Mirror of Justice

Thursday, December 4, 2014

A Perfect Storm

Media outlets have once again focused on the wave of sexual assault taking place on U.S. college and university campuses. The stories about the University of Virginia’s recent experience are illustrative of a national phenomenon. Of course the law has, through the Title IX provisions overseen by the Department of Education, been involved in the process. But is the fundamental purpose of these laws—to protect the young—really understood by all of those entrusted with the law’s execution?

Recently, I have been discussing these matters with Jesuit confreres who are on the respective campus committees of their schools that are attempting to assist these institutions in compliance with the Title IX provisions dealing with sexual assault. From discussions with these priests and friends, I think it safe to say that most schools are concerned about the need to comply with the civil laws. However, I question whether these committees in their entirety are looking at the root problems and the convergence of these problems that lead to campus climates where a combination of factors, not addressed by some interpretations of the law and therefore not addressed by the school committees, lead to the “perfect storms” of rampant sexual misconduct that bring great harm to many of our young people.

A friend of many of us here at the Mirror of Justice John Garvey, who is president of The Catholic University of America, has acknowledged that one of the underlying problems of these perfect storms is having young men and women live together in campus residence halls where their common life leads to sharing more than simply a roof overhead. Other elements of the perfect storms begin to enter the forecast, and these include: permissive attitudes about alcohol and other drugs on campus and, so-called, peer education programs that promote rather than deter sexual promiscuity. The forecast gets amplified by current trends to make toilet and shower facilities “gender neutral” so as to assuage the feelings of those students who “feel uncomfortable” with sex/gender assigned bathroom facilities. Another factor needs to be considered here: there are faculty and staff who find the sexual desires of students reflective of their own life choices. Consequently, some of these staff and faculty would not want to see their educational institutions make policy decisions pertaining to student housing and student life that contravene their own life-style choices.

All of these factors lead to the perfect storms of sexual assault that currently exist on American campuses and will likely continue to exist until the fundamental purposes of the moral law and the civil law are viewed in the light of protecting our young people from living and other institutional circumstances that are dangerous to their health and wellbeing.

I know for a fact that many of my colleagues in the academy will regard my perspective as old-fashioned and not with the times; however, my retort is that in spite of being old-fashioned and not with the times the principles that I would propose for student life—including separate housing for men and women, intolerance of on-campus alcohol and drug abuse, and a cessation of freshman orientation programs that teach our young on the intricacies of how to have “safe sex”—should have a noticeable and remedial impact on the campus culture of the present age that sustain the perfect storms bringing havoc to so many college students today. Trying to comply with laws in ways that avoid dealing with the root problems that lead to and sustain the perfect storms is not the way to go about protecting those entrusted to our care.

RJA sj

(Qualified) Admiration for Thomas Hobbes

By Michael Moreland

Thomas Hobbes died on this date 335 years ago in 1679 (aged 91--a remarkably long life for someone in the seventeenth century!), allegedly uttering "Now I take a great leap in the dark." I have read Leviathan in a first-year elective on justice for several years now, and I am continually amazed by the sheer brilliance of the book and regard it as among the great works of our civilization. Every student of the law should, I think, grapple with Hobbes's insights into human nature, political power, and the origins of law, even if one must (as I do) disagree in the end. The great Catholic philosopher Peter Geach was also an admirer of Hobbes, and here is a bit from his splendid paper "The Religion of Thomas Hobbes" (contrary to the conventional view that Hobbes was a closet atheist, Geach argues that Hobbes was a heterodox Christian):

The writings of Hobbes manifest a quality that he shares with certain other writers: with Thucydides, with the Old Testament historiographers, with Schopenhauer in some works. All these writers have the power to present drily, without rhetorical condemnation, what men can be like and under stress often are like: that is, pretty nasty. Men go in for self-flattering illusions and dislike authors who hold up a mirror to the ugly human face. As the epitaph says, few have loved Thucydides son of Oloros (of course he did win the love and admiration of Hobbes); abuse of Schopenhauer, as of Hobbes, is a commonplace; Msgr Knox found Old Testament histories hard to take. Splutters of disgust and indignation against these authors who have dared to tell the truth are often grimly comic in their effect; reality has a way of vindicating the truth-tellers against the flatterers. As the song says, if you break the bloody glass (sc. barometer) you won't stop the weather.

Wednesday, December 3, 2014

If you want to know the "real" Judge ___, read his decisions

By Marc DeGirolami

I've been enjoying Professor Ronald Collins's series on Judge Richard Posner over at the Concurring Opinions blog. The Collins biography is extremely substantive and scholarly; it's not really the subject of this post at all. I'm more interested here in "Posner on Posner," which is basically a collection of interviews, reflections, bon mots, aphorisms, scattered wisdom about cats, opinionation about the virtues and vices of spicy food (or was it jurisprudence?), and so on. The latest installment is a smorgasbord of law professor queries about various scraps of miscellany, answered by Judge Posner in his genially efficient fashion. It's a fun little window on Richard Posner the man. It reminds me of the way that James Fitzjames Stephen used to produce regular victuals for the insatiably voracious Victorian English intelligentsia.

The Posner on Posner format, though, is such that I'm afraid folks might perhaps be misled to believe that when Judge Posner makes statements like, "I think the role of legal doctrine in judicial decisions is considerably overrated," that means that legal doctrine is likely actually to play very little role in his judicial decision making. Law professors like to ask questions about things like pragmatism, and the influence of law and economics and sundry other ideological precommitments on judging, how judging will change "in the future," and whether Posner reads any Lon Fuller. And, of course, Judge Posner is rather able at providing law professors with what they so much want to hear--interesting, provocative, sometimes perhaps a little shocking (not too much! The whiff of late Victorian England is indeed potent), always eminently Posnerian responses to these sorts of questions. Indeed, he's made something of an extrajudicial second career in writing great numbers of books whose theme is a tell-it-like-it-is forthrightness that shows the emperor in his resplendent nudity (and the repeated announcement of that theme, just in case you missed the last 19 times it was pressed, as something altogether novel coming from a judge). Professor Collins's series is certainly of a piece with this spectacularly prodigious extrajudicial output.

Still, if you really want to know what Posner the judge is like--and here one could substitute really anybody when writing as a judge--you might do better simply to read his opinions. Failing that, or for the sake of saving a little time, may I humbly submit that you read my piece with Kevin Walsh about the several ways in which Posner the judge is often altogether different from Posner the public intellectual who explains what it is like to be a judge. It's only after pursuing this sort of course that the differences between a judge and an explanation (even from the most able of judges) of 'what-it-is-like-to-be-a judge' (with apologies to Thomas Nagel) come into view--differences that for various reasons may run deep in Judge Posner's particular case.

Obama's Executive Order on Immigration: Is it Legal?

By Michael Scaperlanda

Although I favor comprehensive immigration reforms, including relief for many of those persons living and working in the United States in an undocumented status, I think the President unconstitutionally crossed the line between prosecutorial discretion (an Executive function) and policy making (a legislative function) when he signed an Executive Order, which will allow several million undocumented persons to remain in the United States. For my reasoning, see this post on Aleteia.

On Elizabeth Lauten's incredibly bad, unacceptable behavior

By Robert George

There is no excuse for targeting politicians' children for negative comment.
Right thinking people would never do that.
It really is unacceptable.
Good people should condemn anyone who does it.

Please lay aside ideology on this one and unite around a common principle.
All of us, surely, can do that.
Let's protect politicians' kids, just as we would want our own to be protected.
It really is just common decency.
Now here is something we can all get behind.

Tuesday, December 2, 2014

Smith on "Decisional Originalism"

By Marc DeGirolami

You should take a look at Steve Smith's superb piece criticizing original meaning originalism and proposing something that he calls decisional originalism. More and more, I am coming to believe that original expected applications originalism has a lot more going for it than is commonly thought. Opponents as well as advocates (in fact, especially advocates) of original meaning originalism don't have much time for it. But Steve is on to something important in this short reflection. Note, also, the relevance of the method of common law reasoning for constitutional interpretation in Steve's presentation of decisional originalism, something that I also agree is regrettably sidelined today:

If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?

Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.

This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis. My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.

Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay....

For now, though, two observations may be suggestive.

There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”

Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.

Monday, December 1, 2014

Fr. John Jenkins on "The Challenge and Promise of Catholic Higher Education"

By Rick Garnett

Thanks to Bernard Prusak, at dotCommonweal, for this account of a recent lecture by Notre Dame's President, Fr. John Jenkins, on the "Challenge and Promise of Catholic Higher Education." You can watch the video of Fr. Jenkins's talk here. Here's a bit from Prusak:

Part 3 begins at 38:30 and takes up the two questions laid down by parts 1 and 2: 1) If some model like a revived neo-scholasticism isn’t the way for Catholic colleges and universities to go, then what is? That is, how else can Catholic higher education be coherent and distinctive? 2) What do Catholic colleges and universities have to say about the “higher purposes” of learning and inquiry? In other words, what answer can Catholic higher education give to the “danger” presented by the accelerating commodification of education?

Jenkins’ answer to both these questions is the same: what can orient and shape Catholic colleges and universities, and what can inform these institutions’ self-understanding and presentation of themselves, is the long tradition of Catholic thought. As he acknowledges, Jenkins is drawing here from Alasdair MacIntyre, who defines a living tradition as “an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.” As MacIntyre also writes (again in After Virtue), “Traditions, when vital, embody continuities of conflict.” Jenkins’ proposal is that the Catholic tradition, rooted in the doctrines of creation and redemption (minute 39), provides both “a rich set of values not readily accessible at our secular peers” and a set of commitments that “open up the possibility of interesting debate” and distinctive research programs and curricula (minute 42). Though coming toward its end, this is the heart of the paper. . . .

The Feast of the English Jesuit Martyrs

By Robert John Araujo, SJ

Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.

It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?

We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.

This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:

…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…

Saints Edmund Campion, Robert Southwell, and companions: pray for us!