Against Calling on Government to Shape Souls Gregory Sisk September 17, 2013 1 Comment My colleague, Professor Charles J. Reid Jr., has become a vigorous advocate for “a robust American government.” In an editorial in the winter edition of St. Thomas Lawyer magazine, Reid calls for a much enlarged federal government with an even larger agenda. Reid pointedly accuses those of us who resist government encroachment of singing a “sickening refrain.” He labels the Reaganesque question about the wisdom of reliance on the state as the answer to all societal ills as producing “toxic words” that “inject poisons into the American body politic.” Because the American tradition of limited government does not deserve Reid’s pejorative as “petty, crankish, small-minded,” I offer this rejoinder. And because Reid advocates an über-activist vision of national government that he would task for “the betterment of men’s hearts,” I interject a warning about the perils of over-zealous faith in the state. In his editorial, Reid takes his faith in the state to a heightened level by advancing the use of government – not to invest in good works or even to promote good behavior – but to bring about right thinking in its citizens. And government would accomplish this shaping of hearts and minds, not by the warm persuasion of human relationships, but through the cold coercive force of the law. To support this vision, Reid adduces the example of the civil rights acts of the 1960s. To achieve “the betterment of men’s hearts,” he claims that the civil rights acts “required something that no prior legislative enactment had dared to seek – the banishment of hatred from the precincts of the human mind.” As a matter of both law and history, Reid greatly overstates the precedent. The Civil Rights Act of 1964 does not enjoin enlightened racial thinking on the boss or the inn keeper. These statutes prohibit specific acts of discrimination in the particular categories of employment and accommodation. As one of the leading drafters emphasized, “The man must do or fail to do something in regard to employment. There must be some specific external act, more than a mental act.” And leaders of the civil rights movement, while appreciating government as one important tool in ending oppression and opening opportunity, harbored no grand illusion about the salvific power of law and politics. The central goal of the civil rights movement was to remove the burden of segregationist laws and to obtain the targeted intervention of government to generate economic and educational opportunities. Civil rights leaders made clear that they never trusted law to bring people to think right, as contrasted from using law strategically to prevent people from doing wrong. As Martin Luther King Jr. wisely observed, “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.” And I fear that Reid’s endorsement of government “as a force for good – and greatness – in the world” and as an instrument to reconstruct “the precincts of the human mind” poses grave dangers, both secular and spiritual. First, by overreaching and asking government to act beyond its capability, we set the stage for disappointment and cynicism. What Reid calls the “sickening refrain” of those who are skeptical of government has been generated by decades of disappointed experiences from unimaginative reliance on government. As but one example, we are now nearing the end of the fifth decade of the War on Poverty – and poverty is still winning. This all while spending on means-tested social welfare programs has risen by 50 percent over the past decade. One need not be “petty, crankish and small-minded” to be discouraged by the powerful evidence of governmental failure. Beyond a government-funded safety net, we should be looking for more effective partnerships between government and private sector entities, moving legal restrictions out of the way to allow charitable works to flourish, and working to allow greater freedom of choice in education that includes private and religious schools. What we need is imagination – a rethinking of possibilities and creativity in methods. And imagination is in short supply in the impersonal bureaucracies of government. Second, the genius of the American system lies not in the power of government but in its opposite – liberty. And yet the words “liberty” and “freedom” are not to be found in Reid’s editorial. Nearly every law enacted and every government act initiated constrict freedom. For a good cause, the cost to freedom may be justly borne. People of good faith will disagree about the appropriate balance and justifiable tradeoffs – and those in both political parties do not deserve contempt for reaching different conclusions. But government knows no bounds, and freedom is in grave jeopardy when the power of the state is unleashed in a crusade for the “betterment of men’s hearts.” Promoting statecraft as soulcraft delivers us into the great temptation of idolatry. Whenever anyone proposes empowering government through the force of law to enjoin the right way to think or to shape the right way to feel, we should be nervous. This disquiet should remain even when – no, especially when – we are convinced that we know what the right way is. We must insist that the “precincts of the human mind” belong to God – not to government. And we must be ever so careful not to confuse the two. Read more from St. Thomas Lawyer. RelatedPoint/Counterpoint: Safeguarding IP RightsPete on the BeatWalz Counsels Clients About Data Security and PrivacyFrom the Dean: Can a Smaller Law School be a Better Law School? One Response Michael O'Donnell September 18, 2013 James Nolan in his writings about the therapeutic state cites specific evidence of government going beyond helping in the material sense and venturing into helping us get well, mentally and spiritually. He is deeply concerned with a legal system, for example, that is overly invested in “curing” the wrongdoer, based on an ever-expanding list of psychological disorders. Just to be clear, food stamps would be an example of the government helping someone materially. A therapeutic approach to public education, about which dozens of academic articles have been written, would be an example of the government getting involved in cultivating our minds and spirits. While providing monetary help to poor families might be soul sapping, it doesn’t seem to be what Sisk is really talking about here. But Nolan begins his analysis by acknowledging that the therapeutic ethos did not rise out of government but instead out of capitalism, with the constant effort to bring new goods and services to the market. The therapeutic ethos rose not from government but from the medical establishment and especially the field of psychotherapy. The “private sector” has latched onto the idea and is quite willing to help us with our problems. In her writings, Arlie Russell Hoschschild describes a landscape of advice books, magazines, TV shows and other media; personal trainers, shoppers, wedding planners, counselors — in short a whole economy based on turning the most intimate and sacred aspects of life into commodities. Sisk is right in his objection to naive faith in government to help us solve our problems, to change minds, to teach us right and wrong. But I believe faith in the “private sector,” where the primary function is to turn a profit, is just as naive.