Category: Law and Policy

Evangelicals continue to debate a proper response to climate change.

This is an interesting law and economics problem. The biggest issue is that the resources in question are essentially, in economic terms, “public goods.” Public goods are resources that are non-rival and non-excludable. “Non-rival” means that the consumption of the good by one person does not significantly diminish its availability to others. Non-excludable means that it is not possible to exclude others from consuming the good.

Considered broadly, a stable, temperate climate is a public good. The fact that I can flourish in a stable, temperate climate does not diminish anyone else’s ability to benefit from it. And, it is not possible as a practical matter to to exclude others from benefitting from a stable global climate.

In classical competition theory, public goods are among a small category of goods that are not strong candidates for supply by markets. The problem is that “free riding” makes it impossible to recoup an investment in a public good. If I invest in developing a public good, I can’t “sell” what I’ve created to you, because you can obtain it for free elsewhere, as it is non-rival and non-excludable. This means that no rational competitor will supply the good.

Though I’m generally in favor of market-based solutions to many resource allocation questions, because the environment / climate has characteristcs of a public good, I’m not convinced that markets will address the problem. Even for someone who leans libertarian, like myself, this seems like a case in which some government regulation is appropriate.

There is a very good essay that extends some of this economic analysis in this week’s issue of the (libertarian leaning) Economist magazine.

A few days ago, I blogged about the recent Prison Fellowship ruling from Iowa. Chuck Colson weighed in on the ruling in his Back Page commentary in this month’s Christianity Today (once again, nuts to Christianity Today for its web-publication delay that doesn’t facilitate timely blog linking to current articles!).

Overall, I think Colson’s commentary is reasonably good. He focuses on the court’s ham-handed, shallow treatment of evangelicalism, which is a major flaw in the opinion. He also appropriately counsels us to look inward concerning the stereotypes about evangelicalism that the court’s opinion could perpetuate. As he puts it:

The critical question is, do we play into the stereotypes, or de we reflect our rich heritage of abolishing the slave trade, defending human rights, and founding hospitals? This case is a challenge to define evangelicalism, no less before the bar of public opinion than before the bar of justice.

Many amens to that! I wish, though, that Colson would rotate that inward eye just a few more degrees to examine the problem of government funding for outreach programs like Prison Fellowship’s Innerchange Initiative. The Iowa case is problematic for many of the reasons Colson mentions, but the wisdom of tying evangelism to government money needs to be explored in more depth.

Last month, a federal judge in Iowa decided that an anti-recidivism program run by Prison Fellowship International is unconstitutional. The reaction from many Christian quarters has been harsh. Writing in First Things this month, Richard John Neuhaus stated that “I’m afraid the judge is somewhat deranged or culpably ignorant, or maybe both, which may be a mitigating factor in his staggering arrogance.” Robert George called the judge’s opinion “sprawling and undisciplined” in the Weekly Standard. In a Washington Post Op-Ed, Prison Fellowship’s President, Mark Earley called the ruling “extreme and punitive.” Referring to the ruling, Prison Fellowship’s home page includes a splash graphic warning “Religious Freedom at Risk.”

What is this really all about?

Someone on an email list in which I participate asked me about my views on the relationship between Biblical and constitutional interpretation. Here are my current thoughts:

Excellent questions, and I appreciate the link between Biblical and Constitutional “hermeneutics.” I remember in my first year of law school thinking how similar the fields of law and theology are in this regard — both are concerned with interpreting and applying authoritative texts. And so now you’ve gotten me rolling instead of finishing the final exam grading I’m supposed to be doing right now! 🙂

I think I’d consider myself closer to the “middle road” school of constitutional interpretation promoted by folks like Cass Sunstein (see his book “Radicals in Robes”), though perhaps I’d lean more towards originalism than Sunstein. In this view, original intent (or more accurately, historical context) is important, but not necessarily decisive. Although the Constitution is a document with a historical context that means something, it isn’t an ordinary statute. A Constitution, a basic governing document, not easily amended, has to have some flexibility, or else we’ll find ourselves with a legal regime suitable only for the 18th Century.

Our little discussion about prayer and God-talk in school settings is an interesting illustration of this, which no one picked up on (yet): what does it mean to apply the first amendment to our public school system today, which is mandatory (with opt-outs essentially for the wealthy) and funded through tax dollars, when (a) there was no such mandatory “public” school system when the first amendment was drafted; and (b) the tax system and welfare state were radically different in the 18th Century?

In addition to this problem of application, “originalism” poses another hermeneutical problem, namely, who are the “founders” whose intent we are supposed to be divining? Were the “founders” the signers of the Declaration of Independence? The members of the Constitutional Convention? The ratifiers of the Consitution (this is the option Scalia chooses)? What about the Pilgrims who founded the first colonies? What about middle-class merchants and yoeman farmers? What about disenfranchised women and African slaves and freedmen? It seems problematic to me to suggest that the original intent of a very small, elite group of wealthy white slave-owners should always prove conclusive in every contemporary constitutional issue.

On the other hand, I don’t think the problems I’ve outlined above mean that we can or should simply trash constitutional history and invent “penumbras” and “emanations” that capture whatever new “rights” are the flavor of the day. If the text is to have any integrity at all, and if it is to retain legitimacy as a having the force of law, we have to understand it in its original context, and apply it to contemporary problems in ways that are faithful to that context. This doesn’t mean a slavish devotion to the intent of the ratifiers, but it does mean understanding the events, concerns and ideas that lie behind the words of the text.

Another important piece of the process, which Scalia does recognize, is the role of the interpretive tradition that has arisen since the text was first encoded. In legal terms, this is the role of stare decisis. The interpretive tradition helps us understand how others have received the text and applied it to their own contemporary situation. This informs our views, and indeed is binding unless there are compelling reasons to reevaluate the the precedents. (Sunsteen, BTW, things there are no compelling reasons to reevaluate Roe v. Wade and its progeny, but I think he is wrong about that).

So, to use some phraseology that’s popular these days, the art of constitutional law represents a dialogue between the text in its historical context, the interpretive tradition, and the contemporary culture. I think it’s a mistake to omit either part of the dialogue.

I guess my current views on Biblical hermeneutics are similar. The first step is to understand the text in its historical context. The text is authoritative (and only the text is authoritative), but I don’t think it’s static. There is a long interpretive tradition that dialogues with the text as the Holy Spirit has spoken in and through the church through the ages. We receive that tradition with reverence and do not deviate from it lightly. And yet the Holy Spirit continues to speak in and through the Church, and so our understanding of the text and how it applies to our contemporary setting remains in process. Unlike constitutional interpretation, however, we understand that process as having a definite telos, which is the culmination of the Kingdom of God. So there is another part to the dialogue: the text in its historical context, the interpretive tradition, the contemporary setting, and the eschatological telos of the Kingdom of God.

Here is a copy of my letter to the editors of First Things concerning law professor Robert T. Miller’s essay on the Kitzmiller case, along with Miller’s reply to me. I’m very pleased to have had my letter published in FirstThings, a journal I esteem highly (notice that my letter follows one by Mike Behe).

In his reply to me, Miller says I understimate “how unusual Kitzmiller was.” Maybe, but I don’t think so. I don’t think it was an “unusual” case at all. Rather, given the record concerning the school board’s motivations, I think it was right in line with a long string of “creation science” precedents.

Miller also criticizes the notion that “intent” is enough for an establishement clause violation. He sides with Justice Scalia’s view of the establishment clause, which requires a substantive evaluation of a challenged policy, not merely an examination of legislative intent. I might agree with Miller that the establishment clause should be read as Scalia suggests (though I would probably disagree with him that this should compel a rejection of an ID-teaching policy), but that is not the law as it now stands or as interpreted and applied by Judge Jones. Judge Jones applied Justice O’Connor’s “intent” based test, found the school board’s policy wanting, and then went ahead and pronounced on the philosophy of science anyway. I think that was a misuse of the judicial office, even though I think the end result was problably correct under the circumstances of this particular case.

“The founders believed that true religion was not something handed down
by a church or contained in a Bible, but was to be found through free,
rational inquiry. They possessed a great confidence in an individual’s
ability to understand the world and its most fundamental laws through the
exercise of his or her reason. This core set of beliefs led the founders,
who constantly engaged and questioned things, to secure their idea of
religious freedom by barring any alliance between church and state.”

–U.S. District Judge John E. Jones, who outlawed the teaching of
“intelligent design” in science class, in his commencement address Sunday
to 500 graduates at Dickinson College, his alma mater.

My goodness, this is just awful. I despise “Christian America” rhetoric, but I despise this sort of revisionism even more. Some of the “founders” were rationalists, many were Deists, and a few outright rejected traditional religion. But most were Christians, and though they intended to establish a secular republic and not a “Christian nation,” they surely would never have accepted the trope that “true religion” is reason freed from the tyranny of quaint artifacts like churches and Bibles.

Nor would they have recognized “religious freedom” as “barring any alliance between church and state.” They viewed the church as fundamentally the ally of the state because they understood that a republican democracy is doomed without an informed, virtuous public, and they further understood that knowledge and virtue come fundamentally from institutions like the church and the home, and not from the government (or from government-run schools). They would have been horrified to learn that the first amendment, which was intended to secure religious freedom in part by prohibiting an official state religion, has been read to require the establishment of a state-run education system scoured of references to God and religion.

More and more it’s clear to me that Judge Jones is no friend of anyone who believes religion and science need not exist in perpetual conflict.

I spotted an abstract for what looks like an interesting paper by Charles Reid at the University of St. Thomas Law School, titled “The Three Antinomies of Modern Legal Positivism and Their Resolution in Christian Legal Thought.” The abstract is quoted below, and the paper, which has been published in the Regent University Law Review, is available on SSRN. Legal positivism, in brief, is an essentially utilitarian school of jurisprudence that denies any connection between positive (humanly enacted) law and morality or “natural law.” It is the dominant school of jurisprudence in the U.S. Reid’s article provides an excellent overview of what legal positivism claims, and suggests a number of ways in which the deep traditions of Christian jurisprudence provide better answers to some important legal issues. I haven’t had time to digest the article yet, but if you’re interested in law and Christian thought, this seems like an excellent primer that goes far beyond the shallow “Christian America” arguments sometimes found at the popular level.

This week is ethics week at the college where I teach. I had the opportunity to participate in two panels, one sponsored by the Debate Club and the other by the Jewish Business Leaders club. The Debate Club presentation concerned ethics in doing business in China, specifically relating to censorship regulations concerning web portals such as Google. A copy of my notes is available here. The Jewish Business Leaders Club presentation was a “Religious Perspectives” panel, in which I participated with Rabbi Ricky Hadari. It covered three business case studies in which companies or employees were forced to make hard ethical choices. A copy of my notes is available here.

For those following the discussion, I finally had a chance today to respond to the comments in my recent Natural Law thread.

My article Peer-to-Peer Networks, Technological Evolution, and Intellectual Property Reverse Private Attorney General Litigation has just been published in the Berkeley Technology Law Journal. For the morbidly curious, send me an email with your address and I’ll send you a reprint.