Just out from Carolina Academic Press is Prof. Bill Piatt's (St. Mary's) book, "Catholic Legal Perspectives." Learn more here.
Tuesday, April 24, 2012
Bill Piatt, "Catholic Legal Perspectives"
Deus Caritas Est, budgets, politics, and the common good
A student in my "Catholic Social Thought and the Law" class, Coby Ascunce, shared these thoughts, for posting here at MOJ, in response to recent letters regarding budget proposals and Catholic Social Teaching:
As was posted last week, the USCCB recently released several letters expressing its opposition to some of the cuts in the newest budget proposal. While the USCCB certainly fights for an admirable cause by speaking out against policy measures that will harm the poor and the vulnerable, we must look critically at whether or not these statements are within the proper bounds of the USCCB’s role according to Catholic social doctrine. In Deus Caritas Est, Pope Benedict states:
A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.
The question then becomes whether the USCCB’s statements were attempts to bring openness of mind to the common good or attempts to organize a just society through the policy measures that the USCCB sees as best. According to CSD, the former is beneficial and appropriate, but the latter violates the Church’s appropriate political role. However, an interesting question remains. Even if the USCCB’s actions were out of line, were they beneficial to American Catholics by providing clear instructions on specific policy matters?
Deus Caritas Est provides one last piece of guidance—a challenge to us as Catholics, but especially as Catholic lawyers:
The direct duty to work for a just ordering of society . . . is proper to the lay faithful.
In other words, it is our duty to see past partisan lines and fight for the political policies that best achieve the common good and a just society—not the duty of the Church or the USCCB. This is a heavy burden, but one that must be embraced in order to truly infuse the temporal order with Christian values.
Munoz on the Bishops' religious-freedom statement
My Notre Dame colleague, Phillip Munoz (Pol. Sci.), has a piece in The Weekly Standard on the Bishops' religious-freedom statement, "Our First, Most Cherished Liberty." Check it out.
Congratulations to Michael Moreland!
Our own Michael Moreland has been granted tenure, and promoted to Professor, at Villanova. Congratulations, Michael!
Punishment Theory in the OSJCL
The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue. There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe. And there's something by me, too.
Folks interested in these issues will, I think and hope, enjoy the pieces.
Monday, April 23, 2012
Constitutional Questions About Crusaders and Werewolves
I wanted to ask a few more questions about methods of adjudicating an Establishment Clause claim related to the issue of symbolism that I posted about yesterday, but I should first make clear that none of this discussion goes at all to the merits of the decision to change the name of the military unit from Werewolves to Crusaders. As Patrick O'Donnell rightly points out in a comment, there are all sorts of reasons to decide that as a matter of policy, this was not a wise decision -- a point that I recognized in the comments and which I recognize here. Others will have much more to say about the policy issues, but the questions I ask now relate to constitutional methodology, not to the wisdom of a military unit calling itself "Crusaders."
Here are the facts as reported in the complaining letter: the Marine unit used the name "Werewolves" from its inception in World War II until 1958. In 1958, it changed its name to "Crusaders," and the letter states that the reason it made this change is that the unit flew "F-8 Crusaders." It continued to use the name "Crusaders" for 50 years. In 2008, a Lieutenant Colonel decided that in advance of a deployment to Iraq, the name "Crusaders" would be abandoned in favor of "Werewolves" because "[t]he notion of being a crusader in that part of the world doesn't float." Most recently, the decision to return to "Crusaders" was made, and one report states that the reason was a return to the traditions of the unit.
I've framed my thoughts as questions; the questions may suggest my skepticism about the capacity of current approaches to the Establishment Clause to pass on this sort of issue. But in light of the push-back to my original post and in the interests of (amply justified, in my case) modesty, I thought to ask questions, rather than offer any definitive opinions. They follow the jump.
Thoughts on the Court, Arizona's immigration law, and consistency
Michael Sean Winters blogs, here, about the upcoming Supreme Court arguments in the Arizona-immigration-law case. I probably agree with Winters that, as a policy matter, laws like Arizona's (and Alabama's, which was criticized in the Bishops' recent religious-freedom statement -- you know, the one that is so "partisan"?) are bad policy (though the current regime and its enforcement are a disgrace). Immigration reform is a tough issue, and the left demagogues it with no less vigor than does the right (no, it's not "racist" or "nativist" to worry about the costs of unlawful immigration or to support voter ID laws; no, it's not un-American to note that immigration has many benefits and that our current system makes lawful immigration, in most cases, too difficult). It is not the "Catholic" view that a political community is not entitled to police its boundaries, nor is it the "Catholic" view that a wealthy community can exploit the cheap labor and sales-tax revenues provided by unlawful immigrants while simultaneously demonizing and arbitrarily deporting and / or incarcerating them. For more, see this First Things piece, "Principled Immigration," by Mary Ann Glendon, or this essay by our own Michael Scaperlanda.
Winters is right that immigration is, as a constitutional matter, a "federal issue." However, the question whether a law like Arizona's is inconsistent with immigration's being a federal issue is trickier than Winters's post suggests. It is not the case that all state laws whose operation and enforcement affects unlawful immigrants, or shapes their decision-making, unconstitutionally interfere with the national government's prerogatives in this area. It depends, and the answer to the question whether or not it does is not supplied by Catholic teaching.
In my view, "conservative Catholic commentators" who care (as we all should) about "the importance of human dignity" and religious freedom are not required, on pain of being charged with inconsistency (or worse), to think that the Arizona law and others like it crosses the constitutional line (I have not studied the matter closely enough to have a firm view), even if do they think, as I think I do, that what is urgently needed is not piecemeal, and largely symbolic, state legislation, but meaningful enforcement, fair sharing of the burdens and benefits associated with unlawful immigration, and comprehensive reform.
Sunday, April 22, 2012
Do Werewolves Violate the Establishment Clause?
It seems that The Military Religious Freedom Foundation has sent a cease and desist letter to the U.S.
Secretary of the Navy demanding that Marine Fighter Attack Squadron 122 stop using the name “Crusaders.” The Squadron had at alternative times in its history used the name “Werewolves” and “Crusaders.” The MRFF claims that ”Crusaders,” as well as the symbol of a red cross on a white shield used by the Squadron, violates the Establishment Clause. “The most logical purpose of the Crusader moniker is to convey a message of approval of religion.”
I disagree; indeed, I find the position obtuse. There may be many reasons to use the epithet “Crusader,” and in a military context “[t]he most logical purpose” may well be to associate oneself with the fearsome, bellicose spirit of the Crusaders — who, after all, were warriors. I don't find anything "most logical" about the interpretation offered by the MRFF. "Crusader" is used commonly -- and it can have both negative and positive non-religious connotations ("He's a crusader for justice."; "Batman is the caped crusader"; "He's taken this misguided cause on as a kind of crusade.").
But set all that aside. Why is MRFF not upset about the name ”Werewolves”? Doesn’t “Werewolves” violate the Establishment Clause too? Lycanthropy (humans turning into wolves), I think, was a form of spiritual, animistic belief held by the Algonquian Native Americans (see the Wendigo), and I also believe that certain varieties of Wicca believe in something like lycanthropy. Animism generally holds that there is a spiritual power in non-human beings, including wolves. An early expression of pagan belief in werewolves may be located in Book 1 of Ovid’s Metamorphoses, where Ovid tells of King Lycaon, who is turned into a wolf by Zeus when he treats Zeus most inhospitably (“His arms descend, his shoulders sink away/ To multiply his legs for chase of prey./ He grows a wolf, his hoariness remains,/ and the same rage in other members reigns./ His eyes still sparkle in a narr’wer space:/ His jaws retain the grin, and violence of his face.”). And, of course, werewolves are an integral part of that most pagan of holidays, Halloween.
At any rate, given these religious origins and the continuing association of werewolves with paganism, why should MRFF have a special problem with cultural symbols with Christian origins? Let’s do this right, and get werewolves declared unconstitutional too.
Saturday, April 21, 2012
Commutation and Punishment Theory at St. Thomas
I was delighted to participate yesterday in a terrific program run by the Terence J. Murphy Institute at the University of St. Thomas School of law, and organized by the ever gracious and kind Lisa Schiltz. Judge Richard Sullivan and I spoke at around lunch time, and it was a privilege for me to meet and listen to him. We both offered some thoughts about the theory and practice of punishment today. Our talks were integrated into a larger, very interesting symposium dealing with the problems and possibilities of sentence commutation and the executive pardon power, run by the St. Thomas Law Journal with the masterful organizational touch of Mark Osler.
As is always the case when I am lucky enough to visit my friends at St. Thomas, I was extremely impressed by their generosity, hospitality, intellectual depth, and genuine fellowship. I enjoyed being there.
It's Baseball Season
Two items.
(1) George Wright sends along this new course offered at NYU and taught by former law school dean and current president John Sexton: "Baseball as a Road to God." Here's the description:
Baseball As a Road to God aims to link literature about our national pastime with the study of philosophy and theology. This seminar aims to blend ideas contained in classic baseball novels such as Coover's Universal Baseball Association , Kinsella's Iowa Baseball Confederation , and Malamud's The Natural with those found in such philosophical/theological works as Eliade's Sacred and Profane , Heschel's God in Search of Man , and James' Varieties of Religious Experience . It discusses such themes as the metaphysics of sports, baseball as a civil religion, the nature of sacred time and space, and the ineffability of the divine. Not for the faint-hearted, this course requires students to read over two dozen works of varying lengths in addition to supplemental readings as they might arise. The course also requires weekly papers. As with any serious commitment of one's time, the rewards of taking a seminar such as this can be great.
(2) On a personal note, after the yearly parade and an early night (no smokes, no booze, no women -- coach's orders), my son Thomas's 2d grade little league team, 'The Infernos' (I had nothing to do with that outstanding name), came out swinging on a beautiful opening spring day today. There's nothing like early season baseball.
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