Mirror of Justice

Monday, November 14, 2005

Where is international law?

I would like to thank Rob for his important posting on the Ninth Circuit decision in Fields v. Palmdale School District. Judge Reinhardt does not mention international law as a source of support for the position of the parents. I find that interesting since that was a principal justification for Lawrence overturning Bowers. I hasten to add that in another forum (the Villanova John Courtney Murray Symposium), I questioned whether there was international law to rely on in Lawrence. International law was also a source of support for the juvenile death penalty case in Simmons. In neither of those cases was the United States a party to the fundamental principles on which the majorities relied. But for those majorities, that did not seem to matter. Justice Scalia, in blunt words, indicated in his Simmons dissent that to invoke "alien law" when it agrees with one's own thinking and ignore it otherwise is "not reasoned decision-making but sophistry." Following Justice Scalia's argument, can one argue that there might be a problem with the Fields case?

The Ninth Circuit decision in Fields does not refer to the Universal Declaration of Human Rights which is arguably customary international law to which the Court could have deferred. Article 26.3 appears to support the contention of the parents about their rights which were downplayed by the Ninth Circuit. But we don't have to argue about the role of the Universal Declaration. There is another component of international law that clearly does apply to the case. The United States is a party to the International Covenant on Civil and Political Rights. Article 18.4 addresses the issue at stake in this case. It would seem, then, that the Ninth Circuit failed to follow applicable international law that is dispositive of the case. Consequently, the concern raised by Justice Scalia in Simmons is boosted to another level. Here international law should apply since the law of the United States, through its being a party to an international instrument, states that the parents do have the right that was denied to them by the Ninth Circuit. However, that law was not relied upon by the Ninth Circuit. It appears that some courts call something international law and use it when they have questionable grounds for doing so. However, when they should apply international law but do not, the problem is intensified. Perhaps Justice Scalia is on to something. RJA sj

School Choice and Parental Authority

By Rob Vischer

I finally got around to reading the (already) infamous Fields v. Palmdale School District ruling issued earlier this month, in which the Ninth Circuit held that "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it," and that "parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." The parents had sued after their first-, third-, and fifth-grade children were asked questions about sex as part of a survey at their public school. The kids were asked, among other questions, to indicate how frequently they were "thinking about having sex," "thinking about touching other peoples' private parts," "not trusting people because they might want sex," and "washing [themselves] because [they] feel dirty on the inside."

The court reasoned that "parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so." The Meyer-Pierce line of constitutionally protected parental authority is distinguishable, in the Ninth Circuit's view, because "once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished."

The problem, of course, is that Meyer and Pierce are rendered meaningless for parents who cannot afford private school. The Palmdale ruling may make sense in a system where school choice is the reality, but the choice to attend the local public school is not any choice at all in most instances. If parents could choose a school based on the particular mission cultivated by that school, limiting parental standing to challenge curricular decisions might actually enhance the school's ability to function as a mediating structure. Absent school choice, though, the marketplace does not exist, and the mediating function is a non-starter -- the only values imparted are those of a researcher with a scandalous understanding of age-appropriate inquiry. Parental rights in this context do not mean that any parent could trump a school's curricular decisions, but simply that parents would need to be given the opportunity to pull their child out of a particular objectionable activity.

As it stands, there is no exit option, no market pressure, and no hope for the financially strapped parent who believes that her first-grader should not spend her school day contemplating how often she is or should be thinking about touching other people's private parts.

Rob

Sunday, November 13, 2005

Legal Theory Lexicon: "Virtue Ethics"

By Rick Garnett

Larry Solum has posted an(other) invaluable entry in his "Legal Theory Lexicon" series, on "Virtue Ethics." (Here is the entry for "utilitarianism", and here is the one for "deontology.") Oddly enough, Solum says nothing about the role of virtue ethics in the work of, say, Aquinas, Finnis, or MacIntyre. This seems particularly strange, given that (as I understand it, though I could be wrong) G.E.M. Anscombe -- who is often given credit for the "aretaic turn" in moral philosophy -- was a serious and committed Catholic.

Papal Address to New U.S. Ambassador

By Michael Scaperlanda

This from Zenit:

"Confident That Your Nation Will Continue to Demonstrate a Leadership …"

VATICAN CITY, NOV. 13, 2005 (Zenit.org).- Here is the address Benedict XVI delivered Saturday to Francis Rooney, the new U.S. ambassador to the Holy See, on the occasion of the presentation of his credentials.

* * *

Mr. Ambassador,

I am pleased to welcome you to the Vatican and to accept the Letters of Credence by which you are appointed Ambassador and Minister Plenipotentiary of the United States of America to the Holy See. I am grateful for the message of greetings which you have brought from President Bush; I would ask you kindly to assure him in a particular way of my prayerful solidarity with all those affected by the recent storms in the southern part of your country, as well as the support of my prayers for those engaged in the massive work of relief and rebuilding.

In his Message for the 2005 World Day of Peace, my predecessor, Pope John Paul II, called attention to the intrinsic ethical dimension of every political decision, and observed that the disturbing spread of social disorder, war, injustice and violence in our world can ultimately be countered only by renewed appreciation and respect for the universal moral law whose principles derive from the Creator himself (cf. Nos. 2-3). A recognition of the rich patrimony of values and principles embodied in that law is essential to the building of a world which acknowledges and promotes the dignity, life and freedom of each human person, while creating the conditions of justice and peace in which individuals and communities can truly flourish. It is precisely the promotion and defense of these values, which must govern relations between nations and peoples in the pursuit of the common good of the human family, that inspires the presence and activity of the Holy See within the international community. As the Second Vatican Council stated, the Church's universal religious mission does not allow her to be identified with any particular political, economic or social system, yet at the same time, this mission serves as a source of commitment, direction and strength which can contribute to establishing and consolidating the human community in accordance with God's law (cf. "Gaudium et Spes," 42).

For this reason, I appreciate your kind reference to the Holy See's efforts to contribute to finding effective solutions to some of the more significant problems facing the international community in recent years, such as the scandal of continued widespread hunger, grave illness and poverty in large areas of our world. An adequate approach to these issues cannot be limited to purely economic or technical considerations, but demands broad vision, practical solidarity and courageous long-term decisions with regard to complex ethical questions; among the latter I think especially of the effects of the crushing debt that feeds the spiral of poverty in many less developed nations. The American people have long been distinguished for their generous charitable outreach to the disadvantaged and the needy on every continent. In a world of increasing globalization, I am confident that your nation will continue to demonstrate a leadership based on unwavering commitment to the values of freedom, integrity and self-determination, while cooperating with the various international instances which work to build genuine consensus and to develop a unified course of action in confronting issues critical to the future of the whole human family.

Mr. Ambassador, I take this opportunity to recall that just over two decades ago full diplomatic relations were established between the United States and the Holy See, thanks to the efforts of then-President Ronald Reagan and the late Pope John Paul II. I appreciate the dialogue and fruitful cooperation which these relations have made possible, and I express my hope that in years to come they will be deepened and consolidated. As you begin your mission, I offer you my prayerful good wishes for the work you will undertake in the service of your nation, and I assure you of the constant readiness of the offices of the Holy See to assist you in the fulfillment of your responsibilities. Upon you and your family, and upon all the beloved American people, I cordially invoke God's blessings of prosperity, joy and peace.

"Catholic Jonestown"

By Rick Garnett

The Wall Street Journal on Friday ran this story, "Bringing a Law School Down: Should Ave Maria be part of 'Catholic Jonestown'?", reporting on the rumblings and dissension that (apparently) surround the question whether Ave Maria School of Law should "relocate to rural Florida," where the school's primary financial supporter, Tom Monaghan, is planning to create a Catholic community, "Ave Maria Town." According to Monaghan:

"We'll own all commercial real estate," Mr. Monaghan declared, describing his vision. "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."

Ann Althouse describes Monaghan's vision as "creepy." (On a more pedestrian note, I wonder if it could even be implemented, legally). And, Lior Strahilivitz talks about the Town's "exclusionary vibes" in this excellent paper, "Information Assymetries and the Rights to Exclude."

My own take -- which is consonant, I think, with Althouse's -- is that (a) although it is not "creepy" to care about the enterprise of sustaining a distinctively and authentically Catholic law school, (b) it is big mistake to think that the enterprise is well served by retreating to a homogenous, planned community without an established, rich university environment. As Althouse puts it: "You can't retreat and purify yourself. You have to become involved with the complexities of life, not shrink away from them." (It sounds like many of Ave Maria's faculty and students agree.)

Friday, November 11, 2005

The Teachings of Modern Christianity

By Patrick McKinley Brennan

That's the title of the new two-volume study published this month by Columbia University Press; it's subtitle reads "On Law, Politics, and Human Nature." Edited by Emory's John Witte, Jr. and Frank Alexander, the study is the culmination of a three-year project funded by the Pew Charitable Trusts and encouranged in various ways by the University of Notre Dame and Emory's Law and Religion Program. "Praise" found on the jacket comes from Martin Marty, Jean Elshtain, Robert Bellah, and Don Browning. Martin Marty and Judge Noonan have each provided a Foreword to the study; its Afterwords are by Kent Greenawalt and Harold Berman. This is not Christianity Lite.

The volumes pursue law, politics, and human nature as they have emerged in reflection and teaching in the Catholic, Protestant, and Orthodox traditions since the late nineteenth century. One volume is packed with original essays on the leading contributors in each of the three traditions; the other volume is an anthology of original writings, of those leading figures. Among the Catholics covered are Leo XIII, Jacques Maritain, John C. Murray, Gustavo Gutierrez, Dorothy Day, and Pope John Paul II. Among the Protestants are Abraham Kuyper, Susan B. Anthony, Karl Barth, Dietrich Bonhoeffer, Reinhold Niebuhr, Martin Luther King , Jr., and William Stringfellow. The Orthodox figures studied are Vladimir Soloviev, Nicholas Berdyaev, Vladimir Lossky, Mother Maria Skobtsova, and Dumitru Staniloae.

The combination of analytical essays and corresponding primary sources, plus a magisterial introduction to each of the three traditions, should make this a valuable teaching tool. But this is not just a teaching tool. These volumes contain much to be mined by many, including those interested in Catholic Legal Theory I'll leave it to other readers of the volumes to begin here a discussion of the volumes' theses, insights, and significance. Congratulations to John Witte, Frank Alexander, and all their collaborators and supporters for bringing us all this great gift of learning. As Martin Marty says of the study, "It stands alone."

Catholic Legal Education: Responses to Kevin and Mark

By Amy Uelmen

Thank you Mark and Kevin for your challenging posts. Just a few thoughts in response.

First, this is not the first time that I have pointed out the limitations of the blog medium, and probably will not be the last - but I think that this is one instance where one reason we might be talking past each other is because we're not able to ask for clarifications mid-stream. I think some of these questions might need to be worked out over lunch or a beer. In the course of this kind of clarifying conversation, I think it would emerge clearly that all of us - and especially Mark Sargent - care deeply about promoting right practices AND right belief, and right practices grounded in right belief; and that no one in this group has dogmatically rejected theological inquiry into political and legal theory. Some of us on this blog struggle with how we express the theological connection because few of us have advanced degrees in theology - but I think we could safely say that all of us care deeply about this dimension, or we wouldn't be in this conversation. And speaking for myself, I'm very grateful for any help in articulating those connections.

That said - a few thoughts for both of you.

First, Kevin - I think in many ways you have hit on the $64,000 question. I agree that the relationship between theology and identity should be at the core of our discussions not only about Catholic education, but also about the relationship between the Church and the culture as a whole. Let me work with your line: "Too often we say that the practicalities of our current situations must be taken into account, that faith doesn't really speak to our unique situations, that the realities of our current situations limit what we can think or do."

I would say that much of my work is precisely at the intersection of recognizing and appreciating the practicalities of a given situation, and bringing a faith persepctive to bear - and that for me these really come together in a theology of the cross. In many of the struggles that Mark listed - eg, fear, confusion, uncertainty, misunderstandings about the tradition that we encounter in others, but also in our own failures as a Catholic community to effectively communicate the tradition or to be a shining example of its vitality - for me, these have a name: they are all an expression of Jesus on the cross. In recognizing that it is precisely and especially here where I am called to love him, and be a presence of love in response, I believe it is also precisely and espeically here - in and through this love for the cross - that we will have the light of the Holy Spirit - that flows from the cross - to know exactly what it means to love and be faithful to the tradition in the context of any given practical situation. And it will also be the Holy Spirit which flows from this love that also helps us to trace the work of God (or in Jesuit parlance, find "God in all things") - even in unexpected ways and places.

It might also be interesting to explore how the Trinitarian theology could be especially helpful as we engage the practicalites of our current situation. The Trinity as a model of unity in diversity, as a model of self-emptying life-giving love, might speak deeply to ways to build real communities in which we can be formed by the tradition.

Mark, a few thoughts. First, my point about history is that since we are at the very beginning of this project, no school - and certainly no group of schools - should be written off yet. Second, and related, I am saguine not because of numbers or statistics, but because I have seen how even a tiny group (which is made up not only of Catholics) focused on listen to each other, and appreciating the presence of "God in all things," can create a community in which an open conversation about the role of religion, and particularly about the Catholic intellectual tradition, in legal education. Finally I would push the point that efforts grounded in ecumenism and inter-faith dialogue are not adjacent too, but actually the heart of Catholicism, at least as the life of the Church is described in Gaudium et Spes and in the Second Vatican Council more generally.

Sorry to go on. But I do look forward to continuing the conversation - I don't think the two of you are that far apart. You may both disagree with me! But in any case, I'd look forward to a lunch conversation in the near future!

Amy

Thursday, November 10, 2005

Life After Roe v. Wade: The Good That Would Flow From Overruling By Itself

By Greg Sisk

Several days ago, Rick Garnett posted observations and questions about abortion from Professor Steve Shiffrin (here), inviting thoughts from Mirror of Justice members about what policies ought to be adopted in the United States should Roe v. Wade be overturned. In a future posting, I’ll respond more directly to the question and offer some tentative thoughts about what we might find in a post-Roe v. Wade legal regime that protected unborn human life. In this posting, instead, I want to emphasize what tremendous good would be accomplished by the removal of Roe v. Wade as a constitutional precedent, that is, what good would be realized directly from the overturning of that pernicious decision, whatever else might follow in terms of concrete legislative responses.

First, the removal of Roe v. Wade would remove the misguided but nonetheless persistent and widely-accepted argument that nearly-unrestricted access to abortion must be a good thing because it is, after all, a constitutional right. By transforming abortion from a controversial and complex moral and political question into a constitutional entitlement, Roe v. Wade bestowed upon abortion the status (in the minds of many) of a positive good. It withdrew from the supporters of liberal abortion laws the obligation to frame an ethical justification, beyond absolute claims of personal control and an extremely isolated view of individual autonomy. As a constitutional right, and a fundamental right at that, abortion was inherently justified. Once Roe were removed as a precedent, those who advocate an abortion license could no longer simply cite the Supreme Court’s ruling and regard that reference as obviating any need to discuss the morality of abortion or to consider the societal impact of hundreds of thousands of abortions performed annually.

Second, and related to the first, after an initial period of confusion and probably heightened public distress (more on this below), the presumptions in the argument about abortion would shift toward those who unselfishly advocate protection of unborn human life. If advocates for the abortion license were obliged to frame their arguments in terms of what is good and right, rather than being able to pull out the trump card of a constitutional right, the argument moves in our direction. When the legalistic language of constitutional construction and emanations from penumbras is withdrawn, the debate will focus even more tightly upon the merits, allowing the witness for life to be heard more effectively and more powerfully.

Moreover, attention may be more effectively drawn to the moral side-effects of the regime of abortion-on-demand—irresponsibility in sexual conduct, evasion of obligations by putative fathers, devaluation of children, and intolerance for the dependent, “inconvenient” members of our society. By framing abortion as a nearly unqualified constitutional right, without fully considering the claims of human life, we have not taken a stride to a more virtuous, healthy, or free society. At present, Roe stands like a towering but tree over the landscape, leaving the underlying societal and moral questions shrouded in shadow. If that sinister tree is toppled, the light of day may then filter down into the darkness and reveal the culture of death in all its ugliness, no longer hidden by the monstrous growth of Roe.

Third, as long as Roe continues to loom over the constitutional landscape, any legislative measure that implicates, even indirectly, abortion also fall under its shadow. Limitations on abortion at any stage, prohibitions on partial-birth abortion, laws mandating medical efforts to save the lives of victims of abortion who survive the procedure, legal preservation of parental rights through notification requirements, laws protecting spousal rights, laws ensuring informed consent by provision of information concerning fetal development, prohibitions on use of taxpayer monies to fund performance of abortions or abortion counseling, etc. are subject to constitutional attack so long as the Roe regime persists. Even when a particular category of legislation survives a particular litigation attack, there always remains the prospect that abortion jurisprudence will shift in the other direction, that similar legislation will be distinguished in effect and thus in validity, or that new theories will be formulated by teams of “pro-choice” legal advocates to mount yet another court challenge against such legislation. Thus, even aside from new legislative restraints on abortion, the current legislative movements toward protection of human life, even indirectly and imperfectly, would stand on firmer ground without Roe.

Third, as a jurisprudential black hole that draws in and deforms everything that comes near its wandering path through spacetime, Roe’s gravitational pull has tended to collapse every nearby area of law into a pro-abortion singularity. In particular, the law of freedom of expression has been severely distorted, as the expressive rights of those who protest abortion have been suppressed. While the Supreme Court generally upholds broad protections for speech, those protections seem to disappear when the subject of abortion is in the background, resulting in greatly diminished speech protections for those who protest abortion. On the suppression of the speech rights of pro-life protestors, see generally Lynn D. Wardle, The Quandry of Pro-Life Free Speech: A Lesson from the Abolitionists, 62 ALB. L. REV. 853, 881-915 (1999). In sum, constitutional jurisprudence in general will move onto a more healthy path once Roe v. Wade is overruled.

Fourth, overturning Roe v. Wade would enhance democratic governance, the most fundamental freedom of all. As Father Richard John Neuhaus reminded us, during a speech here at the University of St. Thomas School of Law less than two weeks ago, if the most important questions that face us as a people, such as the basic question of life itself, are taken away from the people and reserved to a judicial oligarchy, then democracy in any meaningful sense has been lost.

The ability of the public to engage in political deliberation about such issues is undermined by removing them into the judicial arena. The dialogue of constitutional litigation is twice removed from the ordinary discourse of the people. As Frederick Schauer once suggested, “just as legal language is different in kind from ordinary language, constitutional language may be different in kind from other legal language.” Frederick Schauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 800 (1982). Granting the Supreme Court supremacy over fundamental questions of social and moral governance through the mechanism of judicial review disempowers the people from full participation in their government. Constitutional litigation simply is not a friendly forum for a balanced discussion of the wide range of values and concerns relevant to disposition of a public issue. Litigation and adjudication force communication along a narrow path. The focus of legal advocacy is upon rights and wrongs. The adversarial process encourages a winner-take-all attitude. The possibility of compromise is suppressed. The values of responsibility, respect for others, and moral character are largely missing from the rights-talk of the courtroom. (Mary Ann Glendon in her classic book, “Rights Talk,” has written perceptively about the excessively “strident language of rights” that has developed in America and its deleterious effect upon public discourse. Roe v. Wade is exhibit one in that regard.)

In terms of renewing public engagement in these matters after a reversal of Roe v. Wade, I should close by offering a warning to those of us in the pro-life community. I anticipate that any overturning of Roe v. Wade would be followed explosively by inflammatory rhetoric from “pro-choice” advocates, portraying the result as the death of civil liberties in the United States and the dawn of a moralistic and paternalistic tyranny. Given that support for abortion rights is nearly universal among the cultural elite, especially those who control most of the national news and entertainment media, we should expect a full-throated and extreme reaction that would achieve, for a time, the desired apprehensive response from the general public, with a resultant effect on opinion polling about abortion. During that initial aftermath, a public that understandably is anxious about any significant change in the status quo (that is, a public that is naturally conservative in attitude) would likely be sincerely (if mistakenly) distressed by the judicial removal of a supposed constitutional right. I frequently find that law students, even after completing a course in constitutional law, still fail to appreciate that the overruling of Roe v. Wade would not prevent a single abortion from taking place, but would merely allow the people in the exercise of their democratic rights to consider what is the most appropriate answer in social and moral terms.

If and when Roe v. Wade is overruled, and if the public were to react initially with anxiety as provoked by extreme rhetoric from the cultural elite, those of us who stand for the dignity of all human life should respond firmly but calmly. And we should not be discouraged by temporary trends. Slowly the public will discover that any parade of horribles marched out by the media simply is not being realized, that dictatorship has not emerged, that women are not being rounded up and forcibly removed from public life, that decades of progress in equality between the genders has not been reversed, and that freedom has survived and in fact was never endangered. Because the general public will appreciate that the Supreme Court by overturning Roe v. Wade was taking nothing away but rather was returning a subject of great moral concern to democratic deliberation, allowing the people to chart their own course and create a culture of life.

Greg Sisk

The Most Acceptable Prejudice

By Michael Perry

Sightings 11/10/05 [from the Martin Marty Center at the University of Chicago Divinity School]

The Most Acceptable Prejudice
-- Jon Pahl

One sad trend in the current controversy over pedophilia in the church is that it has occasioned yet another rank of people of privilege in America to represent themselves as victims. These mostly white, mostly male, mostly well-off Roman Catholic leaders have taken to claiming anti-Catholic "prejudice" -- and are doing so as a way of defending against inexcusable crimes. Let's cut through this smokescreen, without escalating the moral panic about pedophilia: It is prejudice against children, and not Catholics, that is operative in this controversy.

Within the past five years, two Catholic scholars -- Philip Jenkins and Mark S. Massa -- have written large books contending that anti-Catholicism is "the last acceptable prejudice" in the United States. I grant them their point. Historically, Catholics have been targets of suspicion and violence in America, and some stereotypes still endure. Unfortunately, the pedophilia uproar has brought these stereotypes to the surface in new forms, despite the desire on the part of most Catholics to confront the pedophilia problem.

And surely it is important to keep in mind that Catholic schools -- for all the stereotypes sometimes associated with them -- have been crucial agencies of intergenerational education and spiritual formation in America. Through them, young people have discovered their voices and vocations in service to the common good. Catholic congregations -- like other communities of faith -- remain places in American culture where generations can meet informally for conversation, mentoring, and mutual learning. And Catholic social services -- like other faith-based charities and advocacy groups -- have potential to provide much in the way of front-line service to the poor and powerless.

But on September 21, 2005, the same day that a Philadelphia Grand Jury released a 671-page report documenting decades of abuse of children by priests, and a systemic cover-up, across the Philadelphia Archdiocese, the Archdiocese released (under the authorship of its legal counsel) a 76-page reply to the report, fraught with defensive evasions. While it points out, rightly, that Catholics generally want to solve the problems of child abuse, inside the church and without, it also claims that the Grand Jury proceedings betrayed an "anti-Catholic" bias.

The potential of Catholic agencies to promote the common good is undercut when certain Catholics claim to be targets of prejudice, powerless victims. And denying the possession of power by asserting a pseudo-victim status amounts to obscuring, even disclaiming, the relations of domination at work in abuses against children.

As is well known, acts of pedophilia are not only "sex crimes." They are, even more, exercises of power on the body of a young person. These acts are often compared, rightly, to rape. But there are other analogies.

One example is found in corporal punishment. In America, a parent may legally assault his or her child. An act that would be a crime when perpetrated against an adult is, when committed against a child (and often on or near their sexual organs), called "discipline." In some circles, these acts of assault are positively praised, and their relationship to sexual abuse and power over the young denied.

Such intimate violence is only one form that prejudice against the young can take. Osama bin Laden and George W. Bush have both claimed to be on the side of "innocent children." Yet Iraqi children have been the victims of both suicide bombings and U.S. strategic military assaults.

And here at home, children will surely suffer from skewed federal priorities. Common sense suggests that "No Child Left Behind" is nothing more than empty rhetoric, when we still have to pay for the war on terror, for hurricane relief, and continue to plan tax cuts for the wealthiest citizens in America. Such logic defies rationality and reveals prejudice.

In the context of Christianity, what makes such expressions of prejudice against the young especially scandalous is that they contradict the model of power-with-others manifest in the life of Jesus. Opposing the age bias of his own day, Jesus welcomed children into his presence. He called for "child-like faith" among his disciples. He practiced only the power of love.

Pedophilia is but one example of adults exercising power over children. And when adults evade accusations of pedophilia by claiming victim status, they deny the responsibility to exercise power with (or on behalf of) children in ways that might actually address the systemic issues impeding young peoples' fulfillment.

How truly sad, then, that a few Catholic priests perpetrated abusive acts, a few officials covered up those acts, and a few Roman Catholic leaders have tried to excuse them by appealing to victim status. What they were all doing instead was deepening the hold of the most acceptable prejudice in American culture: systematic and systemic abuse of the youngest and weakest members of our society.

References:
The Grand Jury Report can be found at:

http://www.bishop-accountability.org/pa_philadelphia/Philly_GJ_report.htm. The Archdiocese of Philadelphia's responses can be read at: http://www.archdiocese-phl.org/grandjury.htm.

Jon Pahl is Professor of the History of Christianity in North America at the Lutheran Theological Seminary at Philadelphia, and author of Youth Ministry in Modern America: 1930-the Present.

MoJers Contribute to Con Law Reference

By Steve Bainbridge

Monday's mail brought The Heritage Guide to the Constitution, to which two of our own members (Rick Garnett and Tom Berg) contributed, as did a number of other prominent Catholic legal scholars. The Guide combines line-by-line annotations of the text of the U.S. Constitution with short explanatory essays of each provision and bibliographies of suggested readings for further research. It looks to be a great research tool.

Obviously, as a Heritage Foundation project, the analysis has a conservative slant, but the contributors include many serious and objective scholars, including a number of friends such as Gerard Bradley, Eric Chiappinelli, Don Dripps, John Eastman, Richard Epstein, Andy Leipold, Ron Rotunda, Brad Smith, and Bill Stuntz. (Wow, what a great Supreme Court lineup they'd make!) Fans of the blawgosphere will recognize names such as David Bernstein and Eugene Volokh (of the Volokh Conspiracy). Finally, there are a few names that might surprise you, such as Jack Goldsmith (former NAACP lawyer who worked on Brown v. Board of Education). In sum, highly recommended.