Here's a little thought about the effect of the passage of time on adjudication. The temporal dynamic I have in mind is the difference between being too late and being too early. Being too late is best conceptualized in either/or terms. If you file on time, you're "in" and your law suit can move forward; if you file too late, your action is time-barred or falls outside an applicable statute of limitations, and you are "out." The issue of time is clean, hard-edged, and certain. Acceptable and unacceptable are clearly designated. The metaphors are of bells tolling, after which there is silence, or of nicely demarcated spatial boundaries. Any exceptions are just that: exceptions to the rule, rather than judgments about the interpretation of the rule.
But a different conception of time best describes the condition of being too early. Like a fruit, you want your action to be ripe. The metaphor is one of maturity, and it is inevitably subject to graduated and individuated assessment. The goal is to strike at a middle-point, at a moment between the time when the banana is cucumber-ish (unripe) and when it is a slimy, brown, putrid thing (overripe, or perhaps moot). Likewise, the manipulation of time in the context of the metaphor of maturation looks distinctive. The riper the action becomes -- a function in part of the incremental passage of time -- the more work the party resisting its ripeness must do to persuade the court that the time is not yet ripe to hear it. With each day, the banana becomes more golden, and its characterization as unripe becomes more challenging. And that is when the rhetoric of immaturity can assume an important function.
Take the HHS mandate litigation. My own view is that these issues of time were in part responsible for the Eastern District of New York's rejection of the standing and ripeness challenge by the federal government, where previous courts, adjudicating the claims at previous moments in time, had found otherwise. Time had done, and may continue to do, its maturing work.
Yesterday, the United States Court of Appeals for the D.C. Circuit handed down a short order affirming the dismissal of holding in abeyance Wheaton College's complaint against HHS for unripeness as, for the present, unripe. The court dutifully noted the representation of the government in the Advance Notice of Proposed Rulemaking of the forthcoming accommodation/change/emendation/difference. But the court also said that at oral argument, "the government went further . . . . [I]t represented to the court that it will never enforce [the existing rule] in its present form against the appellants or those similarly situated . . . . We take the government at its word and will hold it to it." The first italics is in the original; the second is mine.
A couple of thoughts. First, it is interesting to see that as time progresses, and the case moves toward maturity, the government must work harder, and extend itself further, to persuade a court that the case has not hit sufficient maturation just yet. So the government made the calculation that for the sake of gaining more time, it needed to promise "never" to enforce the existing rule against the claimants, a statement that, it would appear from the court's language, it had not made before and had a psychological effect on the court's judgments about maturity. Second, the precise language used by the court to describe the oral representation of the government is interesting. In order to stave off review but to keep things sufficiently vague to give itself maximal freedom, the government represented that it will not enforce the existing rule "in its present form." But that simply restates the promise that it plans to amend the rule. So one wonders exactly what of substance the oral representation adds to the government's previous position. Perhaps nothing. It may instead be that the key function of the oral representation is rhetorical. It sounds like a change of position, though really it isn't. But the effect of the representation is to make the banana look greener and less golden than it is. It is the kind of rhetoric that can make a difference when the question is whether you are too early, but not too late.
The shootings in Connecticut have affected the country more deeply than any event since the attacks of 9/11, in my opinion. They represent an evil that cannot be remedied by any legislation, though legislation may play a role in making such events less common. I do not want to diminish the horror of last Friday's events by framing our response in strictly legal terms, but we are a Catholic legal theory blog, and the legal debates are now upon us.
I am not a gun owner, and I have never quite gotten my mind around the full-throated defense of gun rights. (I understand the Second Amendment argument; I'm referring to the various forms of the "any limitation on gun ownership is bad public policy" argument.) In my view, the NRA has a similar function to NARAL in that both groups make reasoned discourse on the underlying issue more difficult. I don't believe that there is a "Catholic" position on gun rights, but I do believe that there is a Catholic understanding of freedom that is in considerable tension with the understanding of freedom that seems to animate the arguments of some gun rights advocates.
So here's my question: Why should a Catholic who takes seriously our obligation to cultivate the common good oppose a ban on the sale of assault weapons? I'll assume the elusiveness of an agreeable "assault weapon" definition -- I understand that's an obstacle, but that does not seem to be the only sort of objection. I'm interested in the more principled grounds for opposition. I ask this question in a fully non-snarky way -- I'm not an expert on guns or gun laws, so I would like to be pointed to the best arguments why a Catholic worldview is consistent with the private ownership of guns designed for killing at a high rate of speed.
Archbishop Charles Chaput of Philadelphia has an interesting and thoughtful
piece at Public Discourse--partly a review of Travis Curtwright's new book,
The One Thomas More (CUA Press, 2012)--on Thomas More and his legacy, including lessons for dealing with the HHS mandate.
Although not addressing the law, Ross Douthat's recent New York times op-ed reminds me of the limits of the law and legal/political projects, including our project. Here is a taste:
In this, the Russian novelist was being true to the spirit of the New Testament, which likewise seeks to establish God’s goodness through a narrative rather than an argument, a revelation of his solidarity with human struggle rather than a philosophical proof of his benevolence.
In the same way, the only thing that my religious tradition has to offer to the bereaved of Newtown today — besides an appropriately respectful witness to their awful sorrow — is a version of that story, and the realism about suffering that it contains.
That realism may be hard to see at Christmastime, when the sentimental side of faith owns the cultural stage. But the Christmas story isn’t just the manger and the shepherds and the baby Jesus, meek and mild.
The rage of Herod is there as well, and the slaughtered innocents of Bethlehem, and the myrrh that prepares bodies for the grave. The cross looms behind the stable — the shadow of violence, agony and death.
Tuesday, December 18, 2012
"If a thoroughly malicious sociologist, bent on injuring the Catholic Church as much as possible, had been an adviser to the Church, he could hardly have done a better job." Peter Berger, Homiletic and Pastoral Review (1979).
As it happens, perhaps the most influential adviser in the direction Berger laments was Msgr. Hannibal Bugnini, a flaming Freemason. On how Freemasonic ideas combined with others to deform the Mass at and after Vatican II, see Michael Davies, Pope Paul's New Mass (Angelus Press, 1980). On the influence of Freemasonry on the modern situation in general, see Living the Enlightenment: Freemasonry and Politics in Eighteenth-Century Europe (OUP, 1991) by Margaret Jacob, Professor of the History of Science at UCLA.
My colleague, Dan Philpott, has a first-rate piece on the mandate up, at the Berkley Center's web page. The piece was written for Georgetown's Religious Freedom Project. Among other things, Dan develops the important point (which I have been trying to emphasize, in my own interventions regarding the mandate) that the religious-freedom issue (and the technical RFRA questions about "burdens") cannot be reduced to "cooperation with evil" casuistry:
The debate over cooperation with evil, however, misses what is most at stake for Christians organizations in the HHS mandate, which is much the same as what has been most at stake for the Christian church in its relationship with the state over many centuries, which in turn is what is most at stake for the church in religious freedom: their right to give witness to the truths that they believe. . . .
Following the Catholic tradition, I regard the criterion of cooperation with evil as a valid one for a wide range of moral dilemmas, including the one at hand. The debate over cooperation with evil, however, whose every thrust and parry grows increasingly complex in its distinctions regarding intentionality, causality, and directness, obscures the larger, more important issue of whether Christian organizations enjoy the freedom to give witness to their professed truths.
To witness means to proclaim or to give testimony for a truth that the proclaimer believes is maximally important. To witness is to communicate a message – in the Christian’s case, that of God’s salvation of the world through Jesus Christ. For a Catholic, this salvation is embodied in, and its meaning for the Christian believer is manifested through, the teachings of the Catholic Church, including its teachings about contraception and the sanctity of life. Many Protestant churches make parallel claims, with due variations, about the role of the church in salvation. For (many) Christians, then, salvation is achieved through corporate entities as well as the faith of individuals. Consonant with this mission, churches and their affiliated universities, schools, hospitals, and orphanages share a duty not simply to avoid cooperating with what is false but to proclaim loudly what is true. . . .
Read the whole thing. (Please.)
"The distinguishing feature of the French Revolution, what makes it an event unique in history, is that it is evil, radically evil." Joseph de Maistre (1753-1821)
