The Volokh Conspiracy

As both a libertarian and an atheist, I rarely find myself in agreement with Pope Benedict XVI, who tends to be socially conservative and economically statist. Benedict also suffers by comparison with his predecessor John Paul II, who played a key role in the fall of Communism and did much to combat anti-Semitism and improve Catholic-Jewish relations. As John Allen shows, however, Benedict seems to have gotten at least one important issue right that John Paul did not. An excerpt:

There is, however, one intriguing area of contrast [between Benedict and John Paul]: Islam. To put it bluntly, Benedict is more of a hawk, pursuing a kind of interaction with Muslims one might call "tough love." ......

In his March 23 session with cardinals, much conversation turned on Islam, and there was general agreement with Benedict's policy of a more muscular challenge on what Catholics call "reciprocity." In essence, it means that if Muslim immigrants can claim the benefit of religious liberty in the West, then Christian minorities ought to get the same treatment in majority Muslim nations.

To take the most notorious example, if the Saudis can spend $65 million to build the largest mosque in Europe in Rome, in the shadows of the Vatican, then Christians ought to be able to build churches in Saudi Arabia. Or, if that's not possible, Christians should at least be able to import Bibles, and the Capuchin priests who serve the Arabian peninsula ought to be able to set foot off the oil industry compounds or embassy grounds in Saudi Arabia without fear of harassment by the mutawa, the religious police. The bishop in charge of the Catholic church in that part of the world recently described the situation in Saudi Arabia as "reminiscent of the catacombs."

It's the kind of imbalance that has long stuck in the craw of many senior figures in the Catholic Church, but these complaints were largely suppressed in the John Paul years as part of the pope's Islamic Ostpolitik. John Paul, who met with Muslims more than 60 times over the course of his papacy, and who during a 2001 trip to Damascus became the first pope to enter a mosque, believed in reaching out to Islamic moderates and avoiding confrontational talk.

Benedict XVI clearly wants good relations with Islam, and chose to meet with a group of Muslim leaders during his August trip to Cologne, Germany. Yet he will not purse that relationship at the expense of what he considers to be the truth.

The rest of the Allen article contains a lot of interesting information about Benedict's policies and a critique of the conventional wisdom that he is a heavy-handed conservative. I don't know enough about the issues involved to know if Allen is right or not, but it's certainly an interesting take on the Pope.

UPDATE: I think that some commenters have been confused by the article's reference to "reciprocity," which they interpret as implying that the Pope believes that Muslims in Europe should only have freedom of religion contingent on the granting of similar rights to Christian minorities in the Muslim world. I highly doubt that this is Benedict's position. At least since Vatican II, the Catholic Church has consistently taken the view that adherents of all religions should have freedom of conscience (even if it has often failed to speak up actively against religious repression in the Muslim world). I am not aware that Benedict has done anything to change the Church's position on this, though I admit that I haven't followed his policies closely.

This is a post I sent to a con-law e-mail list about Eugene's analysis of the Miami school's decision to exclude a pro-Castro book from the school library. I thought it might be of interest to some VC readers as well:

It seems to me that running a public school necessarily involves choosing between different ideas on the merits, and excluding at least some of them. We cannot teach all conceivable viewpoints in, say, a public school history class. Therefore, schools will probably teach the Holocaust without much (if any) consideration of the views of Holocaust deniers. Similarly, they will teach science courses without including the views of the Flat Earth Society. To say that this is unconstitutional is to say that public schooling itself is unconstitutional.

The same goes for school libraries. They cannot stock copies of every book ever published. Therefore, they have to make choices based in part on the quality of the book's content and how it fits in with the school's curriculum. The perceived accuracy of the ideas in the book is going to be a part of any evaluation of quality. Holocaust denial books, pro-flat earth books, and others will inevitably get short shrift.

Although I agree with the Miami school's decision in this particular case, I do not like the general idea of giving government such power. Obviously, they will sometimes use it to indoctrinate children in ideas that are wrong and exclude ideas I think are right; and even the exclusion of mistaken ideas can also cause harm for Millean reasons. Worse, the indoctrination - if adopted as policy by a state or federal government - could spread to millions of children across a wide area, not just to those who attend any one school.

To my mind, the best solution would be to get government out of the business of supplying education (though it could still fund it through vouchers or tax credits). That would reduce, if not eliminate, the state's ability to engage in large-scale indoctrination of children. Individual private schools might still make bad decisions on these issues, but there would be no centralized authority capable of enforcing a dangerous orthodoxy throughout the whole of the nation or an entire state. But I do not think that this approach is required by the Constitution. So long as we have public schools, we must also give the state the power to determine which ideas will be represented in the curriculum and which will not.

UPDATE: This is not essential to the more general argument I am making in the post. But it may interest readers to know that my parents (like nearly all children in the Soviet Union) were members of the Soviet Pioneers, the youth organization group on which the Cuban Young Pioneers were explicity modeled (even the name is virtually identical). The main purpose of both organizations was to indoctrinate children in communist ideology and teach them to hate the regime's enemies (both domestic dissidents and foreign opponents, especially the US). Most if not all the children were well aware of this for the good reason that it was constantly drummed into them. An elementary school textbook that discusses the Pioneers without mentioning their main function is inexcusably misleading. It would be like a textbook that portrayed the Hitler Youth (which had many similarities to the Pioneers) as an organization focused on sports and camping without mentioning that its main purpose was indoctrinating German children in loyalty to the Nazis.

I still remember watching a documentary on the Hitler Youth with my father when I was 9 or 10, and him commenting on how the rituals and indoctrination methods portrayed in the film were so similar to those he experienced in the Pioneers.

Inspired by the interest generated by my post on "The Law of Star Trek," I thought I would devote a post to the intersection between science fiction and fantasy literature and one of my major academic research interests - federalism and decentralization. Despite the quip in the previous post, I think there is some value to exploring political themes in SF, although that value is easily overestimated. And even if there isn't any value it's still fun!

In sharp contrast to legal scholars and other academics, the majority of whom tend to favor relatively centralized government, major science fiction and fantasy writers tend to support decentralized political systems or even anarchy. I am not arguing that decentralization is the main theme of these works and in some cases it isn't even conscious. But it does seem to be there.

A few examples:

1. J.R.R. Tolkien

Sauron and Saruman's efforts to unify Middle Earth under centralized rule are portrayed negatively. When the "good guys" win at the end, King Elessar (Aragorn) establishes a highly decentralized state, with regions such as the Shire and Rohan enjoying near-total autonomy. This was actually a conscious theme of Tolkien's work, as he hated what he considered the excessive, homogenizing centralization of modern industrial society, and also despised the centralizing policies of Britain's post-WWII Labor government.

2. Ursula LeGuin

LeGuin is, of course, an anarchist, and many of her books explicitly promote anarchy and denounce government, particularly The Dispossessed.

3. J.K. Rowling's Harry Potter series.

The Harry Potter series portrays government so negatively that even the "most cold-blooded public choice theorist could not present a bleaker portrait." The state is portrayed as both venal and incompetent throughout the series and virtually every positive achievement is the result of decentralized private initiative.

4. Isaac Asimov's Foundation.

A centralized galactic empire breaks down as a result of bureaucratic sclerosis (symbolized by the literally labyrinthine bureaucracy on the capital planet of Trantor). Only decentralization combined with the private initiative of the shadowy Foundation saves the day. The work is somewhat ambiguous because the Foundation's goal is to eventually establish a new and better empire. Nonetheless, the evils of centralization are powerful portrayed, while its benefits receive short shrift.

5. Marion Zimmer Bradley.

In The Mists of Avalon, Bradley is very hostile to the efforts of the Church and the central government to curb the autonomy of local communities (including Avalon itself) and impose a unified state and religion. Centralization is also viewed skeptically in her Darkover series.

6. Robert A. Heinlein.

Heinlein attacked centralization in many of his books. Not surprising, given that he was a libertarian.

7. Vernor Vinge.

Same as Heinlein above.

8. David Brin.

Defends decentralization in several of his novels.

9. Frank Herbert

In his famous Dune series, a horrendous war arises from the efforts of the galactic Emperor to extend his power over a what had been a relatively decentralized political system (Dune). Even more carnage arises from the hero's efforts to consolidate his own imperial authority after he overthrows the previous emperor (Dune Messiah). Eventually, only the destruction of the empire enables humanity to be saved and renewed (God Emperor of Dune).

10. Orson Scott Card.

This is a partial exception. Card's Ender series portrays sympatheticallyPeter the Hegemon's efforts to unify Earth under a single (and increasingly powerful) government. However, the effort succeeds only because dissenters are given the chance to establish colonies on other worlds that will be highly autonomous.

Two prominent examples from TV sci fi:

1. Star Trek.

The Federation is a very loose federal system with each planet enjoying a high degree of autonomy. This is portrayed favorably, while centralized empires such as the Romulans, the Dominion, and the Borg are viewed negatively.

2. Babylon 5.

There is a sympathetic portrayal of the efforts of Mars and other colonies to secede from Earth. Centralized empires (the Vorlons, the Shadows) are criticized for their efforts to destroy local autonomy. Even the efforts of "the good guys" to establish a UN-like Interstellar Alliance are portrayed as a failure that ends up making the situation worse.

Conclusion:

What is interesting about the strong support for decentralization in sci fi and fantasy works is that it cuts across ideological lines. It is not just libertarian (Heinlein, Vinge) and conservative (Tolkien) writers who favor it. So too do liberal (Rowling, Herbert, the creators of B5 and Star Trek), and radical ones (LeGuin, and also Samuel Delaney, whose work I probably should have included in the list). In several cases, particularly LeGuin, Tolkien and Vinge, the critique of centralized authority and advocacy of decentralization is a consciously intended theme.

Of course, this is not an exhaustive analysis and I'm sure I've missed some counterexamples as well as inevitably oversimplified the work of the writers I've covered. Nonetheless, this is an interesting trend, especially given the contrast between the sci fi and fantasy writers and the views of most other intellectuals, particularly those on the political left.

UPDATE: I thought it was reasonably clear in the original post that decentralization does NOT = libertarianism. Although most libertarians support political decentralization, so too do some nonlibertarians. Thus, I tried to point out that the support of LeGuin, Rowling, etc. for decentralization is interesting - in part - precisely because they are NOT libertarian or conservative. However, it seems that I was not as clear about this as I thought, so I have tried to restate the point here.

Legal Affairs has an interesting review of a new volume of articles by legal scholars on the role of law in Star Trek. Although I like science fiction (despite not being a "Trekkie"), I wonder if this is the most productive possible use of academic research effort. It certainly won't help law professors overcome the invidious stereotype that we are a bunch of nerds who have no life!

Finally, at the risk of being inundated with angry e-mails by Star Trek fans, I have to say that, in my view, the treatment of law and politics in Star Trek is not as interesting and sophisticated as that in other sci-fi series such as Babylon 5 and the new Battlestar Galactica. But for fear of really reinforcing the invidious stereotype noted above, I'm not going to write an essay justifying this conclusion!

Barrels of ink have already been spilled over the Supreme Court's narrow 5-4 decision in Kelo v. City of New London, including some by yours truly. In "The Green Costs of Kelo: Economic Development Takings and Environmental Protection," environmental law professor Jonathan Adler and I have now put together the first article to systematically examine Kelo's implications for environmental policy. It is available here, and currently under review by journals.

We argue that the Supreme Court's decision to allow government to condemn property for transfer to other private parties in order to promote "economic development" may well harm the environment. In particular, private conservation land (an increasingly important tool for protecting environmental amenities and wildlife) is likely to be targeted for condemnation by developers and their allies in local government because conservation property contributes little to development and is usually not subject to property taxes. Allowing economic development condemnations also harms the environment in several indirect ways that we detail in the paper.

Some environmentalists fear that forbidding economic development takings would undermine the use of eminent domain for environmental purposes. Jonathan and I show that these fears are probably groundless. Not even the hint of such a trend has arisen in the nine states where economic development condemnations are banned by state constitutional law. And nearly all environmental takings can easily be justified under one of several legal rationales that would remain intact even if economic development takings are banned.

I won't go into the legal nitty-gritty here. But constitutional law, property, and environmental policy buffs are welcome to read about it in the paper and give us your thoughts.

Others are, of course welcome to comment as well. Though if you want to address the technical legal issues, I hope you will at least skim the paper first.

UPDATE: To avoid confusion, it is important to note that the paper discusses the consequences of the Kelo majority's decision to permit economic development takings as opposed to banning them. We argue that the latter approach is, overall, superior from an environmental point of view. Accordingly, it makes no difference to our thesis that the Supreme Court's pre-Kelo jurisprudence also did not ban economic development takings, a point that is acknowledged in the paper itself. It is still the case, or so we argue, that banning economic development takings, as several states have done, would be preferable from an environmental point of view (as well as for other reasons).

I'm very grateful to Eugene for clearing up my gender identity crisis.

And like some of the commenters, I certainly wish we had more female libertarians - for both ideological and, ahem, nonideological reasons:).

Within the legal academy, I think it's clear that Lochner is slowly losing its status as an anti-canonical case, in part for precisely the reasons David suggests. That is not to say that most law professors agree with it - they do not. But far fewer than before regard it as unquestionably wrong and as a symbol of judicial evil.

In addition to the excellent historical research by Siegan, David, and others, Lochner's reputation has also benefited from the return of free market economics to intellectual respectability over the last 30 years. In order for a decision to enter the anti-canon, it usually has to be regarded not only as unquestionably wrong from a legal point of view, but also as an endorsement of what is seen as an obviously evil policy result. That's why Plessy and Dred Scott are so widely reviled, while numerous other decisions with equally bad or worse legal reasoning have not suffered the same fate.

Obviously, most law professors (though a smaller percentage than before) still don't like the policy impact of Lochner. But since the rise of law and economics it's much tougher for them to claim that that impact was obviously negative. For example, even the con law textbook from which I teach, coauthored by four prominent liberal academics, seems to endorse the now conventional view that the maximum hours statute invalidated by Lochner was enacted for the purpose of driving small bakeries that employed poor immigrant bakers out of business in order to benefit their competitors - larger bakeries that primarily employed somewhat wealthier native-born workers. In other words, far from benefiting "the workers" at the expense of "the capitalists," this law was benefiting relatively wealthier capitalists and workers at the expense of poorer, less-established members of both classes. And that's not even to mention the impact of higher food prices on consumers, which also disproportionately harmed the poor; this part, I think, is not given sufficient attention even in the revisionist scholarship. None of this proves that the law was unconstitutional (many harmful laws are not). But it does throw a wrench into the standard class warfare morality tale that used to be the unchallenged conventional wisdom on Lochner.

That said, Lochner's reputation has changed much less (if at all) among lawyers outside the academy than within the ivy walls. That may begin to change as more attorneys educated within the last 10-15 years enter the top echelons of the profession.

I just wanted to second (or rather "third") the tributes to Bernard Siegan. Unfortunately, I never met Prof. Siegan, but I well remember the exciting experience of reading his book Economic Liberties and the Constitution as a college sophomore. It certainly opened my eyes to many aspects of constitutional history that I had never even heard of before (and, as I later learned, neither had mainstream legal scholars at the time the book was written and for some time thereafter).

Sadly, Prof. Siegan never got the full credit he deserved for his pioneering efforts. And he also suffered the indignity of being "Borked" by the Senate.

But if you read almost any recent article or book on constitutional economic liberties, Siegan's influence shines through, even if the authors themselves often fail to recognize it.

Although I am an atheist myself, I have never, until this series of posts, commented on atheist issues publicly. I didn't do so because I thought that, ultimately, hostility towards atheists was a relatively unimportant issue. After all, American atheists are, by and large, an affluent, successful group that has not in recent decades suffered much from systematic discrimination. Although I oppose government endorsement of religion and think many instances of it are unconstitutional, ultimately I don't believe that "In God We Trust" on coins and the like are major issues worth going to the barricades over.

I do not believe that atheists in this country are an "oppressed" group, and I would not support affirmative action for atheists or reparations for atheists. And I certainly don't want people to feel sorry for us and commiserate with our status as "victims." However, there are several ways in which widespread anti-atheist prejudice causes real harm.

I. Discrimination in Child Custody Cases.

In a recent article, co-blogger Eugene Volokh has documented numerous instances where atheist and agnostic parents lose out in child custody disputes because of judicial bias against their religious views. The cases Eugene cites are not situations where there is a "disparate impact" against atheists or cases where some atheist had a subjective feeling that the judge was biased against him. These are cases where the judges themselves state in published opinions that a principal reason for awarding custody to one parent is the atheism of the other. Obviously, for every case where a judge was willing state such a thing in public, it is likely that there are other cases where such considerations influenced judicial decisionmaking without being documented. Many of the cases cited in Eugene's paper are recent, and they are by no means confined to the Bible Belt.

II. Exclusion From Public Office.

As I noted in my previous post, open atheists are almost completely excluded from the highest elected and appointed positions, and there are extremely few even in low-level ones. To be sure, this does not mean that atheists are wholly without political influence. They can still use their votes and campaign contributions to try to influence theist politicians. Nevertheless, there is at least some benefit to having members of one's own group in positions of political power. Otherwise, it would be difficult to explain why virtually all other groups - from evangelical Christians to homosexuals - consider it important to have at least some such representation. Moreover, symbolism matters too, even if its importance is often overstated. Most would agree that there is something wrong with a political system if no Jew or black or Catholic were ever able to attain high public office - even if Jewish, black, and Catholic voters were effectively represented by political leaders from other groups.

Nor should we completely discount the harm to those atheists would like to pursue careers in public service. By writing this series of posts, I have probably signed away whatever chance I might have had of becoming a federal judge. While this has never been an important objective for me, it certainly could be for other ambitious atheist lawyers.

III. Social Exclusion.

While the extent to which this is a problem varies greatly from place to place and is very difficult to measure, it probably is a significant issue in some areas. As some of the atheist commenters to my first post noted, atheists often have to hide their views in order to avoid opprobrium in situations where believers feel perfectly free to express theirs. For many, this is a minor problem that rarely occurs, but for others it can be a more serious one. I am willing to bet that there is a considerable number of "closet atheists" out there, though of course there are no firm statistics. While closeted atheists probably don't suffer as much as closeted gays do (because atheism is, for most, a less fundamental element of identity than sexual orientation), neither is the suffering completely trivial. Certainly, few theists would be willing to tolerate a situation where they had to keep their own religious beliefs secret.

Except for the first, none of the above problems can or should be remedied through government coercion. But that does not mean that we should just ignore them.

UPDATE: Many of the child custody cases cited in Eugene's article deal not with disputes between atheists and theists but disputes where one parent was more observant than the other and/or provided more religious training (often in the form of church attendance) to the child. See footnote 4 of Eugene's paper (linked above). In some ways, this actually makes things even worse for atheists, since a judge who favors a more-observant theist over a less-observant one is likely to disfavor atheists even more than less-observant theists. As Eugene observes (pp. 1-2), "presumably an outright atheist would be at even more of a disadvantage" in such a jurisdiction than the less observant of two theist parents. Theoretically, instruction in atheistic thought could also perhaps be considered "religious" teaching, but the decisions cited by Eugene make it clear that they have in mind theistic training and/or church attendance only. Nonetheless, I regret my failure to make this distinction in the original post, and I hope this update remedies the mistake.