In this note which is "of a quality that far surpasses most faculty-produced scholarship," Joel Friedlander "applies [Philip] Rieff's theory of kulturkampf to Justice Brennan's jurisprudential transition from Roth to Pacifica." It is an eye-opening exercise.
Perhaps of most relevance to the recent wrangling over Adrian Vermeule's anti-originalist Atlantic essay is Friedlander's description of cultural conservatives engaged in the cultural warfare that encompasses but exceeds "the longstanding jurisprudential debates between origirialism and non-originalism or between natural law and positivism." These cultural conservatives, Friedlander contends, are "largely constrained by their positivism, if not by their originalism."
If Friedlander is correct, then one can understand part of the alarm sounded in response to Vermeule's essay. If the jurisprudential debates are but one component of a broader kulturkampf in which what is at stake is "the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion," then the cultural conservatives' removal of their self-imposed constraint of legal positivism should be of concern to those on the other side from them of this kulturkampf.
Contrary to the framing of both Vermeule's essay and the responses to it, more fundamental than the debate between originalism and nonoriginalism (whatever that is) is a debate between legal positivism and natural law as each is taken to undergird our constitutional order. The problem may be not that we're all originalists now, but that we're all legal positivists now. If that's right, then we can't begin to have the debate we ought to be having.
Dean G. Marcus Cole is interviewed in the latest edition of Notre Dame Magazine. You can read the entire article here. An excerpt regarding religious liberty:
Cole’s top academic priority is a Religious Liberty Initiative, which he predicts will enable the law school to become a major force for the protection of freedom of conscience. It will include a clinic to lead the fight against religious persecution.
“I want people all around the world to look to Notre Dame for help when their religious liberty is being encroached upon or they’re being oppressed because of their faith — or lack of faith,” he says. He mentions more than 1 million Uighurs and other Muslims imprisoned in Chinese internment camps for their beliefs and notes that atheism remains punishable by death in 13 countries.
He sees disrespect for faith growing in the U.S., referencing churches in California that are trying to feed the homeless but are told they are providing social services and therefore need licenses. And he mentions Catholic hospitals that have told physicians they can’t provide assisted suicides in their facilities but are facing new state laws legalizing the procedures, seemingly forcing hospital operators to violate their religious convictions.
During this time of social distancing, the internet is supplying us with numerous articles about the places we wish we could travel to, and the art we wish we could see. Some are actually quite interesting, especially this latest one from Notre Dame’s Duncan Stroik in First Things.
In order to limit the spread of COVID-19, how much power should the state have to enforce limits on church gatherings this Easter? As we watch the showdown unfold in Kansas, Kentucky and Florida, I am also commenting on my students’ reflections on this topic, which was a perfect storm of a problem for our current Georgetown Law seminar on Religion, Morality & Contested Claims for Justice.
In our class discussion (over Zoom) last week, my first reaction was one of intense frustration and anger with what are probably the outliers – the religious and political leaders who seem to deliberately ignore the gravity of the crisis, or who seem callous to the health implications for the people of their communities and the broader public.
But on further reflection, I wonder if there is at least a tiny bit of room for dialogue across difference, in some circumstances. To what extent is some of the insistence on gathering grounded in the lack of trust that marks our polarized landscape?
At some point in my seminars we do an exercise in pairs entitled, “What is at Stake for You?” The goal is to create a space where each person can express in their own words, with their own categories, what are their stakes and/or what worries or concerns them most as we enter into conversation about an otherwise polarizing topic. The pair is then invited to jot down on a single index card a few words that capture their stakes, and to hold those thoughts throughout the conversation with the larger group. Generally, the exercise helps quite a bit in preparing a terrain for a more open, sincere and productive seminar conversation.
I still believe strongly that the extraordinary nature of the COVID-19 pandemic presents appropriate circumstances for the strong exercise of state power to limit and/or regulate the size of gatherings of any kind – including religious gatherings. But I wonder: if each “side” of this debate felt that others were trying to understand their stakes, might that lead, in some circumstances, to more openness to the kind of creative problem-solving that might also ultimately help to “flatten the curve”?
When the Trump administration’s clarifying guidelines go to court, they not only should be upheld. One hopes, and even dares to expect, that the compelling circumstances of this public benefit program will bring forth a needed clarification of Establishment Clause law, one which finally buries the impetus behind any confusion surrounding the CARES Act and religious eligibility.
A column by Arthur Brooks in The Atlantic examines what makes for a happy life.
One segment that stands out:
EQUATION 2: HABITS = FAITH + FAMILY + FRIENDS + WORK
This is my summary of thousands of academic studies, and to be fair, many scholars would dispute it as too crude. But I am convinced that it is accurate. Enduring happiness comes from human relationships, productive work, and the transcendental elements of life.
A little bit of clarification is in order here. First, faith doesn’t mean any faith in particular. I practice the Catholic faith and am happy to recommend it to anyone, but the research is clear that many different faiths and secular life philosophies can provide this happiness edge. The key is to find a structure through which you can ponder life’s deeper questions and transcend a focus on your narrow self-interests to serve others.
This image of a priest, Fr. Clint Ressler, biking around to visit with his Houston-area parishioners on their porches (from a socially-distanced 6 feet), seemed like a good way to celebrate the gift of the priesthood on this Holy Thursday: Church closed? No problem. Texas City priest is biking to homes to pray with families. Best wishes to all for a blessed Triduum.
As a follow-up to my last post, here are some more sophisticated legal arguments by the always-insightful Sam Bagenstos, who helped draft the complaint filed with the Office for Civil Rights of HHS, challenging Washington State's plan.
This is a forthcoming article in the Yale Law Journal Forum, entitled: May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing.
Here is a statement on this important issue from the National Catholic Partnership on Disability. We worked hard to try to boil down some complicated ethical concepts into the essential basic ideas, to make it accessible to the widest audience who might need to use these arguments.
There's a snazzy infographic with the same message here, and we've posted a video with an even more basic description on Utube:
