I wasn't at Princeton for the event, but I did, just the other day, read Aidan O'Neill's paper "Judging Catholics: Natural Law, The Catholic Church, and the Supreme Court." First, there's the issue, mentioned by Rick, of the tendentious characterizations, such as "conformist" vs. "non-conformist." Predictably, they do the following sort of work that, well, speaks for itself: "It might be thought that the Second Vatican Council marked the ascendancy of the non-conformist tendency within the Church in the 20th century bu the long Papacy of John Paul II and the election of Benedict XVI as Pope might seem to mark a renewed ascendancy of conformist Catholicism" (47, n.1).
But there's also the issue, likewise mentioned by Rick, that the argument is wrongheaded and, at times, ill-informed. O'Neill's got a lot going on in the paper (divorce, gay marriage, and contraception come up frequently), but the thesis seems to be that judges in our constitutional democracy would violate their judicial oath by doing what the "conformist" tradition is said to demand of them, to wit, to use the judicial office to advance the Church's "agenda" (40). According to O'Neill, "for a judge to decide not to apply or to re-interpret a law in a manner which is determined not by the intra-systemic rules and principles governing legal interpretation, but by extraneous considerations -- such as his own or his Church's moral values -- would a usurpation of his or her office" (34). "The duty of public office holders is to uphold the Constitution under which they hold office, not to undermine that office by seeking to further the agenda of another body or to promote values which are not compatible with the civil society in which they hold office" (39-40).
Where to begin? What I take to be the Church's actual understanding of what a faithful Catholic judge should do, if he or she is to be faithful, is altogether missing from O'Neill's account. For an accurate statement of the Thomistic position which inspire and shape the contemporary statements of the magisterium (whether "conformist" or "non-conformist"), one can do no better, for my money, than chapters 3 and 4 of Russ Hittinger's The First Grace (2003), a work that O'Neill appears not to be familiar with.
On the question of what the judicial office as intended under Article III of our Constitution requires, and what it rules out, in terms of (what we might call, in hope of avoiding a tendentious description) moral judgment, the book to read is H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008).
In a word, the Church doesn't expect the kind of judicial activism O'Neill describes (at length) and fears, and our Constitution does not rule out -- but indeed requires -- some (but by no means all) of the judicial moral judgment of the sort that O'Neill fears. The premise that the Church's moral teaching amounts to an attempt to get simpletons to advance her "agenda" in the world is not the beginning of a promising argument or discussion. But then again, as the reader of O'Neill's paper will see, the author seems to think that people in democratic civil society are, on moral matters, epistemically privileged/better off vis-a-vis the Church (see, e.g., 36).
There are some situations in which the involvement of the legal system can only mean that something has gone terribly wrong on the level of fundamental human relations. A paradigm of such a situation has to be the dispute leading to the Church of St. Joseph in Bertha, MN, obtaining a restraining order against a parish family, barring them from bringing their autistic 13-year-old son to Mass. We can pray that the mediation scheduled to start this week will resolve this in a way that is consonant with our understanding of the Church as a gathering of the people of God. (See, e.g., Joseph Cardinal Ratzinger, Called to Communion: Understanding the Church Today (Ignatius Press 1996), at 29: ". . . the Eucharist, seen as the permanent origin and center of the Church, joins all of the 'many', who are now made a people, to the one Lord and to his one and only body.")
The mother who was barred from her church has set up a web-site to encourage people to reserve pews in their local churches for families who might need a positive indication from their churches that they are welcome, even if their loved ones sometimes engage in unconventional behavior. Her project is called "Project Adam's Pew." As I have mentioned before, I think the lack of welcome often felt by parents of kids with disabilities with respect to the community life of Catholic parishes is a real problem, and I am glad that this unfortunate episode might at least be raising awareness of the problem.
The NY Times has an op-ed, with which I agree, on what it calls "The Great Immigration Panic." (HT: Prof. Steve Legomsky) Here is a snippet:
Someday, the country will recognize the true cost of its war on illegal immigration. We don’t mean dollars, though those are being squandered by the billions. The true cost is to the national identity: the sense of who we are and what we value. It will hit us once the enforcement fever breaks, when we look at what has been done and no longer recognize the country that did it.
A nation of immigrants is holding another nation of immigrants in bondage, exploiting its labor while ignoring its suffering, condemning its lawlessness while sealing off a path to living lawfully. The evidence is all around that something pragmatic and welcoming at the American core has been eclipsed, or is slipping away.
An escalating campaign of raids in homes and workplaces has spread indiscriminate terror among millions of people who pose no threat. After the largest raid ever last month — at a meatpacking plant in Iowa — hundreds were swiftly force-fed through the legal system and sent to prison. Civil-rights lawyers complained, futilely, that workers had been steamrolled into giving up their rights, treated more as a presumptive criminal gang than as potentially exploited workers who deserved a fair hearing. The company that harnessed their desperation, like so many others, has faced no charges.
Immigrants in detention languish without lawyers and decent medical care ...
The restrictionist message is brutally simple — that illegal immigrants deserve no rights, mercy or hope. It refuses to recognize that illegality is not an identity; it is a status that can be mended by making reparations and resuming a lawful life. Unless the nation contains its enforcement compulsion, illegal immigrants will remain forever Them and never Us, subject to whatever abusive regimes the powers of the moment may devise.
Every time this country has singled out a group of newly arrived immigrants for unjust punishment, the shame has echoed through history. Think of the Chinese and Irish, Catholics and Americans of Japanese ancestry. Children someday will study the Great Immigration Panic of the early 2000s, which harmed countless lives, wasted billions of dollars and mocked the nation’s most deeply held values.
I recently posted my paper, Land Virtues, to SSRN. I thought it might be of interest to MOJ readers who share my interest in property and land use law. It critiques the standard law and econ approach and offers the outlines of a virtue-based alternative. Here's the abstract:
This article has two goals. First, I
explore some of the descriptive and normative shortcomings of
traditional law and economics discussions of the ownership and use of
land. These market-centered approaches struggle in different ways with
features of land that distinguish it from other commodities. The
complexity of land - its intrinsic complexity, but even more
importantly the complex ways in which human beings interact with it -
undermines the notion that owners will focus on a single value, such as
wealth, in making decisions about their land. Adding to the equation
land's memory, by which I mean the combined impact of the durability of
land uses and the finite quantity of land, calls into question the
normative assessment that owners whose behavior is guided by a unitary
measure like market value are using their land wisely, or at least more
wisely than other modes of decision-making might hope to accomplish.
The shortcomings of traditional law and economics theories of land use
point toward the benefits of a pluralist theory of property based on
the Aristotelian tradition of virtue ethics. Setting forth the broad
outlines of such a theory as it applies to the law of land use is the
second goal of this article. Virtue theory, I will argue, is capable of
incorporating the valuable insights that have made economic analysis so
appealing to land use theorists without distorting our moral vision or
treating economic consequences as the only considerations that ought to
matter.
Next week, Aidan O'Neill--who is a Catholic and a (British) lawyer--will engage in a disputatio at Princeton University with Robby George, as part a conference on law and religion sponsored by Princeton's Program in Law and Public Affairs.
As it happens, I participated in a panel discussion at the same conference, and also enjoyed dinner and spirited conversation the night before with a number of the participants, including Mr. O'Neill.
I was also in the audience for the "disputatio" that Michael referenced. O'Neill was folksy, witty, and charming, and had the (sympathetic) audience eating out of his hand at the beginning. (Many seemed to enjoy, as we all do, the pleasure that comes with having one's own views affirmed). But, with respect to the subject of the debate -- the whole "Catholics in politics, in the voting booth, and on the bench" thing -- he was (I thought) all-to-willing to skate past important distinctions, to caricature others' views, and to play, in an unattractive way, for knowing laughs at the expense of stodgy pontiffs and prelates.
When it was his turn, Prof. George pointed out error after error in the O'Neill paper, and highlighted many strained and partisan interpretations of the writings of popes and other so-called "conformist Catholics." At one point, George reminded O'Neill and the audience of Archbishop Rummel's excommunication of three segregationist Catholic politicians in Louisiana in the 1950s, a move that was met with praise from the New York Times and other defenders of pluralist, liberal democracy. Were they wrong, George asked? To his credit, O'Neill bit the bullet -- what Rummel did was a violation of conscience, democracy, and the rule of law.
Precisely because I was so disappointed, I then took the time to read the paper to which Michael linked. I'm afraid I do not share Michael's positive view. Of course, the subject is important; of course faithful and intelligent Catholics can and do disagree about it. In places, the paper is (as Michael wrote) provocative. Still, I found unhelpful and tendentious his distinction between "conformist" Catholics and "non-conformist" Catholics; I was surprised by his too-quick conflation of judging and legislating (and his mistaken claim that the Church's teachings require this conflation in a constitutional order like ours); and was unmoved by his suggestion that "conformist" Catholics (as he defines the term) are simply unfit participants in the legal and political spheres of a pluralist democracy.
But, like the man says, that's just me . . . I have no doubt that kicking these questions around with Mr. O'Neill, over a pint, would be a pleasure, but I wish he'd written a different paper.
"The thoughtful email response you posted from the lawyer was depressing, and carries the ring of truth. It encapsulated the situation I described in Chapter 8 (Instrumentalism of the Legal Profession) of Law as a Means to an End--the lawyer even used this very phrase.
That's how it is, and I don't think much will change, as it is the product of deep structural factors (comptetive nature of legal business, huge student debt, pervasive instrumental view of law).
The hard question is whether or how legal academics who teach professional ethics courses can bring this understanding of the situation into the course in a way that is relevant to their future as lawyers."
Any thoughts? And, what about those of you with more positive stories. How has law been a vocation for you? How have you integrated the life of a lawyer into the rest of your life?
One of my students, Raymond Denecke (JD, 2009) responds to the thread on Happiness and the Practice of Law. He responded a week ago, but I failed to post while at the Conference of Catholic Legal Scholars annual conference in Seattle. (As an aside it was a great gathering, and I am thankful for Russ Powell's leadership in organizing the conference). So here, belatedly, is Ray's response:
"I am writing in response to your recent MOJ post: Sex, the Married Man, and the Practice of Law. I have two views regarding your discussion and revelation that some feel they can not live truly happy and fulfilled lives. On the one hand, I think the legal profession, like any other, is what a person wants it to be. Some go into law to make money, others to satisfy a type A personality, some for altruistic reasons, and others for a combination of these or for other reasons altogether.
For many, the study and practice of law is not what they think it will be once they commence a legal education or profession. For instance, I had a notion of what law school would be like, and found that it is completely different than my idyllic fantasy world of law school. That is not to say that I do not enjoy law school, because I do. I look forward to the challenges I face everyday. But, there are other students who had similar romantic notions about law school and the legal profession. Unlike me, some of them cannot stand law school but continue for reasons that I do not know or cannot comprehend. I know a couple of law students who hate law school but feel that it would be a disservice to their families/parents to quit and start in a new field. Unfortunately, that attitude then follows them when they go out to work in the legal profession. Perhaps that is why some feel that the law will not be the catalyst to a happy, fulfilled life.
On the other hand, I can relate to your student who felt that she could not be happy. While I enjoy law school and look forward to the day that I begin my legal career, there are days that I question my decision to go to law school. On those days, I sometimes feel as though I have simply settled for whatever happened in my life and that what did happen was, perhaps, beyond my control. Not to say I didn't take proactive steps in my pursuit of a legal education. But that feeling sometimes carries over into other aspects of life and I think all aspects ultimately engage one with the others to the point where a person may feel that he or she will not achieve, or can not hope for true happiness, true love, and true joy. And this feeling may come from the idea that people settle in life. And I don't mean they settle down, I mean they settle for whatever comes their way instead of going beyond whatever happens and trying to make something happen.
I also think a lot of people, law students included, like to consider what might have been had they aspired to something else and actually put forth an effort to achieve that. As all this relates to the legal profession, I believe that students have their ideas about the legal profession, they learn otherwise in law school, but feel that they have gone so far already that giving up would be silly or whatever. So, when they are out in the world, working, they may not be truly happy because they expected something else from the legal profession and it did not deliver. And outside of legal academia, I am not sure how the law can be philosophically, spiritually, emotionally, or culturally fulfilling. Maybe you can enlighten me."
Hint: According to a post today at The Immanent Frame, it's not what you probably think.
MOJ readers interested in the controversy over the legalization of same-sex unions should read this interesting post: The Future of Marriage: "Traditional" Marriage or a Break with Tradition? (here).
During his confirmation hearings before the Judiciary Committee of the United
States Senate, then Judge John Roberts testified that he wanted to be a "modest"
judge. By this, he appears to have meant a judge who strives to interpret the
law as the lawmakers intended, and provides judicial answers only to the
questions necessary to resolve the case before the court. The purpose of this
article is to consider the implications of this conception of "judicial modesty"
for the constitutional jurisprudence of abortion.
The first section of
this article will consider whether the Constitution, by its terms, historical
understanding, or previous judicial interpretation, required the Court to
constitutionalize questions related to abortion. My conclusions compel me to
join the legions of legal scholars who have sharply criticized the reasoning
employed by the Court in Roe v. Wade. Section two of the article attempts to
determine whether the Court expanded or limited the impact of Roe's flawed
reasoning in its subsequent abortion cases until the time of Chief Justice
Robert's confirmation. The evidence largely supports the conclusion that the
Court expanded its flawed reasoning, reaching new heights of judicial hubris in
Planned Parenthood of Southeastern Pennsylvania v. Casey and new lows in its
indifference to the evidentiary record in Stenberg v. Carhart. The third section
of this article then carefully examines Ayotte v. Planned Parenthood of Northern
New England and Gonzales v. Carhart. These are the only two decisions on
abortion that have issued since Chief Justice Roberts assumed leadership of the
Supreme Court. These cases appear to foreshadow greater judicial restraint when
reviewing abortion-related legislation, and thus greater freedom for the people
and their elected representatives to decide the proper limits of the state's
interest in protecting women and the unborn life they carry within them. In the
final section, I briefly speculate about the impact of a judicially modest
approach in shaping future abortion jurisprudence. I predict fewer successful
facial challenges to abortion regulations; greater emphasis on the requirements
of constitutional and prudential standing; skepticism regarding claims of
third-party representation; and careful review of the evidentiary record offered
to support assertions that contested abortion regulations unduly burden women's
liberty when seeking abortions. Contrary to claims made in abortion activitists'
hysterical denunciations of Carhart II, the Court's decision upholding the
federal partial-birth abortion ban, I conclude that a judicially modest approach
is unlikely to result in the overruling of Roe v. Wade within the foreseeable
future.
