Thursday, May 29, 2014

The Problem with Buck v. Bell

If I asked one of my liberal, right-thinking friends to make a list of the worst Supreme Court cases in history, the results would be predictable. Dred Scott rightly tops the list. Plessy v. Ferguson is probably number two, if only because most of us have mercifully forgotten the earlier cases that far outstripped it in racism. Then it gets more complicated, but you can bet that one of the next cases will be Lochner v. New York Buck v. Bell. As it was decided, I agree that it was a terrible opinion.

The facts, briefly: in 1925, the heyday of eugenics, Virginia enacted a law that allowed mandatory sterilization of institutionalized women who were deemed carriers of inheritable mental illnesses. Carrie Buck was such a woman, and after being unwillingly sterilized, she filed a collusive suit that reached the Supreme Court. In what they knew was a doomed argument, Buck's lawyers contended that the law infringed on her fundamental right to procreation under the 14th Amendment.

This should have been an easy opinion to write. The law constituted a denial of liberty, but there is nothing wrong with denying liberty as long as the state provides due process, which Virginia did in this case. If the people of Virginia think the law is an improper violation of liberty, the legislature, not the court, is the right place to make that argument.

Puzzlingly for such a clear-cut case, that's not what Oliver Wendell Holmes said. Instead, we got this:
...We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.
This was the only slip Holmes ever made in his life.
Believe it or not, this is a toned-down version of the opinion that Holmes originally wanted to issue. The first draft has been mercifully lost to history. Why did he write it like this? Holmes almost always tried strenuously to keep his policy preferences out of his judicial opinions. (Look here for an excellent modern example of this.) But this opinion reads like an extended defense of eugenics—exactly the kind of argument that he thought should be submitted to a legislature, not an appellate court. "I recognize without hesitation," wrote Holmes in a calmer moment, "that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions."

It would be easy to dismiss this case as an aberration in Holmes's thinking. But that's certainly not how Holmes himself took it: for the rest of his life, the Justice reflected on his Buck v. Bell opinion as one of the finest he ever wrote. In fact, I think this opinion reveals a deep-lying tension in Holmes's legal philosophy. On the one hand, Holmes—a true democrat—was firmly committed to putting moral and political decisions in the hands of legislatures, not judges. But Holmes was also a legal realist—he was committed to using law as an instrument of policy rather than a philosophical and self-contained system. Buck v. Bell put those two principles in conflict, and the wrong one (at least as far as this case is concerned) won.

To sum up, Buck v. Bell is a terrible opinion, but not for the reason you think. The Virginia law was despicable, but that should have relatively little importance to our evaluation of this case. Those who think the case's badness derived from the wrongness of the law it upheld make the same mistake as Justice Holmes: they assume that the wisdom of the law was a matter to be disputed. Buck v. Bell was wrong for the same reason that Lawrence v. Texas was. In both cases, for the record, I would have written a concurring opinion.

Wednesday, May 28, 2014

A Night on Lake Michigan

A little over a year ago, on a freezing Saturday night in Chicago, I gave up writing in the library and hopped on a bus headed for my dorm. It was the wrong bus. By the time I realized my mistake and got off, I was standing on Stoney Island and 57th Street, across the street from Lake Michigan. I had a heavy backpack, I was cold, and I needed to get back to my work, but I hadn’t seen the lake in weeks. So I walked under the underpass and onto the shore.

I was alone on the beach, which was a massive plain of ice. Out to the east, the ice-sheet broke into drifting floes that dotted the lake into the horizon. The ice was ghostly, glowing in the moonlight. It was completely quiet. And for a few minutes, alone among the millions of minutes I’ve spent in this city, I rested.

Behind me, forgotten until I finally turned around, were the reddish lights of the city and the steady throb of traffic on Lakeshore Drive. The contrast with the lake was almost laughably stark. In front of me was an austere sanctuary, and behind me was a colorful garbage dump. I was a modern Moses, fleeing from Pharaoh's court into the desert.

A lake is fundamentally life-denying. It is everything that a human life isn’t: formless, dark, unfeeling, and enormous. But despite what I’ve said before, there is a proper time for denying life. The crowds that fill a city give me a kind of mild sickness; a sense that life is composed of gray library rooms, well-meaning bureaucrats, concrete highways, and furious socio-political battles. Looking into the void helps me understand just how trivial those things are. No matter how warm and light, I can’t attach my happiness completely to what goes on in the hive. There’s an enormous night outside it, topped with a starry heaven and filled with dew-covered flowers.
 
"My Kingdom is not of this world."
—The Leviathan

The sum of my thoughts: Chicago, humanity’s monument to enclosure, banality, and congestion, sits right on the brink of its opposite, Lake Michigan. If it weren’t for that lake, the city would have too much life in it to be inhabitable.

I stood looking at the ice and water for a few more minutes, and then walked back into the bright city.

Friday, May 16, 2014

“Not Aristotle, but the Holy Spirit:” John Calvin on Faith

A certain rationalist and enlightened picture of religious belief has pervaded the West since Maimonides. According to this account, all faith is divided into two parts. First, there is a set of theological claims about the world that the believer assents to. This belief can come about in many ways, from fever-dreams to philosophy, but the soundest belief is the one founded on dispassionate reasoning and unprejudiced empirical analysis of the world. Second, there is devotion—given the truth of the propositions that he has determined, the believer decides to behave in a certain way towards the God he has discovered. These two aspects of faith are partly separable from each other: I can know God but not care about him, but it makes no sense to obey God without having worked out exactly what it is that I believe in.

John Calvin thoroughly denies that picture of religion, giving an account of religious faith that completely elides the distinction between belief and devotion. To Calvin, faith is not the result of human investigation: it comes only from God. The tenets of faith do not lie in the open to be discovered by the curious beachcomber. Faith certainly involves assent to certain objective propositions, but that assent cannot come from anywhere but the work of the Holy Spirit. I think that Calvin, not Maimonides, shows us the way to modern belief.

Above all, Calvin insists that there is no backdoor to faith. The precepts of faith are not, like scientific propositions, statements about the world that we can agree with without God’s bringing our minds to them. Consider this statement, the foundation of Calvin’s theological epistemology:
When we call faith “knowledge” we do not mean comprehension of the sort that is commonly concerned with those things which fall under human sense perception. For faith is so far above sense that man’s mind has to go beyond and rise above itself in order to attain it. Even where the mind has attained, it does not comprehend what it feels. But while it is persuaded of what it does not grasp, by the very certainty of its persuasion it understands more than if it perceived anything human by its own capacity. Institutes of the Christian Religion, III.ii.14
Calvin makes two strong claims here. First, faith is not derived from evidence that is visible to human eyes. After all, the world of sense is subject to all kinds of mutually contradictory interpretations, and there is nothing within the finite world that describes the infinite. Belief in God, of course, is real belief, but it is not a belief that corresponds to anything perceptible in the world. This makes Calvin’s second claim striking: that the human mind is, in fact, capable of being persuaded into faith that is stronger than any ordinary belief. The logical implication is unavoidable: the mind must be firmly persuaded without the eyes’ seeing. Only God, that is, can convince believers of the principles of their faith.

Calvin does not restrict this account of faith to belief in Christ. His claim extends even to a more general apprehension of God in the world. Even non-Christians, says Calvin, have a sense of the majesty of the universe—not, crucially, as the result of their own observations, but because God creates them with an innate sense of himself in their minds (see I.iii.1).

When it comes to knowledge of Christ, though (as distinct from a vague sense of a God who created the universe), human reason is all the more insufficient, for only through the Holy Spirit can Scripture be believed. Despite all the proofs that can be brought to bear to support its authority, Scripture
will ultimately suffice for a saving knowledge of God only when its certainty is founded upon the inward persuasion of the Holy Spirit. Indeed, these human testimonies which exist to confirm it will not be in vain if, as secondary aids to our feebleness, they follow that chief and highest testimony. But those who wish to prove to unbelievers that Scripture is the Word of God are acting foolishly, for only by faith can they be known. (I.viii.13.)
This is a direct rebuke to the likes of C.S. Lewis, whose apologetic trilemma—Jesus was either a fool or a liar or God—is an attempt to give a firm rational foundation for faith to unbelievers. It is a recognition of the fundamental unknowability of God outside of the Bible. After all, as far as history and archeology are concerned, who is to say that Jesus has any more claim to authority than Zoroaster or Muhammad? To Calvin—and I think he is right to say so—it is only through a “special illumination” that man can know Christ. On this point, Calvin uses the same metaphor as Maimonides: man is like a traveller through a dark field which is lit up by brief flashes of lightning. The two theologians, though, give utterly different meanings to the simile: to Maimonides, the lightning is the result of the traveller’s own intellectual genius lighting up the darkness of ignorance. For Calvin, it is meant to show that man cannot discover anything about Christ unless God permits him to.

In fact, Calvin goes so far as to say that belief in Christ seems ridiculous on its face to anyone approaching through any means but the Holy Spirit. Discussing the Resurrection, for instance, Calvin makes a point of emphasizing its improbability—improbability, that is, within an Aristotelian, scientific worldview. All the better to impress on us the power of Christ. “Nothing,” says Calvin, “could be more unfitting to think of [the Resurrection as] something that can happen in the course of nature, when there is set before us an inescapable miracle, which by its greatness overwhelms our senses (III.xxv.4).” This is not credo quia absurdum, but it is close.

We might be tempted to call Calvin’s belief a radically new epistemological category. How can there be a truth that we cannot reach by looking? But this kind of unanswerable truth is common to everyone—Calvin is simply explicit about the fact that the foundation of his worldview is not strictly empirical. Calvin’s faith in Christ is a method of interpreting the world, and Calvin is clear that, while the method he applies has certain logical consequences, there is nothing logical to guide us to it. Maimonides, as Calvin (and I) would have it, operates under a similarly unaccountable heuristic—he just doesn’t talk about it.

Are we to understand, then, that Calvin demands the abolition of reason? To the contrary! Though he repeatedly stresses the insufficiency of reason to attain true knowledge of God, he does not deny its capacity, as a gift of God, to clarify certain points of theology. (Liberal arts, for instance, can give us a better understanding of God’s nature.) Calvin often uses the test of common sense and natural reason as a means of clarification, though not as a means of attaining faith. Reason is also capable of increasing a believer’s admiration of Scripture after the Holy Spirit has directed it down that path. Martyrs, for instance, testify to the truth of Scripture, but there is no distinguishing them from false fanatics unless a Christian is guided by God to admire them. We should thus distinguish between two uses of reason for Calvin. First, reason is falsely held to bring man to knowledge of God. That cannot be. Second, reason can be used to interpret God’s word once faith is already there—that use, according to Calvin, has profit.

One of the foundations of this attitude to faith is the concept of belief without understanding. This is more than vague belief: take, for instance, Calvin’s statement on the incomprehensibility of the Holy Supper: “I do not at all measure this mystery with the measure of human reason, or subject it to the laws of nature. I ask you whether it is from physics we have learned that Christ feeds our souls from heaven with his flesh.”(IV.xvii.24) In other words, we will never come to an understanding of the Holy Supper by examining the bread that Christians eat under a microscope. Nor will we understand it by crafting, like the Catholics, a delicate metaphysical apparatus to explain the bread’s transformation. A Christian must instead simply experience the union with Christ without understanding its metaphysical basis. (This lack of understanding, it is worth repeating, does not diminish in the slightest the communer’s faith—to the contrary, it increases it.) This attitude stands in sharp contrast to Maimonides’ conceit, put forward in his Guide for the Perplexed, that true believers are “those who have succeeded in finding a proof for everything.”

Thus, Calvin’s faith is is accessible only to those to whom God has given it. Men cannot find God in the world unless God gives them the right means of using their senses. Still less can man come to a knowledge of Christ without God’s Word overcoming his natural sight. And still less can Christians believe in such seemingly impossible doctrines as the Resurrection without faith in God directly subverting the counsel of their senses.

To conclude. Science and history have now advanced to the point where, if we accept their criteria for truth, we cannot readily believe the teachings of the old religions. If a believer is to have orthodox faith, he must interpret the world in a way that resists scientific detachment and non-religious criteria for truth.

A modern orthodox believer, then, would do well to study Calvin’s attitude to religious faith. Calvin, who knew Vergil and Lucretius too well to completely ignore their empirical rejection of the gods, did not live in a world in which philosophy and empirical science led inevitably to knowledge of God. Nevertheless, he provided a solid foundation of faith by insisting on overcoming the senses, on unconditional reverence for doctrine, and on faith as part of a pious life free from temptation. Instead of predicating faith on rational proofs that use the same criteria as a chemistry paper, an orthodox believer ought, like Calvin, to allow his reverence for God to dictate the content of his belief and the patterns of his thought. He must abandon Maimonides and embrace Calvin.

I, of course, am not orthodox. I just want to clarify the grounds that orthodoxy can in fact exist on.

Abridged from an essay I wrote in spring 2013.

A.D. 33: The Death of Modernity

Modernity began over two thousand years ago, when Socrates was executed for denying the gods. He was guilty as charged: in Socrates’ worldview, the gods had been reduced to vague philosophical ideas, robbed of their real powers. Soon after Socrates' death, people stopped believing in them altogether, or made them so sublime that they had nothing to do with humans.

A great misconception is that Christianity replaced paganism in the West. It didn’t. By the time Christianity spread across the West, almost no one who could read still believed in Jupiter or Venus. Instead, there were two serious doctrines left. One was Epicureanism: the teaching that, in the absence of the gods, we should live our lives as pleasantly as possible. The other was Stoicism: in the absence of the gods, we should declare freedom from our desires and assert moral control over our lives.

Both of these teachings, you might notice, did very little to make real meaning out of human life. Both allowed men to make whatever they wanted out of their spiritual destiny. Both were responses to questions that were pervasive in a post-religious society: if the old rules don’t apply anymore, how do we know our way about? Does heroism mean anything? Does love?

Accordingly, most of the writing we have from the first century B.C. expresses a deep skepticism about the world. Tribes, like the Jews and the Celts, that still believed in a god were treated as quaint relics. Though there was vast commentary on the dignity of man, there was no agreement on what the grounds for that dignity were.

This world of freedom was too much for humanity, and it ended abruptly with Christ.

Of the symbols of early Christianity, the anchor was one of the most important. In a world in which truth had been upended, where there were no certainties left, where no one knew the will of Heaven—if Heaven even had a will—Christ was stability. The patristic authors are united on one point: in a world in which reason has burned down all the old superstitions, Christ transcends reason. God invaded the world and—in erring reason’s spite—gave peace to his believers.
I'm still stumped about the fish.

So modernity died with Christ on the cross. And whereas Christ rose on the third day, modernity was dead for 1,700 years before it came back to life. For the entirety of the Middle Ages, no matter the political turmoil, Christian faith was a certainty that had no serious challengers. In fact, until the Enlightenment began to take root in the 17th century, atheism was not unpopular but inconceivable. Christian certainty had pervaded European life to such an extent that no one could think outside of it. (Jews, by the way, had a parallel experience: the worldliness of the Hellenistic and Roman periods faded quickly into Rabbinical dominance that lasted for millennia.)

This is one reason why the Middle Ages are much more alien to us than antiquity. It’s why Homer, who wrote 1,750 years before the author of Beowulf, makes much more sense to us than that axe-wielding Christian poet. For the warriors at Troy, even though they're outright pagans and pre-moderns, have to reckon with death as a brutal end, with a Heaven that’s wild and fickle, and a world whose values are inscrutable. They have much more to say to us than anyone who died with unshakeable faith in Christ.

To sum up, the intellectual world of Late Antiquity had deep similarities to our own. Under the weight of evolution, Biblical archaeology and the Holocaust, the religious certainties that we’ve lived in for centuries have given way. Just like the Greeks and Romans who had lost their gods, we’re living in a world of profound uncertainty—and with it, great freedom. This time around, can we make it last? Or will we cast a new anchor into the sea?

Thursday, May 15, 2014

Death and Love

Though worms destroy this body, yet in my flesh shall I see God. —Job 19:26

This is one of the most subtle and beautiful lines in the Bible, which is why it tends to get butchered by orthodox theologians. The traditional reading, which the Rabbis insist on as well as most Christians, is this: "Worms will destroy my body, but then, in an incredibly miraculous moment, I will be brought back from the dead, given a new body, and then I will see God for myself."

I can't accept that reading. If I could, I would have to reject Job himself, because this Rabbinical statement is directly opposed to what I think.

First, let me be clear what I think about death. It's the end of life. That means the soul—the principle by which the body lives, thinks, feels and grieves—loses the frame in which it makes sense to talk about it. Nothing mysterious happens.

This is what the Roman poet said too, before Christianity seized the West in its grasp:
A tree cannot grow in the air, nor clouds float in the sea;
nor can a fish swim in the field,
nor blood flow through a log, nor sap through a rock,
for it is fixed and ordained where each thing can grow and exist.
And nor can the soul take root except in nerves and blood.
—Lucretius, De Rerum Natura III.784–9, my translation.
Let's accept this view of things, not least because it's how things are. By this view, Job said something that's actually the exact opposite of the usual approach. "Yes, I will die," he says, "and there will be nothing left of me. But that's fine, because I get to see God right now, before I die."

What can this possibly mean? I think we can find the answer in the logical region where real, modern religion has its life. Living with God, in the first place, has very little to do with verifying the existence of an incorporeal, omnipotent being and then dispassionately finding out what he has to say. I'm not setting up a straw man here. Look at what Maimonides says:
We must first form a conception of the Existence of the Creator according to our capabilities; that is, we must have a knowledge of Metaphysics. But this discipline can only be approached after the study of Physics: for the science of Physics borders on Metaphysics, and must even precede it in the course of our studies. —The Guide for the Perplexed
That process, if it's even coherent, has no roots in the life that I (and probably you) live. In our search for the real home of religious life, let's quote a better author:

Beloved, let us love one another: for love is of God; and every one that loveth is born of God, and knoweth God. He that loveth not knoweth not God; for God is love. 
—I John 4:7–8.

As John knew, seeing God has everything to do with religious action. That means, as John says, love, but it can also mean living by divine obligation. Even if we're atheists with respect to the visible world, we can be godly in the actions that we do for the sake of other human beings. We can't see God anymore in the stars, and still less in the pages of a book; but only if we bear each other's burdens.

We should also bear in mind the significance of seeing God in the flesh. That's Job's way of saying: not with the eyes, but in our actions. We can use our mortal, frail bodies to enact God's will on earth.

File:Jan Wijnants - Parable of the Good Samaritan.jpg
This is what resurrection looks like.

So even though we have to die, says Job, that doesn't mean that we have to live godless lives. Though worms will destroy this body, yet in my flesh shall I see God.


Appendix. This is the Hebrew:

:וְאַחַר עוֹרִי נִקְּפוּ-זֹאת וּמִבְּשָׂרִי אֶחֱזֶה אֱלוֹהַּ

This is an extremely thorny verse, as usual for something out of Job. Most translations say something like "After my body and skin are destroyed, I will see God in my flesh." But that makes little sense of the beginning of the verse: אַחַר pretty clearly refers to something that happens after the skin is destroyed; namely, the destruction of the body. There's no reference to an event that happens after the destruction of both body and skin.  

The best reading, in my view, is the King James version which I quoted above, which boils down to: "after my skin, my body will be destroyed. But in my flesh I will see God." That doesn't force us to put the events in chronological order, which—conveniently!—supports my interpretation.

Appendix II. This is a better interpretation of the verse than anything than I could possibly say.