Religion and Community: Adam Smith on the Virtues of Liberty CHARLES L. GRISWOLD, JR. The good temper and moderation of con- tending factions seems to be the most es- gential circumstance in the publick morals of a free people. Adam Smith' THE ARCHITECTS of what one might call "classical" or "Enlightenment" liberal- ism saw themselves as committed to refuting the claims to political sovereignty by organized religion. ~ The arguments against the legitimacy of a state- supported religion, and, in (...) the extreme case, of a religious monopoly, are so integral a part of the Enlightenment's effort to put politics on a stable and just foundation as to constitute one of the controlling themes of the period. Lib- eral politics requires toleration, or better, liberty of religious belief. And this in turn requires that religious institutions be privatized, as it were, and that just politics be secularized in that legitimate rule is to lie in the consent of the ruled rather than in the laws of God as interpreted by his ministers on earth. Differ- ' Wealth of Nations V.i.f.4o. My references to The Wealth of Nations are to the two-volume R. H. Campbell and A. S. Skinner edition . 2 The list of thinkers in the "classical liberal" tradition simply reads as the list of key Enlighten- ment figures: Bayle, Hobbes, Locke, Spinoza, Hume, Smith, Voltaire, and Kant, to name a few. Consider the role that religious freedom plays in Kant's. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...) Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...) Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

Developing ideas first put forth in my Abortion Rights as Religious Freedom, I argue against Ronald Dworkin's liberal view of constitutional interpretation while rejecting the originalism of Justices Scalia and Bork. I champion the view that Justice Black presents in his dissent in Griswold v. Connecticut.

Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act (...) reasonably. The defendant was a professional gambler who knew enough about police techniques to use a public telephone to make his business calls. Police agents attached a listening device to the outside of the phone booth, and sought to use the recordings against the defendant. The Supreme Court agreed with the defendant that the Fourth Amendment had been violated. Justice John Marshall Harlan's influential concurring opinion asserted that a person's privacy, in the sense of control over information, depended on two factors: “that a person have exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Fourth Amendment cases like Katz involve informational control; they define the circumstances under which the government may acquire information from or about a person without first obtaining the person's agreement. In contrast, cases like Griswold v. Connecticut, which barred the state from making it a criminal offense to use contraceptives, and Roe v. Wade, which restricted the state's power to prohibit or regulate abortions, used the language of privacy rights to protect a much broader interest in autonomous decision-making. Seeing these cases and related ones through lenseees provided by moral and political philosophy, scholars have attempted to describe what a morally sound constitutional law of privacy would be, and the broadest sense, dworkinian. That is, they seek to provide an account of privacy with two characteristics: it is broadly consistent with the relevant constitutional decisions, and it is the most morally attractive account possible that satisfies the requirement of consistency with the decisions. (shrink)

John Stuart Mill is the father of modern liberalism. His most remembered work, On Liberty, which was published in 1859, changed the course of the liberal tradition. What is less well-known is that his ideas have profoundly influenced the American constitutional rights tradition of the latter half of the twentieth century. Mill's 'harm principle' inspired the constitutional right to privacy recognized in Griswold v Connecticut, Roe vs Wade and other cases. His defense of freedom of expression influenced Justices (...) Holmes, Brandeis, Douglas, Brennan and others and led to greatly expanded freedom of speech in the twentieth century. Finally, Mill was an ardent feminist whose last important work, The Subjection of Women, was a full-scale and, for its time, radical defense of complete gender equality. This is a book for lawyers who want to understand the intellectual origins of modern constitutional rights, and for political philosophers interested in the constitutional implications of Mill's conception of freedom. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

There has been a flood of scholarship over the years on whether there is a “right to privacy” in the Constitution of the United States.Griswold v. Connecticut(1965) was, of course, the Supreme Court decision that opened the floodgates to this river of commentary. A subject search for “privacy, right of” in the College of William and Mary's on-line library catalog located 360 book titles. A perusal of the leading law review bibliographic indices turned up still more. Whether the (...) Constitution contains some sort of “right to be let alone” is plainly one of the central questions of contemporary constitutional discourse. (shrink)

Warren and Brandeis ' tort against invasion of privacy had chiefly a social goal: to enlist the courts to reinforce the norm of civility. Years later in Griswold v. Connecticut, the Supreme Court announced a constitutional right of privacy that was personal in focus. Here and in subsequent rulings on abortion and the " right to die," it became apparent that Warren and Brandeis ' Victorian " right to be let alone" had metamorphosed into a right to autonomy, (...) whose amoeboid contours made prediction or even description a tricky business. But privacy is an unsatisfactory proxy for autonomy, and perhaps for this reason has dwindled in importance as a rationale in these areas. Keywords: abortion, autonomy, Charles Warren, Cruzan v. Director, Missouri Department of Health, Griswold v. Connecticut, In re Quinlan, Louis Brandeis, privacy, right to die, Roe v. Wade, Supreme Court CiteULike Connotea Del.icio.us What's this? (shrink)

In Barrett v. Danbury Hospital ), the Supreme Court of Connecticut held that the fear of contracting or transmitting HIV or any other blood-borne pathogens is not a compensable injury and does not give rise to a negligence or a medical malpractice claim. The court's decision affirmed the holding of a Connecticut trial court.In June 1990, Allen Barrett was admitted to Danbury Hospital complaining of abdominal pain. He had a history of gall bladder trouble. Barrett was placed on (...) a stretcher in the emergency room. The attending physician diagnosed Barrett's pain as a gallstone condition. During the course of his examination, the doctor noticed that Barrett was sitting in blood. The physician subsequently performed a rectal examination of Barrett to locate the source of the blood. The physician determined that the patient was not bleeding, but that the blood was in fact coming from two slits in the vinyl pad that covered the stretcher on which Barrett sat. (shrink)

t. 1. Dialog s V. V. Davydovym -- t. 2. Nereshennye problemy razvivai︠u︡shchego obrazovanii︠a︡.

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 26.1 (2002) 84-106 [Access article in PDF] Irony in the Platonic Dialogues Charles L. Griswold, Jr. I INTERPRETERS OF PLATO have arrived at a general consensus to the effect that there exists a problem of interpretation when we read Plato, and that the solution to the problem must in some way incorporate what has tendentiously been called the "literary" and the "philosophical" sides of Plato's (...) writing. The problem is created by the fact that Plato wrote in dialogue form, indeed a specific type of dialogue form. The solution must somehow combine into a coherent theory of the "meaning" of the dialogues, the ways in which these texts work (such as the use of imagery, metaphor, myth, allusion, irony, as well as argument). At the same time, there exists enormous disagreement about how one ought to move from these general observations to interpretation of a particular text. 1The problem of interpretation lies not merely in the fact that Plato wrote dialogues. That alone would not necessarily present any hermeneutical issues of unusual difficulty. Plato's distinctive use of the dialogue form creates the difficulties. The genre that we might call "the Platonic dialogue" is distinguished by several relevant characteristics.First, there is no character called "Plato" who speaks in any of the dialogues; indeed, "Plato" is mentioned twice in the entire corpus, once as being absent (Pho. 59b10), and once as being present (Apol. 38b6). Authorial anonymity is thus an important feature of the dialogues. 2 At least ab initio, we are not justified in identifying Plato with any one of his characters. Indeed, there are positive reasons why he cannot be identified even with Socrates, as I will discuss below. 3 Plato is absent from his own texts; no simple act of reading them will allow us to ascertain what his views are. 4 It does not follow that Plato's views are [End Page 84] entirely absent from the dialogues—say, in the form of some mysterious "esoteric teaching"—and that they cannot be elicited by a complex act of reading. Just how Plato's views are to be extracted has been, again, the subject of a very long debate. 5 I myself think that Plato's views can be so elicited. 6 But the fact of his anonymity as author means that "Plato's meaning" is not ascertainable in the way that, say, "Kant's meaning" may be ascertainable in the Critique of Pure Reason.A second feature of Plato's dialogues contributes to the interpretive puzzle. The dialogues are clearly fictional in character. They are not—they could not be—transcriptions of conversations which took place. Some dialogues could not have taken place even when the interlocutors were historical figures (for example, at the Phaedrus' ostensible dramatic date the real Phaedrus was not in Athens). Not only are many of the characters entirely fictional, there is clear evidence that even "Socrates" is very much a fictionalized version of the historical character. I am referring not just to the famous statement in the (possibly inauthentic) Second Letter, 7 but to the fact that the Socrates of Plato's dialogues is presented as being a super-human character. This is evident from Alcibiades' description of him in the Symposium as well as from a number of subtle fictions. For example, Plato has Socrates narrate the entirety of the Republic from memory, without a single moment of hesitation or (so far as the reader can tell) any lapse of memory. This fantastic feat is complemented by Socrates' equally fantastic stamina in conversation. The lengthy Protagoras, for example, is narrated in its entirety by Socrates immediately after the dialogue itself has occurred. Socrates never shows any fatigue of any sort. It is not just hyperbole to say that Plato's Socrates is heroic; he is carefully compared, in passages I cannot examine here, to both Achilles and Odysseus. Socrates' absolute calm and self-control before death also evidence his superhuman character. The relation between the historical Socrates and the Platonic Socrates is the source of much fruitful controversy. It suffices for... (shrink)

Nearly everyone has wronged another. Who among us has not longed to be forgiven? Who has not struggled to forgive? Charles Griswold has written the first comprehensive philosophical book on forgiveness in both its interpersonal and political contexts, as well as its relation to reconciliation. Having examined the place of forgiveness in ancient philosophy and in modern thought, he discusses what forgiveness is, what conditions the parties to it must meet, its relation to revenge and hatred, when it is (...) permissible and whether it is obligatory, and why it is a virtue. Griswold argues that forgiveness is inappropriate in politics, and analyzes the nature and limits of political apology with reference to historical examples. The book concludes with an examination of the relation between memory, narrative, and truth. (shrink)

Charles Griswold has written a comprehensive philosophical study of Smith's moral and political thought. Griswold sets Smith's work in the context of the Enlightenment and relates it to current discussions in moral and political philosophy. Smith's appropriation as well as criticism of ancient philosophy, and his carefully balanced defence of a liberal and humane moral and political outlook, are also explored. This 1999 book is a major philosophical and historical reassessment of a key figure in the Enlightenment that (...) will be of particular interest to philosophers and political and legal theorists, as well as historians of ideas, rhetoric, and political economy. (shrink)

In this award-winning study of the _Phaedrus_, Charles Griswold focuses on the theme of "self-knowledge." Relying on the principle that form and content are equally important to the dialogue's meaning, Griswold shows how the concept of self-knowledge unifies the profusion of issues set forth by Plato. Included are a new preface and an updated comprehensive bibliography of works on the _Phaedrus_.

Originally published by Routledge in 1988, this pioneering collection of essays now features a new preface and updated bibliography by the editor, reflecting the most significant developments in Plato scholarship during the past decade.

Standard models of adolescent risk taking posit that the cognitive abilities of adolescents and adults are equivalent, and that increases in risk taking that occur during adolescence are the result of socio emotional differences in impulsivity, sensation seeking, and lack of self-control. Fuzzy-trace theory incorporates these socio emotional differences. However, it predicts that there are also cognitive differences between adolescents and adults, specifically that there are developmental increases in gist-based intuition that reflects understanding. Gist understanding, as opposed to verbatim-based analysis, (...) generally has been hypothesized to have a protective effect on risk taking in adolescence. Gist understanding is also an essential element of informed consent regarding risks in medical decision- making. Evidence thus supports the argument that adolescents’ status as mature minors should be treated as an exception rather than a presumption, because accuracy in verbatim analysis is not mature gist understanding. Use of the exception should be accompanied by medical experts’ input on the bottom-line gist of risks involved in treatment. (shrink)

Jean-Jacques Rousseau and Adam Smith are giants of eighteenth century thought. The heated controversy provoked by their competing visions of human nature and society still resonates today. Smith himself reviewed Rousseau's Discourse on Inequality, and his perceptive remarks raise an intriguing question: what would a conversation between these two great thinkers look like? In this outstanding book Charles Griswold analyses, compares and evaluates some of the key ways in which Rousseau and Smith address what could be termed "the question (...) of the self." Both thinkers discuss what we are by nature, who we have become, whether we can know ourselves or each other, how best to articulate the human condition, what it would mean to be free, and whether there is anything that can be done to remedy our deeply imperfect condition. In the course of examining their rich and contrasting views, Griswold puts Rousseau and Smith in dialogue by imagining what they might say in reply to one another. Griswold's wide-ranging exploration includes discussion of issues such as narcissism, self-falsification, sympathy, the scope of philosophy, and the relation between liberty, religion and civic order. A superb exploration of two major philosophers, Jean-Jacques Rousseau and Adam Smith: A Philosophical Encounter is essential reading for students and scholars of these two figures, eighteenth century philosophy, the Enlightenment, moral philosophy, the history of ideas. It will also be of interest to those in related disciplines such as political theory, economics, and religion. (shrink)