Once again, the Blaine Amendments threaten to play Grinch and undermine creative education reform, this time in Colorado. More here.
Monday, December 15, 2014
An important case in Colorado
Program Director sought for LMU's "Academy of Catholic Thought and Imagination"
More info is here. Spread the word:
The Academy of Catholic Thought and Imagination (ACTI) is a community of scholars who work in dialogue with the Catholic intellectual tradition by developing, critically examining, communicating, or otherwise engaging the rich resources of Catholic thought and imagination, especially as it is informed by Jesuit thought tradition and Ignatian spirituality. The director will oversee all aspects of the Academy which serves as a hub for scholarship, interdisciplinary research, innovative pedagogy, and creative outreach across LMU’s campus, in the greater Los Angeles community, and beyond. The Academy is a strategic priority at Loyola Marymount University and the director reports directly to the provost.
Saturday, December 13, 2014
Upcoming conference (AALS overlap!): "The Vocation of a Christian Law Prof"
For everyone planning on attending the AALS Annual Meeting in DC -- and for any law professors or law students who'll be in the area in early January! -- here's information about the upcoming Lumen Christi / Law Professors Christian Fellowship event, featuring our own Rob Vischer and Prof. Barbara Armacost (U. Virginia). Sign up now!
"Public Schools and the Wall of Separation"
Over at First Things, Mark Bauerline has a helpful report about a recent lecture by Philip Hamburger -- author of (among other things) the crucially important book, Separation of Church and State -- on the "wall of separation" metaphor, public schools, religious freedom, and anti-Catholicism.
Friday, December 12, 2014
Great job opening: Direct of Center for Catholic Studies, UST
The University of St. Thomas is searching for a Director for its Center for Catholic Studies, which, among many other wonderful things, is the co-sponsor (along with UST Law School) of the Murphy Institute for Catholic Thought, Law, and Public Policy (which I co-direct). Here's the description of the enterprise of the Department & Center for Catholic Studies, from the job posting:
The Department and the Center for Catholic Studies comprise an integrated project at St. Thomas. While the Department focuses principally on degree-granting activities, the Center oversees the work of three major institutes and a quarterly journal. It also sponsors multiple lectures and faculty development programs. The director of the Center will be responsible for coordinating the work of these institutes as well as other forms of outreach within the university and the broader community. This will include work with benefactors and other development activities.
The Department offers an undergraduate major and minor as well as a graduate degree (M.A.) in Catholic Studies. In our teaching and scholarship, we are committed to the complementarity of faith and reason across all academic disciplines, to sustaining and developing the richness and breadth of the Catholic intellectual tradition, and to the general principles articulated in Ex corde ecclesiae. We seek candidates who share these commitments.
More details here.
Pantagruel Comes for the Establishment Clause
That is the title of an essay I have up at the Library of Law and Liberty. Here's the beginning:
In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.
Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.
Thursday, December 11, 2014
"The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History." (Lord Acton)
Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances.
The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:
No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.
Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.
I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.
Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.
Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.
If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.
The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.
Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.
Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.
Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.
A Swing and a Miss (Times Three)
It’s that time of year again . . . when Major League Baseball hosts its Winter Meetings. At the same time that many people are shopping for Christmas presents for their loved ones, professional baseball clubs are shopping for players to improve their rosters.
Here in the Second City, the Chicago White Sox are looking to improve from a dismal season in 2014, whereas the Chicago Cubs are looking to recover from a dismal century.
One of the Cubs most famous fans is retired Supreme Court Justice and Chicago native John Paul Stevens. It would be wrong to criticize Justice Stevens’ judgment for being a Cub fan – a burden and a joy that he inherited from an early age. But he can most definitely be faulted for his errors in judgment as a member of the Court.
Three of Stevens’ most flawed opinions concern abortion: Thornburgh, Webster, and Casey. In each of these opinions Stevens embraced a mantra repeated again and again by pro-choice advocates, viz., that the pro-life position on abortion is “inherently religious” such that legal efforts to protect the developing human embryo or fetus constitute an establishment of religion in violation of the First Amendment. The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one.
The claim that the pro-life position is religious has a long pedigree going back to Glanville Williams’ The Sanctity of Life and the Criminal Law (1957) and Lawrence Lader’s “Catholic strategy” at the founding of NARAL, but Stevens is its most prominent spokesperson. Surprisingly, however, a close, critical reading of Stevens’ opinions in Thornburgh, Webster, and Casey is almost entirely absent from the scholarly literature.
In a recently published article entitled “Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens Opinions in Thornburgh, Webster, and Casey,” I seek to remedy that absence.
The article demonstrates that Stevens simply takes for granted the central claim upon which the conclusion of establishment turns – the religious character of pro-life legislation. He then employs this assumption rhetorically in order to dismiss a point of view he never squarely confronts.
In this regard, Stevens’ approach is exemplary of the vast majority of academic commentators who have put forth the same claim. (Two commentators on abortion, Peter Wenz and Ronald Dworkin, at least recognize that an argument needs to be made to show that a particular proposition possesses some quality that renders it “religious” and so unsuitable as a basis for law. Their arguments also fail, as I intend to show in a subsequent article, but at least they recognize the issue).
The article also shows that Stevens’ characterization of religious establishment is so broad that it would render any attempt to define who is a human being worthy of legal protection (including Stevens' own) unconstitutional. Although Justice White made this very point in Thornburgh, Stevens never responds to it in any of his opinions, echoing the silence in the academic literature to the same argument that John T. Noonan, Jr. put forth years earlier in his book, A Private Choice (1979).
The article also argues that Stevens’ cryptic invocation of the “endorsement” test in Webster fails, and that he covertly repudiates the principle of McGowan v. Maryland.
Although Stevens has many admirers, the naked assertions and inconsistencies that he offers in these opinions must constitute the intellectual low-point of his tenure on the bench. As a Cubs fan, Stevens knows all about low points, but unlike the Cubs record, these are of his own making.
Wednesday, December 10, 2014
Law?
It should be obvious that the project here, "Catholic legal theory," requires or depends upon, if it is to be (even) coherent, several reliable (if contestable) definitions. One of those defintions pertains to "law" and, derivatively, "legal." The Catholic tradition isn't impoverished when it comes to the question of what it takes for something to stand as law or legal. In the (correct) view of that holy tradition, what the civil legislature does that fails to serve the common good also fails, for that reason, to be law in the full or focal sense of "law" (and therefore can and, subject to the control of the virtue of prudence, must be disobeyed in circumstances in which disobedience would serve the common good). Also in the view of that same holy tradition, law is not only, or in the first instance, the deliverance of the civil authority. There is always and earlier the higher law, that of Christ the King. Given Christ's kingship over all, His higher law (authoritatively interpreted by the Church) must serve as the governing norm if the civil polity is to seek the common goods, earthly and eternal. Law, even Christ's, doesn't exhaust the field, however. Mercy and forgiveness have their respective places in the divine economy, thank God, but they do so because the same God first (and thereafter His civil viceregents) ordered humanity to the common goods. Mercy and forgiveness, in their true respective senses, depend upon an antecedent architecture in which the legisator has truly legislated (necessarily for the common goods). It's high time certain discussants of the current predicament, including those souls dissecting, promoting, etc., the incessant (and oddly ultramontanist) soundbites issued from a guesthouse at Rome, recall that the human mind is in virtue of Creation itself a legally "measured measure." Forgiveness, therefore, is (as it were) graciously parasitic on law. Thank God for His forgiveness, but first for His law.
Monday, December 8, 2014
Herbert McCabe, OP on the Immaculate Conception
We often remark here at Mirror of Justice that the central questions of Catholic legal theory are those of human anthropology and human nature. (Even if, like Elizabeth Anscombe, I'm not at all sure that [modern] reflection on "the self" is a meaningful or important philosophical question, see Faith in a Hard Ground: Essays on Religion, Philosophy, and Ethics at p. 67.) On what it means for said human nature to be redeemed, here is an excerpt from a homily by my late friend Herbert McCabe, OP on today's feast:
In Mary the redemption reaches down to the roots. In us it is not yet radical, but through our death in Christ and our resurrection in him it is to become so. So far we are only sacramentally redeemed, in the sacramental death and resurrection of baptism - this is something real, it is not merely play-acting, but it is only sacramental, it is not yet in our flesh. The redemption of Mary is pre-sacramental, she does not need baptism or Eucharist, she needs Christ only and has him in her existence in her very flesh. For this reason her redemption, which is pre-sacramental, is a sign and foretaste of the post-sacramental, the life of the risen body, the future kingdom. Her Assumption is the beginning of the resurrection of all who are taken up into Christ’s resurrection.
This, then, is how we are to cash the doctrine of the Immaculate Conception. This is the difference in practice that the doctrine makes. We are not to look for this difference in the biography of Our Lady, in her character or in her behaviour. In this sense the doctrine is not about that. It is not, for instance, about the fact that she committed no sin. You could hold, as Thomas Aquinas did, that she was sinless and still deny, as he did, the Immaculate Conception. The Immaculate Conception does not make that sort of difference to Mary; it did not make any noticeable difference to her - as I have suggested there is no reason to suppose that she knew about it. What it makes a difference to is our understanding of what it means for her to be redeemed and therefore what it will eventually mean for us to be redeemed. To assert this doctrine is to assert the mysterious fact that our holiness will not stop short of the roots of our being, that we too are to become radically holy.
And this is a strange doctrine. At the moment we are forgiven sinners; we are forgiven but we are people who have been sinners, we have been subject to the sin of the world, moreover we have at times opted for the sin of the world. Both things are true: we have contrition for our sins even as we celebrate our forgiveness. Being realistic and honest and therefore contrite about our sins is the sign and result of our being forgiven. (That is why confession is an important part of the sacrament of Penance.)
What we celebrate on the feast of the Immaculate Conception is that Christ’s love for us brings us further than this. What he wants for us is not just that we should be forgiven sinners but that we should be as though sin had never been. Redemption for us will involve a rebirth from an immaculate conception. Our redemption will not just be the successful end of a journey, the triumphant culmination of the history of man, but in some utterly mysterious way we will be freed from our history, or our history will be taken up into some totally new pattern in which even our sins become part of our holiness. We will somehow be able to accept them as God accepts them. There will be no more sorrow for sin, no more remorse over the past, no more contrition; we will be radically and totally free: ‘And all things shall be well and all manner of things shall be well ... when the fire and the rose are one’ (God Matters, pp. 213-14).
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