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.

Friday, January 11, 2013

Two Books Worth Reading

I have recently read two books that shed considerable doubt on scientific assumptions that the supernatural does not exist. The first is by Kyriacos C. Markides, The Mountain of Silence: A Search for Orthodox Spirituality (2001). The book explores the beliefs and practices of Orthodox monasterial life as practiced by monks and hermits. In particular, he follows a remarkable larger-than-life priest named Maximos to the island of Cyprus and reports on his actions, his views, and his spiritual practice. Most important for this post, he reports on numerous phenomena that can only be called miracles.

I read this book in a reading group. One of our members knows the author and vouches for his integrity. After reading the book, I became convinced that scientific materialism could not possibly explain the events reported, and I very much doubt that the events were concocted, were dreams, or were otherwise fictitious. That said, I think the theology embraced by these monks, though sometimes qualified, too often seems to subtly denigrate those who care for and act in this world whether it is action for social justice or caring for children. I resist the suggestion that one has to be a monk to lead a fulfilling religious life though there is an impressive spiritual intimacy in monasterial life and, in fairness, the monks would not explicitly denigrate those who choose a life engaged in the world. I am reacting to a tone and a usually unspoken attitude.

Another book explicitly challenging scientific materialism currently sits atop the New York Times non-fiction bestseller list: Proof of Heaven: A Neurosurgeon’s Journey into the Afterlife (2012) by Eben Alexander. Although the book is somewhat repetitious, the story is riveting. Alexander, an academic neurosurgeon was struck by a sudden illness and was in a coma for seven days. He had previously thought that near death experiences felt real but were fantasies produced by the brain under severe stress.  His case was unique because the experience he had during his coma in his view could not have been produced by the brain because the part of the brain that produces thought and emotion was not functioning during his coma. His recovery from the illness was unprecedented. But his near death experience was even more impressive. Alexander richly details what he experienced and he has since learned that his experience is similar to those who also have had near death experiences. His experience has led him to the conviction that heaven and God are real. Proof of Heaven is a powerful book that will strengthen the faith of believers and might give second thoughts to those who think belief in the supernatural is simply nonsense.

Professor Kurt Lash on the 9th Amendment

After posting the reply I had written to Judge Bork's request for my thoughts on the meaning of the Ninth Amendment, I received a note from MoJ reader Professor Kurt Lash of the University of Illinois Law School, author of The Lost History of the Ninth Amendment (Oxford University Press, 2009).  Professor Lash reports on the basis of his research that what I had inferred from the Founders' theory of government finds confirmation in the historical record. Here is his note, which I post with his kind permission:

Dear Robert,

I am a regular reader of the Mirror of Justice website and noticed your post today on the late Robert Bork and the Ninth Amendment.  Having read your linked essay of reply to Judge Bork, you should be encouraged to know your reading of the Ninth Amendment is powerfully supported by the historical evidence.  The founding generation understood the Ninth and Tenth Amendment as declaring and preserving the people's retained rights of local self-government.  The rights would be protected in every case where federal power was properly limited, and violated every time federal power was unjustifiably expanded.  Nor did this change at the time of the Fourteenth Amendment (contra Randy Barnett).  In fact, this is how both amendments were broadly understood, and cited, for the next century or so.  All of this evidence is laid out in my book "The Lost History of the Ninth Amendment" (Oxford Press, 2009).

I always felt that Judge Bork had been wrongly maligned for the "ink blot" statement--he was entirely right to reject the Clause as a source of federal judicial power to constrain the states.  And he was right to treat the clause as unenforceable absent sufficient evidence of original meaning.  Even worse, when Philip Kurland testified against Bork in part because of the judge's views on the Ninth Amendment, Kurland knew of historical evidence that supported Judge Bork's view--evidence that Kurland excluded from the Founders' Constitution (but can be found in his original files at the University of Chicago).  Happily, I got to defend the Judge on this matter in person while he was still with us, as part of a conference in honor of the Judge back in 2008.  See Lash, Of Inkblots and Originalism: Historical Ambiguity and the Ninth Amendment, 31 Harv.J.L. and Pub. Pol'y 467 (2008).

The Ninth is not an inkblot.  It is, sadly, too often misunderstood.  Your essay is a wonderful antidote.

Sincerely,

Kurt Lash
Alumni Distinguished Professor of Law
Director, Program on Constitutional Theory, History and Law
University of Illinois College of Law

Thursday, January 10, 2013

Neither an inkblot nor an invitation to judges to rule

My reply to a request from Judge Bork (may he rest in peace) for thoughts on the meaning of the Ninth Amendment:

http://www.nationalreview.com/corner/337262/robert-p-george-ninth-amendment-ramesh-ponnuru

Wednesday, January 9, 2013

Remembering Fr. Neuhaus

Yesterday was the fourth anniversary of the death of Richard John Neuhaus. Those who knew him intimately and those who knew him only through his writings share the pain of his loss. Since he was irreplaceable, it is scarcely a surprise that no one has taken his place in American intellectual and public life.  Here is the tribute to him that I published at First Things shortly after his death:

http://www.firstthings.com/onthesquare/2009/03/he-threw-it-all-away

Tuesday, January 8, 2013

Planned Parenthood: A Record Year

Requests for contraceptive services apparently are in decline at Planned Parenthood.  And Planned Parenthood has decreased its cancer screening services by nearly a third. But public funding for Planned Parenthood continues to go up.  As do abortions.

While Planned Parenthood set a record for the last fiscal year in pulling in half-a-billion dollars from the taxpayers -- amounting to nearly half of its funding -- it has been downsizing services other than termination of pregnancies (here).  During the past three years alone, the nation's largest abortion provider has snuffed out the lives of a million unborn babies.

The Pro-Life movement may be winning hearts and minds (here).  And praise God for His mercy in drawing the young people to Him.

In the meantime, we must not forget the grim reality that daily "terminates" innocent lives in abortion clinics around this country -- nearly a thousand littles ones destroyed each day in Planned Parenthood clinics, as that organization draws in hundreds of millions in taxpayer funds with the support of its primary patron in the White House.  The Obama years are proving to be the most lucrative for the abortion industry.

Mary, Mother of God, pray for us.

Monday, January 7, 2013

G.K. Chesterton on Notre Dame football

In honor of the national title game.

On Saturday, Oct. 11, 1930, the Irish beat Navy, 26-2.  What follows is Chesterton's poem commemorating the occasion:


 

 

The Arena

Causa Nostrae Laetitiae

(Dedicated to the University of Notre Dame, Indiana)

 

 

There uprose a golden giant
                      On the gilded house of Nero
Even his far-flung flaming shadow and his image swollen large
                     Looking down on the dry whirlpool
                     Of the round Arena spinning
As a chariot-wheel goes spinning; and the chariots at the charge.

 

                        And the molten monstrous visage
                        Saw the pageants, saw the torments,
Down the golden dust undazzled saw the gladiators go,
                        Heard the cry in the closed desert
                        Te salutant morituri,
As the slaves of doom went stumbling, shuddering, to the shades below.

                         “Lord of Life, of lyres and laughter,
                         Those about to die salute thee,
At thy godlike fancy feeding men with bread and beasts with men,
                        But for us the Fates point deathward
                        In a thousand thumbs thrust downward,
And the Dog of Hell is roaring through the lions in their den.”

 

           I have seen, where a strange country
                      Opened its secret plains about me,
One great golden dome stand lonely with its golden image, one
                      Seen afar, in strange fulfillment,
                      Through the sunlit Indian summer
That Apocalyptic portent that has clothed her with the Sun.

 

                         She too looks on the Arena
                         Sees the gladiators grapple,
She whose names are Seven Sorrows and the Cause of All Our Joy,
                         Sees the pit that stank with slaughter
                         Scoured to make the courts of morning
For the cheers of jesting kindred and the scampering of a boy.

                        “Queen of Death and deadly weeping
                        Those about to live salute thee,
Youth untroubled; youth untutored; hateless war and harmless mirth
                        And the New Lord's larger largesse
                        Holier bread and happier circus,
Since the Queen of Sevenfold Sorrow has brought joy upon the earth.”

 

                        Burns above the broad arena
                        Where the whirling centuries circle,
Burns the Sun-clothed on the summit, golden-sheeted, golden shod,
                        Like a sun-burst on the mountains,
                        Like the flames upon the forest
Of the sunbeams of the sword-blades of the Gladiators of God.

                        And I saw them shock the whirlwind
                        Of the World of dust and dazzle:
And thrice they stamped, a thunderclap; and thrice the sand-wheel swirled;
                        And thrice they cried like thunder
                        On Our Lady of the Victories,
The Mother of the Master of the Masterers of the World.

                        “Queen of Death and Life undying
                        Those about to live salute thee;
Not the crawlers with the cattle; looking deathward with the swine,
                        But the shout upon the mountains
                        Of the men that live for ever
Who are free of all things living but a Child; and He was thine.”

HT: Chris Scaperlanda

 

Tiebout Sorting and Public Education

In addition to the concerns voiced below by Rick and Marc to what was (apparently) Dean Chemerinsky's suggestion at the AALS session on education law that we should address inequality and segregation in K-12 education by creating large metropolitan-wide school districts, I would note that there is an at least debatable question about whether creation of metro districts would solve the problems of public schools (apart from the issues about private education that Rick and Marc have talked about already). For reasons I vividly recall studying in a seminar with Rick Hills and as summarized in this NBER research abstract by Caroline Minter Hoxby, there are substantial public finance arguments based on the Tiebout model that higher levels of geographic and financial centralization of public education make everyone worse off (subsidiarity!). See also the discussion of school finance in William Fischel's The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies about why de-linking property values and public education spending has not turned out well (California is Exhibit A). I don't doubt that reforming K-12 education should be a social justice priority, only that some of the usual easy solutions (centralized state funding for education, larger districts) would be successful. Here is a bit from Hoxby's paper (though I gather part of Dean Chemerinsky's argument is that overruling Milliken v. Bradley and engaging in widespread busing would address some of what Hoxby argues here):

Choice among districts turns out to have little effect on the degree of segregation among students. The reason is that, empirically, the degree of racial, ethnic, and income segregation that a student experiences is related to the degree of choice among schools in a metropolitan area, but not to the degree of choice among districts. In other words, students are just as segregated in metropolitan areas that contain few districts as they are in metropolitan areas that contain many districts. Households sort themselves into neighborhoods inside districts; neighborhoods and schools are small enough relative to districts that district boundaries have little effect on segregation.

This result demonstrates how important it is to compare realistic alternatives. The realistic alternative to a metropolitan area with a high degree of choice among districts is not a metropolitan area in which all schools are perfectly desegregated and every student is exposed to similar peers. The realistic alternative is a metropolitan area with a low degree of choice among districts and a substantial degree of segregation among schools.

What Was Mary Thinking?

The Catholic Bishops will not endorse the theology embedded in Colm Toibin’s novel, The Testament of Mary. Nor will any Protestant bodies. Indeed, religious conservatives such as Mark Shea (see here) are particularly defensive about the book’s depiction of a decidedly non-traditional Mary. He derides the book as “Catholic-hating detritus,” a “viciously dishonest little screed,” “a torrent of invective against the gospel through his Marian sock puppet,” that does for Mary what Dan Brown did for Jesus.

The comparison with Dan Brown is inapt in many respects. Most significantly, Toibin is an outstanding writer, twice shortlisted for the Man Booker prize, not the kind of writer who produces one-damn-thing-right-after-another page turners, however inventive.

I would think that anyone less defensive than a Christian conservative would recognize that the book’s heretical views make for a better novel: surprising, independent, unpredictable, and fresh.

Most important as Susan Stabile argues in an excellent review of the book (see here), “I like the encouragement to try to go beyond the little we have in scripture about many figures – including Mary – to try to understand what they must have been feeling. The book is a reminder that the figures about whose lives we read only snatches in the Gospels were real people with real – and complex – emotions.”  That is exactly right. A preoccupation with heresy misses the invitation to think about the humanity of Mary and the provocation to think about how she experienced the life of her son, especially the crucifixion.

Indeed, I would argue that reading The Testament of Mary is a form of prayer. It is not possible to read the book without wondering what Mary was really thinking. When Jesus was 12 and Jesus told her he was to be in his Father’s house, she did not understand. How did she understand the crucifixion? As a mother, did she come to think it was worth it?

There is a wonderful prayer site, sacredspace.ie (run by the Irish Jesuits but useful for Catholics and Protestants alike) which in addition to encouraging meditation and dialogue with Jesus, and commenting on gospel passages, promotes the kind of reflections of time, place, and emotions that inhabit Toibin’s book. It is ordinarily not easy for many of us to do. Insofar as Mary is concerned, Toibin’s book makes it impossible not to think about the life experience of Mary during a time period in which she is given Biblical short shrift.

 

St. Andre Bessette says . . . Go Irish!

Catholic education "in need of salvation"

In today's New York Times, Patrick McCloskey and Joseph Claude Harris have an op-ed that connects nicely with Marc's post, below, on Erwin Chemerinsky's recent misguided (and morally repulsive) proposal to "require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."   The authors are, I think, quite right that, insofar as the Church has de-emphasized parochial education as an essential aspect of her mission, she has "lost her way."  They stop short, though, in their recommendations, of an essential point:  It is not enough that the Church prioritize parochial education, it is also necessary that the political community provide equitable support for the very public work of Catholic schools.  These schools provide a "public service", and are morally entitled to public support for doing so.