Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, March 12, 2010

Should biblical literalists hesitate before embracing originalism?

Peter Smith and Bob Tuttle have posted a new paperBiblical Literalism and Constitutional Originalism, in which they note that proponents of biblical literalism have generally embraced constitutional originalism when they enter the judicial-political sphere.  A snippet:

[B]oth critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text - the Word of God - is the highest human good. Originalism, in contrast, demands loyalty to the text regardless of its moral quality; just or good results are accidental rather than necessary features of originalist interpretation.

Kaveny on the Montana assisted-suicide decision

My colleague, Cathy Kaveny, has a thoughtful and illuminating essay in Commonweal about the Montana Supreme Court's recent (and under-remarked) assisted-suicide decision.  A bit:

. . . [T]he majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to “violent, public altercations [that] breach public peace and endanger others in the vicinity.” In contrast, it argued, death by PAS is “peaceful and private.”

 This line of reasoning fundamentally misconstrues what counts as “private.” Our legal tradition has always recognized that when one member of the community seriously injures or takes the life of another, it is always an issue of public concern—no matter where it might take place or how serene the action itself might appear. The opinion’s requirement that the consensual attack be  “private” and  “peaceful” doesn’t hold up under examination. An assault consisting of a consensual strangling in a hotel room won’t spark a riot, nor will the consensual smothering of one sleeping spouse by the other. But these are still matters of public concern. . . .

Steve Smith on the "Lukewarm Generation"

I won't normally cross-post here from the Law, Religion, Ethics blog, but MoJers might be interested in this post about the possible inverse relationship between social tolerance/diversity and the strength of religious belief.  In particular, you should read Steve Smith's (not surprisingly) thoughtful comment.

Linda Greenhouse on Clarence Thomas

Many MOJ readers will be interested in this:  Clarence Thomas, Silent but Sure.

Thanks to Rick

Before "The Hurt Locker" won the Academy Award last Sunday, only about a dozen people (other than Academy members) had seen the film.  After the Academy Award, that will change.

Before Rick's review of my book appeared in Commonweal, only about a dozen people had read the book.  After Rick's review, I'm waiting for Hollywood to call.  I want George Clooney to play James Bradley Thayer. 

Thursday, March 11, 2010

Review of Perry's not-quite-latest book

It appears to be the time for MOJ bloggers to review MOJ bloggers' books in Commonweal.  And, it tells you something about how prolific our colleague Michael Perry is that his latest book is out before I manage to finish my review of his next-to-latest book.  Oh well.  Commonweal has my review of Michael's "Constitutional Rights, Moral Controversy, and the Supreme Court" here.  As MOJ readers might recall, I believe that Michael's (commendably) Thayerian approach to judicial review yields the Supreme Court's decision in Citizens United; he disagrees.  And, I'm not convinced that his proposed method yields the result that he thinks it should yield in the context of the same-sex-unions controversy.  In any event, read the book (and the review!).

"Public Reason Disease"

I have a review of Steve Shiffrin's excellent new book, The Religious Left and Church-State Relations, in the current issue of Commonweal.  I don't agree with everything in the book, but I heartily endorse his willingness to respond to the religious right's influence in politics, not by demanding that they take their theologically informed political views out of the public sphere, but by seeking to offer better political views, and to "combat bad theology with good theology."

'Spiritual, Not Religious,' Catholic Marxism, and Spiritual-Materialism

Hello All,

Rick's interesting recent posts remind me of a few related items I've meant to post about for a while now, and as it happens there's an open moment or two here, so here goes.

First, on the 'spiritual, not regligious' locution that one often hears, I remember that I used to fee a vague sense of irritation each time I heard someone give utterance to it.  I tended to suspect that what the user meant was that s/he affirmed all the desired goodies that one often associates with certain doctrines of faith -- particularly the forgiveness and eternal life bits -- while at the same time declining to be bound by the bill one must pay for these benefits.  In this connection I also found quite compelling a line of thought associated with the Jewish theologian Yeshayahu Leibowitz, who, if I read and recall him correctly, criticized the idolatrous aspect of what I think he called 'endowment' religions -- religions that promised various things rather than simply demanding things, like observance of the Law, or Halahkah.  The austerity and emphasis on duty seemed so very pure and powerful.  It still does.  And so does the wisdom that seems to me to inhere in the oft-heard observation that 'spirituality' that is not bound up with discipline or practice or 'religious observance' of some kind is apt to dissipate into a sort of empty sentimentalism or sighing ennui.

On the other hand, I have also come over the years to suspect that the urge which many people seem to feel to issue a sort of 'not religous' disclaimer immediately after affirming a generally favorable disposition toward certain aspects of our faith traditions might be reflective of a failing on many of our parts in our living and affirming those traditions.  I am inclined, in other words, in substantial measure to 'blame myself,' or 'ourselves,' for the widespread misunderstandings we find out there in the world in respect of the question of what we're about.  I don't think it merely an accident, or merely a failure on the part of casual observers to look more carefully, or merely a product of silly mass media portrayals of religious adherents, that we are often thought to be likely bigots, or repressed, or keen to judge and condemn, or ready to force our wills upon others under a more exalted name than 'will,' or to be hypocritical, etc. etc. when we say we adhere to a faith.  So take this for what ever it strikes you as being worth, but I'm going to suggest that we look first to ourselves in seeking explanations of why it is that one so often hears this phrase 'spiritual, not religious.'

Second, I'm delighted that Rick also cites a Catholic Marxist today.  The reason he does so, as I understand it, is also the reason that I take delight in the reference.  It's this:  To my mind, one of the most wonderful aspects of the Aristotelian tradition that suffuses Catholic, Marxist, and indeed all German idealist thought properly understood, is its valorization of materiality.  I remember that when I converted to Roman Catholicism, one of the reasons I used to offer to others was that in this tradition you actually saw a dying body on its crucifixes, rather than simply a cross.  The idea that 'the spiritual' was actually *in,* and indeed partly *constitutive of,* 'the material' seemed to terribly powerful and important and just plain real.  And the same is true of the Aristotelian and German Idealist -- hence also Marxist, when properly understood -- understandings of the role of *material* life in human and beyond-human life. 

I've often thought of myself, in this connection, as a sort of 'spiritual materialist,' or better (given that this phrase took on a different, to my mind less attractive meaning in some of the theological writing of the 60s and 70s), a sort of 'spirit-suffused or -underwritten materialist.'  I find a monist methaphysics to be the most plausible and attractive, in other words, such that all around us is indeed matter, but matter itself can be minded, can be conscious, can be 'spirited,' etc.  It's not dead stuff.  It's living stuff.  The doctrine of literal, bodily resurrection, as distinguished from metampsychosis or ghastly substance rising like steam from the ground after death, seems to me very much in keeping with such a view.  So I sign on in significan part to 'historical materialism' and so forth, without understanding 'material' in any way to exclude all that we find most noble in material earthly life -- love, thought, faith, devotion, caring, creativity, etc.  And it seems to me that considerations of this sort also offer a good grounding for those who would affirm our obligations to care for all of our fellow creatures, as well as the broader natural environment, as well.  It still is His garden, after all, and we're still but the groundskeepers.  And as it is sacred ground, while we're but the custodians, it seems to me it's our duty to tend to it well. 

So, in closing, thanks again to Rick for drawing this out!

All best,

Bob 

Law and Religion in the U.K.

LAW AND RELIGION SCHOLARS NETWORK (LARSN)
CONFERENCE AND MEETING
Centre for Law and Religion
The Law School
Cardiff University
http://www.law.cf.ac.uk/clr
Tuesday 11th May 2010
Venue: The Law Building, Museum Avenue, Cathays Park, Cardiff

Take a look at the interesting agenda which MOJ friend Pasquale Annicchino sent our way, here.

And then book your flight to Cardiff!

"The Audacity of the State"

Here is Douglas Farrow, writing in Touchstone, about state control of education (and many other things).  Check it out:

When I speak of the audacity of the state, the kind of state I have in mind is what we may call the savior state. The main characteristic of the savior state is that it presents itself as the people’s guardian, as the guarantor of the citizen’s well-being. The savior state is the paternal state, which not only sees to the security of its territory and the enforcement of its laws but also promises to feed, clothe, house, educate, monitor, medicate, and in general to care for its people. Some prefer to call it the nanny state, but that label fails to reckon with its inherently religious character. The savior state does have a religious character, precisely in its paternalism, and may even be comfortable with religious rhetoric. . . .