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.

Wednesday, October 28, 2015

Galston on WSJ Opinion Page - Wednesday

By Erika Bachiochi

William Galston was part of Bill Clinton's domestic policy team in the mid 1990s when I was coming of age at Middlebury College. Communitarianism was in vogue, and Amitai Etzioni's Spirit of Community had made a strong impression upon me as a young sociology student who hadn't yet discovered political philosophy. I remember experiencing a strong (if youthful) sense of political hope that Galston was involved in Clinton's administration, having learned how closely tied he was to Etzioni and communitarianism. Later would I find Mary Ann Glendon's particular strain of communitarianism--or as I know it now, Catholic social teaching. 

I felt a bit of that (more aged) hope on Wednesday, as I read Galston's WSJ op-ed touting marriage as the "cure for poverty." If Galston, now at the Brookings Institute, can state together with colleague Isabel Sawhill and eminent scholar Sara McLanahan that “children raised by two biological parents in a stable marriage do better than children in other family forms across a wide variety of outcomes," we may yet be able to get beyond the impasse created by the last decade of debates over gay marriage. Indeed, Galston did not say much to contradict Rusty Reno or Ross Douthat or even Rick Santorum. Would that thinkers from across the political spectrum could once again speak in one voice on this urgent matter. As all of these writers have noted, governmental policy cannot ultimately restore marriage in America, but policy can be crafted so as not to discourage the same. 

Signing Statements and the Role Morality of Scholars

By Michael Moreland

The Catholic corner of the Internet has been ablaze for the past day or so about a letter submitted to the New York Times by Catholic theologians upset over Ross Douthat columns about the Synod and, in particular, his use of the word “heresy” in a sub-tweet during a Twitter exchange. Setting aside the letter’s objection to Douthat’s lack of “professional qualifications” (which if enforced would leave the Times op-ed page with only Paul Krugman’s columns on economics and Tom Friedman’s on foreign policy), there is also an important and, to my mind, interesting issue here about the professional norms applicable to signing such statements.

I was once told by a doctoral student of John Rawls’s that Rawls, though an opponent of the Vietnam War, did not sign statements opposing the war because such statements were necessarily too imprecise and usually expressed mere opinion without argument. (Toward the end of his life, Rawls did, alas, sign the so-called “Philosopher’s Brief” in Glucksberg v. Washington, to which David Velleman and Paul Weithman responded powerfully here and here.) I’ve been thinking about the issue of when one should sign statements, amicus briefs, and such since attending an AALS panel last January (organized by my friend and Villanova colleague Michelle Madden Dempsey) on “The Role Morality of the Legal Scholar.” On the panel, Richard Fallon reprised arguments he made a few years ago here raising serious concerns about legal scholars signing amicus briefs, and Amanda Frost responded to Fallon’s arguments along these lines.

For myself, I’ve not been much for signing statements by academics, though I have signed onto amicus briefs in areas of my interest and expertise—including religious freedom and tort and contract law preemption—where I knew the counsel involved and was able to provide substantive feedback in the drafting of the brief. And while I don’t have especially strong or developed views about the role morality of academics when deciding whether to sign this or that statement, it does strike me as an under-explored topic in need of more thoughtful reflection than it usually gets. Notably, what criteria should govern when one does or does not sign a statement? What does one hope to accomplish through such a statement? And how should one navigate between the twin dangers of either self-righteous and ineffectual academic preening in choosing to sign a statement or cowardice in not doing so?

Judicial Responsibility and Common Law

By Michael Moreland

As someone who tries to resist the notion (at least in its cruder formulations) that common law is "made" by judges based on "policy" considerations, I found much to appreciate in John Finnis's wide-ranging lecture "Judicial Power: Past, Present and Future" delivered last week at Gray's Inn Hall. To wit:

To state (like Bacon and countless much longer-serving judges) that the common law is declared rather than made is no mere “fairy-tale” unless the statement is mistakenly asserted or heard as a description of the history of the common law.  It is not a description or prediction, fictionalising that history by overlooking the many changes made by the courts, but a statement of judicial responsibility: to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs, or validity or invalidity, of their actions and transactions when entered upon and done.  There are cases when a court, especially one that is hierarchically supreme and thus not bound to follow the rulings of higher courts, can judge it has the duty now to depart from an interpretation or view of the part of our law in dispute between the parties because, though that interpretation or view has been judicially approved and is what legal advisers would now and previously convey to their clients, it is nonetheless out of line with principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law–so out of line that it ought now to be declared to have been a mistaken view, and set aside in favour of a rule that, though new in relation to the subject-matter and area of law directly in issue between the parties, is nevertheless not a novelty or act of legislation (taking our law as a whole), and can fairly be applied to the parties and dispute before the court. 

Joshua Mitchell on the "Age of Exhaustion"

By Michael Moreland

Perhaps I just need to have a second cup of coffee this morning, but I thought this long essay by Joshua Mitchell of Georgetown on the "Age of Exhaustion” at the American Interest brilliantly captures much about our political and cultural moment—Liberalism (by which Mitchell means a good bit of modern American conservatism) and anti-Liberalism having run their course, we’re tired. Highly recommended with much to think about and contest throughout. A bit:

What Tocqueville understood over and above his contemporaries was that while the transition to democratic social conditions is always tumultuous, once they have settled in, a new sort of problem emerges: Citizens will lose faith in liberty and no longer labor to maintain and defend it. Instead, they will prefer a quiet, purportedly beneficent equality in servitude, a despotism that assures them that they have security and adolescent entertainment: Facebook, Twitter, never-ending video games, and the titillation of ever more mesmerizing gadgets. This delivers them from the specter of anxiety and the burden of freedom. The democratic age ends, neither with robust Liberals striving in a forever imperfect world, nor with defiant anti-Liberals striving to perfect the world, but rather with The Great Exhaustion. Striving, uncertainty, risk, labor, suffering, insult—these become too much for our fragile constitutions to bear. Above all, in the time of The Great Exhaustion, no one wants to “feel uncomfortable” and, so, we conspire to organize the world so that it is without duress or hardship. The 1 percent political and commercial classes are happy to oblige.

Tuesday, October 27, 2015

"Put not your trust in princes"

By Kevin C. Walsh

Thanks to Rick for posting Dean Kearney's 2015 Pallium Lecture. The lecture's concluding admonition is about the stance one should take toward the Supreme Court with respect to religious liberty. But its application can be generalized, as it is the verse that keeps coming to mind as I struggle to describe the reactions of many religious believers toward the Supreme Court these days:

“Put not your trust in princes.” I confess that the admonition is taken out of context, but is this not the right attitude for citizens of a democracy to cultivate? Princes in black robes are no more to be trusted to protect our freedoms than are any others. 

Respect Life Month: University of St. Thomas Alums Join the "Sisters for Life"

By Greg Sisk

As we draw to the end of Respect Life Month, I just had to express some academic pride in one of the ways that a pro-life commitment is reflected at the University of St. Thomas (and I speak here of the undergraduate institution, beyond the law school where I teach).

The Catholic Spirit, which is the newsletter of the Archdiocese of St. Paul-Minneapolis, reported SistersOfLifethe wonderful news that four Minnesota women have entered the Sisters of Life religious order, headquartered in New York.  And all four were graduates of the University of St. Thomas here in Minnesota.  Herewith an excerpt (and you can read the rest here):

Four Minnesotans are among the young women preparing to dedicate themselves to the pro-life cause as Sisters of Life, a religious community based in New York City focused on helping women in crisis pregnancies and promoting a culture of life.

In September, Caroline Stiles, 22, of Sacred Heart in Owatonna; Paula Thelen, 25, of St. Peter in North St. Paul; and Elizabeth Schmitt, 23, of St. Mark in St. Paul, became postulants in the community. Fellow Minnesotan Sister Magnificat Rose, baptismal name Jillian Wayland, of Divine Mercy in Faribault, is in her second year of the novitiate with the community.

All four women graduated from the University of St. Thomas in St. Paul, where they also crossed paths in their studies and dormitories.

This reminds us, as if any reminder were necessary to the Mirror of Justice community, that Catholic higher education matters.  Our Catholic colleges and universities make a unique contribution to our society and the common good.  At so many Catholic colleges and universities, the Good News is being heard, experienced, and lived.

Especially during this Respect Life Month, remember in your prayers those who are discerning whether they are called to religious life at the Sisters of Life.  You can read more here about the Sisters of Life, a vibrant, joyful, and servant community.  And donations to their work can be made here (I've just placed a donation myself).

Monday, October 26, 2015

Robby George: "Here Comes Everybody"

By Rick Garnett

Because I don't want to take the chance that Robby doesn't cross-post, here's a really nice reflection of his, from First Things, called "Here Comes Everybody."  (I also like Chris Wolfe's invocation, in the Comments, of Toby Keith's "I Love This Bar"!).

Some "Reformation Day" reading

By Rick Garnett

"Reformation Day" (or, All Hallows Eve) is celebrated by some of our Christian brothers and sisters on October 31.  This might be an appropriate occasion to read -- especially if you haven't already -- Prof. Brad Gregory's (Notre Dame) far-ranging, engaging, and provocative book, "The Unintended Reformation:  How a Religious Revolution Secularized Society":

In a work that is as much about the present as the past, Brad S. Gregory identifies the unintended consequences of the Protestant Reformation and traces the way it shaped the modern condition over the course of the following five centuries. A hyperpluralism of religious and secular beliefs, an absence of any substantive common good, the triumph of capitalism and its driver, consumerism—all these, Gregory argues, were long-term effects of a movement that marked the end of more than a millennium during which Christianity provided a framework for shared intellectual, social, and moral life in the West.

Before the Protestant Reformation, Western Christianity was an institutionalized worldview laden with expectations of security for earthly societies and hopes of eternal salvation for individuals. The Reformation’s protagonists sought to advance the realization of this vision, not disrupt it. But a complex web of rejections, retentions, and transformations of medieval Christianity gradually replaced the religious fabric that bound societies together in the West. Today, what we are left with are fragments: intellectual disagreements that splinter into ever finer fractals of specialized discourse; a notion that modern science—as the source of all truth—necessarily undermines religious belief; a pervasive resort to a therapeutic vision of religion; a set of smuggled moral values with which we try to fertilize a sterile liberalism; and the institutionalized assumption that only secular universities can pursue knowledge.

The Unintended Reformation asks what propelled the West into this trajectory of pluralism and polarization, and finds answers deep in our medieval Christian past.

Sunday, October 25, 2015

The Synod on the Family

By Rick Garnett

I have not blogged about the Synod -- in part, I admit, because I've found the press coverage (with some exceptions) so depressingly partisan and superficial.  My sense has been that those who were and are concerned that the coverage of and talk about the Synod (even if not the Synod's work itself) have created unhelpful confusion and have been driven by "narratives" and "frames" that have more to do with the political categories and priorities of wealthy, western countries were and are right.  And now, we'll be left with dueling spin-takes about which "side" "won", about whether the Synod's final document is a set-back for the agenda that some impute to Pope Francis, about whether Pope Francis's final address was a "stunning rebuke" to some "conservatives, etc., etc.   

For two examples of the kind of (for me) disappointing coverage I'm talking about, check out this in the WaPo and this in the NYT.    The story will not be -- for example -- the (utterly unremarkable) affirmation by, well, everyone at the Synod that the family is the foundational and pre-political building block of society and that the flourishing and role of the family is at the very heart of the Church's social teaching.  (Re-read the relevant sections of the Compendium, for example.)  

Journalists and commentators who made (and will keep making) the story of the Synod a story about whether or not the Church is or should be "inclusive" and "welcoming" and merciful -- of course she is and should be -- will, I expect, miss this.  That is, although they will interpret the Synod on the Family in political terms, they will miss the political (not partisan) implications of the Church's understanding of what the family is and is for.

But, of course, I'd welcome being wrong!

Friday, October 23, 2015

Paul Horwitz's important (and devastating) response to a not-good article [UPDATED]

By Rick Garnett

Read this, by Paul Horwitz.  Jean Cohen has posted two articles that are misguided on the merits and that engage in unfair and tiresome attacks on those First Amendment scholars who have been proposing "institutional" and "jurisdictional" accounts of church-state matters.  Specifically, it is thought by Cohen to be relevant that some of these scholars have worked with the "Beckett Fund" (sic) on some religious-freedom cases.  

As Paul explains, though, a bigger story should the fact that a great deal of foundation and other funding is pouring into a project at an elite law school like Columbia for the purpose of doing what is best regarded as activism and advocacy.  If this were "Koch money" funding a Lochner resurgence, eyebrows would be way-up.   [NOTE:  I changed this paragraph from the original post, which referenced plural "projects," etc.] 

So, review the web site for the "Public Rights / Private Conscience Project" at Columbia (where Prof. Cohen is appointed).  There's this:

The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. We conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

This means, it appears, that the Project funds and otherwise supports political activism and agenda-driven commentary, from the platform of a great law school.  And again, the Project's funding does not come entirely from tuition or individual donors.

To understand where the debate is, it is useful to at least read the abstract of one of Cohen's papers:

 This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.

The candor is refreshing.  A well-funded program at an elite law school is now committed to "resist[ing]" -- "whenever it arises" -- the notion that there are limits to the purportedly "comprehensive jurisdiction and scope of public, civil law."  It's not clear how such a program and its work can really be harmonized with the stated values of elite legal-education institutions but, in any event . . .   The aims of such programs should be, let's say, "resisted" -- in the immortal words of Eugene Volokh, "in your face, but with a breath mint."   [UPDATE:  I changed this paragraph, too, because I mean to address specifically only the Columbia program.]

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