Here. Despite the headline, the story doesn't give any evidence that she's "Pope Francis's latest convert." Here's an interesting profile on her combination of "liberal" and "conservative" views and how it gets most of her political friends mad at her. (Is it really only, as the profile says, "roughly 25 percent of U.S. voters who harbor a balance of conservative and liberal beliefs"?)
Friday, October 9, 2015
Kirsten Powers, Evangelical Liberal, Converts to Catholicism
A Tale of Two Videos: Contrasting the Likely Reaction in the Legal Academy to a Hypothetical Undercover Video Displaying Institutional Racism With That to the Planned Parenthood Videos
Suppose, hypothetically, that a non-profit organization concerned about racial justice and equality in the American economy conducted a series of undercover operations targeted at leading national banks. They secretly recorded video of banking executives making racially insensitive statements and generally exhibiting a callous attitude toward minorities in urban communities who struggle to pay their mortgages or start businesses.
On one video, let us say, the white executive of a major bank is caught saying to a lending committee that, while the bank’s brochures may tout diversity and non-discrimination, the bank really had no interest in providing financing for business projects in minority communities because “none of them have any work ethic.” Other members of the committee nod vigorously.
On another of these hypothetical videos, the head of urban residential loans for another major bank is depicted looking through a document showing the bank’s increase in mortgage lending in a minority neighborhood. He then remarks, with a chuckle, “they’ll never be able to pay off those mortgages for those over-priced houses. But we’ll take our profit and be outta there when the mortgages get sold in the secondary market.”
Other videos are in the same vein, showing similar troubling attitudes about race and minority communities in a number of leading American banking institutions. Again, this is all hypothetical.
The response in the American legal academy to these hypothetical videos can be imagined:
“The Banking Videos” likely would be incorporated into classroom teaching in courses on race and the law and in a number of courses on banking and commercial transactions. Students would be encouraged to prepare advanced writing papers dissecting the videos and suggesting new banking regulations to promote economic justice. Law journals would host symposia devoted to the legal and cultural issues raised by “The Banking Videos.”
The annual meeting of the Association of American Law Schools probably would host a plenary and well-attended session focused on “The Banking Videos.” The President of the AALS would devote a column in the AALS News observing that “The Banking Videos” remind us that the path to racial equality is still a long one, while insisting that legal education is at the forefront in highlighting the presence of structural racism in the American economy.
To be sure, classroom discussions and symposia presentations would have to address complaints that the hypothetical racial justice organization had used subterfuge to gain access to these insider banker meetings, as well as accusations that the videos had been edited in a misleading way. But such objections would not overshadow the larger issues or much divert attention from the shocking nature of some of the comments recorded and attitudes expressed — which “context” hardly softens.
By the end of the year, there’d hardly be a law student in the country who had not been exposed to the “The Banking Videos.”
It would have become a nationally-prominent “teaching moment.” And rightly so.
By contrast, consider the not-hypothetical undercover videos of Planned Parenthood leaders talking about late-term abortions and examining fetal remains.
In one video, Planned Parenthood’s senior director for medical services sips wine while saying to the undercover actors who claim to be seeking fetal organs: “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part. I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”
On another video, featuring the vice president and medical director for Planned Parenthood Rocky Mountains, we watch technicians crack fetal skulls to extract intact brains and pick through legs, abdomens, and other remains. One Planned Parenthood employee says in a jocular tone: “Here’s some organs for you. Here’s a stomach, kidney, heart.” Another Planned Parenthood employee jokes as she examines dismembered aborted fetuses: “And another boy.”
For “A Quick and Easy Guide to The Planned Parenthood Videos,” Mollie Hemingway’s guidebook at "The Federalist" is invaluable and offers these and other direct quotations in context while also providing direct links to both important excerpts andthe full videos. (Warning — these videos are disturbing and some are graphic.)
Let's set to one side the debate whether the videos provide any “smoking gun” evidence on actual violations of the laws restricting sale of human fetal body parts. Indisputably, even to the point that the President of Planned Parenthood apologized for tone, the videos portray a shockingly callous attitude. We hear casual dinnertime comments about “crushing” living unborn human beings and see Planned Parenthood personnel lightheartedly rooting around in the remains of dismembered fetuses while joking that they’ve found this or that organ or encountered “another boy.”
So how much attention have “The Planned Parenthood Videos” received in the typical law school?
In courses on human rights or professional responsibility, are they being used to show the danger of becoming desensitized and losing a sense of human dignity? Are we as legal educators addressing the danger that character may be corrupted when someone too easily assimilates into an institutional setting? Have we used these videos as examples of how ideology may blind one to the horrors in which one is participating?
In constitutional law classes, are “The Planned Parenthood Videos” being offered as a counterpoint to the politically-favored narrative that Roe v. Wade is an uplifting advance for gender equality and an unalloyed victory for human rights? When people fall back on comfortable slogans like “the right to choose,” is the reality of dismembered fetal bodies being picked over by technicians like butchers at a meat packing plant shown to suggest that perhaps what is being “chosen” is termination of fellow human beings, at least with respect to late-term abortions?
In sum, is there really any debate occurring at the typical law school about the legal and cultural (much less moral) significance of these videos? Or, instead, are legal academics generally ignoring the videos or declaring uncritically that the videos don’t really portray what they obviously do show to anyone who watches them? Are we as a community of educators betraying our oft-touted mission to honestly address even that (especially that?) which makes us uncomfortable? Or, when it comes to “reproductive rights,” is the real message that diversity and critical reflection on this issue is not welcome in the American legal academy?
Combating judicial supremacy through containment and conversion
The American Principles Project has a released a scholars' statement on resistance to Obergefell, and the Campaign for American Principles has put out a related "Call to Action." There is an interesting difference between the two that jumped out at me.
The Call to Action includes a paragraph that acknowledges the supremacy of the Supreme Court within the federal judicial system, even while differentiating that supremacy from other ways of understanding judicial supremacy:
The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.
That paragraph seems just right, though I did not see any corresponding acknowledgment of intra-judicial supremacy in the scholars' statement. And the pledge at the end of the call to action, as well as the request of officeholders at the end of scholars' statement, includes a position that in tension with the idea that "the Supreme Court is supreme in the federal judicial system."
The pledge in the call to action asks presidential candidates to "refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as precedent." And the scholars' statement calls on "all federal and state officeholders ... to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case."
In legal terms, these statements call for the rejection of vertical stare decisis. This phrase captures the notion that the decisions of a superior appellate court create precedent that is binding on lower courts within the system. This idea that Supreme Court decisions create binding precedents for all other courts in the United States deciding questions of federal law is a widely accepted feature contributing to what makes the Supreme Court "supreme in the federal judicial system."
The vertical stare decisis effect of Supreme Court decisions is largely, though not entirely, uncontroversial. Another way of thinking about the Supreme Court's supremacy focuses on the Court's authority to exercise appellate jurisdiction to reverse decisions that depart from its precedents.
There is not much practical difference between these two positions at the moment because the Supreme Court's appellate jurisdiction is pretty expansive. But a practical difference could emerge if the Supreme Court's appellate jurisdiction were taken away.
As long as the Supreme Court's appellate jurisdiction remains intact, those calling for resistance to Obergfell should recognize the practical and legal obstacles that follow from the Supreme Court's supremacy in the federal judicial system. To the extent that an officeholder's refusal to treat Obergefell as law injures the legal rights of individuals in a way redressable in federal court, the matter will end up there, and then the officeholder will lose (at least for the time being). Direct confrontation with judicial supremacy in the realm of practice therefore seems like a bad idea.
Somewhat analogous to how Lincoln approached slavery or the United States approached Communism during the Cold War, a containment strategy seems more appropriate. The idea behind containment is to limit the damage that comes from erroneous Supreme Court decisions by confining them as much as possible to the federal judicial domain and then cabining their reach through legal argument within that domain.
Containment should be joined with an effort at conversion. Don't just oppose judicial supremacy; give judicial supremacists a better alternative. In my view, that alternative is judicial departmentalism.
“Judicial supremacy” is a name for the claim that the Constitution means for everybody what the Supreme Court says that it means in the course of resolving a case or controversy. By contrast, “judicial departmentalism” is the idea that the Constitution means within the judicial department what the Supreme Court says it means in resolving a case or controversy.
Judicial departmentalists may disagree about details, even important details like vertical stare decisis. But their program is not entirely negative. It affirms a truly judicial form of judicial supremacy. And apart from sweeping and erroneous dicta in a few extraordinary constitutional cases, judicial departmentalism fits within our legal structure right now. In many ways, the judicial departmentalist understanding already matches the self-conception of federal judges when they are thinking like judges in normal cases rather than when they are under attack and defensively invoke judicial supremacy. Judicial departmentalists have no problem with judicial supremacy when it is truly judicial.
So, by all means, count me in the anti-judicial supremacy camp. But join me in the judicial departmentalist camp instead.
In keeping with the structure of the scholars' statement, I conclude with a short list of take-away assertions:
- Containment and conversion are the best way to transform "judicial supremacy" as it now exists into truly judicial supremacy.
- Containment and conversion to judicial departmentalism are the best way to contribute to constitutional supremacy.
- Confrontation in the realms of theory and of law is needed. But in the realms of practice and politics, we should be content to contain and convert.
John Henry Newman on Arguments
Today is the Feast of Blessed John Henry Newman (the date of his conversion in 1845). Newman is the towering Catholic intellectual figure of the nineteenth century, but he seems to me unduly neglected outside of somewhat narrow historical and theological circles. For those of us working on broadly legal, moral, and political questions, the fact that Newman wrote little directly on what we would conventionally term "ethics" or "political theory" explains a good deal of that neglect (as he wrote late in his life, "I feel myself to be so little of a judge on political and even social questions").
But in addition to his magnificent sermons, The Idea of a University, and other occasional writings, there is a feature of Newman's thought that might be an important consideration for how legal scholars go about making arguments and how legal arguments come to have persuasive force. It is Newman's account in The Grammar of Assent (and also earlier in such places as Sermon 13 of his Oxford University Sermons) that acceptance of an argument depends on a variety of prior beliefs and dispositions of the person considering the argument. As Alasdair MacIntyre summarizes Newman's view in God, Philosophy, Universities: A Selective History of the Catholic Philosophical Tradition (2009):
Newman himself contended that arguments—outside mathematics and formal logic—do not have compelling force as such, and he therefore spoke of such arguments as probable rather than demonstrative. A probable argument is one that may be found compelling by one individual, but not by another because of the different antecedent background beliefs that each brings to her or his evaluation of that argument. It is these background beliefs—what Newman called “that large outfit of existing thoughts, principles, likings, desires, and hopes, which make me what I am” [Grammar of Assent, Ch. 10, §2]—that make us find a particular probable argument compelling or not. So how we respond to an argument may be a test of us and not only of the argument. We have to become the kind of person who is open to just those arguments that directs us toward the truth. And if, because of our character and our antecedent beliefs, we fail to be open to the truth, this failure will determine our philosophical as well as our other stances. But which then are the arguments that direct us toward the truth?
They will be, if Newman’s conclusions in The Idea of a University are correct, arguments that enable us to integrate our theological understanding of the created universe with the understanding of each of the different aspects of that universe that is afforded by the enquiries of each of the secular disciplines, by Newman’s old age an ever-growing multiplicity of independent and wide-ranging enquiries in the natural and social sciences as well as in the humanities (pp. 149-50).
There is much more to say, of course, but my modest suggestion for now is that Newman makes a vital point here about how reason (including legal reasoning) operates. Legal arguments are neither mathematically demonstrative (as I suppose a caricature of legal formalism would have it) nor radically under-determined and relativistic. As first-year law students come to figure out (ideally before final exams), learning about the law is neither a mechanical application of memorized rules to cases nor a free-for-all exercise in which any answer is as good as the next. Legal concepts such as "intent," "equal protection," and "rights" have a range of possible meanings, some better and legally more persuasive than others. A lot of academic debate (not to mention debates in the wider political culture) proceeds as if making arguments to each other were a matter of simply showing that x is true or that y is mistaken. But if we take seriously what Newman argues about arguments, persuading others depends on a complex set of background considerations and, ultimately, on one's character and the integration of one's beliefs.
A festschrift for Fr. Araujo! Call for Papers
I am very pleased to announce a project being headed up by Stefanus Hendrianto, S.J. (who is a colleague of mine this year at Notre Dame):
Dear colleagues, friends, and students of Father Bob Araujo,
In the last twenty years of his active ministry, in Spokane, Rome, New York, Boston and Chicago, Rev. Robert John Araujo, S.J., has been a faithful priest, a prolific scholar, an exemplary teacher, a caring colleague and a dear friend to all of us.
In honouring Father Araujo’s life, his service to the Church and his great dedication to legal academia, we would like to invite you to contribute a chapter to a volume, which we are planning to place in 2016.
The book will include five areas of academic interest of Father Araujo: Natural Law & Legal Philosophy, Religious Freedom, Public International Law, Catholic Social Teaching, and Legal Education. Our wish is to incorporate writings by his colleagues, friends and students, primarily in those areas of study (though not exclusively). We are hoping to make this volume as an opportunity for all of us to get together to continue working on issues that are important to humanity, the Church, the world.
If you are interested in this venture, as we hope you are, please take note of the following:
- The facilitator of this project is Stefanus Hendrianto, S.J., a Jesuit Scholastic from Oregon Province, with support of Rick Garnett of the University of Notre Dame Law School and John Breen of Loyola University Chicago Law School.
- An initial agreement should be submitted to the facilitator of the volume by email ([email protected]) by October 19, 2015, the feast of North American Martyrs.
- An abstract of 150-200 words should be submitted to the facilitator by email ([email protected]) preferably on the birthday of Father Araujo, October 30th, 2015. Abstracts should feature the working title of the proposed chapter and the details of the corresponding author.
- Prospective contributors are encouraged to write a chapter specifically for the volume. Nevertheless, it is also possible to draw on already published work, adapting this to address the volume theme. Copyright clearance for work that has already been published is entirely the responsibility of the contributing authors, and evidence of such clearance may be required by the publishers when we submit the final draft of the volume.
- The first draft of the chapter is to reach the facilitator by March 12, 2016, on the feast of the canonization of St. Ignatius of Loyola and St. Francis Xavier. Language editing is the responsibility of the authors.
- We will be aiming to have a gathering of the contributors from different part of the country to discuss their work on March 28, 2016 (on the anniversary of the final vow of Fr. Bob Araujo). But this gathering is contingent upon our ability to solicit funding for this project.
- The final draft will need to by April 22 2016 - the feast of Mary, Mother of the Society of Jesus- for onward transmission to the publishers.
Time to pre-order "The Rise of Corporate Religious Liberty"!
This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now! "Run, don't walk . . ."
The book was edited with heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders. The contributors include Sarah Barringer Gordon, Paul Horwitz, Nelson Tebbe,Douglas Laycock, Christopher C Lund, Liz Sepper, Frederick Gedicks, Ira Lupu, Robert Tuttle, Robin West, Jessie Hill, Mark Tushnet.
Here is the abstract for my chapter:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Judge O'Scannlain on "The Future of Religion in the Public Square"
With permission, I am posting a copy of the Red Mass lecture that Judge Diarmuid O'Scannlain recently delivered to the St. Thomas More Society in Milwaukee. Here is a link: Download DOS Red Mass lecture
As one would expect, the lecture is thoughtful and learned. Among other things, Judge O'Scannlain asks "what does Obergefell prescribe for the future of religious liberty in America?" Like the man says, "highly recommended."
"The Pope's Subversive Message"
I enjoyed Arthur Brooks's piece in the New York Times:
. . . Francis’ secular admirers often stumble at his apparent preoccupation with evil. In an impromptu speech to schoolchildren in Harlem, he disconcertingly asked: “But who is it that sows sadness, that sows mistrust, envy, evil desires? What is his name? The devil.”
Some dismiss this as a clerical tic or South American eccentricity. It is nothing of the sort. The word “devil” comes from the Greek verb diabolos, meaning “slander” or “attack.” And “demon” comes directly from the Greek root meaning “to divide.” For Francis, happiness comes from unity, both with God and with one another. Unhappiness comes from division from either — which comes from the Dark One.
Many people around the world have found themselves attracted to the pope’s warm message of unity. And well they should be — unity is in short supply in our unhappy world today. But Francis is asking for more than a mass chorus of “Kumbaya.” He is in the hunt for the whole human soul.
Thursday, October 8, 2015
Language, Faith, and Humility
"The great act of faith is when a man decides he is not God."
-Oliver Wendell Holmes
This past Sunday the Archdiocese of Washington celebrated its annual Red Mass at St. Matthew's Cathedral in our nation's capital. While many dioceses and universities celebrate this mass which seeks to "to invoke God’s blessings on those responsible for the administration of justice as well as on all public officials" the mass in Washington has some unique characteristics. Held annually on the Sunday before the first Monday in October when the Supreme Court begins its term, the mass attracts some of the leading jurists and public officials in the nation (although Slate noted only 4 Supreme Court Justices attended this year, trying to connect that observation to Pope fatigue).
Archbishop Wilton Gregory delivered the homily and his sermon touched on language, faith, and humility. In my own legal scholarship, I have written repeatedly about the importance of accurate labels and precision in the language of legal discourse. The choice of terms matter greatly as terms and labels convey social values which then influence the criminal law (think about terms such as "kiddie porn" vs. "images of child sexual abuse" or "child prostitute" vs. "sex trafficking victim"). Therefore, I found myself particularly struck by Archbishop Gregory's emphasis on language.
As the Catholic Standard reported, Archbishop Gregory noted that “[i]t is the mission of those involved in the administration of justice to help us all to understand the meaning of the words of the law and their consequence for the common good that flow from those laws. Yours is the noble vocation of choosing words and helping us understand the meaning of those words that are intended to safeguard and unite our country.” In a world of soundbites, legislative proposals with catchy names, and loose terms such as "non-dangerous drug offender," "victimless crime," and "revenge porn," the devil is in the details. Lawyers, judges, and legislators would do well to take a critical look at language they use, constantly asking what that language conveys about societal values and the seriousness of criminal victimization.
Archbishop Gregory offered other insights and practical guidance to legislators and judicial officials, many of which apply to all of us. But citing to the above Oliver Wendell Holmes quote, he reminded a Cathedral full of Washington luminaries (not to mention those of us sitting in the legal academy seating) of the value of humility. Underscoring the danger of using language to both contravene God's plan for us as well as in a "search to become gods" ourselves, the homily reflected a little of what Pope Francis was attempting to display during his visit - humility. Here's to hoping that message was received.
"Wolf Hall" gets Cromwell (and More, and the Church, and the Reformation . . .) wrong
Alfred Thomas explains, at Commonweal:
. . . Cromwell . . . presided over the creation of a Tudor police state aimed at imposing conformity through terror. More than three hundred religious dissidents were executed between 1532 and 1540, years coterminous with Cromwell’s tenure. Yet in Wolf Hall we have Cromwell assuring other characters (and thus the audience) that “we do not do such things”—by which he presumably means torture. If his contention was simply presented as political spin—if we saw him practicing what he says he doesn’t do—that would be one thing. But in fact we never do see Cromwell torturing his victims, whereas Thomas More is shown positively relishing the experience.
. . . [I]nviting viewers to identify with a man who enabled Henry to tyrannize his subjects and force on them a religion they didn’t want is ethically problematic. The show comes perilously close to reproducing the Whiggish view of the Reformation as a much-needed sweeping away of a corrupt and outdated form of medieval Catholicism.
For more on "Wolf Hall's" inaccuracies (and clear anti-Catholic agenda), see this, this, and this.
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