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.

Thursday, November 30, 2023

Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"

By Rick Garnett

Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond."  (I should note that, unlike far too many University presidents, our own president, Fr. John Jenkins, was a lead signatory on a strong statement condemning the 10/7 terror-murders by Hamas and supporting Israel's right to exist and to defend itself.) (The event will be live-streamed.)

n November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.

The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.

The panelists include:

Ken Marcus, Esq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey Veidlinger, Joseph Brodsky Collegiate Professor of History and Judaic Studies at the University of Michigan

The event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.

The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.

Attendees will be asked to present their Notre Dame ID card. Backpacks and bags will not be allowed in the courtroom.

1140 Eck Hall will be reserved as the overflow room where the livestream of the event will be playing.

Sunday, November 26, 2023

Viva Cristo Rey!

By Rick Garnett

In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

Tuesday, November 21, 2023

Pushaw on "Defending Dobbs"

By Rick Garnett

Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.

The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.

Saturday, November 11, 2023

Remarks of Donald Landry, MD, PhD, President of the American Academy of Sciences and Letters at the Library of Congress

By Robert George

The following remarks were given by Donald Landry, MD, PhD, of Columbia University, President of the American Academy of Sciences and Letters, at the Academy’s 2023 Investiture held at the Library of Congress in Washington, D.C. on Wednesday, November 8, 2023. This was the Academy's launch event. Its inaugural Robert J. Zimmer Medal for Intellectual Freedom was conferred upon Sir Salman Rushdie. In addition, Barry Prizes for Distinguished Intellectual Achievement were conferred upon ten scholars representing a spectrum of academic disciplines: Orlando Patterson of Harvard (sociology and African-American Studies); Josiah Ober of Stanford (classics); Svetlana Jitomaskaya of the University of California (mathematics); Steve Koonin of NYU (engineering); Anna Krylov of the University of Southern California (chemistry); Robert George of Princeton (politics); Ruth Okediji of Harvard (law); Candace Vogler of the University of Chicago (philosophy); Jonathan Haidt of NYU (psychology); and Jon Levenson of Harvard (Jewish Studies).

********

Dr. Landry

The modern university, whose origins date back almost a millennium, reflects and indeed embodies the truth-seeking spirit of humanity, when we human beings are at our best. It is in our nature as rational creatures to want to understand our world and ourselves. We are curious and inquisitive. We seek knowledge, and that special kind of knowledge we call wisdom. We desire to move from ignorance to truth. From partial knowledge to greater, deeper, richer understanding.

“E Tenebris ad Lucem” – “from darkness into light.”

Of course, we value what is sometimes called “useful knowledge,” and honor its tenacious pursuit across a wide range of disciplines. Yet, we also value knowledge for its own sake, for its inherent enrichments of ourselves as human beings. And we especially encourage the pursuit of what may legitimately claim to be the highest form of knowledge, namely, the deeper understanding of what it means to be human.

The determined pursuit of truth, especially of the deepest and most consequential truths, is not for the faint-hearted. On the contrary, it requires boldness. It requires independence of mind. And—let us here speak plainly—it requires courage.

Learned academies date to the 15th Century. On this continent they antedate the founding of the United States. Such academies were and are born at particular times in particular places to respond to the circumstances of their times and places. And yet, they are motivated by a perennial ambition: to encourage, to support, to recognize, and to honor courageous truth seeking and bold truth speaking.

The American Academy of Sciences and Letters was founded to honor distinguished scholarly achievement across the disciplines of the university and in that fashion promote scholarship and learning—a common thread among such academies, to be sure. Responding to the circumstances and exigencies of our own time and place, this Academy places a special accent on lifting up for the highest recognition eminent scholars whose exceptional achievements are the fruit of independence of mind and intellectual courage.

Members of the American Academy of Sciences and Letters are scholars who have made extraordinary contributions in the humanities, social sciences, natural sciences, mathematics, engineering, the arts, and the learned professions. Later in tonight’s program, we will add new members to the Academy as we award to each a prize that expresses our gratitude for their advancement of knowledge and the example they have set of independence of mind and intellectual courage.

Now, as a prelude to our keynote event, it is a special privilege this evening to confer upon a most worthy recipient, Sir Salman Rushdie, the inaugural Robert J. Zimmer Medal for Intellectual Freedom.

The Medal recognizes the work and profound witness of the late Robert Zimmer, who served from 2006 to 2021 as President of the University of Chicago. President Zimmer was an acclaimed mathematician whose commitment to intellectual excellence and academic freedom became the stuff of legend. It was his inspirational leadership and direction that bequeathed to the academic world the Chicago Principles of academic freedom, principles that he applied courageously and even-handedly, thus further burnishing his institution’s reputation and standing as a beacon of freedom of thought, inquiry, and discussion.

President Zimmer passed away earlier this year, a terrible loss for his family, his university, and the entire academic community. When, on behalf of the board of the Academy, I approached President Zimmer’s widow, Chicago Professor Shadi Bartsch-Zimmer, and related how deeply we revere him for his inspired support of academic freedom and integrity and how we sought through the Zimmer Medal to honor President Zimmer—with her permission—in order that his memory and contributions might endure, she responded: “Bob would have been delighted and I am too. I hope that the Robert J. Zimmer Medal for Intellectual Freedom will be a beacon for many as we go forward, as Bob was himself.” 

This is our shared hope. And I am delighted that Professor Shadi Bartsch-Zimmer is here with us tonight.

Thank you, Shadi, for the honor of your presence.

Who could merit such an award for intellectual freedom, intellectual courage? In the last century, perhaps it would have been the great writer and Soviet dissident Aleksandr Solzhenitsyn, who stood in bold relief, risking life and limb, speaking truth to power.

For us today, as the board of the Academy unanimously agreed, it is Sir Salman Rushdie.

Sir Salman’s challenging and transformative novels have been recognized as among the greatest literature of our era. Midnight’s Children not only won the 1981 Booker Prize, the top honor for a novel; it was twice selected as the best novel ever to win the Booker. Sir Salman was knighted by Her Majesty Queen Elizabeth for his services to literature in 2007. His richly deserved prizes and awards are too numerous to list.

For thirty-five years, Sir Salman has served as a global beacon for intellectual freedom. You are all familiar with the decades of death threats and violence he has faced with resolute courage. His refusal to be silenced or deflected has inspired millions around the world, providing a model for us all. His example reminds us that the only thing more costly than standing up for intellectual freedom would be failing to make that stand.

Friday, November 10, 2023

"Anchors Aweigh" (reviewing Hadley Arkes, "Mere Natural Law")

By Marc DeGirolami

I have review with that title that is both appreciative and critical of Professor Hadley Arkes' book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month's issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law...

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.

Wednesday, November 8, 2023

Disappointing results in Ohio

By Rick Garnett

In Ohio, "Issue 1" -- which adds to Ohio's state constitution an expansive (I would characterize it as radically permissive) right to abortion -- passed by a wide margin yesterday, marking yet another post-Dobbs loss for the pro-life side.  This piece, in National Review, explains well how far-reaching (and deceptive) the Issue is.

The Supreme Court was wrong -- by which I mean, the justices badly misinterpreted the Constitution's text -- in Roe; the Court was wrong to affirm (or, re-make) Roe in Casey; and the Court was right, in Dobbs, to jettison Roe and Casey as "grievously wrong" (as I and some co-authors argued here).

That said, in the wake of the Ohio vote (and of other electoral setbacks), at least two things seem, unfortunately, clear:  First, the media overwhelmingly mischaracterizes / lies about abortion, about its regulation, and about the content and implications of abortion-rights proposals.  This is not going to change, and it would seem to follow that pro-life activists simply must do better in terms of communication and education.  Second, it is, for now, a fact about the United States that -- even in many "red" states -- most voters/citizens want most abortions (i.e., "first trimester" abortions) to be legal. That these voters / citizens are mistaken about the demands of justice is, for present purposes, not relevant.  This could change (but, see the first point) -- we should pray that it does, and do what we can to bring such a change about -- but, until it does, pro-life activists can expect that, in most places, returning abortion-regulation to the democratic process is not going to result in pro-life abortion-regulation regimes (although, we should not forget, in some places it will and has).

In my view, given the two points above, it is both morally permissible and prudent to propose and support incremental measures -- not, to be clear, as principled or permanent resolutions but as the best that can be enacted -- at a particular time, and in a particular place -- until citizens' and voters' consciences are better formed.  As MOJ-er Robby George wrote, a while back, regarding Evangelium vitae,

When it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects (no. 73).

Although there are dedicated pro-life people who continue to believe otherwise, it seems clear to me that the Holy Father is saying that a person who makes manifest his commitment to continue working for the full legal protection of the unborn, may, as a matter of prudence, support and vote for laws that, though not perfectly just, are less unjust than the existing law or any currently politically attainable alternative.

At the same time, as the Pope makes clear, there is never a legitimate excuse for failing to work toward the goal of full equal protection for the unborn and other victims of the culture of death. It is not enough merely to attempt to ameliorate the extent or gravity of unjust laws. The universal and unconditional pro-life imperative demands that we work unceasingly—even if, by necessity, incrementally—toward the ultimate goal of bringing our laws fully into line with the requirements of true justice.

In the words of Fr. Richard John Neuhaus, taken from "the greatest pro-life speech ever given," 

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along the way of life, bearing witness in word and deed to the dignity of the human person—of every human person.

 

Monday, November 6, 2023

Misguided Moral Equivalence from the Kroc Institute

By Rick Garnett

A few days ago, Notre Dame's Kroc Institute's published an"Open Letter for Peace" in the student newspaper, The Observer (October 30, 2023), stating that "[w]e are horrified by Hamas’ recent attack on Israel and the taking of hostages. We are appalled by Israel’s bombing of Gaza, which is killing, injuring, and displacing Palestinian civilians[.]" The Letter also noted, correctly, that "[i]nternational law prohibits the targeting of civilians."
 
More clarity and care were needed in the open letter.  No comparison can plausibly be drawn between, on the one hand, the gruesome October 7 terror-murders, rapes, and kidnappings by Hamas and, and on the other, Israel's lawful actions against the leaders and assets of a genocidal terrorist organization. Nothing -- nothing -- can justify or excuse the former. Hamas illegally and immorally targets civilians and uses human shields for propaganda purposes; Israel does not. The responsibility for the suffering of civilians in Gaza, and for the rape and torture of civilians in Israel, lies with Hamas, its sponsors, and its supporters.  It is very troubling to see -- especially on our campuses -- expressions not only of solidarity with Gazan civilians who are victimized by Hamas -- Hamas snipers are shooting civilians who try to evacuate -- but of support for Hamas itself, and its genocidal ambitions.
 
I was pleased, though, that the University's president, Fr. Jenkins, was a "founding supporter" of this strong letter about "moral clarity" in the war against Hamas.
 

Thursday, November 2, 2023

"Dust of the Earth: On Persons" / The annual Fall Conference at Notre Dame

By Rick Garnett

For over 20 years, a highlight of the academic year has been the annual Fall Conference, put on by the DeNicola Center for Ethics and Culture, which is led by my good friend Prof. Carter Snead.  This year's theme is "Dust of Earth:  On Persons."  Here is the full schedule; the line-up looks amazing!

Garnett on 303 Creative and Public Accommodations Laws

By Rick Garnett

I have an essay up -- "Protecting Equality or Correcting Thoughts?" -- at Law & Liberty on the 303 Creative case and some broader questions about the reach and aims of public-accommodations laws.  Here is a bit:

This is not the place for a detailed history of public-accommodations laws (a task which has been ably undertaken by Law & Liberty contributor, Prof. Adam MacLeod). It is worth emphasizing, though, that, over time, the aims and justifications of these rules have also evolved and expanded. At first, these laws’ focus and concern seemed to have been monopoly power, or the obligations that were thought to accompany a publicly conferred license, or business operations that occupied a kind of choke-point in the marketplace. When the availability of a room at the inn could make the difference between life and death, or cold and warmth, the right of the innkeeper to arbitrarily choose his clientele was expected, reasonably, to give way. Later, the Heart of Atlanta Court built on, and above, these earlier foundations, and emphasized that these laws, in addition to ensuring Black citizens’ access to interstate commerce and ability to travel freely throughout the country, “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

Given the pervasive, persistent, and systemic nature of racial prejudice and discrimination, and the demeaning, insistent efforts of so many to resist the equality guarantees of the Civil War amendments, the Heart of Atlanta justices’ invocation of “personal dignity,” as well as market access, was welcome and warranted. In cases like Masterpiece Cakeshop and 303 Creative, though, the public-accommodations-enforcement project seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.

Justice John Paul Stevens, dissenting in Boy Scouts v. Dale, a case where the Court concluded that it would violate the First Amendment to use a public-accommodations law to require the Scouts to take on a “gay rights activist” as a scoutmaster, did not focus on Mr. Dale’s ability to access volunteer opportunities. Instead, he warned of the “atavistic opinions,” “nourished by sectarian doctrine,” that the Scouts’ policy was thought to reflect. He was confident that such opinions, which cause “serious and tangible harm,” could and should be changed through assiduous application of the state’s public-accommodation regulation. The assertedly reformative, rehabilitative effects of vigorous enforcement have also been invoked by Jack Phillips’s current opponents, who have as a stated aim “correct[ing] the errors of his thinking.”

This way of thinking about the ends of and warrant for public-accommodations laws is both deformed and dangerous. It is a dramatic overreach, and an unwelcome departure, for these laws to be used not to facilitate equal access to commerce and civil society but to punitively re-educate those with traditional, or now-disfavored, views about controversial questions.

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