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.

Thursday, November 4, 2010

Legislating Morality

Micah Watson, at Public Discourse, explains why we "can't help but legislate morality":

“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality. . . .

To legislate, then, is to legislate morality. One can no more avoid legislating morality than one can speak without syntax. One cannot sever morality from the law. Even partisans of the most spartan libertarian conception of the state would themselves employ state power to enforce their vision of the common good. Given this understanding, the term “morals legislation” is, strictly speaking, redundant. The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.

"Schism, Plague, and Late Rites"

Michael McConnell has posted on SSRN a new essay, "Schism, Plague, and Late Rites in the French Quarter:  The Strange Story Behind the Supreme Court's First Free Exercise Case."  Here's the abstract:

On November 9, 1842, Father Bernard Permoli performed an open casket funeral in the church of St. Augustin in the French Quarter of New Orleans, Louisiana. He blessed the body and offered the prayers specified by the doctrines and forms of the Roman Catholic Church. For this performance of the priestly function, he was prosecuted by the City, criminally convicted, and fined $50. The ceremony violated a city ordinance, passed thirteen days before, prohibiting open casket funerals at all “Catholic Churches” of the city, other than a designated mortuary chapel on the outskirts of town. After he was charged for the violation, Permoli filed an answer claiming the protection of the Free Exercise Clause of the First Amendment.

Thus began a case that went all the way to the United States Supreme Court. Under the name of Permoli v. Municipality No. 1 of the City of New Orleans, it was the first Supreme Court case in which a party invoked the protections of the Free Exercise Clause of the First Amendment. Unfortunately for Father Permoli, the Court rejected his argument, holding, in a unanimous opinion by Justice Catron, that the Free Exercise Clause does not apply to the acts of state and local governments. The case is now cited, along with Barron v. Baltimore, solely for the proposition that the Bill of Rights did not apply to the states prior to the Fourteenth Amendment. Except for that, the case has largely been forgotten.

That is a loss. Not only do the arguments in the case tell us a great deal about the state of free exercise jurisprudence in the antebellum period; the case itself is a darned good story.

The essay will appear, I'm proud to say, in a volume of "First Amendment Stories", which Andy Koppelman and I are editing.  Coming soon to a bookstore near you!

New law blog rankings

Prof. Caron has new law-blog rankings up at TaxProf Blog.  MOJ continues to do well, and to grow.  Thank you!  (And, tell your friends!).

#ihadanabortion

In the same vein as the "I had an abortion" t-shirts, the latest trend is the #ihadanabortion hashtag on twitter.  Both are designed to remove any stigma from the decision to have an abortion.  Consider this explanation:

Just as always, not all feminists or pro-choicers agree with the concept. "Not sure what the #ihadanabortion hashtag is meant to accomplish," one woman tweeted. "Pro-choice is one thing but this just seems needlessly provocative." In response, someone wrote: "Why is saying #ihadanabortion 'provocative?' I had my wisdom teeth out. Is that needlessly provocative?

Apart from (but not entirely unrelated to) the debate over abortion's legality and constitutionally protected status, there is the question of stigma.  If we ever arrive at the point where abortion is viewed as the moral equivalent of the removal of one's wisdom teeth, the pro-life movement will have failed in much starker terms than those presented by the Roe v. Wade regime.

Entity and Identity

Usha Rodrigues has posted a new paper, "Entity and Identity."  Judging by the abstract, it should be of interest to those of us who care about associational life:

The function, indeed the very existence, of nonprofit corporations is under-theorized. Recent literature suggests that only preferential tax treatment adequately explains the persistence of the nonprofit form. This answer is incomplete. Drawing on psychology’s social identity theory, this Article posits that the nonprofit form can create a special "warm-glow" identity that cannot be replicated by the for-profit form. For example, a local nonprofit food cooperative is selling more than the free-range eggs or organic strawberries that Whole Foods and other for-profits market so effectively. The co-op offers community participation and an investment in local farms, a distinctive ethos that is incompatible with the profit motive. Ascribing a special meaning to the nonprofit form allows us to view afresh a variety of issues regarding the appropriate legal treatment of nonprofits.

Wednesday, November 3, 2010

Senator Kelly Ayotte, Villanova Law '93

A moment of pride and promise at Villanova Law!  Kelly Ayotte, Villanova Law Class of '93, has been elected to the U.S. Senate.  Ayotte is the first Villanova Law alum to serve as a U.S. Senator.  We are very proud of Senator-elect Ayotte.  Ayotte's election follows by a few days the great news of the inspiring appointment  of John Gotanda as the next Dean of Villanova Law.

On the Idea of Doctrine

The idea of doctrine is unusual as a feature of scholarly attention.  The only two spheres of academic learning that I can think of which rely on the idea of doctrine are law and theology.  One might even say that doctrine is crucial for these two areas of learning, and anathema for most others. 

Legal doctrine is studied extensively by law students, and times were that "doctrinal" scholarship was the primary preoccupation of law professors.  That changed to some extent with the coming of both the crits and the 'law and...' phases of legal scholarship, though there continue to be accomplished and interesting doctrinalists (indeed, I have noticed a new wave of young-turk doctrinalists lately -- in some ways, it is they who are today's subversives).  But even those who plow the interdisciplinary and critical fields know to pay doctrine its due; stray too far from it and one's writing begins not to look like legal scholarship at all.  It may even be that it is doctrine which puts the 'legal' in legal scholarship.  I am far less familiar with the history of theology as a discipline, but it seems to me that the interpretation of doctrine would play a central role in the life of the theological scholar.  The accretion of exegetical incrustations is a happy and welcome event for theology, a sign that the field is thriving, and when one becomes a theologian, my guess is that one is committing oneself to the idea of doctrine as a core feature of one's writing life -- even if it is one's aim to offer reforming, novel, or radical doctrinal interpretations.   

Is there any other discipline in which the idea of doctrine is accorded respect, let alone pride of place?  Does it make any sense to speak to a philosopher or a literary critic, a scientist or an architect or a mathematician, about doctrine?  In these fields and most others, doctrine, to the extent that it appears as an intellectual phenomenon at all, is an impediment.  It is an obstacle to be blasted through, something to be challenged and replaced.  Parricide is the order of the day, and if there are doctrines out there, they are regarded with executioner's eyes by the next scholarly generation.  Naturally there are dogmas in all fields, law very much included, but the idea of dogma is different than the idea of doctrine.  A dogma is an entrenched but temporary piety; a doctrine has greater permanence and less attitude.  A doctrine is regarded by those within the discipline as fundamental, a cornerstone on which sound buildings can be constructed, redesigned, and reconstructed.  A dogma is more militant, more ambitious, and more brittle.

What can explain the prominence of doctrine in law and theology?  This is too large a topic for a blog post, but some rank speculation follows after the jump (which I hope readers will supplement). 

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Many pro-life Democrats lose

The Christianity Today politics blog has a pretty up-to-date tally of how pro-life Democrats (that is, Democrats "who voted for the original Stupak-Pitts Amendment (which would have banned abortion funding in the health care bill) and final passage of the health care bill (which did not include the Stupak-Pitts amendment)").  (My own representative, Joe Donnelly, is such a Democrat, and he won -- without a majority of the vote -- with, it appears, some help from the Libertarian candidate.)

Personhood amendment fails in Colorado

Story here:

Amendment 62 would have changed the state constitution - stating that a person is a person "from the moment of biological beginning." That, in effect, would outlaw abortions in Colorado. But, opponents feared it would reach much further, affecting in-vitro fertilization, contraception and some medical procedures.

"I think that our over 70 organizations of doctors, nurses, faith leaders, medical researchers, civil rights folks and health care advocates throughout the state have done a very good job of education Colorado voters," says No on 62 Campaign Director Fofi Mendez.

The measure failed on a 3 to one margin, much like a similar measure did in 2008. Supporters of the Personhood Amendment couldn't be reached last night. But in past interviews with KUNC they stated that they hoped a more conservative electorate would mean victory. They've also stated that a loss would not stop them from trying again in the future.

School choice in the Supreme Court

Today (in a few minutes, actually) the Supreme Court will hear oral arguments in a school-choice and church-state related case out of Arizona, called Arizona Christian School Tuition Organization v. Winn.  (To learn more about the case, check out this helpful summary at SCOTUSBlog, and this argument preview by Lyle Denniston.)

There is a non-trivial chance that the Court will not reach the merits of the First Amendment challenge to Arizona's (very successful and entirely, in my view, sound-as-policy-matter) tuition-tax-credit program.  But, if they do, they should certainly uphold the program, and reverse the Ninth Circuit's misguided misinterpretation and misapplication of Zelman.  Programs like Arizona's are proving more successful, and more politically do-able, than "voucher" programs, and they are essential to education reform.