[Wittrs] On Christmas Trees, Metaphysics and Law

Sean Wilson <whoooo26505@xxxxxxxxx> · Sat, 17 Mar 2012 10:31:44 -0700 (PDT)

... a couple of thoughts

1. If one were inclined to have the Court get rid of "Christmas Trees," would 
one do it because of Christianity or Paganism? Even before antiquity, plants, 
 evergreen trees and similar foliage were brought in homes upon the arrival of 
the winter solstice. One could make the argument that the commercialization of 
the season is more Roman than it is "Christian," at least in philosophy. What 
makes something a "Christmas tree?" Is it the adornments or its moniker? And if 
an evergreen was put upon public lands to celebrate the solstice, would this, 
too, be against the ideology some in here propose?

2. One of the things that would be helpful is if we applied a meta-rule. Let's 
suppose all of us operated under two basic ideas: (a) that law should bear some 
meaningful relationship to society; and (b) decisions are a cultural 
construction. This would seem to say that law should be culturally relevant. 
This doesn't mean majority rules; it means that decisions should fit the way 
the culture is oriented. Sort of in the way that a flag burning decision does 
-- it fits into an overall American ethos, because, we are neither Sparta nor 
Athens. And so, if we simply applied these two simple meta-rules to all 
constitutional decision making, it seems that there would be a better basis for 
saying something about the legitimacy of decisions, rather than simply feeling 
cheated.        

3. Lief's post made me think of Wittgenstein. Gosh he would have hated it. He 
found atheists as narrow minded as he did the logical positivists of the Vienna 
Circle. He never would have equated religion with magic. You cannot escape two 
things: the unknown and the picture of account you form in your head. And if 
you tell yourself that the only picture of account is one where no metaphysics 
can exist, all you have done is offer a dismal account of metaphysics, not a 
rejected one. You can't escape it. It's like those people who think the reality 
lies in the statistical model. We live now in a world where alien stories 
capture the intellectual imagination more than God stories. I want to suggest 
that is a sign that intellectual culture is failing in some respects.

Consider Ray Monk on Wittgenstein's religious views in 1937:

"On the ship to Bergen Wittgenstein wrote of Christ's resurrection and of what 
inclined even him to believe in it. If Christ did not rise from the dead, he 
reasoned, then he decomposed in the grave like any other man. 'HE IS DEAD AND 
DECOMPOSED.' He had to repeat an underline the thought to appreciate its 
awfulness. For if that were the case, then Christ was a teacher like any other, 
'and can no longer HELP; and once more we are orphaned and alone. So we have to 
content ourselves with wisdom and speculation.'  And if that is all we have, 
then: 'We are in a sort of hell where we can do nothing but dream, roofed in, 
as it were, and cut off from heaven.' If he wanted to be saved, to be redeemed, 
then wisdom was not enough; he needed faith:

 "And faith is faith in what is needed by my HEART, my SOUL, not my speculative 
intelligence. For it is my soul with its passions, as it were with its flesh 
and blood, that has to be saved, not my abstract mind. Perhaps we can only say: 
Only LOVE can believe in the resurrection. Or: it is LOVE that believes 
the resurrection. We might say: Redeeming love believes even in 
the resurrection; holds fast even to resurrection ... 

What combats doubt is, as it were, REDEMPTION. Holding fast to THIS must be 
holding fast to that belief. ..."

[Note: allcaps substitued for italics -- sw]

 Source: Ray Monk, The Duty of Genius, at page 382-383. 

(P.S. -- Sent to Wittrs)      

Regards and thanks.

Dr. Sean Wilson, Esq.
[spoiler]Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=596860
Wittgenstein 
Discussion: http://seanwilson.org/wittgenstein.discussion.html [/spoiler]

________________________________
From: Lief Carter (R) <LHCarter@xxxxxxxxxxxxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxxxxxxxxxxx 
Sent: Saturday, March 17, 2012 12:15 PM
Subject: Re: The taint of Christianity

I want to second Harry's point and use it as an opportunity to wax a bit 
philosophical.  Specifically, let me suggest that the distinction between what 
is religious and non-religious is not a helpful or easy distinction to make.  
(Does my going to an Episcopal church because I like singing bass in the church 
choir that will do the Libera Me from the Verdi Requiem this coming Palm Sunday 
make me religious?)  BUT, the distinction between magical thinking and 
reality-based thinking is much easier and more helpful (indeed critically 
important) to make.  And here's the philosophical wax:  Postmodernism is often 
misunderstood as denying the existence of discernible reality, but that's 
wrong.  There are no single objective and universally true realities, sure 
enough.  There is an infinite number of equally true (real) answers to the 
question, "What is the circumference of Australia?", depending on what you 
decide to measure around.  But "Britney Spears"
 or "an Easter ham" are unambiguously wrong answers to that question.  People, 
groups and societies that do not make these distinctions and that operate on 
the basis of magical thinking (as much religious thought is) rather than 
reality-based thinking become first destructive and then self-destructive.  
Think Crusades.  Hitler's anti-Semitism and romanticized notions of Aryan 
superiority, and Soviet communism failed disastrously and were horribly 
destructive not because they violated some moral sensibilities but because 
realities on multiple levels directly contradicted the beliefs and assumptions 
on which such systems operated.  Societies that lose the capacity to 
distinguish between reality and magic are doomed, which is why Harry is so 
right to call for special vigilance in times when prominent people promote 
intelligent design and say separation of church and state makes them want to 
throw up and that it is mere snobbery to want to send your
 children to college.

PL
________________________________
From: Harry Hirsch [hnhirsch@xxxxxxxxxxx]
Sent: Saturday, March 17, 2012 7:34 AM
To: LAWCOURT-L@xxxxxxxxxxxxxxxxxxx
Subject: Re: The taint of Christianity

Professor Graber says our culture is "saturated" with a religious tradition.  
All the more reason, it seems to me, to be vigilant.  He says "the line between 
what is religious and what is not-religious becomes impossible to divine."  I 
suppose that's true in some cases, but then why is it called a Christmas tree, 
and why do so many observers of non-Christian religions not have them in their 
homes, and find their public display offensive?  Are they just being (choose 
your adjective) silly or over-sensitive?  Then I suppose the author/creator or 
readers/viewers of an offensive (but not obscene) book or film are just being 
silly when they object to majoritarian censorship.

Majorities are fond of flexing their collective muscle in cases of public 
morals--what is read, what is viewed, what is taught in schools, what is 
publicly displayed.  If restraining such flexing, when it oversteps, is not 
what courts are supposed to be doing, then I don't understand why we have a 
First Amendment at all.

hh

On Mar 16, 2012, at 6:15 PM, Graber, Mark wrote:

I think there are genuinely difficult issues when a culture is so saturated 
with a religious tradition that the line between what is religious and what is 
not-religious becomes impossible to divine.  I confess what I find difficult 
with messages on both sides is that they find that line far more easier to 
figure out.  I confess for this reason thinking that on the list of "repulsive" 
things, neither the inclusion nor exclusion of Christmas trees in the public 
sphere counts.  I confess as a Supreme Court justice (are you listening Obama!) 
I would be inclined to deny cert in every such case, letting stand diverse 
local rulings on the matter, so that there was as much constitutional 
uncertainty as I could generate.

MAG

________________________________________
From: Volokh, Eugene [VOLOKH@xxxxxxxxxxxx]
Sent: Friday, March 16, 2012 6:01 PM
To: LAWCOURT-L@xxxxxxxxxxxxxxxxxxx<mailto:LAWCOURT-L@xxxxxxxxxxxxxxxxxxx>
Subject: The taint of Christianity

       Prof. Hoffman is entitled to view Christmas trees as "an abomination," 
but the question is whether people who take this view should be able to force 
it on local governments throughout the country, not through the political 
process by judicial fiat.  I think not, even under a vision of the 
Establishment Clause that bars the use of certain expressly religious symbols, 
such as crosses, in certain situations.

       The Christmas tree is not a cross, or much like a cross.  It is, to be 
sure, associated with celebrations of a religious holiday, but so are eggnog, 
gift exchanges, light displays, Easter egg hunts, and the Easter bunny.  To ban 
such symbols from government institutions makes sense only on what I call a 
"taint" theory of Christianity, or of religion generally -- that all things 
associated with America's majority Christian history and culture, even things 
with no theological or devotional qualities, must be extirpated from the 
American public square.  I see no basis for this in American legal traditions, 
and it seems to me that this forced exclusion would exhibit bitter hostility to 
religion.

       Even I, as a nonreligious Jew, would find that repulsive.  It doesn't at 
all surprise that many Christians find it more so, and that if the Court were 
to take this view very many American Christians would -- and should -- resist 
this through all the considerable political power that they can muster.

       Eugene

Dan Hoffman writes:

The whole purpose of the EC is to prevent religious believers from foisting 
their beliefs on nonbelievers.  To call this discrimination against them is a 
rhetorical trick.
In my Jewish home, christmas trees were an abomination, and when I was forced 
to participate in christmas pageants and sing carols in a public school, it was 
an outrage.  "After all, this is a christian country," said the principal, and 
O'Connor said exactly the same thing in a speech.
Too many people just don't get it.  This is not about an individual's free 
exercise, it's about appropriating the public sphere for sectarian purposes.  
If this is a christian country, nonchristians are second-class citizens.  THAT 
is discrimination.

H N Hirsch
Professor of Politics
Oberlin College
209 Rice Hall
Oberlin, OH 44074
440-775-6855
440-775-8898 (fax)
hnhirsch@xxxxxxxxxxx<mailto:hnhirsch@xxxxxxxxxxx>
Office hours: http://bit.ly/bPHwXy  ;

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[Wittrs] On Christmas Trees, Metaphysics and Law

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