Happy Fourth of July to one and all!
This is not the first Fourth of July I have spent out of the USA, but it is the first time I have been able to go to the terrace above my room and gaze upon some symbols that are important to those who hold or profess interest in the work of MOJ.
The first category of symbols I see are those of ancient Rome--the Republic and the Empire. They represent a good deal of the inspiration for our American republic. When I turn my gaze slightly, I see another group of symbols that also inspire. These represent the seat of Peter and of the Church universal. I am also mindful that the government that represents the American people sends ambassadors to both Rome and Peter. There won't be fireworks here tonight, so maybe later I shall go back upstairs to see all of these symbols awash in light and to reflect, to ponder on what they mean to me as a participant in MOJ if nothing else. My initial impressions of what these sights mean follow:
I think the most important symbol upon which I shall gaze is the dome of St. Peter's Basilica. Impressive it is, and on the scale of the purely architectural, it is the tallest and broadest structure on the skyline of Rome. But that is not what fancies me the most about it.
What ultimately captivates me is the manner in which this dome symbolizes an early disciple who, after some stumbling, went boldly amongst the cultures, the people he met to proclaim the good news. Now, as lawyers, some of us may say that is a risky venture given some of our recent contributions to MOJ. Recalling the rich conversation over the past few days regarding establishment, Peter was not interested in establishing a State religion (this reflects some of my argument on why the American people and their legal institutions need a solid definition of "establishment"). He was, on the other hand, desirous to be bold enough to suggest, to teach, to enlighten those who might choose to listen to him so that they might improve human existence in the most meaningful of ways not just for themselves but for everyone. Sounds like a pretty good model of citizenship, but I digress.
Peter did not have the State backing him, and that is quite clear since there were times when the State was trying to silence Peter. But, he spoke, and he did so in a way that was public, respectful, and virtuous. Ah, yes, virtues. We have seen a bit about that over the past few days in MOJ. But, again, I digress.
Might we who celebrate our national day today be courageous to do the same and follow Peter and his example? In a manner of speaking, today we celebrate not only independence but also interdependence. For that is what the American Constitution proclaims. It begins with "We the people..." It doesn't say "Some of the people..." Nor does it open with "A few of the people..." It also states that We the People, for the objective of forming a "more perfect union to establish Justice, insure domestic Tranquility, provide for the commons defence, and secure the Blessings of Liberty" enter this union not just for ourselves but for our Posterity as well. We are all in the American experiment (a term that I hope might be put aside one day soon) together. Each of us who has some faith in Catholic Legal Theory/Thought probably also have some faith in the one whom Peter followed, succeeded, and died for. It does not appear that Peter shouted, threatened, or tried to outmaneuver. He did try to convince others in his public debates with reason and faith. Should we be any different as lawyers who are members of the American city but who also claim to be citizens of the City of God?
As MOJers (is this a proper noun?), as lawyers, as people of Faith, are we willing to follow Peter and the example he set? Or are we content with the model of Rome without Peter? Some of the symbols I gaze upon speak of democracy for some, as long as one was a citizen of Rome. Others proclaim democracy for all if you also claim to be a citizen of two cities.
As we declare and celebrate our independence, might we also profess our willingness to follow Peter and to be bold and virtuous; to be prudent and wise; but most of all, as John Paul II often repeated scripture, not to be afraid.
Having read this morning's NY Times on line, it struck me that there are many substantive issues abrewing, including who shall succeed Sandra Day O'Connor, that could benefit from our experience as intellects and citizens. But in addition, we are also willing to speak from our faith, and we do so not to impose but to propose as John Paul II exhorted. Peter was independent in his own way, and this enabled him to speak and inspire. I pray that some of us may elect to follow in his path so that we may demonstrate to the skeptics of our world that we desire to participate not only in a weblog but also in the res publica where the voice of MOJ members should surely be welcome.
Again, happy Fourth! RJA sj
Saturday, July 2, 2005
Thanks to MOJ contributors who have called attention to Justice O'Connor's resignation. Her stepping down from the Supreme Court will trigger a great deal of discussion about the qualities of her successor. Here is a short essay Download moral_issues_and_the_virtuous_judgenomination_of_supreme_court_justices.mdi I wrote on a related topic, the role of virtues, back in the mid 1990s. It may still offer some thoughts relevant to the judicial selection process in 2005. I read the Solum commentary linked to Rick's earlier posting on Justice O'Connor's resignation. I saw Solum's question about whether advocating for a virtuous judicial candidate is naive. I hope I was able to present some points why considering the virtuous character of candidates is not naive but essential. RJA sj
Thursday, June 30, 2005
I would like to thank Michael and Rick for inviting me to respond to the valuable issues and points they have raised. I am grateful to both for their thoughts and work elsewhere in which they have raised and developed significant points meriting diligent study and discussion. I take this opportunity to acknowledge that one MOJ reader has vigorously responded to me about my remark that I am searching not for the simple but the solid answer. The purpose of my making this distinction is not to suggest that a solid answer needs to be complex. The principal reason for my making this point was based on an assessment of Justice Thomas contained in his concurring decision in Rosenberger v. Rector and Visitors of U.of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring) where he states that “our Establishment Clause jurisprudence is in hopeless disarray.” I hope that my modest contribution helps others see the need for constructing a definition a solid and enduring definition of this important component of our basic law, the U. S. Constitution, so that we will have a solid understanding of what the Establishment Clause prohibits and what it does not. Without this definition, I fear that the “disarray” will continue.
In my view a solid definition can begin with consideration of what the Founders were thinking about when the First Amendment was being drafted. If some conclude that I am advocating an “original intent” approach, I must add that any effort to define and interpret a legal text should take into account what objectives the drafters had in mind and what they were thinking and discussing amongst themselves. This is not always an easy enterprise, but as I tried to point out in my essay Method in Interpretation: Practical Wisdom and the Search for Meaning in Public Legal Texts, 68 Mississippi Law Journal 225 (1998), it is an exercise that is rewarding.
By taking this approach, we of the early twenty-first century will have a better and more solid understanding of the concerns about establishment that are integral to the Constitution’s meaning. Michael’s essay to which he referred in his recent posting proposes and investigates several alternatives helpful to the debate of the meaning of “establishment.” Research into history reveals what served as a catalyst for the provision we are discussing. It is my view that there is a violation of Establishment Clause if Congress were to enact legislation stating that: (1) Americans will be taxed to support the “______ religion”; (2) Americans, in order to vote, “must provide evidence to voting authorities that they have received __________ according to the ___________ faith.” These points are illustrative of Rick’s drawing attention to the matter of coercion raised by Justice Thomas in the Elk Grove v. Newdow case. The list of illustrations about coercion could go on, but I hope I have made my point.
I do not believe that there is a violation of the Establishment Clause when Congress or the States make available public resources which religious institutions and other non-religious entities can enjoy. There is no coercion involved, but I do think that the Founders were concerned about Congress (and now the States) coercing citizens to do something religious or anti-religious (which also raises the Free Exercise issue) without providing alternatives in which Americans might be able to have some options. In this context, I do not consider that the government (Federal or State) has violated the Establishment Clause when it makes public resources available to anybody or group for certain categories of activities—let us say a meeting. So if the Elks, the Scouts, 4-H, the Audubon Society, the League of Women Voters, and the Secularist Society can use the public school auditorium for their meetings free of charge, so can Hadassah, the Christian Fellowship, the Islamic Society, and Our Lady of Mercy parish. I don’t think this was a concern for the Founders, and it should not be a concern for us today. Favoritism would present problems, of course, because it would suggest use of a milder form or coercion.
A solid definition which takes into account the drafters’ concerns, amongst other elements that I identify and discuss in my Mississippi Law Journal essay, could well have given Americans a better understanding of the meaning of the Establishment Clause. I think if we had the benefit of this understanding, we would not have had the cases decided on Monday concerning the Ten Commandments. Then, we could join Mark in discussing Kelo! RJA sj
Wednesday, June 29, 2005
I have had some opportunity to reflect on Tom’s and Rick’s postings in the Scotus forum and have found their respective contributions thoughtful. I have had the additional opportunity to read and reflect on the Court's opinions. As a former teacher of Constitutional Law, I have often been troubled by the Supreme Court jurisprudence on the establishment component of the First Amendment. I am one of those individuals who thinks that First Amendment cases simultaneously raise establishment and free exercise issues. In the context of Monday’s decisions on the establishment question, free exercise issues gestate. But that is not the topic here today. The subject is this: what is “establishment.” How should it be defined? I am not aware of any Supreme Court definition of this important term that has general application. Historically, the Court has addressed illustrations of “establishment” that present concerns about government neutrality or the purpose of the government activity that is under scrutiny. In the context of the Kentucky case, an important paragraph that begins to address but fails to answer the question about the meaning of “establishment” appears on page 27 of the slip opinion:
The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U.S.1(1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.
My question concerns the search for the answer that is overdue. I am not pursuing a “simple answer,” but I am searching for a solid answer about the meaning of the crucial term “establishment.” Since Establishment cases began to surface in the late 1940s, the meaning of this vital term has haunted Supreme Court decisions but eluded definition presenting a general rule for broad, even universal, application. If human beings trained in a particular legal tradition could draft the term “establishment” (knowing that some compromise may have been involved in the drafting exercise that produced the final text), why is its meaning so elusive that it is impossible for human beings trained in the same system to assert that there is “no simple answer”? Is this a pretext for saying that there is no answer: simple, complex, or otherwise?
I think there can be an answer, and there should be one. I have been accused of being a perfectionist before, but it is not perfection I seek. My quest, and I suspect that of many others interested in the First Amendment, is for a solid (not “simple”) answer that will be a strong, reliable, and enduring guide for lawyers and judges who tackle First Amendment concerns. I believe that lawyers and judges of today can provide this answer that takes into account the concrete problems that the Founders were trying to address and not the imagined fears of litigants who believe that certain government action constitutes an “establishment” when in fact it does not. It would probably mean that some in the national community would not be pleased with such a “solid” answer, but I hasten to add that the two Establishment Clause decisions issued this week have brought little pleasure to anyone. But I digress. The law is not about pleasure. It is about right reason and its objective application. In the community of MOJ readers, I will suggest that the kind of reason of which I speak is a gift of God. Perhaps one day litigants and the courts will realize that the time has come to define what is constitutive of “establishment.” Then we will not have to rely on strained explanations distinguishing why the paying of Congressional and military chaplains from public funds is not an “establishment” but permitting public school prayer is. RJA sj
Monday, June 27, 2005
While the texts of the two Ten Commandments decisions are not yet available on line, I have read a number of news reports on the internet media services. From one perspective, it seems (and I emphasize this point) that the majorities in both cases endorsed an analysis reflecting what I call “the formulaic calculus of the candy canes” from the Rhode Island crèche case. Whilst the Court still does not offer some proportion regarding the legal percentage of religious items in a display, it would once again appear that if the secular outnumbers the religious items, the display passes Constitutional scrutiny. In the case from Texas, the ratio is 16 or 17 non-religious items to the one religious item. I have not been able to determine what else graced the halls of the courthouse in the Kentucky case. In this context, I find what seems to be at the core of Justice Scalia’s concern to have merit: how does such a ruling serve the rule of law and the development of a principle that can be uniformly applied? The point is highlighted by the fact that the Court appears to indicate that the legality versus the illegality of the display must be ascertained on a case-by-case basis. Like other MOJ participants, I look forward to reading the opinions when they become available. I am certain the subsequent commentary will be enriching. RJA sj
