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Praise and Blame

Moral Realism and Its Applications

Daniel N. Robinson

How should a prize be awarded after a horse race? Should it go to the best rider, the best person, or the one who finishes first? To what extent are bystanders blameworthy when they do nothing to prevent harm? Are there any objective standards of moral responsibility with which to address such perennial questions? In this fluidly written and lively book, Daniel Robinson takes on the prodigious task of setting forth the contours of praise and blame. He does so by mounting an important and provocative new defense of a radical theory of moral realism and offering a critical appraisal of prevailing alternatives such as determinism and behaviorism and of their conceptual shortcomings.

The version of moral realism that arises from Robinson's penetrating inquiry--an inquiry steeped in Aristotelian ethics but deeply informed by modern scientific knowledge of human cognition--is independent of cognition and emotion. At the same time, Robinson carefully explores how such human attributes succeed or fail in comprehending real moral properties. Through brilliant analyses of constitutional and moral luck, of biosocial and genetic versions of psychological determinism, and of relativistic-anthropological accounts of variations in moral precepts, he concludes that none of these conceptions accounts either for the nature of moral properties or the basis upon which they could be known. Ultimately, the theory that Robinson develops preserves moral properties even while acknowledging the conditions that undermine the powers of human will.

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The Supreme Court and Religion in American Life, Vol. 1

The Odyssey of the Religion Clauses

James Hitchcock

School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing.

This, the first of two volumes by historian and legal scholar James Hitchcock, provides the first comprehensive exploration of the Supreme Court's approach to religion, offering a close look at every case, including some that scholars have ignored.

Hitchcock traces the history of the way the Court has rendered important decisions involving religious liberty. Prior to World War II it issued relatively few decisions interpreting the Religious Clauses of the Constitution. Nonetheless, it addressed some very important ideas, including the 1819 Dartmouth College case, which protected private religious education from state control, and the Mormon polygamy cases, which established the principle that religious liberty was restricted by the perceived good of society.

It was not until the 1940s that a revolutionary change occurred in the way the Supreme Court viewed religion. During that era, the Court steadily expanded the scope of religious liberty to include many things that were probably not intended by the framers of the Constitution, and it narrowed the permissible scope of religion in public life, barring most kinds of public aid to religious schools and forbidding almost all forms of religious expression in the public schools. This book, along with its companion volume, From "Higher Law" to "Sectarian Scruples," offers a fresh analysis of the Court's most important decisions in constitutional doctrine. Sweeping in range, it paints a detailed picture of the changing relationship between religion and the state in American history.

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The Supreme Court and Religion in American Life, Vol. 2

From "Higher Law" to "Sectarian Scruples"

James Hitchcock

School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing.

This, the second of two volumes by historian and legal scholar James Hitchcock, offers a complete analysis and interpretation of the Court's historical understanding of religion, explaining the revolutionary change that occurred in the 1940s. In Volume I: The Odyssey of the Religion Clauses (Princeton), Hitchcock provides the first comprehensive survey of the court cases involving the Religion Clauses, including a number that scholars have ignored.

Here, Hitchcock examines how, in the early history of our country, a strict separation of church and state was sustained through the opinions of Jefferson and Madison, even though their views were those of the minority. Despite the Founding Fathers' ideas, the American polity evolved on the assumption that religion was necessary to a healthy society, and cooperation between religion and government was assumed.

This view was seldom questioned until the 1940s, notes Hitchcock. Then, with the beginning of the New Deal and the appointment of justices who believed they had the freedom to apply the Constitution in new ways, the judicial climate changed.

Hitchcock reveals the personal histories of these justices and describes how the nucleus of the Court after World War II was composed of men who were alienated from their own faiths and who looked at religious belief as irrational, divisive, and potentially dangerous, assumptions that became enshrined in the modern jurisprudence of the Religion Clauses. He goes on to offer a fascinating look at how the modern Court continues to grapple with the question of whether traditional religious liberty is to be upheld.

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That Eminent Tribunal

Judicial Supremacy and the Constitution

Christopher Wolfe

The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process?

That Eminent Tribunal brings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions.

Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself in Planned Parenthood v. Casey and similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible.

The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.

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Virtue and the Making of Modern Liberalism

Peter Berkowitz

Virtue has been rediscovered in the United States as a subject of public debate and of philosophical inquiry. Politicians from both parties, leading intellectuals, and concerned citizens from diverse backgrounds are addressing questions about the content of our character. William Bennett's moral guide for children, A Book of Virtues, was a national bestseller. Yet many continue to associate virtue with a prudish, Victorian morality or with crude attempts by government to legislate morals. Peter Berkowitz clarifies the fundamental issues, arguing that a certain ambivalence toward virtue reflects the liberal spirit at its best. Drawing on recent scholarship as well as classical political philosophy, he makes his case with penetrating analyses of four central figures in the making of modern liberalism: Hobbes, Locke, Kant, and Mill.

These thinkers are usually understood to have neglected or disparaged virtue. Yet Berkowitz shows that they all believed that government resting on the fundamental premise of liberalism--the natural freedom and equality of all human beings--could not work unless citizens and officeholders possess particular qualities of mind and character. These virtues, which include reflective judgment, sympathetic imagination, self-restraint, the ability to cooperate, and toleration do not arise spontaneously but must be cultivated. Berkowitz explores the various strategies the thinkers employ as they seek to give virtue its due while respecting individual liberty. Liberals, he argues, must combine energy and forbearance, finding public and private ways to support such nongovernmental institutions as the family and voluntary associations. For these institutions, the liberal tradition powerfully suggests, play an indispensable role not only in forming the virtues on which liberal democracy depends but in overcoming the vices that it tends to engender.

Clearly written and vigorously argued, this is a provocative work of political theory that speaks directly to complex issues at the heart of contemporary philosophy and public discussion.

New Forum Books makes available to general readers outstanding, original, interdisciplinary scholarship with a special focus on the juncture of culture, law, and politics. New Forum Books is guided by the conviction that law and politics not only reflect culture, but help to shape it. Authors include leading political scientists, sociologists, legal scholars, philosophers, theologians, historians, and economists writing for nonspecialist readers and scholars across a range of fields. Looking at questions such as political equality, the concept of rights, the problem of virtue in liberal politics, crime and punishment, population, poverty, economic development, and the international legal and political order, New Forum Books seeks to explain--not explain away--the difficult issues we face today.

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Welfare and the Constitution

Sotirios A. Barber

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice.

Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself.

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