Will Herberg enshrined the concept "Protestant Catholic Jew" in his 1955 book of that title (
Protestant--Catholic--Jew: An Essay in American Religious Sociology).
Recalling to my mind his sociology of American religion,
Christianity Today recently published an article by Elesha Coffman, "
6 Catholics, 3 Jews" which resonates and updates the Herbergian observation of yesteryear. Coffman's piece is food for serious thawt, especially at this moment of USA President Obama's nomination of
Elena Kagan to the Supreme Court of the day. Because the Senate has to confirm his nomination of her, she is, of course, being raked thru the coals by some sectors of the newsmedia, where her presumed sociological profile is being juxtaposed by many to illuminate her stands on specific issues in which in times past she interjected herself politically. This current feeding frenzy on Kagan biography is fueled, it is claimed, by the thin gruel of her "paper trail," her lack of a thick stack of juridical judgments and books. Apparently, media responsibles can't do their job critically, because there are so few texts to examine, texts from Kagan's juridical mind and hand.
But the lack of court decisions and books written by her has been challenged as a reason for claiming she is a virtual unknown. There are other sources, a huge stack of them has been supplied recently by the White House to the appropriate Senate investigators (Senate Judiciary Committee and its staff).
Again, I update with a fifth citation from the
Volokh Conspiracy blog. I quote Jonathan Adler (May 15):
Elena Kagan’s Paper Trail
Posted: 15 May 2010 03:09 PM PDT
(Jonathan H. Adler)
Some commentators have suggested that Elena Kagan is a nominee without much of a paper trail. I think this is overstated on two counts. First, her academic writing is more substantive than some have given her credit for (see here and here). Second, there appears to be a substantial amount of material from her time in the Clinton Adminsitration for the Senate Judiciary Committee to review. Documents from her tenure at the Domestic Policy Council have already been released. As Byron York reports, this is only the tip of the iceberg. There are many more documents from her time in the White House Counsel’s office — documents Senators are certain to demand, citing the release of papers from John Roberts tenure in the Reagan Administration as precedent. These records will shed more light on Kagan’s approach to legal and policy questions, even if they don’t reveal how she is likely to approach (let alone vote upon) specific issues.
In the meantime, a picture of her in
Wall Street Journal at bat on some baseball diamond suddenly is squeezed to yield up an ostensibly damning meaning, a semiotic significance that she be a Lesbian (she opposed "Don't ask, don't tell," the rubric of the American military established under President Clinton, in whose administration she served). Kagan whatever her sexual identity used her position to back this abolitonary demand upon military sexual morality and policy, as ferociously attacked by the Gay-agenda activists. She also opposed USA military recruitment on the Harvard University campus while she was Dean of the Law School there, while on other matters she has been respectful and supportive of the American military. The precise views mentioned were foolish and injudicious stances, in my view.
I saw a pix from WSJ on TV of Elena Kagan up to bat, but coudn't get to it to grab; so I had to settle for this one of her at some basebal diamond for a pickup game in Chicago when she was a prof there. I'm now unsure of the source of this one. Sorry!
But that some of her inquistors and naysayers extrapolate to a sociological designation of "Lesbian" is beyond belief and common decency. To hell with that vile nonsense. Indeed, were she a Lesbian, shoud she become a SCOTUS Judge, she coud participate in the bench's dialogue with contestants were the Court to hear a case, for instance, on so-called "gay marriage." At the same time, she coud recuse herself from the actual SCOTUS vote deciding the case, because of a self-acknowledged bias aforehand and perhaps a personal stake in the actual decision. Were her fellow justices curious, she coud explain herself confidentially to them. Her choice.
The issue of her potentially deciding a "gay marriage" case has been raised by some learnèd honchos who I presume to be afflicted with extreme r+twing blinkers on this matter. Full disclosure: I'm homo and celibate and principially opposed to deflationary views of marriage, so that other creationally-differentiated kinds of intimate unions are not treated as unique and distinct from marriage. And unique from one another (an erroneous conflation that happens around the rubric and pseudoconcept of "same-sex marriage," a self-contradictory neologism to be sure). But, what a confusion is spread by Elena Kagan and her bipolarized opponents alike in their reductionist either/or binomial logic, held in common.
Having said all that, on the Internet I've found some posts -- "
I Should Note for the Record" (May12,2k10) and "
Bisexual Erasure" (also May 12) by lawyer Eugene Volokh and another by Orin Kerr ("
Why Catholics and Jews?" May 14) and, updating this blog-entry, yet another by David Bernstein, "
Why Jews and Catholics on the Supreme Court?" (May 14) -- all four posted on that most lawyerly blog,
The Volokh Conspiracy -- again, with these blog-entries well in mind, the sexual-identity sociological factor and the religious-sociological factor are both addressed principially and with r+t good humour by the lawyers / bloggers mentioned. Thank God for this particular blog Conspiracy!
Even so seasoned, nevertheless, philosophy of law itself cannot solve the problems of political and juridical practice by any direct route. There woud have to be a Dooyeweerd-aware Justice on the Supreme Court for me to make an argument today that at least my hypothetical SCOTUS justice coud understand. Neither Catholics nor Jews -- in the present lack of inter-religious depth-dialogue in law, its philosophy, and its American sociology -- shoud be expected to understand an essentially Protestant approach of Dooyeweerd's kind where there is today in America no cultural context for such an understanding.
In all these considerations, pertaining to the case at hand, the amusing irony is that nominee Elena Kagan, contrary to her own previous politics and activist stance (but she was
not an activist
judge!), regarding her sexual orientation, whatever that may be, shoud be governed by the rubric she earlier rejected as a Harvard law-school dean: Don't ask, don't tell. It's none of our business as to whether or not she's a Lesbian, a Bisexual (as Volokh discusses ... there are already 123 comments regarding his post), or a 100% Hetero.
What's more, Protstants in the USA and Canada have a unique stance to contribute eventually some day in regard to the philosophy of law. That future contribution may be found in the importation of translated scholarly work by Herman Dooyeweerd (1894-1977), a professor of jurisprudence at the Free University of Amsterdam (VU Amsterdam) in the immediately preceding generation. His general philosophy is expressed in the 3-volume
New Critique of Theoretical Thought, long available in English and now undergoing textual revision at the
Dooyeweerd Centre, Redeemer University College, Ancaster, Ontario, Canada. However, his
magnun opus in philosophy of law as such,
Encyclopedia of the Science of Law, is only slowly being realized in translation, only one of its several volumes having already been published and a second volume in translation currently. Graduate law faculties at Protestant institutions of h+er learning, however, are barely aware of the existence and development of the publication of this vitally important work for the philosophy of law. The existing and forthcoming volumes in English of these works shoud be
de rigeur at said institutions (to further such a long-term cultural diffusion, perhaps we shoud compile a list of the Protestant-identified law schools in the USA, altho even there the preconceived notions and biases of the guilds and faculties will be strong in resistance to Dooyeweerd's innovative and demanding conceptualizations).
Yet, for the present, the term "Protestant" has no intrinsic meaning for jurisprudential theoretics in America (to say nothing of any future influence on functioning justices, judges, lawyers, and politics -- except thru the lens of some of us followers of Dooyeweerd's legal-thawt leadership, those of us who have critical affinities for American originist and constitutionalist historical foundations with their massive Protestant Christian element.
Also important from the Dutch are the works of Dooyeweerd's student and succesor at the VU law faculty, Prof Dr H J van Eikema Hommes. Some of the works of Hommes are translated, like his 1979 chapter in
Major Trends in the History of Legal Philosophy (Chapter 15). Another of Dooyeweerd's graduate students, Johan Mekkes wrote his "voluminous" 1940 doctoral dissertation on "the development of the humanistic theories of the law-state," theories toward which Dooyeweerd took a somewhat antithetical stance. This work of Mekkes needs to be translated and published and made readily available in the USA (and other English-speaking countries). A later student of this element of the VU law-faculty heritage is R D Henderson (now teach at Dordt College, Iowa),
Illuminating Law: The Construction of Herman Dooyeweerd’s Philosophy (Free University: Amsterdam; 1994). Another is David Caudill,
Christian Legal Theory: The Example of Dooyeweerd's Critique of Romanist Individualism and Germanic Communitarianism in Property Law , 5
Georgetown Journal of Law & Public Policy 531-560.
The biblios of American law-philosophers Henderson and Caudill I have gleaned from Steve Bishop's bibliography (2007) on
reformational wiki.
Two law philosophers born in South Africa and now teaching in the USA shoud also be mentioned here: John Witte, and Johan van der Vyver (both at Emory Law School at some time).
Alan Cameron of New Zealand also belongs to this list; he is recently retired from his longtime post at Victory University of Wellington where he tawt the law of accountancy and contributed internationally to Dooyeweerd studies in law, a principal in translating the
Encylopedia.
The UK scholar of Dooyeweerd studies, Jonathan Chaplin, will have his long-awaited book on Dooyeweerd's thawt published by Notre Dame University Pres in early 2011. Dr Chaplin is director of the Kirby Lang Centre for Christian Ethics, Tyndale House, Cambridge, England. He is an expert on the comparison of Dooyeweerd's concept of sphere sovereignty with the Catholic magisterial concept of subsidiarty; Chaplin aims toward a rapprochement, even synthesis perhaps. This is an effort for depth-dialogue between Catholics and Protestants relevant to the philosophy of law.
Returning to the main topic of this blog-entry, may I note at length a recent text from
Washington Post via
First Amendment Center website, "
No Religious Test Means No Religious Test," a blatant begging of the question at hand, a matter which actually turns on diversity and pluralism in the composition of the court (you know, like race, gender, and other considerata of sociological enrichment of the Supreme Court's nomination process). The article was written by Charles C. Haynes who is the Director of the Religious Freedom Education Project.
Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations — the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America's religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
The current makeup of the Supreme Court — and the nomination of Elena Kagan to replace Justice Stevens — may well signal that religious affiliation is no longer a consideration in the process of selecting justices for the high court. If that is true, it would be cause for civic celebration. We may finally be living up to what we say we believe as a nation.
After all, Article VI of the U.S. Constitution requires that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." That means it is unconstitutional for the president or Congress to make religious affiliation a factor in either the nomination or confirmation of Supreme Court justices.
But in the real-world history of American politics, religious affiliation has often mattered. It is no accident that 91 of the 112 nominees to the Court have been Protestants. And students of Court history are aware of past behind-the-scenes maneuvers to fill a "Catholic seat" or to keep a "Jewish seat."
The fact that all of the seats on the Supreme Court may soon be filled by Roman Catholics and Jews is a fitting, if somewhat ironic, end to the religious tokenism of the past.
Given the ugly strains of anti-Catholic nativism and anti-Semitism in American history — strains that persist to the present day — it is heartening that the current religious affiliation of justices stirs so little comment and almost no controversy. As far as I can tell, the fact that Kagan is Jewish has been greeted with a collective shrug by most of the public.
Of course, we still have some distance to go. Jews and Catholics may have arrived at the Court, but Muslims, atheists and others are unlikely to be nominated anytime soon. In judicial nominations as in electoral politics, religious tests often still apply.
As for the departure of the last Protestant on the Court, I think it is fair to say that most evangelical Protestants will be happy to see him go just as many liberal Protestants will mourn his loss. What matters in a Supreme Court nominee for many religious people on the Right and Left is not religious affiliation but core principles and judicial philosophy, especially as applied to such issues as abortion, same-sex marriage and the separation of church and state.
Future Supreme Court nominees will no doubt include Protestants as well as some of the many other faith traditions in what is now the most religiously diverse country on earth. But I believe it would be the mark of a mature and healthy democracy if no one really noticed.
-- Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.
There is an absurdist streak in this insouciance, amounting to literal carelessness. It is impossible that no one really noticed, because it is the task of sociology to notice such difference, diversity, and any particularist evaluations thereof. The logical expansion of Haynes' presumptuous idea here is that diversity does not include religious-cultural difference in the religious and cultural mosaic of America. Indeed, some Catholics appear as different in legal philosophy due to the prioritization in Catholicism of the "consistent ethic of life," a perspective that is tawt at law schools that self-identify as Catholic, also at many of those that self-identify as Evangelical and/or Pentecostal -- that is, at law schools that self-identify as Protestant.
This further relates to the empirical sociological fact that the law school of origin of most SCOTUS nominees does figure into both the nomination and confirmation processes of candidates put forward for elevation to the Supreme Court bench. Perhaps only one graduate of Harvard Law School shoud be elevated to that bench, at a time. And nominees from a wide diversity of law schools shoud be encouraged. If a nominee is chosen from business, unions, or other professions but where there is a paper trail giving evidence of respected law-thinking by a non-lawyer, non law-academic, non-judge, thinking other than that of lawyers and judges, still the rule of thumb shoud be only one at a time from any given law school (the USA has hundreds of them) or from any particular state (the USA has 50 states). Haynes seems rather scatterbrained, in his nostrum that he can beg the primary question posed by a religion-saturated history and culture such as that of the USA. He should go back and read Herberg, as a starter in his re-education. Then maybe he should read Dooyeweerd's
Encylopedia of the Science of Law.
-- Lawt
Further Sources:
'Should' and 'supposed to' when it comes to Supremes
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