Taking things a little (but not entirely) off topic--and, hey, it's summer and time for some fun--I want to commend to Mirror of Justice readers a new television program this summer—“Falling Skies” on TNT on Sunday nights. Now I’m a huge sci-fi fan, so I’d be easily intrigued by this series set in the near future when civilization has destroyed by an alien invasion, most of human-kind has been wiped out, and a small band of humans continues to fight on as a guerilla movement near Boston. The story isn’t only about the aliens (who appear only occasionally) but really about people and how people respond to tragedy, fear, the loss of everything and everyone around them, and the need to simply survive from day to day.
For this Mirror of Justice audience, I want to draw your attention to a continuing character in the show who is a faithful and thoughtful Catholic. Lourdes, played by Seychelle Gabriel, is bright (she was a pre-med student at age 17 when the invasion came), young, pretty, Mexican-American, and openly and unapologetically Catholic.
In the opening episode, Lourdes explains that she had fallen behind the group as it moved to a new location because she had stopped in a church to pray (saying, amusingly, “it was Episcopalian, not Catholic, but it’s close”). Another character mocks her faith and she responds:
Karen: “Next time you get on your knees could you see if the Big Guy can get us a operational B-2 Bomber loaded with nukes?”
Lourdes: “I don't pray for God to give me things. I don't think it works like that.”
Karen: “Then what do you pray for?”
Lourdes: “I ask God to show me what I can do for Him.”
In the most recent episode, the small human community hiding in an abandoned high school is able to scrabble together the ingredients to bake bread for the first time in a long time. Lourdes leads the group at her table in prayer to “The Father, Son, and Holy Spirit.” The camera pulls away to show the hard-bitten, cynical military commander, who lost his family in the invasion and is doubtful about allowing the civilians to accompany the fighting division, sitting at a table and facing the opposite direction, but mouthing the prayer along with them.
Lourdes is a powerful character in this series, all the more so because she is not powerful in any conventional sense. She is very young, she’s among the civilians tagging along with the military division, and she acts as a servant to others in the make-shift hospital. It is her faith that makes her come alive and touch the others.
If you’re a sci-fi fan, you really need to check this out. And even if you’re not, call up some of the earlier episodes on “On Demand” and see what you think.
I don't think this debate will be going away anytime soon. I can't categorically rule out the removal of kids from their parents on these grounds, but I hope we're only talking about state intervention in very extreme cases -- extreme in terms of the reasonably certain negative health effects and in terms of parental unwillingness to take affirmative steps toward remedying the situation.
Jay Wexler has posted an interesting piece on the endorsement test, Government Disapproval of Religion. Jay is a supporter of the endorsement test (one can see this in some of his past work as well as in this piece), but here he argues that the test can be used to invalidate not only government endorsements but also government disapprovals. The latter, he writes, have become more common as of roughly 2009. The piece is insightful, loaded with interesting examples, and (as often happens with Jay) funny too (have a look at the transition between paragraphs 2 and 3 on page 7).
Jay argues for an "explicitly negative reference" approach to evaluating government disapprovals. "[S]tatements, displays, symbols, and other messages that do explicitly refer to and condemn religion" can be invalidated by the obverse of the endorsement test. (4). I find this approach to endorsement appealing, but if we are to have explicit negative references as the standard, why not restrict endorsement analysis to explicitly positive references? At present, the endorsement test does not operate on these assumptions; that is, an explicit positive reference is not required for courts to find a violation of the endorsement test. I think Jay may disagree with me, as he writes that "framing the test in this way creates a fair parallel with the Court's current endorsement analysis[.]" (10). Alternatively, Jay might argue (he does at some points in the piece) that government cannot operate without some implicit disapproval of religion, but it can operate just fine without any explicit or implicit endorsement.
On the first point, I am doubtful that the endorsement test requires "explicit" positive expression. I assume that in order for the endorsement to be "explicit," it likely will need to be express, and therefore (often) expressed, in some way. This is the gist of many of the examples that Jay uses to illustrate disapproval, at least. Yet in most of the cases I'm familiar with, that has not been the way the test has been applied. On the second point, I wonder whether the debate is really about whether the government can operate at all, as compared with whether (and how best) it can operate well.
Matthew Lister--soon to join us at Villanova as a VAP--has a review at the Notre Dame Philosophical Reviews of Gerald Gaus's new book, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World. As David Brooks once said of Reinhold Niebuhr's The Nature and Destiny of Man, it looks like it covers a lot of ground:
Gerald Gaus's book, The Order of Public Reason, is long, rich, and highly ambitious. It is also an important work, one that attempts both to give a rigorous account of the idea of public reason, developed out of an account of "social morality", and to show how, when the idea is properly understood, Classical Liberalism is the best way to structure a society where all are treated as free and equal. The Classical Liberalism that Gaus defends is an interesting and distinctive view, differing in important ways from both the "High Liberalism" of Rawls and those working in his wake, and from Libertarianism of the sort defended by Nozick, Rothbard, and others. While there are conservative elements to Gaus's approach, his is not a social conservative view, either. Classical Liberalism is not a new view, but Gaus has provided perhaps the most philosophically sophisticated justification for it.
This barely begins to touch on the many topics covered by Gaus along the way, including the relationship between reason and emotion in ethics, the role of instrumental reasoning in morality, the rationality and development of moral rules, the proper way to understand punishment and blame, and the place of history in morality, among others.
Over at the Huffington Post, my colleague Mark Osler laments the sorry state of "prayer breakfasts." A snippet:
What fascinates me about these events is that they drape themselves in the faith, yet create a scene that Christ himself would (and did) directly condemn. They are the epitome of a culture that celebrates itself, rather than embracing what Jesus actually taught.
As an aside, while you are over there, there is a formidable old piece by Rebecca West, The Duty of Harsh Criticism. What a pearl of powerful writing -- truly a master.
Not quite sure about this one. The author, a self-described non-scholar and "agnostic Protestant" (that seems intended as oxymoron but it comes across more as swellingly proud redundancy) takes a drag race through 2000 years of Church history, coming around full circle to report, as the reviewer tells it, that "the popes who achieved greatness . . . were outnumbered by the corrupt, the inept, the venal, the lecherous, the ruthless, the mediocre and those who didn’t last long enough to make a mark." This finding is preceded by the reviewer's warning that "[i]f you were raised Catholic, you may find it disconcerting to see an institution you were taught to think of as the repository of the faith so thoroughly deconsecrated." I don't feel especially disconcerted or deconsecrated, but I haven't read the book. But I suppose the reviewer must believe in earnest that this book is really doing a great service by explaining the papacy to Catholics -- notoriously innocent as we are of both history and culture [eliminated, since there seemed to be confusion about whether I think Catholics don't know a lot about history and culture]. I'm reminded of Bernard-Henri Lévy's anthropological expedition through the American south; he, too, thought that America was best explained to Americans through the medium of realist popular zoology.
Hadley Arkes has written the following response to my post from earlier this week:
I would like to thank Michael Moreland for his comment on my piece in the Public Discourse on the so-called “video games” case and the opinion written by Justice Scalia. For over 20 years Justice Scalia has been the one on the Court who has come the closest to speaking for me on the legal issues of the day. But this is one of those places where friends diverge. And it becomes even more interesting because the difference is bound up with the differences we have in taking seriously a perspective on natural law, as a perspective that gives us a practical hold on the cases coming before us. Mike’s comment brings us to that ground, and I would talk his commentary as an occasion to get clearer on that ground for our friends.
Those of us who are lawyers (which includes all of us on Mirror of Justice) and who have litigated cases in court (which includes many of us) are all too aware of how unfairly uneasy is it to play the role of Monday morning quarterback and question another lawyer’s litigation strategies and advocacy style in a trial. When the case is one as notorious as the Casey Anthony child murder trial, and when our law school colleagues and neighbors are talking about it and inviting our comments, the temptation is even greater. (The day before the verdict, I predicted to friends that the jury would not find Casey Anthony guilty of premeditated murder. Lest you think me too perceptive or prescient, however, I must admit that I did think she would be convicted of a lesser homicide charge.)
And when one believes that the outcome is unjust, the temptation to pontificate becomes irresistible. (By unjust, I mean it in the moral sense of just desserts, rather than necessarily suggesting that the jury's verdict is unjustifiable under the appropriately high standard for conviction in a criminal case -- the subject of Marc DeGirolami's post immediately below.) Could the trial have unfolded differently so as to bring about what I and most Americans believe would have been a just conviction and a long prison sentence to Casey Anthony?
And so here I go, indulging in post hoc speculation and asking "what might have been." Still, I hope what I set out below rises to something more than mere second-guessing of trial tactics and closing argument rhetoric. What I want to suggest is whether the prosecution reached too far, gambled too much, and, as a result, lost it all. And I wonder whether this episode fits within a general pattern of prosecutorial aggressiveness and lack of wise restraint that we have seen so often around the country today.
In most instances, the tragedy of undue prosecutorial zeal has been visited on the accused, who may be subjected to a higher charge than the exercise of wise prosecutorial discretion would counsel or who may receive a more severe sentence than the accused’s culpability warrants. On this particular occasion, however, the present-day prosecutorial tendency to seek the highest charge that probable cause can justify may have produced a different tragedy. By shooting too high, and falling so low, justice has been denied to the most vulnerable of victims by not holding the wrongdoer to account.
As I and others have commented in the past on Mirror of Justice, we live in an era of criminal justice in which the wise and just exercise of prosecutorial discretion too often has been abandoned. In an earlier era, more prosecutors understood their job to include the weighing of persons and circumstances so as to make a charging and sentencing decision calibrated to the just outcome in an individual case. Not every person who has committed a criminal act, especially when he or she has not committed a violent act and the harm to any identifiable person is low, should be subjected to the full sanctioning power of the state, even if the evidence would support a successful prosecution. Not every person who has been convicted of a crime should be subjected to the longest possible sentence, simply because the statute authorizes a sentence of that length. Justice often calls for prosecutorial restraint.
I did not follow the Casey Anthony trial closely as it proceeded but I have (sort of) followed the reaction to her acquittal of the murder of her two-year old daughter. In truth, and like most people who have not been involved with the case, I have no idea what the state of the evidence was like, though my untutored general impression is that the prosecution relied on powerful-seeming (again, to an external viewer) circumstantial evidence of guilt, but that it had little direct evidence. The jury did not believe that the evidence met the standard of guilt beyond a reasonable doubt; the general public (which was not privy to the evidence) seems to believe that it did; and the result is that Ms. Anthony was acquitted, to much consternation.
One piece of the reaction that hasn't gotten a lot of commentary is the legal experts' view of the broader disapproval of the acquittal. The assessment in some quarters seems to be that the disconnect between the jury's finding and the public's reaction may be explained by the fact that the general public simply doesn't understand the nature of proof beyond a reasonable doubt, and that it is for this reason that its reaction has been so intemperate. If the general public only really understood what guilt beyond a reasonable doubt demands, it would be more likely to accept the jury's finding.
I am dubious about that. It may well be that the general public does not understand BARD very well, but I doubt that these or other jurors understand it either. Indeed, I wonder whether law professors understand it well -- really understand what it demands in terms of proof, and are able to explain it in a way that would achieve broad consensus about the nature of the proof required to satisfy it.
