable, grueling years to know that it’s wrong to ignore the ruling of a federal appellate court.  Even the average Joe knows that once he’s had his day, the show is over.  It’s time to abide and to stifle.  Once you’ve lost your case, you change, you reform, and you conform to the law.  Governor Deval Patrick and the legislators up Beacon Hill must lack this commonsense, as they continue to abridge the rights of Massachusetts wine enthusiasts and their suppliers outright.

Let me fill you in with a little background.  The Commonwealth is known for its proclivity to tax and spend and regulate.  Nowhere else in the Union has there been as remarkable, if not paradoxical, a fusion of liberal progressivism and puritanical culture.  In Massachusetts, you can only buy beer, wine, or booze in a designated liquor store, and it has to be carried out in a package or box.  Alcohol can never be discounted — ergo, no happy hour — and don’t even think about ordering a round of drinks for your friends after that Red Sox victory…because state law limits bar purchases to two drinks per person at a single time.  Oh, yeah…forget bottle service, too.  Suffice it to say, the list does go on.

Associate Justice Kennedy

Back in 2005, the Supreme Court of the United States struck a major blow for oenophiles and vintners in Granhold v. Heald.  Finally, the repressed and thirsty drinkers of the United States — Massachusetts included — had reason to celebrate.  Considering a challenge to New York and Michigan’s restrictions on the importation of out-of-state wines, the Court ruled that regulatory regimes privileging in-state producers were violative of the Commerce Clause.  While the Court recognized the legitimate interest of the states in regulating alcohol under the Twenty-First Amendment, it nonetheless recognized a limit to this power.  The Court was explicit in ruling that states cannot ban or severely limit the direct shipment of wine across state borders while exempting domestic producers from similar restrictions.  Apparently, Justice Kennedy takes the dormant Commerce Clause seriously.

Unfortunately, the Court’s holding only immediately affected regulations restricting the importation of wine in New York and Michigan.  It wasn’t until 2010, in Family Winemakers of California III v. Jenkins, that the First Circuit Court of Appeals ruled that Massachusetts’s own law against the importation of out-of-state wines was similarly unconstitutional.  Martha Coakley, the Commonwealth’s Attorney General, was wise enough to abide by the First Circuit’s ruling, rather than appeal.  And Beacon Hill quickly followed with Senator Robert O’Leary and Representative David Torrisi introducing legislation to bring the General Laws into conformity with the court’s decision.

AG Martha Coakley

That was all three years ago.  Nothing has yet been passed through the state legislature or reached Governor Patrick’s desk that makes any change to the law as it stood in 2006.  And while Massachusetts is hardly alone — 12 other states are still noncompliant with the Supreme Court’s decision in Heald — the Commonwealth’s failure to conform its statutes to protect the recognized rights of drinkers and producers is especially bothersome.  As a recent article reports, all this legislative foot-dragging is confusing.  While the package story lobby and its protectionist allies have held some sway in preventing the necessary reform, the State is loosing precious revenue from licensing fees and excise taxes that could help alleviate the increasing pressure of its worrisome budgetary deficit.

A strong effort is being made to organize concerned citizens to request that their representatives take action to bring Massachusetts into compliance with the law and with the demands of the U.S. Constitution.  FreeTheGrapes.org, a national wine consumer advocacy website, has provided an easy, on-line interface to accomplish just such communication.  I encourage readers from the Commonwealth, or other noncompliant states, to get involved and make their voices heard with élan.  Our rights as wine enthusiasts are at stake.

Wine may be a mere beverage, but it is a great luxury — perhaps even a quotidian necessity — for a great many of us.  It holds pride of place in our gastronomical history and culinary culture.  And it is our recognized constitutional right to purchase it, regardless of where it has been produced.  Shame on Massachusetts for depriving her citizens of the right to enjoy — as Renaissance poet Francis Beaumont might say — the crimson liquor of Bacchus!  Let the Charles River run red (and white) with wine!

Libertarian "Rules of Thumb"

The Freeman, which is published by the Foundation for Economic Education, has posted an insightful article by Lawrence Reed.  I post here the "ten rules of thumb" that Reed suggests are necessary for advancing liberty throughout the next year and further into the future.

1. Get motivated.2. Learn.3. Be optimistic.4. Use humor.5. Raise questions.6. Show you care.7. Seize the moral high ground.8. Develop an appealing persona.9. Don't demand total and immediate acceptance.10. Make allies, not enemies.

This are very fine rules by which any advocate for a freer society ought to live.  Libertarians can be rather rough characters.  There's a lot going against us.  People generally think we don't care about the poor and down-trodden, which is somewhat understandable, given Hayek's argument, for example, as to the "mirage of social justice."  Women and minorities tend not to trust us, since we are generally white, privileged males. (Something which is finally, and thankfully, beginning to change!)  And a fair number of libertarians turn-off moderate, or rather, pragmatic individuals given their tendency towards radical and unflinching positions.  By inculcating a kindler, gentler, and more approachable libertarian "culture," we can advance our policy goals and desired ends without alienating so many individuals as we have heretofore.

Of course, I think there is an important development within the libertarian movement that Reed has failed to address adequately in drafting these "rules of thumb."  Libertarianism is increasingly seen by its adherents as something more than a political philosophy.  That is to say, many libertarians want their political ideology to provide more than mere principles for political life, but also a positive program for living one's own life.  Thus, libertarianism is becoming something thicker and more comprehensive than the Non-Agression Principle (NAP) or any of its variants.  Instead, some libertarians want the sort of systemization enjoyed by Objectivists, who adopt Rand's positions on politics and ethics.

This development is troubling.  At some point I plan to address it more fully, but for now I'll just share my uneasiness with understanding libertarianism as anything other than a political philosophy.  As I see it, the principles of liberty tell me how society -- specifically political society -- ought to be arranged so as to secure our individual freedoms and the free space to exercise our natural liberties.  In this sense, then, libertarianism is negative and devoid of any positive principles that dictate how I ought to act.  

The Harm Principle provides only a limited substantive content that can guide us in making determinations towards behavioral action.  It will, of course, tell us whether we can legitimate choose to act towards others in certain ways.  You cannot, for example, murder another individual without violating your commitment to libertarianism.  But, the NAP fails to guide us in choosing which human goods to pursue in search of a flourishing life.  It provides no standard for determining our moral obligations to others in need of assistance, for example, thus implicating our shared understanding of the virtue of charity.  And it cannot tell us whether certain private actions, say, our sexual preferences or lifestyles more generally, are good and worthy.

I am a devout Catholic.  I am social conservative.  I find many aspects of the libertine lives lived by my fellows in the libertarian movement to be personally objectionable.  I have no interest in using marijuana, heroin, or other drugs.  I find atheism wrong, and agnosticism silly.  And I strongly approve of traditional moral norms.  I recognize the family as the foundation of Western civilization.  Yet, at the same time, I would never choose to enforce these norms on others vis-a-vis the State.  Political society does not exist to attain the moral perfection of its members.  For a long time, this variety of libertarianism seemed to be the norm.  

As I've already mentioned, I think that this is beginning to change.  Libertarianism and individualism have been used to judge the morality of our private actions, our moral decisions.  When brought to its logical conclusion, this effort results in a complete abandonment of any sort of serious metaphysics, as well as a retreat into cultural and moral relativism and subjectivism.  Thus, the philosophical consequences of a "thick" libertarianism are especially worrisome, since they represent, in my estimation, a number of rather unattractive positions.  (On this point, I think I am in complete agreement with the Objectivist, though he would disagree as to which philosophy beside libertarianism ought to comprise our ethic system.)

Perhaps, then, we should add another point to Reed's list: recommitment to the understanding of libertarian as a political philosophy, and not a comprehensive guide for understanding the Good Life and the best path for our individual attainment of eudaimonia.

Legal History, its Methodology, and its Philosophical Implications: Part II

PART II of III
The Illusion of an Analytical and Normative Divide in History and Law

In Part I of this series, I claimed that law is a normative enterprise.  Of course, I realize that this may a controversial claim, depending on my intended sense of normativity.  Many theorists have dedicated their academic careers to distinguishing law from other rule-based categories such as morality.  They claim that law need not be normative in any pre-determined sense.  I admit that the term is loaded and presents an immediate ambiguity that needs to be resolved.  What do I mean, precisely, by claiming that law is “normative”?

I do not mean normative in the experiential sense, i.e., that law demands compliance with respect to individual human behavior.  I do believe this to be true, but I am more concerned with the question of whether the content of law needs to be pre-determined, at least in a provisional sense.  As I see it, law is like any other subset of rules.  It is normative because it is necessarily concerned with how its content ought to be designed (or, on a Hayekian view, how it should be permitted to spontaneously emerge) and how it ought to be enforced.  There are objective standards for what constitutes a good law versus a bad one.  Personally, I believe these standards to be based in morality, but they can premised on any number of things, as I hope to demonstrate.

H.L.A. Hart
(1907-1992)

H.L.A. Hart, the preeminent analytical legal philosopher of the 20th century, argued in his magnum opus, The Concept of Law, that jurisprudence, as was practiced by Blackstone in the Anglo-American tradition and the Scholastics on the Continent, could be distinguished from law qua analytical jurisprudential science.  Legal theory, for Hart, could only concern itself with a descriptive account of what special social rules — or laws — governed any given political society.  It is not the job of the legal theorist, on Hart’s view, to concern himself with whether the observed rules in that political society are “true” in a metaphysical sense.

But therein lies the problem with positivism and even more extreme non-Hartian theories such as American legal realism.  They all fail to successfully divorce law from the “thick” sense of normativity that I seek to identify.  Let me explain.  It is true, for example, that Hart is able to separate law and morality in an immediate sense; it may be the case that the content of a legal system is not dependent on the content of its public morality: the laws of country X need not be, as a matter of necessity, judged by the moral code of the majority of X’s inhabitants (or perhaps even the morality of a minority!).  On the Hartian account, law becomes something more indeterminate.  As the Realist might claim, it becomes simply the result of the political pragmatism of government actors: legislators, judges, etc.

Yet, even the positivist cannot escape the second aspect of normativity that inheres in the law.  While legal validity may no longer be premised on morality, it is instead judged “good” according to social fact, whether that “fact” be pedigree, or the consensual compliance of a majority of legal officials, or any other number of alternative bases.  For law to be a distinct category of political phenomenon, it must be standardized, it must conform to something.  For the natural lawyer, the positive law possess legality, or obliges its subjects, only when conforming to a moralized conception of justice; for the Hartian, it must emerge in compliance with the union of secondary and primary rules, and according to a rule of recognition; and for the “hard” positivist, it must have been the product of a legitimate legislative process, etc.

The illusion of a divide between the analytical and the normative abounds in the law. The foremost example in our own legal system is the concept of “due process” in the United States Constitution.  For many conservatives and legal positivists, “due process” of law is purely procedural, or “analytical”: it represents a set of factual conditions that are either met or are not met.  On the other hand, especially for more progressively-minded persons, “due process” has a substantive content that is independent of procedure.  On this latter view, it should not be enough, for example, that a state government exhaust the proper political channels for overriding a constitutional right, since there are certain realms of human action that should, at the theoretical level, simply be outside the reach of government.  Throwing “process” as a legitimating device, at certain laws will never be able to legally justify their (potentially) illegitimate force.

Ultimately, I think that the distinction between process and substance is much ado about nothing.  Without a theoretical understanding of the demands of process — a substantive theory, that is — it would be impossible to adjudicate challenges under the Fifth and Fourteenth Amendments.  And without some objective procedural standards, it would be difficult to determine when the substantive demands of the law have, or have not, been met.  The two go together.

I see many similarities between this aspect of law’s normativity and the other humane sciences, including history.  Can history be an “objective,” or “unbiased” science of description?  Or does it require a deeper, philosophically-informed substance or content?  In other words, to what extent can (or do) historical propositions represent something more than unloaded factual claims as to what has transpired, objectively-speaking, in the past?

Georg W. F. Hegel
(1770-1830)

I do not mean to claim that history is an impossible field; that we cannot accurately understand the events of the past in some “neutral” form.  At the same time, all history contains a number of subjective elements.  Historical actors will each have their own experiences of reality, and will relate them in different ways.  Historians themselves, based on their own experiences and their own methodologies, will interpret history in divers ways and with diverse results.  Critical methods, revisionism, and alternative histories, such the narrative approach, help to develop this complexity of “doing” history and better understanding the past.

What I am claiming is that “history” cannot be divorced from the historian — its content, like the rules comprising a legal system, are derived according to certain principles that animate the historian.  While this might strike some as hopeless relativism, I do not mean to deny, again, the existence of historical reality — that certain events have transpired in certain ways — or to express unabashed skepticism as to the possibility of disinterested historical methodology accessing that reality.  Rather, I believe it is exceedingly difficulty to achieve an objective, unbiased account of such events.  There is as much room for the historian who tries to approach the past from the difficult position of the unbiased observer, as there is room for the historian who seeks to use history in an instrumental way for some other end.  As Hegel once remarked: Weltgeschichte ist das Weltgericht.  We should not be afraid to embrace history as our judge, as we understand it to be, and to use it in achieving moral (and legal) progress.

Part III will be published within the next week or two.

Legal History, its Methodology, and its Philosophical Implications: Part I - Introduction

Last semester, I took a fascinating class entitled “Historical Perspectives on Law, Constitutionalism, and Culture.”  Every other week or so, a different legal historian would present his or her current research or a forthcoming paper, and the students would provide constructive feedback.  In most cases, faculty members from BU would join the discussion.  It was a unique experience and a definite change from the standard law school curriculum. 

At the end of the course, in lieu of a final examination, we had a dinner party.  Amazing.  We were supposed to discuss the use of legal history in constitutional litigation, but it never really came up in the course of the evening.  Still, the readings assigned for that night never really left my mind, and I ended up writing my final paper on some assorted musings on the infamous “historians’ amicus brief” in Webster v. Reproductive Health Services.  492 U.S. 490 (1989).

I have since revisited that paper and spent some more time thinking about legal history, its methodology (as I understand it), and some philosophical implications.  Over the course of a few blog posts, I want to share these thoughts.  Hopefully, they'll be presented in a logical and organized way . . . but one can only hope.

A note of warning: while I did study history as an undergraduate, I am not a historian. Consequently, I beg the reader’s forgiveness for how I grapple with the philosophical implications of the field’s methodology — at least as I understand it is conceived within the legal academe.  If anything, my failings may inspire some feedback in the comments, and thereby be fruitful nonetheless!

*  *  *

Legal historians are frequently concerned with avoiding the charge of “presentism,” that is, the use of historical facts, or descriptions of the past, in advancing political, or more generally normative claims about how we ought to behave in today’s world.  In another sense, presentism in historical analysis can refer to the use of contemporary terminology, conceptions, and knowledge in interpreting historical situations.  While the former definition suggests an underlying teleological conceptualization of history qua academic science, the latter represents a sort of methodological anachronism.  The two admittedly go hand and hand quite frequently, but they are not necessarily related to one another.

An illustration of the two meanings that I have proposed may prove beneficial.  Consider the concept of popular democracy.  Modern notions of freedom — or more precisely, positive freedom (as Isaiah Berlin might specify) or individual autonomy — require that any given community allow its constituent members to participate in the political process vis-à-vis democratic means.  Indeed, it has become self-contradictory to speak of individual liberty under an absolute monarchy, for example, let alone some other form of authoritarianism.  Consequently, a “presentist” historian may attempt to interpret history through the lens of this modern understanding of “freedom.”  In so doing, he would likely use the condemnatory language reserved for modern dictatorships in describing, say, the mediaeval feudal system, or imperial mercantilism as practiced in the American colonies, even though contemporaries of either period might not have understood these political systems to be “repressive” in the same way.  In the legal context, the presentist would see laws that may never have been understood by their creators to be opposed to “freedom,” as achieving just such opposition.  Finally, the “presentist” historian might suggest that the progress evidenced by history, which has lead to today’s acceptance of popular democracy as a sort of politico-moral imperative, is somehow good and determinative.  In other words, that history has “show” democracy to be something that “ought” to be practiced.

This may seem like an extreme illustration, and in some sense, it is.  True instances of presentism are few and far between.  And even when there are traces of presentism in the legal literature, they are often masked, or difficult to discern.  At the same time, some level of presentism is expected.  Because law is typically understood as a normative system, it makes sense to look to past practices to glean information that can inform contemporary decision-making.  In some sense, this is exactly the project of constitutional originalism, which looks to the original public meaning of constitutional provisions at the time of the Founding, or their ratification.  On this approach to constitutional interpretation, history is very much authoritative.

What I have referred to as teleological presentism, then, is not unknown and may even be ubiquitous.  Yet, presentism can also be witnessed in another sense, and, once again, more so in the context of the law.  I recently read a forthcoming paper from a young professor down South.  His name is unimportant — his paper was only a draft, and I do not want to “cite” him — but his project was fascinating.  In short, he attempted to argue that “federalism” was a concept as amenable to modern liberalism as it is to conservatism and classical liberalism.  I was skeptical when I first read the paper, and remain unconvinced, but that is not so important.  What is important is just how much presentism pervaded his work.  It seemed to me that his whole project was a methodological anachronism, insofar as it adopted modern progressive conceptions of federalism in place of the thicker political understanding that had been adopted by the Founders.

But I digress.  The point is that presentism abounds in legal thinking.  Yet, presentism and deterministic historical accounts are also proliferate in the non-legal historical literature.  Francis Fukuyama and Samuel Huntington are two prime examples from the realm of popular history and political theory.  Fukuyama is infamous for his pseudo-Hegelian theory of the convergence of history in an ultimate “end,” namely, the success of liberal democracy, which he details in The End of History and the Last Man.  In rather Whiggish fashion, Fukuyama generally understands history — whether legal, political, or economic, etc. — as progressing toward the emergence and supremacy of liberal democracy.  All history, then, should be read in light of this evolutionary development, much like Marxian theory understands all history as class warfare moving toward the ultimate victory of communism.  Samuel Huntington, on the other hand, in his rejoinder The Clash of Civilizations, takes a view of history as being marked by the continually volatile relations between different cultures.  In either case, both Huntington and Fukuyama “do” their history with certain philosophical presuppositions as to the nature of their subject of inquiry.

Lawyers, jurists, and legal historians tend to incorporate similar normative criticisms into their academic work as a matter of habit.  And they similarly come to the table with certain philosophical presuppositions, even if they deny this to be the case.  The law is concerned at some level, no matter one’s personal jurisprudential views, with the regulation of human behavior.  One need not be an Austinian to recognize that the law serves an important role as the class of rules enforced by the political community under the guise of a sovereign — even if, like the Natural Lawyer or the Realist argues, there might be “more to the story.”  Insofar as law itself is normative, even if only in a phenomenological or experiential sense, lawyers et al, will be concerned with how it ought to be designed and implemented, and how justice ought to be met.

Obviously, I will be unable to provide an exhaustive account of my views on these matters.  But I hope, nevertheless, to undertake a cursory explanation for how and why history can (and should) be used to inform (and influence) judicial decision-making and legislation.  In short, I do not see history as some purely analytical science that is immune from biases, prejudices, and other such presuppositions.  And I do see history as being a useful tool, especially in conjunction with other sciences such as philosophy, political theory, and economics, in ordering society and our legal order.