Not if I can help it, anyway. I recently posted a comment at the New Republic, regarding an article that Martha Nussbaum had written on Roger Williams, a commented that suggested, among other things, that I hoped I would live long enough to see Martha, Richard Posner, and Justice Scalia fighting it out with socks filled with dung in a cold rain. Now that Martha’s piece, and my response, are headed for the Memory Hole, I’d like to unpack that dung-filled sock/cold rain riff a little, to show you where I was coming from and where I was going.
Like Martha, I’m a big fan of Roger Williams, and her article, which largely consists of quotes from Roger, makes good reading. (It’s also a great way to pad your word count.) Martha also has some very good things to say about the categorical imperative, of which I am a very big fan. So where’s my beef?
Well, first of all, Martha starts off with the observation that “the struggle to create societies that protect religious liberty and show respect for religious difference is never-ending.” I can agree with that, but then she starts pushing. “When we consider the current uproar over Muslim immigration, particularly in Europe, we can see that the allegedly enlightened societies of the West still have a lot of learning to do.”
Really? The problem is with the “allegedly enlightened societies of the West”? How about the aggressively unenlightened societies of Islam, societies that are deliberately seeking to emulate, and even exaggerate, the ruthless intolerance of the medieval past? Martha coyly does not say exactly what “we” are doing wrong. She doesn’t say whether we should allow Muslim men to have seven wives, whether she’s down with stoning adulterous women to death, whether Salman Rushdie should have been handed over to Iran for execution, whether we should ban Dante for speaking ill of the prophet, or whether we should execute living translators of the Comedy. She doesn’t say anything other than that it’s “our” fault.
After that disingenuous bit of blame-shifting, Martha gives a nice biographical sketch of Roger Williams, though not without occasional bits of cuteness. Among other things, she says that life in the early days of the New England colonies was “fragile and exposed. The wind, the seas, the forests, the deep snows—all this was very strange to people accustomed to life in England, whether urban or rural.” I’m sure it was “fragile and exposed.” But “wind, the seas, the forests, the deep snows”—you do get that on the other side of the Atlantic.
Martha’s point is “The Europeans of Massachusetts reacted to insecurity by enforcing orthodoxy of religious belief and practice.” But, again, you get that on the other side of the Atlantic as well. In fact, Martha gives an example: “In 1630, a leading Puritan reformer was placed in the pillory in London. One of his ears was cut off, one side of his nose was split, and he was branded on his face with the letters SS, for “Sower of Sedition.” Later the other side of his nose was split and his other ear was cut off. For good measure, the man was then imprisoned for the rest of his life.” I don’t think intolerance was invented in the USA.
Martha’s account of the founding of Rhode Island, where a shocking amount of religious tolerance was available, and where slavery was outlawed, is excellent, but she soft-pedals the fact a lot of the Rhode Islanders were irreligious rather than tolerant, looking for easy money and good times rather than searching for heaven. While Williams was writing his beautiful, passionate books, they were selling booze to the Indians.
Where do Justice Scalia and Judge Posner come into all of this? Well, Nino wrote the majority opinion in Employment Division v. Smith, a case holding that peyote use for religious purposes does not enjoy constitutional protection, a decision Martha calls “controversial,” because she disagrees with it. Apparently, she found Nino’s arguments to be Lockean rather than Williamsian. And in the last issue of TNR, Posner was all over the Justice in a long, entertaining article on the Washington, DC gun case, accusing Scalia of non-Posnerianism, a grave crime. So Nino has been getting it from both left and right. It’s almost enough to make me feel sorry for the little schmuck. But not really.
Afterwords
Where would I come down on Employment Division v. Smith? I wish states would not ban peyote use by anyone, but they do, and it’s clear that they have the “right” to do so, so my problem with the actual facts of the case (the State of Oregon denied unemployment benefits to some Indians convicted of using peyote) is that Oregon was so pissy as to deny UI benefits to anyone simply because they’d been busted for drugs.
I don’t like the idea, which Nussbaum is pushing, that anything “religious” or religiously inspired is in fact sacred, because I don’t believe in “the sacred.” Nussbaum is pushing this idea, of course, because she wants to use it as a stick to beat us Enlightenment types who tend to turn up our noses at, well, medieval fanaticism. I doubt very much if Nussbaum is supportive of the proposed “freedom of conscience” regulations being sponsored by the Bush Administration that would allow employees of pharmacies, hospitals, and other institutions the “right” to refuse to provide contraceptives to those requesting them.*
As for Judge Posner and Nino, Posner gives the good Justice a well-deserved beatdown for his absurdly long-winded (25,000 words) decision in District of Columbia v. Heller that, amazingly enough, gives Nino exactly the result he wanted—that the Second Amendment provides a constitutional right of self-defense (which it doesn’t, of course), which includes the “right” to own a pistol and not just a rifle (the hair-splitting that Nino uses on this one is particularly hysterical), and that all previous federal court decisions that ban specific weapons are still valid (say what?).
The problem for Posner is that in his book on Bush v. Gore (and in this article) he argues for a “loose” approach to interpreting the Constitution that explicitly gives the Supreme Court to decide what is “right” based on what the Court believes is “right” for the country, regardless of the letter of the Constitution.** Since, by this argument. the Court has the right to create the law, not just interpret it, the law (and the Constitution) is what the Court says it is. According to Posner, it’s impossible to compare a Supreme Court decision to a higher standard because the Court is the standard. Except, of course, when it’s Posner who’s doing the comparing. Posner exalts the Court over the Constitution and then exalts himself over the Court. But, hey, he’s only an appellate court judge, right? A damn nobody!
*Apparently, you have to believe that the contraceptive would cause an abortion, but the wording of the regulation is deliberately designed to allow people to “believe” that birth control pills can cause an abortion. But they do have to sell you rubbers. Male chauvinism? Perish the thought!
**Posner specifically says that if the facts in Bush v. Gore had been reversed, the Court could have “justly” decided against Gore—it could have reasoned that it was “important” for Bush to be assured of victory, but not important for Gore—the Court could have based its decision on the grounds that Bush should be President and Gore shouldn’t be. Posner (obviously) based this argument on his dislike for both democracy and the Democratic Party.
