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.

Tuesday, January 18, 2011

"America, America"

In a recent issue of First Things, James Nuechterlein had an interesting essay called "America, America" (subscription required).  In the course of more general reflections about "patriotism", and echoing a line of argument that I associate with, among others, our colleague Tom Berg, he explained helpfully (I thought) the role and importance of the "under God" language in the Pledge of Allegiance.  A bit:

. . . For Christians of an Augustinian persuasion, it is finally only the city of God to which they owe unqualified allegiance, and they understand, or ought to understand, that on earth we have no abiding city. In the orthodox Christian view of things, all our cities—even the best of them—are greater or lesser Babylons in which we sojourn as strangers and pilgrims. We are alien residents, on the journey to our ultimate citizenship in the New Jerusalem.

This is not to suggest that Christians must be estranged from their own countries. But they do understand that neither politics nor patriotism is of ultimate concern. These things may engage us deeply, but our understanding of human sin and finitude—especially as manifested in collective behavior—serves to inoculate us against the utopian and salvific temptations that lie behind nationalist enormities. The very best of political arrangements, those calling for our deepest attachment, can bring only a very rough justice. That is not nothing, but neither is it worthy of total or unqualified commitment.

All this may sound, in tone if not in substance, vaguely un-American, and so, by extension, somewhat unpatriotic. But in fact it is just that off-center angle of vision that makes orthodox Christians safe for patriotism. They can love America—feel for it that gratitude, pride, and affection that it is natural for people to extend to their homeland—without being tempted to the idolatrous nationalism that has deformed so much of modern history. How can Augustinian Christians make an idol of a nation whose philosophical assumptions of enlightenment liberalism, recurring religious impulses to gnostic antinomianism, and prevailing spirit of romantic optimism stand athwart their most basic understandings? Because Christians are in a deep sense strangers in America, they can be safely at home there.

And, so long as they keep their ultimate reservations always in mind, they can be quite thoroughly at home and quite at ease in saying so. When Americans speak of the United States as a redeemer nation, or refer to it as a city on a hill, or argue that the Constitution is the nation’s bible, they are not—at least not most of them most of the time—speaking literally. They use providential and biblical language because it is for them a common idiom, not because they really think that America is the new Israel. Not every reference to God’s providence extending to America’s role in the world is an exercise in idolatry, and the declaration in the Pledge of Allegiance that we are a nation “under God” is properly understood as a plea of humility rather than an assertion of pride. . . .

Abortion in NYC: "Safe, legal, and (far from) rare?"

My wife and I moved to New York City while she was pregnant, and we were struck by a couple of incidents.  At her first doctor's appointment, the receptionist asked upon check-in whether my wife planned to proceed with the pregnancy.  And at a McDonald's playland, another mom whom she had just met asked if she was planning to "have the baby."  The apparent absence of a strong, though usually unspoken, presumption against abortion was jarring.  The statistics bear this out, as laid out by William McGurn today in a WSJ column:

After crunching the latest statistics from New York City's Health Department, the foundation reported that 41% of pregnancies (excluding miscarriage) in New York ended in abortion. That's double the national rate.

So again the question: As a society, does this figure say anything about the choice between a baby and abortion? Even for those who believe the choice for an abortion belongs to a woman alone and ought to be unfettered by city, state or federal law, is there any ratio such a person would say is too high?

The question becomes even more compelling when broken down by race. For Hispanics, the abortion rate was 41.3%—i.e., more than double the rate for whites. For African-Americans the numbers are still more grim: For every 1,000 African-American live births in New York, there were 1,489 abortions.

The Rhode Island Governor, the Bishop, and Church-State Separation

Rhode Island Governor Lincoln Chafee held his inauguration day recently without a prayer service in order to honor the principle of church-state separation. Good for Governor Chafee in my view. But Bishop Thomas J. Tobin went ballistic. He purported not to care whether there was prayer in the Inauguration. That he claimed was up to the governor. But he did strongly object to the reference to the constitutional principle of separation of church and state. He maintains that the principle is not in the Constitution (certainly the words are not in it), that the concept developed later, that the concept interferes with the use of religious arguments in public life, and that the concept promotes an atheistic world view. 

The Bishop does not recognize that Governor Chafee's use of church-state separation need not be hostile to religion particularly in Rhode Island. First, the constitutional principle of church-state separation has a lot to say about what government may not do; it has nothing to say about what ordinary citizens including the Bishop can or not say in public life. It may be that some tell Bishop Tobin that he should not intervene in politics, but nothing in the constitutional principle of church-state separation speaks to the issue. Second, the principle of church-state separation is not a post-constitutional principle. SImple Rhode Island history confirms the point in that Rhode Island founder Roger Williams argued for church-state separation. He inspired the Baptists and the Constitution would not have been passed without Baptist support. The principle is also found in the writings of Jefferson and to some extent in Madison. Wholly apart from the proper interpretation of the Establishment Clause, it falsifies history to say that it is a post-constitutional principle. Finally, the principle is championed by some who are hostile to religion, but it's better and historic defense is that religion is best protected when the state does not meddle with religion. Indeed the prominent sociologist Jose Casanova has cogently argued that the failure of the Catholic Church to recognize this by securing privileges from and cooperating with corrupt kings and dictators has been a significant cause of its demise in Europe. Bishop Tobin need not speak out against the constitutional principle of church-state separation to enter the public sphere and, in my view, he is short-sighted to do so when he does.

Regrettably, given the current composition of the Supreme Court, the principle of church-state separation is imperilled. What the Justices do not realize is that in allowing governments to "help" religion, they will license actions that compromise religion and foster increased resentment against it.

10,000 MOJ posts

This is the 10,000th blog post at Mirror of Justice.  Here is the first (authored by our friend Mark Sargent), from Feb. 3, 2004 -- almost seven years, and more than 2.5 million site-visits, ago:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

Monday, January 17, 2011

God Bless the Muslims of Egypt

God bless the many Muslims of Egypt who, true to their word, made themselves "human shields" to protect their Coptic Christian fellow citizens during their celebration of Christmas.  After the recent horrible murders of Christians in their nation, a large number of Egyptian Muslims vowed to protect the Copts from further violence. They did this by guarding Christian churches and even attending the Christmas services themselves. I hope that those of us who are Christians would do the same for our Muslim fellow citizens if the shoe were on the other foot.  I sometimes hear people ask:  Where are the moderate Muslims who should be taking the lead in opposing violent jihadists?  The truth is that there are Muslims here in the United States as well as abroad who have boldly spoken out against violence and extremism; but their courageous witness has received little attention. I hope that the American and international media will recognize the heroism of those Egyption Muslims who, at considerable risk to themselves, protected the Coptic minority.         

"Natural Law, Natural Rights, and American Constitutionalism"

This site, courtesy of the Witherspoon Institute, looks to be a useful and interesting resource.

Welcome to the first phase of The Witherspoon Institute’s online center for Natural Law, Natural Rights, and American Constitutionalism. The project to create an online archive containing the seminal documents of these traditions with educational resources is made possible through the support of the National Endowment for the Humanities and with direction from scholars associated with the James Madison Program in American Ideals and Institutions at Princeton University.

This project has been designated a "We the People" project by the National Endowment for the Humanities and is being supported in part by funds the agency has set aside for this special initiative. The goal of the "We the People" initiative is to encourage and strengthen the teaching, study, and understanding of American history and culture through the support of projects that explore significant events and themes in our nation's history and culture and that advance knowledge of the principles that define America. Any views, findings, conclusions, or recommendations expressed in this website do not necessarily reflect those of the National Endowment for the Humanities.

A tribute to Ralph McInerny

This tribute, by Prof. Chris Kaczor (Philosophy, Loyola-LA), to my former colleague, Ralph McInerny, is well worth reading.  What a wonderful life.

. . .  His academic achievements are well known — eight honorary doctorates, presidential and pontifical appointments, Gifford Lectures and teaching stints from Argentina to Oxford. His man was, of course, Saint Thomas Aquinas, but not only Thomas. The New York Times obituary noted that Ralph “wrote on the sixth century philosopher Boethius, the 12th-century Spanish Arabic scholar Averroes and later thinkers and theologians, including Cardinal Newman, Kierkegaard, Pascal and Descartes.”

The Los Angeles Times obituary focused on him as “the prolific author of approximately 100 novels. Beginning with Her Death of Cold in 1977, he wrote more than two dozen mysteries featuring Father Dowling, which led to the 1989–91 Father Dowling Mysteries TV series starring Tom Bosley.”

Indeed, The Times of London was not the first place to note Ralph’s extraordinary productivity. “George Orwell, who famously, and wrongly, concluded that the Billy Bunter oeuvre was too vast to have been written by one man (Frank Richards), would have had a similar problem with the output of Ralph McInerny, the American Catholic scholar and writer of detective fiction.” But Ralph was much more than a prolific author. . . .

A conference of interest at Campbell

Conference Announcement: Liberalism, Constitutionalism, & Christianity at Campbell

 

The Campbell Law Review presents its annual 2011 symposium:  

Liberalism, Constitutionalism, and Christianity:  Perspectives on the Influence of Christianity on Classical Liberal Legal Thought.   

The conference will consider the relationship between liberalism and Christianity and their influence on American constitutionalism. The conference will investigate the extent to which classical liberalism and Christianity influenced the formulation of the Constitution and the thought of the Founding era. It will focus on the importance of foundational Christian commitments to characteristic notions of religious toleration and freedom of association as they are borne out in the thought of the Founders and the founding era. 

The conference will be hosted on May 18, 2011, at Campbell University School of Law, located in Raleigh, North Carolina.  The following presenters will be featured:  

Professor Robert F. Cochran
, Director of the Herbert and Elinor Nootbaar Institute of Law, Religion, and Ethics and the Louis D. Brandeis Professor of Law, Pepperdine University School of Law, Professor John M. Breen, Loyola University Chicago School of Law; Professor Bruce P. Frohnen, Ohio Northern University Pettit College of Law; Professor Michael Scaperlanda, University of Oklahoma College of Law; Professor Barry Shain, Colgate University; Professor John Inazu, Visiting Professor, Duke University School of Law; Professor Anthony Baker, Visiting Professor, John Marshall Law School; Professor C. Scott Pryor, Visiting Professor, Campbell University School of Law; Dean Donald R. McConnell, Trinity Law School. 

All are invited.  Attendees may find more details and register online at: http://law.campbell.edu/pubs/lawrev.cfm?volume=32&number=2

Garvey on "The Idea of a Catholic University"

Here's my friend and former colleague, John Garvey (now President of the Catholic University of America), writing in First Things, on the "Idea of a Catholic University."  I like the conclusion especially:

At Catholic universities we strive to provide students with the full intellectual harmony Cardinal Newman referred to – to teach them that knowing, loving, and serving God are part of the same enterprise. They represent not just one option in a universe of equally good ideas, but our fulfillment. As Saint Augustine ultimately discovered, “Our hearts are restless until they rest in You.”

"The Agnostic Age"

I received in the mail today my own copy of MOJ-friend Paul Horwitz's new (OUP) book, "The Agnostic Age:  Law, Religion, and the Constitution."  Order yours today!  As I wrote in my back-cover blurb:

"The confident predictions of religion's decline and disappearance have proved badly misguided. It is true today, as it always has been, that religious faith, commitments, authority, and activism matter to people, to communities, and therefore to the law. In this thoughtful, engaging book, Prof. Horwitz proposes that our law and politics should appreciate religion's importance and distinctiveness and take its truth-claims seriously. As he explains, a secular government that is appropriately agnostic toward these claims nevertheless may and should cherish and protect religious freedom."

Congrats to Paul!