I would like to thank Patrick for his posting Friday on Benedict XVI’s October 5th address to the International Theological Commission in which the Pope made the case for natural law as the foundation for democracy. Amongst other important points made during this allocution, the Holy Father noted that “[a] positivist conception of law seems to dominate the thought of many scholars (and, I would add, some lawyers and the litigants they represent).” The Pope elaborated on this crucial point of his speech by indicating that this attitude leads to the tendency to “ethical relativism” that plagues the contemporary world. Patrick’s posting concludes with Benedict’s observation that, “The advance of individuals and of society along the path of true progress depends upon respect for natural moral law, in conformity with right reason, which is participation in the eternal reason of God.”
These thoughts of the Holy Father, as provided by Patrick, frame the context for a few observations on a major essay published in yesterday’s Boston Globe by Christopher Shea entitled “Supreme Downsizing.” [HERE] Mr. Shea makes the argument that
The nine members of the US Supreme Court wield extraordinary power over American Society: Last term alone, they struck down school desegregation plans in two cities, rewrote Congress’s new rules for campaign-finance reform, and modified the free speech rights of high schools students.
Shea’s essay relies on the work of Professor Adrian Vermeule of Harvard Law School (principally Judging Under Uncertainty [Harvard, 2006]), to fortify his case that since the Court “now has two blocs of justices who tend to vote together”… “momentous questions of policy” can be determined by one justice who is the swing vote. [Italics mine] I would like to suggest that this is not a new phenomenon for the Court. The Supreme Court of the United States has often reflected political tensions and divisions that have appeared across American society since the Republic’s founding. But for Shea, the situation that “now” exists provides justification for reexamining the Constitutional authority of the Court which “perhaps… shouldn’t be in such a powerful position.”
According to Shea, Vermeule’s work demonstrates that the Court “should stay out of controversial matters of politics and law almost entirely, deferring—except in painfully obvious cases—to the wisdom of the elected representatives in Congress.” Otherwise, only “perpetual rancor and inconsistency” will result, which are “the bane of good law.” The Globe article presents no insight for determining which cases fall into the “painfully obvious” category requiring the intervention of the Court.
It strikes me that if Shea has correctly identified a serious malady in our republican democracy, dependence and reliance on the “natural moral law” could be an excellent antidote to the woes identified in his Globe article. But it is necessary to return to some other elements of the Shea article which, I believe, undermine his thesis. Relying again on Vermeule’s work, Shea asserts that the nation might be better if it had no “Supreme Court rulings barring anti-abortion laws and anti-sodomy statutes.” I would not disagree with this point. But it is important to ascertain who was responsible for not only the rulings but who brought the cases that led to these decisions. The exercise of right reason suggests that these rulings were not something that the Supreme Court necessarily welcomed. They well could have been unavoidable due to the untiring efforts of powerful lobbies advocating permissive access to abortion and the institutionalization of same sex marriage. If legislatures would not produce the results these interest groups insisted on, the courts, including the Supreme Court, just might.
This is what has happened in the context of legislation addressing abortion and sex. There may well be many members of the Supreme Court who would have preferred not having to decide the merits of the lawsuits filed by these interest groups, but, the Constitution of the United States requires that the judicial department, which includes the Supreme Court, provide interested parties due process of the law.
It may well be, as Shea argues, that there is a need to step back from these issues, but is it purely the responsibility of the Supreme Court? Shea’s appropriation of Vermeule’s advice would appear better directed toward the lobbies that instigate these lawsuits rather than toward the judges who are under an obligation to decide them. With that in mind, “good law” may reign once again.
The Pope’s October 5th exhortation made this point, albeit in more general terms. The instability of the law with which Mr. Shea and Professor Vermuele are properly concerned is not simply a question for judges alone. It is a responsibility for all who are involved with decision-making that involves all members of society—be they judges, legislators, administrators, or citizens. The natural moral law provides a sound, available remedy to many of the concerns identified by Shea and Vermeule, and it is a remedy to be exercised by all, not just by some members of our democratic society. But if the positivist mentality (especially that of the interest groups who are responsible for instigating the litigation of which Shea and Vermeule speak) continues, the sound base of democracy, the moral natural law, will erode and the problems mentioned by Shea and Vermeule will likely continue. Those of us who are concerned about lawyer formation and Catholic Legal Theory would not be the only ones who could profit from the Pope’s wise words. Our students—citizens and future lawyers, legislators, administrators, and judges—would also be the beneficiaries of his counsel. RJA sj
Thursday, September 27, 2007
Apropos of the Georgetown Law reversal, here is some news [HERE] about Verizon's reversal of its earlier refusal to allow NARAL instant text messaging. Borrowing from popular culture of the 1960s, second verse same as the first. RJA sj
I largely agree with Patrick’s sentiments in his posting earlier today about the future of Catholic higher education, which, of course, would include legal education. I also share some sympathy with his statement about the Catholic academy being inclusive. After all, our Lord reminded us that it is not the healthy who need the physician.
While the Miscamble, Steinfels, and McGreevy essays offer differing views about particulars and emphases, they appear to agree on the matter regarding mission-fit for hiring. One does not have to be a Catholic to endorse, support, and contribute to the Catholic intellectual tradition where faith and reason and the integration of knowledge that leads to wisdom. But, that is a crucial point essential to the success of Catholic higher education. When there is a proliferation of faculty members who do not subscribe to these elements essential to Catholic education, serious problems begin to emerge. Rick’s posting earlier today about the recent development at Georgetown University Law Center demonstrates this. As the article in The Hoya illustrates, there are, according to the correspondent, faculty who are behind the reversal that will open the door for supporting pro-abortion advocacy (and, I suspect, eventually other things incompatible with Catholic teachings). If you recall, when Georgetown University was involved in litigation regarding its Catholic identity and matters dealing with sexual orientation issues in the mid-1980s, several Georgetown Law faculty were prominently posed against the University in this lawsuit.
Another matter to keep in mind is that, today, the academy often prizes research and the development of theories that are not compatible with or sympathetic to the integration of knowledge. Narrow specialization is favored. Pope Benedict has spoken of this fragmentation of knowledge in the past and the need to counter it with integration of learning, a traditional goal of Catholic higher education. Those faculty members who are not sympathetic to the Pope’s view are often advocates for the specialization that leads to the fragmentation of learning. There is little doubt that folks in favor of increased specialization can be clever about the particulars of certain subjects, but can it be said that they are also wise? While firing-for-mission could be problematic, hiring-for-mission should not. Moreover, it is necessary and essential for the survival and the flourishing of Catholic higher education. RJA sj
Sunday, September 23, 2007
Once again, I’d like to thank Michael P. for his posting the excerpt from the recent Commonweal editorial. Interestingly, I had read and reflected upon the content of the editorial along with Dr. Scott Appleby’s essay on the American Modernists early yesterday morning. For what it is worth, readers of Mirror of Justice may find it useful to know that I read Commonweal, First Things, America, the two NCRs (National Catholic Reporter and National Catholic Register), The Tablet, and Crisis, amongst other periodicals. It might be said that my reading fare is catholic. But I digress.
I found several remarks in the editorial to which Michael referenced arresting. The first is the phrase “faithful Catholics” that was placed in quotation marks by the author(s) of this particular editorial to affirm, I suppose, the fidelity of those who disagree with Church teachings on subjects such as ordination, artificial contraception, and the nature of the papacy. This assertion can lead other members of the faithful to believe that the Church’s teachings on these issues, and perhaps other matters, are flexible or ambiguous. I do not think that the Church’s teachings on these topics are as accommodating or indefinite as the editorial would imply with its juxtaposition of the phrase “faithful Catholics.” While Church teachings may be more flexible or less clear on other matters, they are not on these.
This brings me to the distinction that the editorial makes between “open and respectful disagreement” and “suppression.” There is the circumstance in which the heterodox remove themselves from full communion with the Church, and it would be a mistake to conclude, as the editorial did, that their fidelity to unmistakable Church teachings is not in question. It is, but they can do something about this dilemma as I indicated in a previous posting when Steve and I engaged one another in an earlier discussion dealing with fidelity to the Church’s teachings.
A final point I would like to raise in this posting about the editorial concerns its assertion that “History, especially the history of the Second Vatican Council, tells us that disagreement is often the work of the Holy Spirit.” This is an interesting but, nevertheless, inaccurate proclamation about the Council’s work and the documents it produced. Before drafting this posting, I reviewed the texts that the Council adopted, particularly Lumen Gentium and Dignitatis Humanae, and cannot reach the same conclusion that the editorial does about history, particularly that of the Second Vatican Council, and the work of the Holy Spirit. I acknowledge the existence of a history of dissent that ignores or disagrees with Church teachings that come from the Council, but I cannot agree that this particular history is consistent with the Council’s teachings or the work of the Holy Spirit. In making this appeal, I recall Saint Paul’s first letter to the Corinthians that the faithful must, in fact, agree, avoid dissent, and be united “in the same mind and the same judgment.” Indeed, there are some matters on which we can disagree and remain faith to the Magisterium, but surely there are other items on which we can not. RJA sj
Friday, September 21, 2007
Sincere thanks to Michael P. for his re-visitation of the Dutch Dominicans' pamphlet. It appears that their local superior and the Master General of the Dominicans have expressed their own reservations about this work of four members of the Order of Preachers. But they are not the only ones who seem to be interested in the matter.
For example: this past week, Pope Benedict met with some of his former doctoral students in continuation of his annual symposium-seminar that he has been conducting for many years with them. It appears that he reminded his former students, many of whom are now theologians, in the last several days that a theologian should not engage in "theological arrogance." I think when any of us pursue our own course in matters theological that separate us from a rich teaching, we exercise a form of arrogance that separates us from the Body of Christ, Holy Mother the Church.
Again, I ask the question I posed earlier when Michael first raised this topic: what do my Dutch presbyteral brothers responsible for authoring this pamphlet do on their weekends? Maybe they do go out to as many parishes as they can serve by bringing the Eucharist to God's people, but it may be that they do not. If the latter, should they not? I think so, particularly when one considers that they are not only members of the Body of Christ ordained in sacramental ministry as priests, they also belong to the Order of Preachers who have a great gift to bring to the Body of Christ, the People of God. RJA sj
Wednesday, September 19, 2007
Many thanks to Rick for his posting the CDF's Response to the USCCB's inquiry regarding food and hydration and several of the comments the Response has produced. The CDF also issued its own commentary, which is HERE . RJA sj
Sunday, September 9, 2007
Thanks to Michael P. for posting the matter on the Dutch Dominicans. And thanks to Steve B. for his follow-up.
As one MOJ contributor who is ordained in the presbyteral order, I would like to ask my Dutch Dominican colleagues a question about their availability to celebrate the Eucharist in the parishes where there is a need. Perhaps they are doing this, but it is not clear from what Michael said or from The Tablet article that he linked if they have cleared their weekend calendars in order to be available to celebrate Mass in those places where the need is greatest. But maybe this is simply my Jesuit instinct reacting. I am also Jesuit educated (yes, indeed, Georgetown, like Michael), but I am also a Jesuit. While I have no Dominican relatives, I was a chaplain to a convent of Dominican sisters for twelve years. RJA sj
