Andrew Koppelman

The fluidity of neutrality

The political ideal of neutrality toward conceptions of the good is unsustainable at the extremely abstract level proposed by some liberal theorists. Neutrality is nonetheless a valuable political ideal. One of the many ways that government can go wrong is to take a position on some question that it would, all things considered, be better for it to abstain from deciding. The classic example is the question of which (if any) religion is true. The idea of neutrality holds that government ought to avoid this pathology.

The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?

Constructivist political theory, championed most prominently by John Rawls, builds up a conception of justice from the minimal requirements of political life. It has two powerful attractions. It promises a kind of civic unity in the face of irresolvable differences about the good life. It also offers a foundation for human rights that is secure in the face of those same differences. The very parsimony that is its strength, however, deprives it of the resources to condemn some atrocities. Because it focuses on the political aspect of persons, it has difficulty cognizing violence done to those aspects of the person that are not political, preeminently the body. Constructivism thus can be only a part of an acceptable theory of justice.

Conscience, Volitional Necessity, and Religious Exemptions

Why do we ever grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that it is conscience that is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by examining philosopher Harry Frankfurt’s account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that are not moral: volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion

Naked Strong Evaluation

Religious faith today is one option among others. Many people—call them secularists—live without any transcendent source of value. Some, but not all, are militant atheists. A millennium ago, this would have been unimaginable. Everyone believed in God and oriented their lives in reference to that belief.Charles Taylors A Secular Age offers an invaluable map of how the modern religious-secular divide came into being. He concludes that modern Western secularism has its roots in Christian theology and that secularism and Christianity reveal a common ancestry in their shared commitment to human rights—a commitment that does not follow from atheism as such.

Is Pornography 'Speech'?

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.

Why Rawls Can't Support Liberal Neutrality: The Case of Special Treatment for Religion

Some arguments against the law’s special treatment of religion are adapted from Rawls. These overlook the ways in which the abstract rights agreed to in the original position are given specific institutional form at the constitutional stage. Because the rights established in the original position are vaguely specified, liberty of conscience can’t be implemented without reliance on contestable values such as religion. Public reason, when refracted through the four-stage sequence (where it becomes less constraining at each stage of the sequence), is far less constraining than the proponents of liberal neutrality hope. Fulfilling the commitments made in the original position, for people in the world here and now, requires taking account of the values that those people hold. A Rawlsian position thus can support the American regime of religious accommodation.

Passive Aggressive: Scalia and Garner on Interpretation

Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.