In the editorial , "Finished playing by the rules" (an interesting, suggestive headline), to which Michael linked earlier today, the editors at NCR write:
Whither women priests? Perhaps they will become yet another breakaway movement, as many church officials must drearily hope. Or, depending on the faithful’s response, these women could conceivably drag the church into the 21st century. We’ll pray for that.
Why, exactly -- and putting aside, for now, the merits of the specific question presented, re: the ordination of women -- should we pray for the Church (or, as the editors put it, the "church") to be "drag[ged] into the 21st century." I'm (kind of) kidding, but . . . what's the answer? It's a tricky balance, isn't it: Should the "21st century" not only set the agenda for (i.e., provide the relevant "signs of the times" for) the Church, but also define and transform the Church (e.g., "finished playing by the rules")? Or, should we think more in terms of the Church's vocation to transform, and challenge, the 21st century? Or both . . . .
VATICAN CITY, DEC. 16, 2007 (Zenit.org).- Here is a translation of the address Benedict XVI delivered today before reciting the midday Angelus with several thousand people gathered in St. Peter's Square.
* * *
Dear Brothers and Sisters!
"Gaudete in Domino semper" -- "Rejoice in the Lord always" (Philippians 4:4). With these words of St. Paul, the holy Mass of the Third Sunday of Advent opens, and for this reason it is called "Gaudete." The apostle exhorts Christians to rejoice because the coming of the Lord, that is, his glorious return, is certain and he will not delay. The Church makes precisely this invitation while she prepares to celebrate Christmas and her gaze is turned always more toward Bethlehem. In fact, we await his second coming with certain hope because we have known his first coming.
The mystery of Bethlehem reveals to us God-with-us, God near to us, not simply in a spatial and temporal sense; he is near to us because he has wedded, so to speak, our humanity; he has taken our condition upon himself, choosing to be completely like us, except in sin, to make us like him. Christian joy thus flows from this certainty: God is near, he is with me, he is with us, in joy and suffering, in health and sickness, as friend and faithful husband. And this joy remains even in trials, in suffering itself, and remains not on the surface but rather in the depths of the person who gives himself to God and confides in him.
Some ask themselves: But is this joy still possible today? The answer is given by the life of men and women of every age and social condition, happy to consecrate their existence to others! Was not Blessed Mother Teresa of Calcutta perhaps, in our times, an unforgettable witness of evangelical joy? She lived in dailycontact with misery, human degradation, death. Her soul knew the trial of the dark night of faith, and yet she bestowed the smile of God upon all.
We read in one of her writings: "With impatience we await paradise, where God is, but it is in our power to be in paradise beginning here below and from this moment. Being happy with God means: loving like him, helping like him, giving like him, serving like him" ("La gioia di darsi agli altri," Ed. Paoline, 1987, 43).
Yes, joy enters into the heart of those who place themselves at the service of the least and the poor. In those who love in this way God takes up his abode and the soul is in joy. If, however, happiness is made an idol, the wrong road is taken and it is truly difficult to find Jesus. This, unfortunately, is the proposal of the cultures that put individual happiness in the place of God; it is a mentality that finds its emblematic effect in the pursuit of pleasure at all costs, in the spread of drug use as an escape, like a refuge in artificial paradises, which subsequently show themselves to be completely illusory.
Dear brothers and sisters, even at Christmastime it is possible to take the wrong road, to exchange the true feast for that one that does not open the heart to Christ. May the Virgin Mary help all Christians, and men in search of God, to reach Bethlehem, to meet the Child who is born for us, for the salvation and happiness of all men.
Given that the Vatican has banned Catholics from so much as talking
about women deacons or priests, is it surprising that some women are opting to
fast-forward to action? They aren’t discussing whether women should be
ordained; they aren’t asking for permission to be ordained; they are just
doing what, as they see it, a church crying “priest shortage” needs
them to do. These are women who have faithfully served the church in many ways,
putting their own wishes on hold. Until finally, they have said,
“Enough.”
When even the deeply traditional Greek Orthodox church finds a way to
authorize ordaining women deacons, how is it that Roman Catholic church
officials get by with treating women as they do: as if they were children -- so
infantile that their dreams for themselves and for the church are unworthy of
even serious talk. Fortunately, numerous ordained men, even bishops, with a
stronger sense of justice and more courage than the rest, have come forward to
assist, assuring that these illegal women priests are validly situated in the
apostolic line.
We find it fascinating that while church officials assert these
“simulated” ordinations lack meaning, some of the women have received
the Vatican’s highest penalty -- formal excommunication. In other cases,
as in the recent St. Louis ordinations, the hierarchy has tried various tactics
aimed at bringing these women to heel.
The hierarchy is rightly nervous about women declaring themselves
ordained, however illegally, because these ceremonies carry a strong implicit
message. Well-educated women, loyal to the church, know that the historical and
theological reasoning advanced for excluding them from ordination is
dangerously thin. Citing the growing number of priestless parishes worldwide,
they make a compelling case for a different kind of church -- an inclusive
church, in which both men and women, whether married or not, heterosexual or
homosexual, can participate at all levels. They know that polls show they have
significant backing, given that some 70 percent of the Catholic faithful in the
United States support women priests. So, like Catholics who ignore many of the
church’s other bans -- on birth control, on single-gender lifestyles, on
divorce and remarriage -- because they find little in these teachings that
corresponds to their own experience of what is right and good, these women, in
the vein of other defiant trailblazers, are saying we are finished playing by
the rules.
Whither women priests? Perhaps they will become yet another breakaway
movement, as many church officials must drearily hope. Or, depending on the
faithful’s response, these women could conceivably drag the church into
the 21st century. We’ll pray for that.
The images and prophecies connected
with the Four Horsemen of the Apocalypse in the biblical book of Revelation seem
horrifying enough. But in a "you-ain't-seen-nothing-yet" spirit,
Philip Jenkins in December 10th's New Republic warns of disastrous
implications for religious conflict after studying the results of
climate-modeling by the Intergovernmental Panel on Climate Change.
More than anyone else we read,
Jenkins regularly writes about global Christianity for broad publics.
He combines experiences of travel, research, and dialogues on
Christianity "north" and "south." In "Burning at the Stake: How
global warming will increase religious strife," Professor Jenkins ties
projections of Christian growth to what the IPCC foresees. If
you'd like to sleep easily tonight, don't read it at bedtime.
Rather than occupying a mere four columns upfront in a magazine,
it might merit a billboard. Jenkins, fortunately, does not waste
readers' time debating whether or when or how global warming is coming about.
Instead he anticipates the consequences and notices some new
Christian addresses to the situation.
The case? Take only
the instance of changes in the water supplies and who will control what's left.
In Nigeria, where Christians and Muslims are
self-segregated, they might "erupt in a violent tug-of-war over limited water
supplies." Coptic Christians in Egypt might be sacrificed to ethnic
cleansing as resources dwindle. Uganda and Kenya could reproduce scenes made vivid
in Rwanda massacres. "The
ramifications for the global warming-driven destruction of equatorial nations
are frightening for everyone—but they should be especially frightening for
Christians," whose numbers grow explosively, precisely there.
Historian Jenkins reaches back to
the "Little Ice Age" between the ninth and thirteenth centuries to show the
human devastations caused by climate changes. He may be a bit
speculative here, but with creative guesses and some evidence he compares
foreseen changes to those that helped bring on the Great Famine (after 1315) and
the Black Death (1340s), when one-third of Eurasia's population was killed.
Witchcraft trials became a murderous obsession.
Bigots of all religions were sure that their God was legitimating their
aggressive roles. Christians in revenge against Muslim advances
turned murderous. Jenkins thinks that we are heading toward a
future alike in violence and horror to centuries in our past.
He sees a glimmer of light and
recognition in the West among "morally conservative churches in America [which] form relationships with
like-minded churches in the South," and are growing more sensitive to the
world's needs. Skipping past Roman Catholic and "World Council
type" Protestant and Orthodox involvements, he turns to these conservatives, as
in the National Association of Evangelicals, who are mobilizing people, forces,
energies, and resources to begin to address the situation and call attention to
it. He expects even greater involvement soon by such conservative
Christians, who are "combining the themes of world stewardship and protecting
Christian minorities," which could lead to new political action. But in the absence of such action, might global warming lead to "medieval
levels of misery and doom for the majority of Christians worldwide?"
We've been warned.
----------
Sightings
comes
from the Martin Marty Center at the University of
Chicago Divinity School.
It's been a month or so, so -- no surprise! -- Professor Cass Sunstein has another book out. This one looks to be relevant to our recent MOJ dust-up about climate change, the Pope, "it's not easy being Green", cost-benefit analysis, etc., etc. Here's Solum, discussing the book:
The Legal Theory Bookworm recommends Worst-Case Scenarios by Cass R. Sunstein. Here is a description:
Nuclear bombs in suitcases, anthrax bacilli in ventilators, tsunamis and meteors, avian flu, scorchingly hot temperatures: nightmares that were once the plot of Hollywood movies are now frighteningly real possibilities. How can we steer a path between willful inaction and reckless overreaction?
Cass Sunstein explores these and other worst-case scenarios and how we might best prevent them in this vivid, illuminating, and highly original analysis. Singling out the problems of terrorism and climate change, Sunstein explores our susceptibility to two opposite and unhelpful reactions: panic and utter neglect. He shows how private individuals and public officials might best respond to low-probability risks of disaster--emphasizing the need to know what we will lose from precautions as well as from inaction. Finally, he offers an understanding of the uses and limits of cost-benefit analysis, especially when current generations are imposing risks on future generations.
Throughout, Sunstein uses climate change as a defining case, because it dramatically illustrates the underlying principles. But he also discusses terrorism, depletion of the ozone layer, genetic modification of food, hurricanes, and worst-case scenarios faced in our ordinary lives. Sunstein concludes that if we can avoid the twin dangers of over-reaction and apathy, we will be able to ameliorate if not avoid future catastrophes, retaining our sanity as well as scarce resources that can be devoted to more constructive ends.
And from the reviews:
Worst-Case Scenarios is a powerful intellectual treatment about the most difficult problems facing society. The book makes it clear that these problems do not have easy answers. Sunstein's analysis also makes it clear that we would be better off if societal decision makers fully understood the insights he brings to these problems. --Max Bazerman, Harvard Business School
Sunstein cuts through a great deal of confusion that is preventing the development of coherent and rational public policies. The issues raised by low-probability, high-consequence events are becoming more important as the world is more interconnected. Governments and citizens are not prepared to deal with these issues. This book will help. --Jonathan Baron, University of Pennsylvania
Professor Sunstein provides cogent advice about how people should respond to low probabilities of catastrophe. He strikes a thoughtful middle ground, showing how we should be careful without being paranoid. While the applications to terrorism and climate change are insightful, his intellectual approach offers guidance for all sorts of possible catastrophes. The book is a must for leaders of business and government throughout the world. --John Graham, Dean, Pardee RAND Graduate School
Worst-Case Scenarios is a rich analysis, both explanatory and normative, of societal responses to catastrophic risks such as terrorism and global warming. Sunstein occupies the fertile middle ground between the proponents of traditional rational-actor models and cost-benefit analysis, and those who reject these approaches entirely. --Matthew D. Adler, University of Pennsylvania Law School
I appreciate Tom Berg’s thoughtful commentary on the role of history in Constitutional interpretation. Historical understanding is vital to legal interpretation, and this is certainly true in understanding the meaning of the First Amendment and the place and role of religion in public life. But it is no less important to all searches for the “true,” the “best,” the “authentic” meaning of the law—as made by legislators or judges—to rely on sound historical scholarship.
To illustrate the importance of history to legal construction, I have in the past used the following example for discussion with students: the city council has enacted an ordinance which “prohibits all gay demonstrations and assemblies.” This usually provokes strong responses from some members of the class. I then ask the question “is it important to consider when this law was written in order to determine its meaning?” When posing this question I sometimes meet the challenge, “what does that matter?” I respond by stating that the ordinance to which I have referred was written and promulgated not in the 1990s but the 1890s. If some still persist in arguing that this fact has no relevance, I think they prove my point about the importance of history to the interpretative process.
I come back to Tom’s posting. Understanding well the concerns about and proper role of religion in public life as viewed by the Founders is crucial. Relying on some history but not all that is relevant generates additional problems as Tom suggests. I think this is the predicament with Justice Black’s interpretation. He was a strong textualist when it came to understanding the Constitution’s role in many contexts; but, when it came time to understand the proper role of religion, I think he used the history that supported his views and discarded the rest. I often wonder why Jefferson’s letter to the Danbury Baptist Association was so important to the meaning of the First Amendment’s Establishment clause for Justice Black but Jefferson’s role in the University of Virginia’s foundation and its eventual plan for “a building… in which may be rooms for religious worship, under such impartial regulations as the Visitors shall prescribe” was ignored. While Jefferson was no great advocate of religion in public life—even though he attended religious services in the Capitol—neither was he its opponent. History also informs us that Jefferson was busy representing the nascent republic abroad when the Founders were in Philadelphia debating the role of religion. This is a vital part of history that escapes much of the discussion that concentrates on Jefferson’s wall-of-separation image found in his 1802 letter to the Danbury Baptists. While some lawyers will use history when they have something to work with, as Tom properly mentions, I think there is reason to think that others will use only that history which serves their objectives. And this is not a proper way to utilize this instructive tool for sound legal interpretation.RJA sj
Eric Claeys raises a good question: why do we, and the Court, seem to talk more about the Founders' views in religion cases than in other areas of individual rights law? He also offers an interesting suggestion involving path-dependence: Hugo Black got to "liberal" results at the beginning of the Court's liberal-dominated era by using history (badly perhaps but still history), and so liberals could follow that track without having to resort to "living Constitution" moves.
To me, though, this begs a further question: why was Black able to draw so much on history about religion? My suggestion, which I think ends up complementing Eric's, is that there are more founding-era historical materials relevant to today in the religion area than there are in other areas. The era of the founding also happened to be an era of great ferment in American church-state relationships, with clergy subsidies coming under withering challenge, new voluntarist-oriented denominations arising, and the concept of free exercise of religion replacing the concept of toleration of dissenting faiths. Those issues all provoked extensive debate and considerable legal changes, and they bear at least some resemblance to issues today. As a result, both sides in current disputes can find not just snippets of history, but substantial materials, to support their arguments. For example -- and here's the point of contact with Eric -- Hugo Black, other strict separationists, and secularists could find a founding-era model in Jefferson. And good lawyers of any stripe will use history when they've got some to work with.
That doesn't necessarily mean that any of these historical arguments are correct or useful for interpreting the First Amendment. Some may be. Or on the other hand, perhaps the conflicting arguments cancel each other out: for every separationist Jefferson there's a George Washington saying that religion is crucial to national morality. Or perhaps, as Steve Smith, Kurt Lash, and others claim, historians commit category mistakes if they treat founding-era arguments about the federal religion provisions as arguments about how government in general should treat religion (and thus how states should treat it under the incorporated First Amendment). And if so, perhaps the arguments about the founding era will have played themselves out and we'll turn, as Eric suggests, to normative political theory (although there might still be a lot to say about religion leading up to the Fourteenth Amendment and incorporation). Nevertheless, there is a lot of relevant founding-era material for people on both sides to deploy, even if it can be argued that their various uses are inaccurate or misplaced.
This seems to me less true in other Bill of Rights areas. With a few exceptions, the founding period did not see great debates over the bounds of free speech, the range of acceptable punishments, the scope of the jury-trial right, etc. (Even the great free speech debate, over the Sedition Act, came post-First-Amendment.) Perhaps this reflects the fact that as to most matters under the Bill of Rights, the founding generation thought they were just reiterating historic rights of Englishmen on which they generally agreed; whereas with religion, at least with the question of establishment, many Americans were self-consciously breaking from the English model, while others were defending it (albeit in a relaxed form like taxing people for a variety of churches rather than just one). So the debates on religion were more fundamental, more extensive, and left more material for people today to use/misuse.
Senate Republicans blocked a bill Friday that would restrict the
interrogation methods the CIA can use against terrorism suspects. The legislation, part of a measure authorizing the government's
intelligence activities for 2008, had been approved a day earlier by
the House and sent to the Senate for what was supposed to be final
action. The bill would require the CIA to adhere to the Army's field
manual on interrogation, which bans waterboarding, mock executions and
other harsh interrogation methods.
TPM adds:
The Army field manual, adopted in 2006, prohibits forcing detainees to
be naked, perform sexual acts, or pose in a sexual manner; placing
hoods or sacks over detainees' heads or duct tape over their eyes;
beating, shocking, or burning detainees; threatening them with military
dogs; exposing them to extreme heat or cold; conducting mock
executions; depriving them of food, water, or medical care; and
waterboarding.
The New York Times reports here that "[t]he New Jersey Senate voted Monday to make the state the first in the country to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976 and established the nation’s current system of capital punishment." The Assembly is expected to follow suit. Here's more from the piece:
For those opposed to capital punishment, New Jersey’s repeal would represent a victory that has so far eluded them in the modern history of the death penalty.
Though legislatures across the country have tried to abolish capital punishment since 1976, none have succeeded. This year alone, the legislatures in Nebraska, Montana, Maryland and New Mexico have debated bills to repeal their death penalties, but each of those measures failed, often by a slim margin.
So far, opponents of the death penalty have succeeded only through court rulings, like a decision declaring New York’s capital punishment statute unconstitutional, or through moratoriums imposed by a governor, like in Illinois and Maryland.
“What New Jersey is going to do is have a Legislature-initiated repeal, and that’s different,” said Franklin E. Zimring, a law professor at the University of California, Berkeley, who has been critical of American capital sentence laws. “This is a degree of legislative action in the undoing of the death penalty which is a fairly significant step forward.”
This (and not through decisions by federal courts) is, in my view, how abolition should happen. More like this, please.
I think Steve Smith's arguments explain why history is interesting to people who incline toward points of view conventionally viewed as conservative in interpretation or law & religion. But in most areas of individual rights con law, Steve's arguments don't respond to the concerns that animate the progressives who most often ask Eberle's question -- who cares how it was done 180 years ago if the reasons for doing it the old way can't earn their own keep today[?]
IMHO, Everson and McCollum have to be part of the explanation. Constitutional religion law is slightly odd. It has always relied less on normative political philosophy and more on history than other areas of individual rights law -- say, free speech or family law/reproductive rights.
I this is primarily the result of an accident. By the 1960s, the Warren Court and some academics had made "living Constitution" interpretation respectable enough that judges could repudiate earlier and non-progressive constitutional doctrines using Eberle's argument But religion law started going secularist in the late 1940s -- before Warren was Chief Justice and before living Constitution interpretation was respectable. In their own way, Robert Jackson, Hugo Black, & other Justices on the Court thought of themselves as originalists.
So the important opinions from Everson and McCollum used Jefferson's Danbury Baptist letter and other historical sources to make legally respectable doctrines that broke significantly with earlier case law. The interpretive choices made in those cases stayed in religion doctrine even as the Warren Court used living Constitution interpretive methodology to change doctrine elsewhere. And since a lot of academic scholarship is at least a little reactive to what the Supreme Court is doing, a lot of historians and legal scholars to assume that Founding Era history has normative authority it doesn't get elsewhere in con law.
It will be interesting to see whether the scholarly discussion changes in the next five or so years.Everson and McCollum have been taking a beating in Philip Hamburger's book, Noah Feldman's book, & other scholarship. My bet is that the conversation shifts away from history to normative political theory straight up.
