Monday, October 21, 2013
"The Story of Kedroff v. St. Nicholas Cathedral" continues
I contributed a chapter on the Supreme Court's church-autonomy-related Kedroff decision in the First Amendment Stories volume. (Get your copy here!) That story, it appears, continues. It is reported here that it took more than 100 NYFD officers to put out a fire at the Cathedral, a few weeks ago. It appears -- thank God -- that there were only minor injuries suffered by a few. Here's hoping that the threats to churches' religious freedom are similarly vanquished!
In response to Kevin: A clarification
I hope I have not (but perhaps I have) misunderstood Kevin's comments. My reading of the comments leads me to make this clarifcation:
My position is not that whether a punishment is "unusual" is a criterion (much less the criterion) of whether the punishment is "cruel". It is easy to imagine punishments that are "unusual" but not "cruel".
Rather, my position is that whether a punishment is "unusual" is probative of whether the judgment--the possibly controversial judgment--that a punishment is "cruel"--a judgment reached entirely without regard to whether the punishment is "unusual"--is a sound judgment.
Esolen on Prohibition
I've blogged before about the fact that one of my favorite books in recent years is Daniel Okrent's Last Call: The Rise and Fall of Prohibition (here). Prohibition, as a policy and constitutional experiment, was a huge failure, but not simply because (as Anthony Esolen explains, here, at Public Discourse) it failed to reduce alcohol consumption or because "you can't legislate morality." It did, and we "legislate morality" all the time. Prohibition's lessons are, in turns out -- in Okrent's book and in Esolen's essay -- more interesting. Here's a bit from the latter:
So, then, what does Prohibition teach us?
That amendment inserted into the Constitution a law that neither protected fundamental rights nor adjusted the mechanics of governance. It was a radical break from tradition. It is crucial to understand this. It took a juridical break from tradition to obliterate the customs, the lived traditions, of the American people and their forebears. . . .
"Good government pleases God": Shutdowns, budgets, and the common good
In the October issue of First Things -- which includes the as-one-would-expect-from-Michael-McConnell outstanding 2013 Supreme Court Round-up -- David Mills quotes New York City councilman Fernando Cabrera's observation, during a recent speech, that "good government pleases God."
Mirror of Justice is not a "politics" or "current events" blog, and so I have not imposed on readers my as-a-citizen reactions to the antics in Congress during the few weeks. But Cabrera's statement helps me to see an important connection between our subject here at MOJ and the whole shutdown-debtceiling-defund-budget business, as does Mills's follow-up statement that "complex societies have to be governed, and God and man want them governed well."
Catholics who engage closely and conscientiously with the Church's social teachings are -- despite that engagement -- (in)famous for disagreeing about the policy and political implications of those teachings. So, and just for example, while I am pretty sure that I agree entirely with Michael Sean Winters in disapproving of the recent conduct and decisions of those members of Congress who are identified with the "Tea Party" -- I think it was both foolish and wrong to condition necessary appropriations on the defunding or delaying of "Obamacare" -- I do not think that opposition to the Affordable Care Act, as a particular piece of legislation, puts one "outside traditional Catholic teaching" or reveals bad values. (Opposing school choice does, but that's another matter . . . .)
But, these disagreements notwithstanding, it is important for Catholics to take seriously -- as Catholics -- the importance of the enterprise of governing, that is, of making and executing good laws, in accord with the rule of law, in the service of the common good. (I know, I know -- invocations of "the common good" can be and often are little more than lacy trimmings on whatever policy it is that one, for whatever reason, prefers. The idea and its achievement are more complicated vague assertions about the importance of "community" and the dangers of "individualism." Still, correctly understood, it has to be the touchstone.) And, even if it is true that there is more blame to go around than some commenters suggest -- I'm thinking, for example, of the Senate Democrats' apparent lack of interest in ever actually passing a budget, which contributes to the ridiculous practice of jumping from one continuing resolution to another -- there is no denying that, in recent weeks, we have seen bad government, not good government, and also that the groups and individuals associated with the "Tea Party" have made bad decisions and arguments. (I gather that this observation means, to many in the blogosphere, that I am a squishy-RINO-surrender-monkey and not a real "Republican" or "conservative" but . . . whatever. I'm just trying to be a Catholic.)
Lawmakers have a vocation and they are holders of a trust. Part of that vocation, and one of the things we trust them to do, is to actually make (good) law (and, just as important, not-make bad laws). Not only that, but because the "rule of law" is itself part of the common good -- i.e., it is one of those "conditions" that is conducive to human flourishing -- it is part of lawmakers' vocation, and something they are obligated to do, to make law in accord with the rules-laid-down. "Governing" by brinksmanship, continuing resolutions, debt-ceiling increases, and (I would insist) over-aggressive executive orders does not count as "good government." So, I fear that God is not pleased.
Professor Hobbs of Wellesley and the theological structure of American constitutional law?
Michael Perry's recent post about the possible convergence between magisterial morality and constitutional morality with respect to capital punishment brought me back to thinking about the ways in which the Supreme Court of the United States itself functions as a magisterium of sorts (or, as Steven Smith has explained, an anti-magisterium).
There is little doubt about the Court's magisterial pretensions in at least some areas of constitutional law (equal protection and substantive due process come most quickly to mind, but free speech seems to be another obvious area as well). Yet one difficulty the Court faces is the perception that its magisterial pronouncements are occasionally best understood as registering changes in culture that have already taken place rather than as faithfully transmitting a sacred legal deposit from the past.
As my Richmond colleague Corinna Lain has encapsulated this phenomenon in the title of her recent Georgetown Law Journal article, there are many areas of contemporary constitutional law in which the Supreme Court engages in Upside-Down Judicial Review. As Corinna explains, upside-down judicial review flips the so-called countermajoritarian difficulty on its head: "Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. Here marks the start of a distinctly majoritarian, upside-down understanding of judicial review." [116] Furman v. Georgia is one of Corinna's case studies. She documents how "four of the five Justices in Furman's majority based their decision in whole or in part on the notion that the death penalty was already on its way out the door. The Supreme Court was just turning out the lights." [137] And she shows how these Justices' perceptions matched those of contemporary commentators.
Michael Perry's argument for the present unconstitutionality of capital punishment is not an argument from majoritarianism. But the argument incorporates reference to changing practices by examining whether capital punishment is "(a) excessive and (b) evidenced as such by the fact that it is unusual (i.e., in the Samuel Johnsonian sense of 'not common; not frequent; rare')." Rejecting Professor John Stinneford's explication of "unusual" in the Eighth Amendment to mean "contrary to long usage," Professor Perry contends that the question is not whether capital punishment was unusual in the past, but rather "whether capital punishment has become unusual, whether it is unusual now."
I have not done the sort of investigation and analysis that would warrant confidence in formulating a critique of Professor Perry's argument on its own terms. But putting the aside the question of whether the argument misfires, it is worth asking whether the way in which it takes aim at its target can lead to a "magisterial" justification for killing the death penalty. It seems not. If the Supreme Court were to follow Professor Perry's logic in justifying constitutional abolition of the death penalty (and to be honest and open about doing so in its opinion),its pronouncement would not be magisterial in the sense of exercising a living teaching authority under the Constitution as much as it would be more or less mechanically registering the verdict of the times.
To be clear, providing a "magisterial" justification for the unconstitutionality of the death penalty is not an explicit goal of Professor Perry's analysis. Whether his argument can or cannot accomplish that, however, is simply an interest of mine (and hopefully of others interested in the nature of constitutional pronouncements by the Supreme Court).
Which brings me to Professor Hobbs of Wellesley, to whom I have been introduced by Philip Rieff, and about whom I otherwise know very little personally (though his web bio reveals a very productive and respected scholar of hermeneutics). Hobbs is a professor of religion quoted by Rieff to describe Hobbs's account of the relationship between "religion" and "values." In the quotation that follows, I substitute "constitutional law" for "religion" in Rieff's quotation of Hobbs.
One Professor Hobbs, professor of [constitutional law] at Wellesley, tells us all we need to know about values in a few invaluable sentences: "[Constitutional law] no longer needs God or gods. It has a theological structure that embodies the values of each culture. When the culture changes, then the [constitutional law] changes. Values have to keep up. That's all there is to it." [Rieff, My Life Among the Deathworks, at 11.]
Rieff continues, now in his own voice: "Is that all? Keeping up can be lowering. All depends on who and what the Joneses of value are." To what extent does this modified quotation from Professor Hobbs describe the constitutional values enforced by the Supreme Court of the United States? And "who and what [are] the Joneses of value" in contemporary constitutional law?
[ed. note--post updated with link to Professor Hobbs's web bio]
Friday, October 18, 2013
The Pope's message on World Mission Day
Here is the "Message of Pope Francis for World Mission Day 2013." (Clearly, this is not -- his unremarkable expressions of concern about inappropriate "proselytizing" notwithstanding -- the message of a pope who wants Christians to put aside evangelization!). Here is a bit:
The work of evangelization often finds obstacles, not only externally, but also from within the ecclesial community. Sometimes there is lack of fervour, joy, courage and hope in proclaiming the Message of Christ to all and in helping the people of our time to an encounter with him. Sometimes, it is still thought that proclaiming the truth of the Gospel means an assault on freedom. Paul VI speaks eloquently on this: "It would be... an error to impose something on the consciences of our brethren. But to propose to their consciences the truth of the Gospel and salvation in Jesus Christ, with complete clarity and with total respect for free options which it presents... is a tribute to this freedom" (Evangelii Nuntiandi, 80). We must always have the courage and the joy of proposing, with respect, an encounter with Christ, and being heralds of his Gospel.
In this essay of mine -- now several years old -- I suggested (among other things) that: "the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons."
Cardus: A blog of possible interest
Check out this blog. And also, take a look at the related journal. "Cardus" is a "think tank dedicated to the renewal of North American social architecture. We conduct independent and original research, produce severalpublications, and regularly stage events with Senior Fellows and interested constituents across Canada and the U.S." A lot of interesting stuff . . .
Pope Francis and Abraham Lincoln
A reader sent me a very interesting reflection about Abraham Lincoln, Pope Francis, and what folks today call "messaging." With permission, I am posting it here at Mirror of Justice:
It seems to me like there is an apt analogy to Pope Francis's change in messaging (not doctrine) within American political history.
I'm reminded of Lincoln's speech to the Washington Temperance Society. He pointed out, "The cause itself seems suddenly transformed from a cold abstract theory, to a living, breathing, active, and powerful chieftain, going forth 'conquering and to conquer.' The citadels of his great adversary are daily being stormed and dismantled; his temple and his altars, where the rites of his idolatrous worship have long been performed, and where human sacrifices have long been wont to be made, are daily desecrated and deserted. The trump of the conqueror's fame is sounding from hill to hill, from sea to sea, and from land to land, and calling millions to his standard at a blast." Not too different from the pro-life movement today. Ultrasounds and CPCs transform the unborn "from a cold abstract theory" to "living, breathing, active" humans. We are storming and dismantling abortion clinics where human sacrifices are made. Public opinion trumpets increasing support for the Catholic position "from hill to hill, from sea to sea, and from land to land".
But Lincoln didn't provide a therapeutic speech to his audience. He called upon them to consider why "that success is so much greater now than heretofore" and attributes it to "rational causes". He encourages them that "if we would have it continue, we shall do well to inquire what those causes are." He then lays into a significant part of the temperance movement, saying that the "old school" had in fact set back the gains. Their method was wrong. "Too much denunciation against dram sellers and dram drinkers was indulged in" which was both "impolitic and unjust".
The old school used "thundering tones of anathema and denunciation, with which the lordly Judge often groups together all the crimes of the felon's life, and thrusts them in his face just ere he passes sentence of death upon him, that they were the authors of all the vice and misery and crime in the land; that they were the manufacturers and material of all the thieves and robbers and murderers that infested the earth; that their houses were the workshops of the devil; and that their persons should be shunned by all the good and virtuous, as moral pestilences". Lincoln calls it impolitic "to have expected them not to meet denunciation with denunciation, crimination with crimination, and anathema with anathema" because that would be "to expect a reversal of human nature, which is God's decree, and never can be reversed." The old school was unjust because they argued "that all habitual drunkards were utterly incorrigible, and therefore, must be turned adrift, and damned without remedy, in order that the grace of temperance might abound to the temperate then, and to all mankind some hundred years thereafter". This is "so uncharitable, so cold-blooded and feelingless... so fiendishly selfish, so like throwing fathers and brothers overboard, to lighten the boat for our security" that a noble mind shrinks from the "manifest meanness of the thing".
In contrast, there was the new temperance movement: the "victim of intemperance" who "appears before his neighbors 'clothed, and in his right mind,' a redeemed specimen of long-lost humanity, and stands up with tears of joy trembling in his eyes, to tell of the miseries once endured, now to be endured no more forever; of his once naked and starving children, now clad and fed comfortably; of a wife long weighed down with woe, weeping, and a broken heart, now restored to health, happiness, and a renewed affection; and how easily it is all done, once it is resolved to be done; how simple his language, there is a logic, and an eloquence in it, that few, with human feelings, can resist." Their methods are just. "They go for present as well as future good. They labor for all now living, as well as all hereafter to live. They teach hope to all -- despair to none. As applying to their cause, they deny the doctrine of unpardonable sin. As in Christianity it is taught, so in this they teach, that 'While the lamp holds out to burn, The vilest sinner may return.'"
Now take Lincoln's speech and use it as a lens through which to view Pope Francis. Just like Lincoln, he's not stopped decrying the target of the rhetoric (abortion for Francis, alcohol for Lincoln), but he's been calling for moderation in the rhetoric. Just as with Lincoln, it's not all that off based to suggest that we could use some moderation. A quick run through the comboxes on traditionalist/conservative Catholic blogs or the rhetoric used in fundraising e-mails by Catholic political organizations makes plain the sentiment that the President is utterly incorrigible, without remedy, and that the White House is the workshop of the devil. That sort of language is over the top and both impolitic and unjust, as Lincoln believed. That's not to say it's always the case that pro-lifers use that language in every case, but that we use it in too often a case. It's something I think Pope Francis sees, too.
Go back to his interview for Jesuit magazines. He said, "We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods. This is not possible. I have not spoken much about these things, and I was reprimanded for that. But when we speak about these issues, we have to talk about them in a context." This was immediately preceeded by a discussion of a post-abortive woman who regrets the abortion and now has a large family. He wants us to realize the context in which our listeners exist. The woman who has come to sincerely regret her abortion and embrace life is Lincoln's "redeemed specimen of long-lost humanity" who is "restored to health, happiness, and a renewed affection." But if we seek to have more people like that, we must be in the new school which seeks to draw people in rather than divide them and condemn the opposition. Incorporate into the discussion Pope Francis's General Audience of 25 September and see how he condemns gossip as the source of disunity. Like Lincoln, this is a man very conscious of words and their power. He wants that power used wisely.
Turning then to the American context, we'd do well to do a better job of self-policing. We build up echo chambers of mutual reinforcement rather than reproaching ourselves. We scarcely recall the phrase that Pope Francis uses often: "I am a sinner." We may see ourselves less as the older brother and more as the younger if we kept in mind the log pole in our own eyes. But this is uncomfortable. So just as the Church under Benedict and John Paul II made many people on the left uncomfortable, perhaps its good that the right now feels uncomfortable as well. It may make us grow in new areas and be more cognizant of other parts of the Christian life in which we must take action.You Have to Have a Plan!
Good intentions, aspirational ideas, holy motives cannot be translated into real progress for the common good or the advancement of God's Kingdom without a plan.
Whether one is a lawyer or law student working for social justice, a minister promoting a new apostolate, a social worker empowering the impoverished, an educator enlightening a class, or, yes, an elected member of the polity advancing a political agenda, one must have a plan. And that plan must include a realistic assessment of the prospects for success and how the plan will come not only to a climax but to a conclusion.
In Chapter 6 of the Gospel of Matthew, Jesus tells his followers:
'That is why I am telling you not to worry about your life and what you are to eat, nor about your body and what you are to wear. Surely life is more than food, and the body more than clothing!
26 Look at the birds in the sky. They do not sow or reap or gather into barns; yet your heavenly Father feeds them. Are you not worth much more than they are?
27 Can any of you, however much you worry, add one single cubit to your span of life?
28 And why worry about clothing? Think of the flowers growing in the fields; they never have to work or spin;
29 yet I assure you that not even Solomon in all his royal robes was clothed like one of these.
30 Now if that is how God clothes the wild flowers growing in the field which are there today and thrown into the furnace tomorrow, will he not much more look after you, you who have so little faith?
31 So do not worry; do not say, "What are we to eat? What are we to drink? What are we to wear?"
32 It is the gentiles who set their hearts on all these things. Your heavenly Father knows you need them all.
33 Set your hearts on his kingdom first, and on God's saving justice, and all these other things will be given you as well.
34 So do not worry about tomorrow: tomorrow will take care of itself. Each day has enough trouble of its own.'
Some over the ages have miscontrued this passage to mean that good intentions and prayerful resolve are all that a follower of Christ needs for any venture. Evangelicals are wont to describe a person with that attitude as "so Heavenly minded that he is of no earthly good."
Jesus was speaking about inward-focused worry, that is, selfish pursuits of material things and especially about how those who become obsessed with these things are then torn by anxiety for the future. Worry, particularly for selfish reasons, may be a sin. But planning remains a must. Keeping our focus on God and recognizing that all else must be subordinated to God’s Kingdom is not an invitation to ignore the future consequences of our actions in this life.
As the nineteenth century Anglican Bishop of Liverpool, J. C. Ryle explains this passage, “Prudent provision for the future is right; wearing, corroding, self-tormenting anxiety is wrong.”
Let us pray that “prudent provision for the future” will become the watchword for our leaders, in government as well as in ministry.Thursday, October 17, 2013
Ellsworth on the selfishness of man and the righteous ruler
Following up on my earlier post introducing Oliver Ellsworth to readers of this blog, I now share an excerpt of Professor William Casto's biography that describes how, according to Casto, Ellsworth's Calvinism informed his understanding of the authority of government officials:
In 1800 when Ellsworth was on a diplomatic mission to France, he explained his understanding of human nature in a revealing conversation with Comte de Volney, a French philosopher. After Volney outlined a comprehensive plan for reorganizing the government of France, Ellsworth remarked, "there is one thing Mr. Volney for which you have made no provision . . . The Selfishness of Man." This pessimistic view of human nature is little more than a restatement of the doctrine of original sin that pictured humankind as inherently depraved. Even the phraseology is taken from the New Divinity that defined sin exclusively in terms of selfishness. For example, Joseph Bellamy wrote in his principal work, "From this same root--this disposition to love ourselves supremely, live to ourselves ultimately, and delight in that which is not God wholly--proceeds all our evil carriage toward our neighbor."
At first glance this doctrine of inherent depravity would seem to present an insurmountable obstacle to good government. After all, governors are themselves men. Therefore government would seem to be inevitably depraved. The Calvinists avoided this logical conclusion by invoking what was literally a deus ex machina. Government officials were not ordinary men. They were part of God's predestined plan, and they were selected by God to rule over men. This idea of divine selection was a common idea among Connecticut Calvinists and harmonized the apparent conflict between original sin and good government.
That Ellsworth embraced this idea of divine rule is evident in a closed 1789 senate debate in which, according to a fellow senator:
Ellsworth . . . got on the subject of Kings. Declared that the Sentence in the Primer ofFear God and honor King was of great importance that Kings were of divine appointment, that Saul the head & shoulders taller than the rest of the people was elected by God and anointed by his appointment.
This apparent reference to the divine right of kings should not be taken literally. If Ellsworth was a monarchist, he surely would not have espoused monarchy on the floor of the senate in 1789. He simply was too good a politician to commit such a gaffe. When Connecticut Calvinists used biblical verse to discuss government, they frequently used "king" as a generic word to signify government or government official. Therefore Ellsworth was saying that government officials--at least some of them--were "elected by God and anointed by his appointment."
This Calvinist idea of a Righteous Ruler explains many aspects of Ellsworth's public character. He clearly was an elitist who undoubtedly viewed himself as having been handpicked by God. He clearly sought to foster a righteous Calvinist order, and he undoubtedly viewed his opponents as unregenerate sinners. At the same time, we will see that Bellamy's The Wisdom of God permitted him to accept compromises and to work with fellow politicians who, according to Calvinist theology, were depraved.
[Casto, Oliver Ellsworth and the Creation of the Federal Republic at 24-25]
I welcome pointers toward sources that would assist in further understanding this account of government. Did Calvinists like Ellsworth rely on a deus ex machina, or is there more to the account than that? Would the idea of a righteous ruler have extended to judges in a system of separated powers? Or would it have been limited to those who could exercise will rather than judgment within their office?
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