Saturday, June 5, 2010
[From the current issue of The Tablet:]
Michael Sean Winters
Catholics in America are divided over the
formal excommunication of a nun who authorised an abortion to save a
mother’s life. It is the latest case to highlight the bitter divisions
within the American Church
On May 27, Justice Souter, who retired from the Supreme Court for about a year ago, delivered a commencement address [Here] at his alma mater Harvard University. The New York Times praised his address in an editorial [Here] today, and Linda Greenhouse in her web log did the same this past Thursday [Here].
There is little question about Justice Souter’s acumen and his grasp of the law. However, I have several questions and some concerns about his understanding of the text of the Constitution and his method of interpreting it. Readers of and contributors to the Mirror of Justice will recall my earlier posting in May [Here] concerning Professor David Strauss’s new book The Living Constitution where I disclosed some of my own ideas about the importance of the Constitution’s text and its proper interpretation.
The thrust of Justice Souter’s address was to offer a theory of reading, interpreting, and applying the Constitution. His judicial philosophy appears to center on a distancing from (and critique of) the method he identifies as the “fair reading” model. He characterizes that model as a straight-forward approach that decides Constitutional cases by “reading fairly and viewing facts objectively.” He then illustrates his understanding of the “fair reading” model with the example of the twenty-one year old who wishes to run for the Senate; however, the age requirement of Article I mandates that a senator must be a citizen who has “attained the age of thirty years.” The Constitutional solution to the claim made by the twenty-one year old is a straight-forward application of the text. What Justice Souter does not mention about this approach to Constitutional application is that many times a day it is precisely this method of using the Constitution that supplies the solution to claims that are in dispute. When one thinks about statutes and regulations, the “fair reading” model also supplies the method or resolving questions surrounding the meaning of the law in an overwhelming majority of the cases. Because he fails to take stock of this important reality, I find Justice Souter’s assertion that “the fair reading model has only a tenuous connection to reality” problematic. His follow-up assertion that “Even a moment’s thought is enough to show why it is so unrealistic” is equally thorny.
I agree that in a small percentage of cases regarding all legal texts, including the Constitution, something more than plain meaning application of the text is in order. But rather than focusing on developing a coherent, rigorous, and objective method of Constitutional interpretation, the Justice instead opines that the Constitution “contains values that may well exist in tension with each other” and are not in harmony with one another; thus, a judge must wrestle with these values and determine which values must trump others. He proceeds to illustrate his contention by considering two important Supreme Court decisions including the Pentagon Papers case.
In the Pentagon Papers litigation, Justice Souter reminds us that the United States was represented by Irwin Griswold, then Solicitor General, who argued that the prior restraint issue was only one of the competing values at stake in the case; therefore, it was essential to look at all the various Constitutional provisions at issue, not just the First Amendment. Interestingly, Justice Black, whom Justice Souter reminds us, was once described by Justice Cardozo as “having one of the most brilliant legal minds”, took a tough questioning stance against the Solicitor General but essentially presented a literalist view of the First Amendment, which Justice Souter suggests parallels the “fair reading” method. Justice Souter nonetheless appears to appreciate the tack pursued by General Griswold because Justice Black’s focus on the text of the First Amendment “fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish.” Here, Justice Souter brings in his “other-values” argument by concentrating on what he calls “a conflict of approved values.”
It is at this point in his address that Justice Souter forgets a very important detail about the Constitution and how one, including a judge, ought to work with it. Anyone involved with Constitutional litigation must realize that it is not other values that are in conflict with the text of the First Amendment; rather, it is other texts of the Constitution that have a bearing on the meaning and role of the First Amendment in the resolution of the Pentagon Papers case. Justice Souter maintains that “the explicit terms of the Constitution do not resolve that conflict when it arises.” In respectful disagreement, I think they do and submit that Justice Souter has, in effect, conceded the point by bringing in the text of the whole Constitution rather than one element of it, i.e., the First Amendment, when he compliments General Griswold’s methodology.
Here in his address, Justice Souter asks a series of rhetorical questions about values versus the text of the Constitution and its “fair reading”: “Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words?” He then quickly responds to the rhetorical questions he has just raised by saying, “You know my answer. So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.” It strikes me that General Griswold was doing just that, i.e., trying to read the Constitution—all of it—fairly. It was Justice Black who took the far more literal and narrow approach to Constitutional adjudication by concentrating on just one of its provisions, i.e., the First Amendment. Yet, Justice Souter maintains that the Pentagon Papers case demonstrates “how unrealistic the fair reading model can be.” Regrettably, I do not share Justice Souter’s conclusion; moreover, in spite of Justice Souter’s argument criticizing the “fair reading” approach, an analysis of his approval of the case’s outcome reveals that the literalist approach of one provision, the First Amendment, prevailed in the determining the outcome of the litigation.
As he concludes his address, Justice Souter asserts that the “fair reading” method “fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” He maintains that the Constitution is “a pantheon of values” and that the Constitution “gives no simple rule of decision” for cases where competing values are in conflict with one another.
But it is, first and last, the text, the entire text of the Constitution that must form the basis of resolving the legal dispute and the dispute about competing claims and values. The Founders did not intend to give us an incomplete list of values that are important to the American people; rather, they gave us a basic law found in a coherent text that would assist us in regulating our lives in common under the rule of law. I may agree with Justice Souter that a mechanical application of a particular text dealing with a particular “value” is an unwise method of Constitutional adjudication. But I cannot agree with his assertion that the “fair reading” of the Constitution—again, all of it—“egregiously...misses the point” of Constitutional adjudication. From my humble perspective, the “fair reading” method is not “a simplistic view of the Constitution” that “devalues our aspirations” [whatever those aspirations are and who chooses them]; rather, it is a holistic approach to understanding and applying the Supreme law of the land to difficult cases which must nevertheless be resolved by a coherent understanding of the law that is specified rather than unenumerated “values” which are not.
In spite of these differences, I share some of Justice Souter’s concluding remarks when he says: “we can still address the Constitutional uncertainties the way [the Founders] must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.” But I add, in doing so, we must not let the passing fancy of the living disregard the immutable truths identified by those who preceded the present generation.
RJA sj
Friday, June 4, 2010
I am a huge fan of G. K. Chesterton. His "Orthodoxy" and "The Dumb Ox" are two of my all-time favorite books. So, I also enjoyed this, written by Ian Gerdon, currently a theology student at Notre Dame (HT: Sightings):
— Ian Gerdon
You’ve never seen a blockbuster movie based on a book by G.K. Chesterton. Perhaps you’ve stumbled across one of the many television adaptations of his Father Brown mysteries; and if you’re fortunate enough to live in Chicago, maybe you saw last fall’s staging of The Man Who Was Thursday, Chesterton’s secret-agent-novel turned heartbreaking-Christian-allegory. Unlike C.S. Lewis or J.R.R. Tolkien (both of whom adored him), Chesterton didn’t write larger-than-life fantasy tales easily transferred to the screen. But in his own day, he was more a man of the people than either of those Oxford dons – a journalist, novelist, and poet of tremendous wit and notable width, whom Lewis later called the best Christian apologist in the English language.
Like Lewis and Tolkien, Chesterton is venerated by many, a practice that may someday be legitimated by ecclesial approval. At a conference last July on “The Holiness of G.K. Chesterton,” the Chesterton Society decided to get the ball rolling on what is hoped will be his eventual canonization in the Roman Catholic Church. Make no mistake: Though he made his living as a journalist, Chesterton was no theological lightweight. Open the standard edition of the collected works of St. Francis of Assisi and you’ll find Chesterton’s biography cited on the first page of the introduction; read any review of twentieth-century Thomism and you’ll find that one of the most highly recommended studies of Aquinas is, again, the biography Chesterton wrote. And rumor has it he was halfway through before he thought it wise to send his assistant to London to bring him some books on St. Thomas. . . .
In his recent post, regarding the bishops' opposition to ENDA, Eduardo writes:
[The question is] precisely what sort of discrimination the bishops believe to be “unjust.” The letter doesn’t say, but it would be nice to know what they think. Would it be unjust for a Catholic school to fire a gay janitor simply because he is gay, even if he is celibate? . . . I guess I’d like to hear what would, in the bishops’ view, constitutes unjust discrimination (since it is a category that seems to include less than it excludes)? The letter is silent on this point. It’s far more eager to carve out room for “just” discrimination than it is to specify where discrimination goes too far.
I think Eduardo is right to remind us of the important distinction between "unjust" discrimination and the kind of discrimination that -- in my view, anyway -- probably should not be called "discrimination", because everyone today thinks "discrimination" is wrong when there are, in fact, some instances of "discrimination" that are not wrong-but-tolerable, but utterly unremarkable and not wrong at all (e.g., "discriminating" against boring people, or vegetarians, when putting together a list of dinner-party invitiees). For me, this distinction is often muddied in discussions of, e.g., "discrimination" on the basis of religion by "faith-based" social-service agencies or by religiously-themed student groups.
I wonder if Eduardo agrees with me that an appropriate appreciation for the church-autonomy principle should lead us to say that, with respect to some decisions by religious authorities, institutions, and employers, the question whether a particular employment-related action in question is "unjust" or "just" discrimination (or, as I would prefer, "discrimination" or not) is not a question that should be submitted for resolution to the civil or political authorities? (Identifying these decisions, and identifying the authorities and employers we are talking about, will not be easy in every case, of course.) Thoughts?
I know I’m a little late to the party on this one. On May 19, the USCCB wrote a letter setting out its reasons for opposing the proposed Employment Nondiscrimination Act, which would prohibit discrimination against homosexuals in employment. The crux of its position appears to be that it is opposed to the law because (1) it might be applied to the Church in ways that interfere with its religious autonomy and (2) it might be used by litigants and courts to promote successful constitutional challenges to prohibitions on same-sex marriage.
I don’t know enough about the proposed legislation to comment on the Bishops’ specific claim that the religious exemptions built into the law are insufficient to protect the Church’s autonomy, but there were a number of troubling features of the letter that may shed some light on the hierarchy’s views on homosexuality and the law.
Note: this post was prepared for religiousleftlaw.com (thus the focus on the left), but it should be of interest here
Chip Lupu and
Robert Tuttle were recently interviewed in
the Pew
Forum about the class of cases involving discrimination against gays
and
lesbians on religious grounds. Suppose a pharmacist refuses to serve
someone
because he is gay and the pharmacist believes same sex relations are
sinful. I
think most people on the left would think that the pharmacist should not
be
able to defend the refusal to serve on religious grounds any more than a
pharmacist could refuse to serve some of another race on religious
grounds. But
see Bob Jones case (many on right
believe that race discrimination on religious grounds should be
constitutionally protected).
But the cases
that are arising are not of this sort. They
involve, for example, sex counselors who refuse to counsel persons about
same
sex relations, ministers who refuse to preside over gay weddings, and
photographers
who refuse to participate in gay weddings because they (wrongly in my view) believe
that
same sex relations are sinful. These cases seem different than the first
class
of cases. In the first class of cases, the pharmacist discriminates
against
persons. In the second class, the counselors, ministers, and
photographers do
not want to be involved in (what they perceive to be) sinful activity
and that
refusal has a discriminatory effect. But it is not discrimination
against
persons. If one of the participants in the wedding wanted to hire the
photographer to take pictures of him playing basketball, there is no
reason to
think the photographer would refuse to take such pictures on religious
grounds.
I believe the
left is divided on the second class of
cases – even the religious left might be divided. I think the religious
claim
should lose in the first class of cases and win in the second. But I am
not
sure why the distinction between persons and refusal to participate in
perceived sinful activity should make a difference. After all, the
pharmacist
in the first example may think that serving gays is sinful
activity. To be sure, the government interest in
fostering respect for individual and supporting human dignity is more
deeply
offended in the first line of cases. And a contrary ruling in the first
line of
cases would open the door for widespread evasion of anti-discrimination
laws in
a way not threatened by the second. But I believe that a part of the
pull to
reject the religious claim in the first line of cases is that the
theology of
the claimant in the first line of cases is more odious than that of the
claimants in the second line of cases. That, theoretically, should not
be on
the table in a free exercise inquiry.
Thursday, June 3, 2010
Last night Loyola University Chicago School of Law was proud to host a panel discussion entitled “Catholics in Political Life Today: Partisan Politics and Religious Identity.” The event, which was co-sponsored by the Lumen Christi Institute, featured Melinda Henneberger, editor-in-chief for the online newspaper Politics Daily and the author of If They Only Listened to Us: What Women Voters Want Politicians to Hear (2007); Ross Douthat, a columnist with the New York Times and the author (with Reihan Salam) of Grand New Party: How Republicans Can Win the Working Class and Save the American Dream (2008); and Mark Stricherz who writes for the blog True/Slant and is the author of Why Democrats Are Blue: Secular Liberalism and the Decline of the People’s Party (2007).
Melinda Henneberger suggested that the place of Catholics in American politics may be to have no one true home, to instead be a “pebble in the shoe” of secular political movements on both the right and the left. She also argued that if the Democratic Party wants to govern effectively, it will need pro-life Democrats now more than ever. This may infuriate pro-choice operatives and party leaders, but it is a necessity that gives rise to greater flexibility within the party on the issue of life. There is, she believes, no similar flexibility in Republican circles that would urge that party to move closer to a Catholic way of thinking on other issues. She concluded with a reflection on her own work as a journalist as kind of vocation and on the need for more Catholics to be involved in politics and the media – people who see themselves first as Catholics rather than as party loyalists. Answering this call will be no simple matter since the lure of partisanship can be incredibly strong as evidenced by the many pro-life Democrats who became pro-choice in order to advance their careers within the party.
Ross Douthat argued that many Catholic voters today are nostalgic for a time when their religious identity and their political beliefs largely overlapped as they did at the time of FDR’s New Deal coalition with its strong emphasis on the importance of the two parent family in raising children and its stress on the dignity of work informed by principles of Catholic social teaching. This overlap between Catholic identity and Democratic politics came apart in the 1960s and 1970s when the party embraced the radical changes in lifestyle and family then taking place. Since then, Ross argued that there have been three attempts at a new synthesis of Catholic identity and politics, two of them liberal in nature and one of them conservative. One liberal response has been to wholly embrace the changes wrought by the cultural upheaval of the ‘60s and ‘70s and to insist that there is no disjunction between the new lifestyles and practices and the Christian faith properly understood. The other more common liberal response, typified by Mario Cuomo’s famous speech at Notre Dame, has been to bracket the cultural issues where Church teaching and Democratic Party orthodoxy do not align. Under this approach abortion and other issues are characterized as matters of personal, religious morality that Catholics should set to one side freeing them to stress the liberal policy preferences that are deemed consonant with church teaching. The first of these liberal attempts at synthesis, Ross said, is untenable while the second is not in any sense distinctively Catholic. It is merely liberal, and so not a true synthesis.
Ross also argued that the conservative attempt at a new Catholic synthesis embraced the Church’s traditional teaching on abortion and other social issues but attempted to make conservatism less libertarian. This synthesis can be seen in the work of Richard John Neuhaus and Deal Hudson. In the Bush administration this synthesis proved to be a colossal failure with a domestic agenda that sputtered along and a foreign policy idealism that led to the debacle of Iraq. As such, Ross said that Catholics should not expect to find a political home that perfectly coincides with their religious beliefs but that there should be a willingness on the part of Catholics in both parties to explore new and innovative ways to apply the principles of Catholic social thought to the problems of the day – ways that are not merely abstractly philosophical but practical and rigorous from a policy standpoint.
Mark Stricherz argued that what is lacking in politics today is any leader in the mold of the late Robert Casey, Sr., a principled champion of the rights of unborn children who was also a staunch supporter of other Democratic policies in keeping with Catholic social teaching. But the time is ripe for Casey’s mantel to be taken up again. Mark noted that many outside the Democratic Party dismiss pro-life Democrats as paper tigers who hold no real power and who provide cover for a party that is wholly committed to the abortion license. On the other hand many inside the Democratic Party hold pro-life Democrats in contempt as single-issue moralists who often get in the way of progressive reform. There are also some, Mark noted, like E.J. Dionne, who pretend that serious pro-life Democrats like Dan Lipinski don’t even exist, and that pro-life efforts to alter the health reform bill were a covert right-wing attempt to derail the bill rather than principled opposition based on Catholic social teaching. Mark further argued that although the prospects of pro-life Democrats being a force on the national level are virtually non-existent, pro-life Democrats could become a strong regional bloc in what he termed “The Big-10 States” of Minnesota, Michigan, Wisconsin, Indiana, Illinois, Iowa, and Pennsylvania. Many Congressional districts in these states have constituencies that are open to Democratic policies but where being pro-life is a definite asset. A real effort is needed to encourage pro-life Catholic candidates of strong character to follow in the footsteps of Bob Casey, Sr.
The panel discussion and the question and answer session that followed made for a stimulating evening of thought-provoking conversation and a list of additional questions well worth pondering. For those unable to attend, I am happy to say that the event was recorded and that I plan to post a video pod-cast of the panel discussion on both Loyola’s website and Lumen Christi’s website in the near future.
Steve's post on "repentance", and the insightful thoughts of Susan Guthrie to which he linked, came to mind when I read this article about the State of Minnesota's recent resolution apologizing to Minnesotans with mental and developmental disabilities for their past treatment by the State -- forced sterilizations and lobotomies, forced labor, and institutionalization. It took 13 years of advocacy by a disability rights organization to get this apology passed. It finally passed only after a section "devoted to the practices of physicians and medical professionals was removed." And when Governor Pawlenty signed it, he accompanied it with an explanatory letter in which he said, "However, it is important to note this resolution also negatively paints with a very broad brush the actions of State employees who, in most cases, took actions based in good faith and the scientific understanding at that time." That qualification was apparently in response to concerns raised by the leadership of state employee unions that any admission of wrongdoing might open the door to state accountability for this behavior.
This struck me as a rather sad example the way in which fear (of lawsuits) pervades our culture, affecting our willingness to apologize, to ask for forgiveness, in a manner that displays true regret and sincere repentance.
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