More on CLS vs. Martinez

by Patrick J. Deneen on July 5, 2010 · 8 comments <span>Print this article</span> Print this article

in Politics & Power,Short

Jeremy Beer previously suggested that an FPR commentator should take up the subject of the Court’s egregious finding in Christian Legal Society vs. Martinez. Perhaps it’s safe to conclude at this point that what we need among our stable is a good legal commentator. I tend to rely on the good people at “Mirror of Justice” to clarify these sorts of legal matters, and there have been some preliminary comments made by Rick Garnett and Rob Vischer. However, among the best lengthy treatments I’ve yet read is by Hadley Arkes over at First Things, who elucidates the fundamental issues that lie at the heart of the case.

Most bracing is his conclusion:

What can we expect to unfold now? The reasoning in the case may be hidden, but the effects will be manifest and they will start springing up in the land when the academic year resumes in the fall.

Over thirty years ago, in the famous Bakke case, Justice Lewis Powell held that schemes of racial preference could be constitutionally acceptable so long as colleges and universities did not focus exclusively on race as they gauged the worth of applicants. It was necessary, he said, to take race “into account” in connection with many other attributes that could make a student appealing to an office of admissions. The package of admirable traits should be “diverse,” and the aim, of course, was to produce an enrollment with a wholesome “diversity.”

Diversity then became the mantra, and as it has been played out with inventive variations while it reordered and reconfigured the academy. Now, with the decision on the Christian Legal Society, Justice Kennedy and his colleagues have put another powerful weapon in the hands of the people who rule the universities and colleges. We can expect to see, in the course of this next year, resolutions brought forth in faculty meetings to couple the standing policy on “non-discrimination” with this new policy of “all-comers”—since, as we shall hear, that policy has been sustained now by the Supreme Court.

The Court confirmed this novel policy, after all, for a public university, and if it can be installed there, it could be installed with far more freedom in a private college. But it is a policy that perfectly fits and amplifies the scheme of diversity. And once installed, that policy provides the lever for finally driving Christian groups from the life of the college. The scene is in place now to have gay activists seek to become officers in these groups, as they have at Tufts and other schools. Indeed, that has been the test of choice, used in challenging the Christian groups and bringing the complaints that threaten their standing in their colleges.

I think Arkes is correct that this will become a widely employed strategy by liberals in universities – and other institutions – throughout the country, and could eventually be used as a wedge by which to break open all associations, public or private. As Jeremy pointed out, the aim of the “diversity agenda” is to eviscerate actual diversity. At the heart of liberalism – from its inception in the theories of Hobbes and Locke – was a hostility to any groups or associations that limit the purported natural autonomy of individuals. The logic of liberalism is the evisceration of associations in the name of the individual, achieved by means of the centralizing power of the State. Eventually the boundaries of the State itself are understood to be unjustifiably limited and arbitrary, leading liberalism to the ultimate logic that the autonomous individual can only be truly liberated within the context of the global State. Given that the scale of the nation-state already goes beyond what is reasonably governable, there’s little reason left to oppose a global State other than residual and altogether unjustified grounds of cultural identity (this was the crux of the question faced by the European Union whether to include Turkey. Their reluctance was a sign to many progressive liberals that redoubled efforts were needed to overcome anachronistic devotions to cultures and traditions).

The frontispiece of the Leviathan remains instructive: the State is the only real “individual”; individuals exist within the state, but undifferentiated by group and association. They “make up” the State, and are wholly defined by its existence and boundaries. The State controls the secular power and governs the Church alike, wielding the sword and the crozier ambidextrously and to the same end – human power and dominion. We daily inhabit the world that was imagined and recommended by the materialist and reductionist mind of Hobbes.

In fine, CLS vs. Martinez will foster a number of discrete efforts to crack open existing “exclusive” associations that do not advance the liberal agenda. But this is merely part of a larger 500 year effort to emancipate the individual from the associations that are the fundamental basis of human society, and the true alternative to the Leviathan State. While occasionally and momentarily thwarted (as with the narrow passage of Proposition 8, which now is suddenly regarded as unconstitutional by its opponents who would otherwise have been happy with it had it passed electoral muster), the efforts of the liberal agenda toward eviscerating the component elements of civil society – family, church, associations, neighborhood, States, region, and any other “arbitrary” grouping of humans – will relentlessly continue. We are mistaken if we understand these efforts to be anything other than motivated by one central mission – the displacement of all human association except those that comport with individual autonomy combined with global statism. It is a nightmare beyond all describing, and one toward which we are accelerating with seeming relentless inevitability.

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avatar Jonathan July 5, 2010 at 8:08 pm

Patrick,

I have been reading “Democracy in America” by de Tocqueville, and I was struck by the following passage, which seems to me to be quite applicable to the United States in which a CLS decision could be rendered (and thought sane):

“There are countries in Europe where the native considers himself as a kind of settler, indifferent to the fate of the spot which he inhabits. The greatest changes are effected there without his concurrence, and (unless chance may have apprised him of the event ) without his knowledge; nay, more, the condition of his village, the police of his street, the repairs of the church or the parsonage, do not concern him; for he looks upon all these things as unconnected with himself and as the property of a powerful stranger whom he calls the government. He has only a life interest in these possessions, without the spirit of ownership or any ideas of improvement. This want of interest in his own affairs goes so far that if his own safety or that of his children is at last endangered, instead of trying to avert the peril, he will fold his arms and wait till the whole nation comes to his aid. This man who has so completely sacrificed his own free will does not, more than any other person, love obedience; he cowers, it is true, before the pettiest officer, but he braves the law with the spirit of a conquered foe as soon as its superior force is withdrawn; he perpetually oscillates between servitude and license.” – Book I – Chapter V.

avatar Patrick J. Deneen July 5, 2010 at 8:53 pm

Tocqueville perceived exactly the logic I am describing here. He at once identified democracy’s tendency toward individualism, on the one hand, and an attraction to “pantheism” – the absence of differentiation – on the other. The one makes the other possible, since it is only when associations are effectively eliminated (in the name of our individual liberty) that our capacity to see ourselves as “species-beings” becomes actuated. For this reason Marx saw that the capacity of “workers of the world” to unite rested on the practical elimination of a whole range of associations – family, church, community, the State. Interestingly enough, he saw that the greatest weapon in effectuating that end was free-market capitalism. He understood that capitalism would eviscerate those particularities and localisms more effectively than any violence, and once eliminated, communism would follow. Read the first several pages of “The Communist Manifesto” for his most powerful statement of this view, containing the famous passage in which he claims that it is the market that results in “all that is solid melting into air.”

It’s interesting to watch China try to hold back the floodgates. According to today’s Washington Post, China is attempting to maintain traditional Chinese sexual morals in the face of efforts by the popular media to feed inevitable prurient demands of viewers for schlock. Perhaps the heavy hand of censorship will succeed; however, if the West’s course is any guide, the world will soon enough be filled with more Chinese porn than you can shake a stick at.

avatar Empedocles July 6, 2010 at 6:25 am

I guess the way around this is to cut all public money to universities so that they won’t be forced into choosing between funding and their principles.

avatar Patrick J. Deneen July 6, 2010 at 7:52 am

Empedocles,
Were that it the case that more universities saw the great threat that lies in accepting federal funding. However, they have become addicted to federally-funded financial aid, which allows them to charge tuition that annually increases well above the rate of inflation. They also rely on federal funding of their science programs; science funding is one of the main criteria on which national rankings are based, and so all research institutions must pursue science funding to be considered a “serious” institution. Together these two facets of federal funding encourage nearly every institution of higher education into a form of rent-seeking.

Yet, we should note that the case was decided on more than merely funding grounds – it was the nature of the organization itself that came under criticism. Consider this passage from Justice Kennedy’s concurring opinion:

“Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner…. As a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior … were those sorts of requirements to become prevalent, it might undermine the principle that in a university community — and in a law school community specifically — speech is deemed persuasive based on its substance…. A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be … inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”

Thus, the only groups and memberships that can be justified are those that are indifferent to the composition of the membership. Comprehensive doctrines are to be checked at the door – the default setting is liberal “openness.” While Kennedy makes a special effort to highlight why this is necessary at Law Schools, his logic doesn’t preclude this basic thesis to be extended into nearly every aspect of life. People should not be closed off from one another at any point in the life-span – since all moments of life are critical and important – and hence all groups and associations must be opened (e.g., Boy Scouts, etc.).

avatar Darel July 6, 2010 at 10:31 pm

Much more on Patrick’s line of thought can be gleaned by reading A.J. Conyers’ “The Long Truce: How Toleration Made the World Safe for Power and Profit”.

FYI.

avatar Carl Eric Scott July 8, 2010 at 11:39 am

A. Kennedy’s brain/prose has a magnetic knack for attracting into itself the most poisonous yet potentially popularizable elements of contemporary liberalism/liberaltarianism. Here we have a Rawlsian conception, probably even a conception further-than-Rawls, because it is simpler-than Rawls.

A. Kennedy and those like him are arrogant menaces. And know, oh Porchers, that voting or not voting in ways that allows the Dems-as-they-are to appoint such “judge”-masters, which of late they ALWAYS seek to do, is a greater and longer-term evil than having the Republicans often in power. Whatever you think of the Constitution or of those who in our day who reverence it most loudly, greater fidelity to it really can help hold back the advance of the undifferentiated (but pro-indiviudal! but colorful! but “diverse!”) social goo of contemporary liberalism. Here’s one difference that costs a hell of a lot more than a dime.

(And please, let no-one think they counter this fact w/ the observation that A. Kennedy was appointed by a Republican, since 1) the intention was not to appoint someone of his stripe, 2) his betrayal of this intention has made the Republicans far more careful about appointments, and 3) the Dems by-and-large could care less about the corrosive agent that is living constituionalism so long as they get their policy preferences–and most of the ones who do care want much more of it.)

BTW, one of the authors who best combines, and most accessibly combines, the fine Tocquevillian and “Marxist” points Deneen is making above is Philippe Beneton, in the book Equality by Default. He’s a Tocqueville for our times, and Porchers should read him.

avatar D.W. Sabin July 8, 2010 at 5:29 pm

Now Carl, I know you are admirably steadfast in asserting that we should always remain loyal and take another one for the team but really now, it seems to me that the Kelso Decision on Takings, fairly well summarized a general lack of distinction between the judges appointed by an Executive of either party. I particularly enjoyed the Kelso Decision when after getting what they wanted, New London saw the Corporate Entity abandon the plans , leaving the City holding the bag with the property owning citizens whose rights were roundly violated for a private real estate development, not a public infrastructure improvement.

When a Republican appointed Judge votes to deprive a citizen of their essential property rights, all bets are off.

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