Briefly Noted 226

Abortion Under State Constitutions

by Paul Benjamin Linton

Carolina Academic , 610 pages, $75

As Rodney Dangerfield might have put it, state constitutions get no respect. In our best law schools, these constitutions’ text, history, and structure are, for the most part, ignored. For most law students, exposure to state constitutional law is limited to some obligatory, perfunctory gestures in their bar-preparation courses. Although most citizens are disappointingly innocent of the federal constitution’s content and import, we can still be reasonably confident that they know the charter exists. Not so with the constitutions of their own states.

All this is unfortunate. The Constitution of the United States, after all, is a blueprint for only one of the several particular governments under which we Americans live and for which we are accountable. To be sure, it is the “supreme law of the land,” but, generally speaking, it serves as a floor, not a ceiling. And so, state constitutions can, and do, provide protections for individual rights that the national constitution does not guarantee. For example, some state constitutions regulate searches, seizures, and interrogations by police more closely than does the Fourth Amendment; in some states, closer scrutiny is required of general laws that burden religious practice than is demanded by the First Amendment; and so on.

Now, given the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey ”decisions that, given the recent election, are not likely to be overruled anytime soon”it might be thought that the various state constitutions’ treatments of abortion are irrelevant. After all, these rulings infamously removed almost entirely the question of abortion-regulation from politically accountable actors, at all levels of government. In fact, though, as Paul Linton’s very thorough and engaging study shows, the states’ abortion-regulation regimes vary significantly, as do their constitutional doctrines, and these differences matter.

Some state constitutions have “privacy” provisions, and so courts interpreting them do not need to discover privacy-protections lurking in the penumbras of constitutional emanations. In some states, the right to abortion is thought to have roots in religious freedom. Some courts have interpreted state constitutions to prohibit even regulations that the Supreme Court has said the national constitution allows (just as some state constitutions are interpreted to outlaw school-choice programs that the Establishment Clause permits).

Although the current Court”and the Court in the foreseeable future”is unlikely to jettison Roe and Casey , we can still hope, and probably expect, that some room for reasonable regulations of abortion will remain. Accordingly, those who believe that unborn children should not be excluded entirely from the protections of the law will continue to have important, challenging work in the legislatures and courtrooms of the several states. This book Abortion Under State Constitutions is a must-have tool for all engaged in this work.

”Richard W. Garnett

The Legend of Death: Two Poetic Sequences

by John Milbank

Cascade, 182 pages, $22

The eminent Christian theologian John Milbank is best known as a founder of “radical orthodoxy””a movement critical of modern secularism”and as the occasional sparring partner of the atheist-provocateur philosopher Slavoj Žižek.

Milbank, however, also writes poetry, and, rather like Shakespeare’s poet who glances “from heaven to earth, from earth to heaven,” Milbank keeps one eye on the natural world and the other on transcendence. In Milbank’s characteristically knotty introduction to the first sequence of poems, “On the Diagonal: Metaphysical Landscapes,” he situates poetry precisely between these two axes”one reaching heavenward, the other ground-bound. Each attempt at ascent carries something of the earthly with it, while poetry, he explains, “attends to the resultant human diagonal.”

The language of “On the Diagonal” favors the vertical axis over the horizontal, the abstract over the concrete, metaphysics over ­landscape. A mountain is rarely just a mountain; it is a touchstone of revelation: Now we are ready for what / shapes absently / the blue-smooth rocks / that are the color of wisdom .

Unmarred by the landscape’s grittier details, Milbank’s poems begin in contemplation and end in mystery. The poems avoid the inward collapsing found in so much mawkish contemporary poetry, choosing instead to open outward toward (a favorite word) “vastness.”

The second, shorter sequence, “The Legend of Death,” considers England in terms of its “story, creed, and place,” traveling in time from the pagan to the Christian era. Along the way, one encounters (as one might expect) the Celts and Scandinavians and the earthy textures of their legends and myths: With sea-thrift, sea-scabious,?/?hazel and honeysuckle twining in the distance, / arched over the graves of Iseult and Tristram . The poems in this sequence are more various in tone than in the first, nature more acutely observed.

When Milbank’s poems are at their best, they are fine indeed, reminiscent of another contemporary poet concerned with landscape, history, and Christianity”the British poet Geoffrey Hill.

”David Yezzi

The Legacy of Islamic Antisemitism: From Sacred Texts to Solemn History

by Andrew G. Bostom

Prometheus, 766 pages, $39.98

Why do Muslims seem to have a problem with the Jews? What could explain all the kidnappings, assassinations, conspiracy theories, fantastic libels, hateful sermons, and disturbing public statements? Why did a recent survey find Europe’s Muslims were eight times more likely to be overtly antisemitic than Christians?

Andrew Bostom’s Legacy of Islamic Antisemitism is the place to look for answers. He painstakingly demonstrates that Islamic antisemitism is as old as Islam itself, supporting his analyses with five hundred pages of sources.

Included in these sources are the anti-Jewish polemical verses of the Qur’an, excerpts from Muhammad’s canonical biographies, theological statements of leading Islamic scholars from the earliest times to the present day, and many historical sources that document a grim history of prejudice and abuse.

Bostom demolishes what he calls two “false pillars” of denial. The first is that, as the historian Bernard Lewis puts it, “in Islamic society hostility to the Jews is non-theological.” The second is that Jews thrived under Muslim rule. Bostom cites an impressive body of evidence that Islamic animus is utterly theological and that life under Islam meant poverty, humiliation, and vulnerability for the Jews.

Arising from these pages is a chorus of pain in the voices of vanished Jewish communities throughout the Islamic world. Bostom’s bold book is a challenge to Muslims to reconsider the beliefs and practical manifestations of their faith.

”Mark Durie

Feeling Our Feelings: What ­Philosophers Think and People Know

by Eva Brann

Paul Dry, 550 pages, $35

“Aren’t many”perhaps most”people natural experts on feeling feelings but perhaps lifelong novices at articulating that experience?” So wonders Eva Brann, who analyzes the work of nine philosophers, from Plato to Heidegger, in order to “come near an answer to the question: What does it mean to feel?” Selecting these philosophers because “what they think does not diverge so very far from what we readers know,” Brann seeks the most likely explanations for the why and how of human passions, emotions, and moods.

Brann’s historical approach and intricate analysis illustrate the diverse manners in which philosophers have understood human passion, which she defines as “a strong, natural affect, under which we are passive rather than active.” For example, whereas Aristotle was the first to examine the passions scientifically in order to regulate them, the Stoics sought “not to moderate but to dispel the passions.”

In the modern era, Descartes’ dualism made his account of the passions a problem, yet Spinoza broke new ground by proposing “our mind as the idea of our body,” thereby providing a foundation for today’s neuroscience. Later, Hume moved from the passivity of “passion” to “emotion,” which focused more on “the internal motive force and its artful expression.” From this shift followed Kierkegaard’s view of anxiety and Heidegger’s account of moods, which “are human affects that tell not only how we are but what our world is.”

Brann concludes by delineating and answering the most pertinent questions regarding the passions. She argues that the human soul is “basically affective” before it is rational and that human beings have experienced their feelings in the same ­manner throughout time. These experiences are not “culturally jigged,” because “they are expressed from the inside, not impressed from the outside.” Ultimately, Brann’s philosophical exposition articulates”and matches”human experience in its desire “to feel our feelings.”

”David G. Bonagura Jr.

A Brief History of the Private Lives of the Roman Emperors

by Anthony Blond

Running Press, 256 pages, $13.95

The title will mislead readers looking for salacious tidbits about the private lives of the ninety-two Roman emperors from the empire’s founder, Augustus, to Romulus Augustulus, who oversaw its demise. Those interested in important emperors such as Constantine or Julian the Apostate will be disappointed, for only the Julio-Claudian emperors are covered.

Nor is “private life” the only topic: Indeed, the usual sordid or lunatic escapades familiar from Suetonius and Plutarch (or HBO’s mini-series Rome ) do appear, but each mini-biography covers an emperor’s whole life and reign, for the most part accurately and always in a lively style accessible to the intelligent reader. But if Blond delivers less about the Roman emperors than his title suggests, he also provides much more. In addition to the brief biographies of the Julio-Claudians, Blond has chapters covering sex, slavery, Roman relations with Jews, the Roman army and law, the gladiatorial games, and the city of Rome itself, along with forays into religion, food, and the household. The last chapter recreates a day in the life of a typical Roman named Quintus as he runs his errands in Rome, from bidding on a new slave to be cupbearer to buying an expensive turbot for a dinner party. Blond manages to pack coherently a plethora of information into a short space, though the lack of footnotes and references makes it difficult to check either his or his sources’ accuracy.

A further problem, most evident in the chapter on sex, is a tendency to use literature as evidence for actual behavior. As Catullus said to a critic making the same mistake, “The poet ought to be chaste, but not necessarily his verses.” Occasionally, Blond’s obiter dicta are off the mark. It’s not true, for instance, that slavery wasn’t considered unnatural until the reign of Trajan; five centuries earlier, the Greek Alcidimas had said, “Nature made no man a slave.” Alcibiades wasn’t killed by Athenian arrows; Persians did the deed, at the instigation of the Spartan Lysander. Despite these occasional errors, however, Blond’s book is an entertaining introduction to Roman life and ­history.

”Bruce Thornton

Pius XII: The Hound of Hitler

by Gerard Noel

Continuum, 232 pages, $26.95

October 9 marked the fiftieth an­niversary of the death of Pius XII, an event that brought forth many tributes”including a special Mass celebrated by Benedict XVI. Ever since the attacks against Pius’ papacy commenced, the English-speaking world has been waiting for a well-rounded, up-to-date bio­graphy that not only puts to rest the myths but does justice to the man.

This is not that book. In fact, Gerard Noel, a former editor of the Catholic Herald , may have written the worst book ever on Pius XII”which is quite an accomplishment, given the competition. Pius XII: The Hound of Hitler is outdated, poorly sourced, and tries to psychoanalyze the wartime pontiff when not accusing him of “horrendous” acts.

One look at Noel’s footnotes will reveal his originality and depth of research: Of the more than five hundred footnotes, roughly half reference the 1983 book La Popessa by Paul Murphy, a fanciful biography based on the alleged secret conversations of Sister Pascalina Lehnert, Pius’ housekeeper. Father Robert Graham, the foremost authority on Vatican wartime diplomacy, called the book “at best a practical joke.” Among La Popessa ‘s claims are a description of a meeting a young Eugenio Pacelli (Pius XII) had with Adolf Hitler, which Noel repeats with rapt fascination. If only it had occurred! Pacelli never met Adolf Hitler, though he did denounce his movement as early as 1921, and many times afterward, contrary to claims about his alleged “silence.”

Noel also uses Domenico Cardinal Tardini to depict Pius XII as a weak, vacillating pope, but in his Memories of Pius XII , Tardini explicitly states that “Pius XII was strong” and was “ready to go to a concentration camp.”

He may well have, had the Nazis, already furious about the Church’s assistance to Jews, found out about Pius’ support for a plot to overthrow Hitler. As for Sr. Pascalina, Noel makes little use of her actual memoirs, of which Paul Hoffman, the former Rome bureau chief of the New York Times , wrote: “The book portrays Pacelli as a prayerful, ascetic, and immensely disciplined priest who wasted no time on trivial things and worked until 2 a.m. , every night, to be up again at 6 a.m. There is not one word that might be construed as criticism or less-than-reverent appraisal. To Pascalina, it appears, Pius XII was a saint and ‘one of the greatest benefactors of mankind.’” Long after his tawdry critics are forgotten, that is likely to be the final judgment of responsible history.

”William Doino Jr.

The Art of Politics: The New Betrayal of America and How to Resist It

by John Kekes

Encounter, 325 pages, $27.95

John Kekes writes that American ideologues pose a greater threat than Islamic terrorism. Their monomaniacal approach so severely frays the fabric of society that it threatens to destroy America from within.

Who are the dreaded ideologues? They are the terrible simplifiers. Their error is viewing any principle”such as liberty, equality, or natural law”as the highest good. Kekes denounces their “vehemence, fervor, inflated rhetoric,” and their division between the “good, who agree with them, and the bad who do not.” Yet Kekes cleaves society into ideological and non-ideological camps and wages his own crusade against a “poisonous mixture of hypocrisy, specious moralizing, and abuse of America.”

Unfortunately, Kekes is battling an army of straw men. He writes that egalitarians believe all people”in­cluding “mass murderers and their victims””“should have the same share of scarce resources.”

Though not all the ideologues are caricatured quite so absurdly, Kekes generally makes assertions about them without quoting them. His ideologues want to advance only one political good at the expense of all others. Do such people actually exist in numbers that threaten American democracy?

Against the ideologues, Kekes defends a “balanced view” of human nature and political goods to find “reasonable solutions” to political conflicts by striking compromises. His discourse is often quite abstract. “Human nature is invariable in some respects and variable in others,” he writes. “Consequently human well-being has some universal and context-independent requirements, as well as some requirements that are relative and context-dependent. A reasonable view of human well-being must recognize both types of requirements.”

”John McCormack