To anyone who ever doubted, the video here proves indisputably that President Obama is a confirmed lefty.
Props to the Prez for showing his support for Chicago’s premier baseball team – the White Sox (AL Central Division champs in 2008 and, of course, World Series Champions in 2005).Notwithstanding my prior criticisms of the President (which, respectfully, still stand) that is something I am glad to say we have in common.
What does this have to do with Catholic legal theory?Well, at least as much as all the drivel MOJ readers have been subjected to regarding Duke basketball.
With the nomination hearings of Judge Sonia Sotomayor to fill the vacancy on the United States Supreme Court underway, it is inevitable that the issue of stare decisis will eventually be addressed. Judge Sotomayor has anticipated the inevitability by raising in her introductory remarks the primary duty of a judge to fidelity to the law. That is a wonderful expression—fidelity to the law. But what does it mean? I have thought about this critical matter that must be of interest to Catholic legal theorists over the past few days. In order to clarify my own thinking about fidelity and the role of stare decisis, I have come up with a hypothetical line of questions to a judicial nominee and some possible answers.
Senator X:
Judge, we all recognize that fidelity to the law must respect the principle of stare decisis, but from your perspective do they mandate strict adherence to past decisions of the Supreme Court of the United States?
Judicial Candidate:
Clearly, Senator, fidelity to the law and respect for the principle of stare decisis are and must remain vital elements of the role law must have in our juridical institutions and the rule of law in our society. They ought not to be tampered with in most circumstances without good reason for doing so.
Senator X:
Yes, Judge, but does a judge who possesses the jurisdictional competence to do so have any latitude for altering the impact of judicial precedents? Isn’t there a very strong presumption that precedents are valid and must not be tampered with under the doctrine of stare decisis?
Judicial Candidate:
Senator, you ask a most probing set of questions. I shall do my best to respond to each. But let me begin by stating that a federal judge is a member of a coordinate and equal branch of the national government. While a judge’s principal responsibilities differ from those of the Congress or the Executive branch, a judge also shares in the duty to uphold the Constitution of the
United States
. This means there must be respect for the law and its rule. However, this does not preclude a member of the judiciary or a court consisting of several judges to refrain from examining the strength and integrity of the judicial precedents that apply to the case under consideration. A judge must always look at them with an eye that is attuned to the role of reason and the role of facts in establishing, maintaining, or modifying any precedent. A judge must test the principles that are or appear to be applicable to the case in a fashion that places significance on the essential facts and the reasons for applying a legal principle to those facts. A judge must ask: does the principle, the precedent still achieve the objectives for which it was intended to accomplish and what is the legitimacy of such objective?
In short, our legal system is premised upon reason. Reason and its objectivity formulate the legal principles that come together to form the fabric of the law and the need for fidelity to it. But this does not mean that fidelity to the law and stare decisis preclude changes in the law. The legal system we enjoy in this country has evolved since its inception, and the fact of evolution of the law more than suggests the role of change consistent with fidelity and the coherence that is at the core of the rule of law.
Otherwise, Senator, we would not have the ability to ensure that the law is premised on the soundest reasoning that properly acknowledges the role of facts that emerge in the cases that come before judges. The law is established for the long-term. It is or should be laden with objectivity and moral purpose. It should not be compromised by whim or caprice. It must serve both the individual and the society well being tempered with firmness, mercy, and truth about the human condition. It cannot be merely the will of the law maker, the judge, or some constituency that will profit from a particular result without consideration given to the impact that the law and its interpretation will have on all whose lives and welfare are affected.
Senator X:
So,Judge, are you saying that a judicial officer is at liberty to depart from precendent?
Judicial Candidate:
For sound reasons as I have defined and explained tested by fact, yes.
Senator X:
Then, Judge, you’d be willing to see the “legal fabric” as you call it be altered!
Judicial Candidate:
Yes, for good reasons that serve well one and all tested by fact.
Senator X:
By what authority can you do such a thing?
Judicial Candidate:
By the Constitution of the United States and the oath of office we share as officials appointed or elected to uphold it.
Senator X:
But, Judge, from what you are saying then, is there not a threat to fidelity of which you spoke and the overwhelming significance of judicial precedent?
Judicial Candidate:
Senator, with the greatest respect to our Constitution and the need to preserve, protect, and defend it, we must all recognize that unwise or unsound law can be made by judges and legislators. This is why our system allows for Congressional override of judicial decisions, and it also enables judicial review of Congressional and legislative actions. The common denominator underlying each of these actions is a Constitutional empowerment based not on whim or caprice but on sound reasoning. Otherwise, Senator, we’d still be a land of law in which precedents such as Dred Scott and Plessy and rationales such as Korematsu still prevail.
Annually I write the report on
"Protestantism" for World Book and other yearbooks. For
a dozen or score of years now, the lead story always has to be about churches
tearing themselves apart in lose-lose battles over the blessing of gay
marriages and ordination of homosexuals, et cetera. One could wish it
were otherwise, so that more churches could get back or ahead to more gospel
and more mission. There are, or may be, good reasons other than biblical
ones to support or oppose issues on this subject. But citing the Bible in
church conventions trumps other approaches -- we are, after all, talking about
Protestants! -- and such citing leads to stalemates. On this subject, the
five inches of type in my desk Bible (I measured them) get used to oppose any
movement on this front. It’s "the Bible says" versus "the Levitical
laws, the other 600-plus of which no one pays any attention to, speak to a
different culture, with different understandings."
Is it possible to bring newer understandings
forward without a) disdaining, b) relativizing, c) picking-and-choosing texts
to one’s taste, or d) ignoring the Scriptures? Has not the church, almost
universally, changed its teaching ("grown in understanding") on
subjects? It certainly changed and "grew" when its various
bodies for the first time supported religious liberty in civil orders two and
three centuries ago. But many believe the best case is on
slavery. The South's preachers and theologians, virtually
unanimously, gave biblically-based arguments for the enslavement of humans by
humans, and often opposed their release.
Mention that and you get a quick reply:
"The Bible nowhere commands slavery, and it does forbid same-sex
relations." One has to stretch to support the "nowhere
commands" argument, since its divinely-inspired authors did something
worse: They took slavery for granted and, without criticizing it, often
appropriated its existence and norms for making other points. A review by
Jennifer Knust of two new books in the July Journal of Religion
indicates how that was done. Some quickly chosen excerpts: "Ancient
Christian writings rarely challenge the abusive, exploitative, and gruesome
mechanisms of first-century chattel slavery. ‘Slaves, obey your
masters.’" "The Christian Bible has played an important role in
legitimating slave systems," including in North America. Author J.
Albert Harrill finds that Christian discourse participated in and promoted an
ideology that belittled slaves and naturalized slaveholding. He
"highlights the ways in which contemporary moral debates both shape and
inform biblical criticism." On this subject "the New Testament cannot
be viewed as a book of morals."
Everyone, including presumably New Testament
authors, knew that domestic slaves, according to author Jennifer A. Glancy, had
"the obligation to tend to the master’s physical body and sexual
needs." Even Jesus’ "parabolic slaves are beaten, flogged, cut
to pieces, seized, imprisoned, handed over to torturers, and assigned to
eternal death in order to teach theological lessons." All taken for
granted. The parables "reinforced the violent power relations that
sustained ancient slavery." Arguments based on analogy, including
this one, do not "prove" much of anything. They can, however,
be instructive when the history of cultures, from the biblical settings to our
own, is neglected, or when simply saying "the Bible says" shows
unmindfulness of creative possibilities -- and can harm individuals, lead
to schisms, and hamper future witness.
References:
Glancy, Jennifer A. Slavery in Early
Christianity (Oxford, 2002).
Harrill, J. Albert. Slaves in the New
Testament: Literary, Social, and Moral Dimensions (Fortress, 2005).
Jennifer
Knust's review of these two books appears in The Journal of Religion, 89:
406-409, July 2009.
----------
Sightings comes from the Martin Marty Center at the University of
Chicago Divinity School
UPDATE: "Episcopal Church Moves to End Ban on Gay Bishops," here.
Allan Carlson reports on an interesting conference organized by the G.K. Chesterton Institute and held last weekend in Oxford, England. Carlson's report is well worth the read: here.
As Judge
Sotomayor's confirmation hearings get under way today, Beliefnet bloggers Barry
Lynn and Jay Sekulow, the two leading voices of the church-and-state battle ARE
blogging opposing-viewpoints at their blog " Lynn v. Sekulow." Operating from
opposite sides of the issue, Chief Counsel Jay Sekulow and Americans United for
Separation of Church and State Executive Director Rev. Barry W. Lynn will
provide their unique perspectives as the hearings progress. Check back
with Beliefnet for updates throughout the confirmation process. Here are
Sekulow and Lynn's first posts:
...the President drew further from the US church's diverse ranks this morning with the nomination of his Surgeon General -- this time, an African-American Catholic.
Founder of a rural Alabama health clinic for the poor that was devastated three times (twice by hurricanes, once by fire) since its founding in 1990, Dr Regina Benjamin was reelected to a second term on the board of the US' Catholic Health Association at its yearly assembly last month in New Orleans. Even more notably, though, Benjamin's work both at home and nationally were recognized in 2006 when Pope Benedict awarded her the papal cross Pro Ecclesia et Pontifice ("For the Church and the Pontiff") -- the Roman accolade reserved for laity, religious and permanent deacons who've given distinguished service to the church.
The first African-American woman to lead a state medical association, the 53 year-old nominee -- whose grandmother helped found a Black Catholic parish, its first Masses offered in her living room -- must be confirmed by the Senate before she can become the nation's "top doc." ...
Prof. Scarpelanda posted the article authored by Ross Douthat on
Caritas in Veritate and published by the New York Times.
According to Douthat: “Benedict’s encyclical is nothing if not political.
“Caritas in Veritate” promotes a vision of economic solidarity rooted in moral
conservatism (...)It represents a kind of left-right fusionism with little
traction in American politics” and that: “For liberals and conservatives alike,
“Caritas in Veritate” is an invitation to think anew about their alliances”.
While it is true that
Caritas in Veritate hardly fits
within the liberal/conservative categories of American politics, the European
laboratory may introduce some surprises in the debate.
A careful reading of
the new philosophicaltheorization (Progressive-Conservatism) advanced by Phillip Blond for the Tories in the U.K. may reframe the debate.
In his column today for NCR, "Women religious leadership conference has been faithful to its mission," here. An excerpt:
[I am amazed] that there could be any "doctrinal"
concerns about the organization and its leadership.
Some of the finest women religious in the United States, and
worldwide, have headed the Leadership Conference. By identifying only a
sample, I do not mean to imply that those sisters who remain
unmentioned are (or were) of lesser quality and achievement.
The list of past national chairpersons and presidents of the
Leadership Conference reads like a Hall of Fame of religious life: Mary
Luke Tobin, Thomas Aquinas (Elizabeth) Carroll, Margaret Brennan,
Francis Borgia Rothleubber, Joan Chittister, Mary Dooley, Theresa Kane,
Nadine Foley, Doris Gottemoeller, Camille D'Arienzo, and so many others.
Moreover, the Leadership Conference's mission statement is as
straightforward in its pastoral and doctrinal purposes as it could
possibly be: "to promote a developing understanding and living of
religious life by: assisting its members personally and communally to
carry out more collabora-tively their service of leadership in order to
accomplish further the mission of Christ in today's world; fostering
dialogue and collaboration among religious congregations within the
church and in the larger society; [and] developing models for
initiating and strengthening relationships with groups concerned with
the needs of society, thereby maximizing the potential of the
conference for effecting change."
But there are certain key words and phrases, like "developing,"
"dialogue," "collaboration," "change," and "today's world," that are
red flags for some church officials and a minority of women religious
who are locked into the religious culture of the 1940s and 1950s, when
nuns wore elaborate habits, remained for the most part confined to
their convents and religious houses, took the names assigned to them,
often those of male saints, and limited their apostolic activity
principally to teaching children, and ministering to the sick, orphans,
and unmarried pregnant girls.
It was unthinkable in those pre-conciliar years for a nun to appear
in secular clothes, however simple, to engage in apostolic activities
outside the convent or religious house, to reclaim their baptismal
names, and to become engaged in ministries of social justice, human
rights, and peace.
It was even more unthinkable that these now highly educated women
would begin to think for themselves and to speak and act accordingly.
That is what seems to bother their critics the most.
