Thursday, June 28, 2012
The inconsistency is arresting: mandate is not a tax
It is also striking, not to mention disappointing, that the dissenters are content to quibble that while Congress could have made the penalty a tax, and thus have acted within its taxing authority, Congress did not call it a tax in so many magic words, even though it is the IRS that will be collecting it.
Tuesday, June 26, 2012
Oxford University Press has just published the second edition of Political Philosophy: An Historical Introduction by Michael J. White, my friend and former colleague. Jeffrie G. Murphy's praise for the book is worthy of note: “There are many analytic philosophical books on political philosophy and many historically oriented books on political philosophy. What is uniquely valuable about White’s book is its brilliant combination of both of these approaches. White is an extremely talented philosopher in the analytic tradition but, unlike most people in that tradition, he also possesses strong scholarly expertise in the history of philosophy. Because of this, I cannot think of a better introduction to political philosophy than his new book. It would be a mistake, however, to regard White’s book as simply a textbook, since it is much more than that. Although written in a highly accessible way, it is sophisticated to a degree that will make it a valuable resource even for those who are scholarly specialists in the subject.”
Those interested in the facts about the Commonwealth's conspiracy case against Monsignor Lynn should check this out. I don't carry a brief for the way certain officials of the Archdiocese of Philadelphia handled priests who did wicked and harmful things to children, not by a long shot. One should hesitate, however, to carry a brief for a conspiracy of which there now seems to have been stunningly little evidence. One injustice does not justify another. Those who harmed children should indeed be punished for what they did, but not for what they might have done but, thank God, didn't do.
Saturday, June 23, 2012
Thursday's 8-0 decision in FCC v. Fox will come as a mixed blessing to cultural conservatives. In an opinion by Justice Kennedy, the Court vacated the FCC's orders against FOX and ABC, on the not especially compelling ground that on the particular facts of these enforcement actions, the agency had given the networks insufficient notice of what was actionably obscene speech. By deciding the case on Due Process rather than First Amendment grounds, the Court dodged the free speech issues over which it was deeply divided at oral argument. Libertarians had hoped -- and some had predicted -- that the Court would take this occasion to overrule Pacifica, the 1978 case upholding the "most limited First Amendment protection" for broadcasting. By joining an opinion that specifically allows the FCC to continue enforcing, at least for now, a context-specific anti-indecency policy over broadcast media, Chief Justice Roberts and Justices Scalia and Alito avoided a possible reversal of Pacifica and a First Amendment holding that the time has now come for the public privilege of holding a broadcast franchise no longer to be tethered to meaningful standards of decency in the public interest. Thursday's narrow holding buys a little more time for all concerned. It does not conclusively vindicate the public interest. Justice Sotomayor did not participate, and her participation when this litigation returns to the Court, as it so likely will, could well shift the tide in favor of a constitutional impotence to regulate indecency in broadcast media. Justice Ginsburg's concurrence in Thursday's judgment made clear that she has no sympathy for the rule of Pacifica, a lack of sympathy Justice Thomas registered the first time the case came before the Court.
I mentioned before my enthusiasm for Christopher Ferrara's new book Liberty, the God That Failed. Here are the first few paragraphs (sans the footnotes) of my Foreword to the book:
The contemporary enthusiasm for democratic regimes that protect “human rights” should not blind us to the deeper lessons of history. The central Western tradition of reflection on the proper constitution of political regimes has rarely purported to identify a uniquely acceptable form of temporal ruling authority. The naturalness of diverse political forms has been widely acknowledged: democracy, monarchy, and aristocracy, among other possibilities, remain candidates for instantiation as time and place dictate, all other things considered. Until recently, however, among the other things to be considered was the supernatural requirement that the holy Catholic Church’s place in the organic unity of political society—whatever its particular form—be given due legal effect. The traditional thesis holds that people were not only allowed, but morally obligated, to institute due political order, most often by accepting and obeying established regimes, and that such order must include legal recognition, first, of the rightful and unique place of the Church and, second, of the obligation of political society—not just of individuals—to offer public worship of the triune God. Such a polity would be a Christian commonwealth.
This ideal was “given the Church’s definitive approval in modern times by Leo XIII in his encyclical Immortale Dei,” as Henri Cardinal De Lubac has explained. In the words of Pope Leo’s restatement of the traditional thesis, “God has divided the human race between two powers. Each of them is supreme in its own field; each is enclosed within the limits perfectly determined and traced out in conformity with its nature and end, and each thus has a sphere in which its own rights and proper activity find exercise.” This, Cardinal De Lubac affirmed, “is the perfect blueprint, and it should be the starting point of all practice. . . . This is, of course, no more than the Gospel requires. But insofar as she persists in reminding the world of the fact,” Cardinal De Lubac continues, “the Church can never count on peace.”
It is of course true that the United States of America was founded on rather different principles and its fundamental law written to give effect to another, very different blueprint. The Constitution of the United States does not so much as mention God (except pro forma in the dating clause: “in the year of our Lord”), and certainly not the blessed Trinity or the Catholic Church, let alone the polity’s obligation to give public worship to the Trinity. The Constitution precludes any hope of a popular transformation of the United States into a Christian commonwealth, moreover, by mandating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (Art. VI). The celebrated First Amendment to that Constitution, furthermore, specifically denies the government the authority either to establish “religion” or otherwise to promote its exercise. The U.S. Constitution, then, is both godless and, for reasons that Christopher Ferrara marshals, not indifferent but actively hostile toward the exercise of religion, as well as agnostic on the question of the true object of religious worship. And all of this declension and derogation from “the blueprint required by the Gospel” was very much the object and boast of most of those who inspired and led the radical revolution against the English Crown and then went on to frame the Constitution and to arrange its ratification—or so Ferrara argues in Liberty, the God That Failed.
This is an uncommon claim, though by no means an unprecedented one, and the reader owes it to himself to judge whether Ferrara has met the relevant burden of proof. Ferrara’s mastery of Catholic doctrine, of Enlightenment philosophy and political theory, and of the facts of history, the clarity and rigor of his argument, and his fairness to counter-evidence combine to make this an account to be reckoned with. To praise Ferrara’s book is easy, but to predict its reception is another matter. Let it be said emphatically, therefore, that it would be a gross injustice to dismiss this powerful counter-narrative on the presumed ground that Ferrara or those who agree with him are unpatriotic or anti-American. . . .
Wednesday, June 13, 2012
Christopher A. Ferrara's Liberty, the God That Failed: Policing the Sacred and Constructing the Myths of the Secular State, from Locke to Obama has just been released and is obtainable here Some of my thoughts on Ferrara's bold and bracing counter-narrative are in the Foreword I was honored to write for the book. I'll blog more about Ferrara's achievement soon. The book is worth the purchase price just for its tally of how many human beings modern man come-of-age has been willing righteously to kill in the name of "liberty." And that's just the beginning of what one learns from this book.
Here is the description of the Liberty, the God That Failed that appears on Amazon:
What has gone wrong with the grand American experiment in "ordered liberty"? The progressive answer is that America has failed to live up to its full promise of inclusiveness and equality--likely the result of corporate greed and white male ruling elites. The mainstream conservative or libertarian's reply points to the Warren Court, the 1960's, or a loss of Constitutional rectitude. Christopher Ferrara, in Liberty, the God That Failed, offers an entirely different answer. In a counter-narrative of unique power and scope, he unmasks the order promised as a sham; the liberty guaranteed, a chimera. In his telling, the false god of a new political order--Liberty--was born in thought long before America's founding, and gained increasing devotion as it slowly amassed power during the first century of the nation's existence. Today it reveals its full might, as we bear the weight of its oppressive decrees, and experience the emptiness of the secular order it imposes upon us.
Ferrara destroys multiple myths constructed by the secular state with a relentless uncovering of truths hidden by both liberal and conservative/libertarian accounts of what has gone wrong. In this brilliant retelling of American history and political life, the author asks us to open our eyes to harsh realities, but also to the possibilities for a rightly ordered society and the true liberty that can still be ours.
Here is early praise for the book:
"Chris Ferrara's book most persuasively demonstrates that negative liberty is an idol and that liberalism is the last of the ideologies. Indeed he shows that it was the basic ideology hidden behind all the others." --John Milbank, University of Nottingham, author of Theology and Social Theory
"Highly readable and an intellectual landmark in Catholic ecclesiastical history. It should be read by everyone concerned with Christian theology and its political shaping of the society we live in." --Graham Ward, Regius Professor of Divinity, University of Oxford
"An absolutely epochal achievement--one of the finest historical studies I have ever read. Every true son of an America still waiting to be transformed in Christ owes the author a boundless debt of gratitude." --John Rao (D.Phil., Oxford); Associate Professor of History, St. John's University
"I've hardly been able to put it down since I opened it. The narrative is compelling from beginning to end and a pleasure to read. Rich in learning and insight, Liberty, the God That Failed is a tour de force--a marvelous achievement!" --Patrick McKinley Brennan, John F. Scarpa Chair in Catholic Legal Studies, Villanova University
"Ferrara is a one-man army against the juggernaut of secular Liberalism and the Leviathanian state, and in Liberty, the God That Failed, he has struck a decisive blow." --Thaddeus Kozinski, author of The Political Problem of Religious Pluralism
Thursday, June 7, 2012
I've learned much over the years from Lee Strang's indefatigable work on behalf of original-public-meaning originalism as the preferred or exclusively legitimate modality of interpretation of the U.S. Constitution. While I've consistently benefited from studying Strang's insights about how to think about law and its interpretation, I've grown ever more convinced (I was amply convinced even back in the late 1990s) that the costs of the originalism for which he and many others advocate are impossibly high to pay, viz., they make law impossible.
I was grateful, therefore, when the editors of the Fordham Law Review recently invited me to respond to Strang's new virtue-theoretic argument in favor of such originalism. My response to Strang is available here I should welcome comments via email on the merits or demerits of my reasons for refusing the invitation to be an original-public-meaning originalist. I would be especially interested in defenses of Larry Solum's "message in a bottle" account of (constitutional) law.
Tuesday, June 5, 2012
Contemporary political conceptions among American Catholics and others, even (or perhaps especially?) among those who are more or less loyal to either Commonweal or First Things (just to pick two examples), are so narrow and relatively uniform, in my view, that the offer of a genuine alternative will strike many as effrontery simpliciter, regardless of its possible merits.
"Virtually all Americans accept the principle of keeping religious and civil authority separate," as Archbishop Charles Chaput observed in his fine book Render Unto Caesar (2008). Chaput's description is spot on. The author I wish to introduce here, John Rao (D. Phil., Oxon.), wouldn't disagree with the description, but he'd certainly lament what it accurately reports. Rao's new book, Black Legends and the Light of the World: The War of Words with the Incarnate Word (2012), offers a normative alternative with counter-narrative punch that deserves the critical attention of the serious.
I intend to blog more in future about specific theses of Rao's learned, inspired,and challenging book. For now I'll just add the blurb I am honored to have on the book: "We live on the edge of chaos, and meanwhile conservatives long for a world that no longer exists and liberals bounce from one thing to the next. Something categorically different is needed if we are are to avoid the chaos conjured by the world of willfulness. That something different is a determination to use all of the tools that Faith and Reason offer to make the necessary transitions one at a time with the care that only supernatural hope makes possible. John Rao excels as a guide to believers in the Word incarnate who believe that the power of the supernatural to transform all of creation is by no means finished."
Rao's project is by no means a piece of archaism. It exudes life and hope. His judgment of the failures of the Papacy in centuries past is arresting. But he doesn't stop there. Rao recovers the Tradition, traces its varied and sometimes unfortunate applications, and indicates a way forward.
John Rao's important book can be ordered here
Saturday, May 5, 2012
Today's news that Kathleen Sebelius is about to deliver a commencement address at Georgetown University should be measured against this morning's words of the Holy Father in his fourth of an intended five addresses to the U.S. bishops in their visit ad limina apostolorum:
"On the level of higher education, many of you have pointed to a growing recognition on the part of Catholic colleges and universities of the need to reaffirm their distinctive identity in fidelity to their founding ideals and the Church’s mission in service of the Gospel. Yet much remains to be done, especially in such basic areas as compliance with the mandate laid down in Canon 812 for those who teach theological disciplines. The importance of this canonical norm as a tangible expression of ecclesial communion and solidarity in the Church’s educational apostolate becomes all the more evident when we consider the confusion created by instances of apparent dissidence between some representatives of Catholic institutions and the Church’s pastoral leadership: such discord harms the Church’s witness and, as experience has shown, can easily be exploited to compromise her authority and her freedom.
It is no exaggeration to say that providing young people with a sound education in the faith represents the most urgent internal challenge facing the Catholic community in your country. The deposit of faith is a priceless treasure which each generation must pass on to the next by winning hearts to Jesus Christ and shaping minds in the knowledge, understanding and love of his Church. It is gratifying to realize that, in our day too, the Christian vision, presented in its breadth and integrity, proves immensely appealing to the imagination, idealism and aspirations of the young, who have a right to encounter the faith in all its beauty, its intellectual richness and its radical demands.
Here I would simply propose several points which I trust will prove helpful for your discernment in meeting this challenge.
First, as we know, the essential task of authentic education at every level is not simply that of passing on knowledge, essential as this is, but also of shaping hearts. There is a constant need to balance intellectual rigor in communicating effectively, attractively and integrally, the richness of the Church’s faith with forming the young in the love of God, the praxis of the Christian moral and sacramental life and, not least, the cultivation of personal and liturgical prayer.
It follows that the question of Catholic identity, not least at the university level, entails much more than the teaching of religion or the mere presence of a chaplaincy on campus. All too often, it seems, Catholic schools and colleges have failed to challenge students to reappropriate their faith as part of the exciting intellectual discoveries which mark the experience of higher education. The fact that so many new students find themselves dissociated from the family, school and community support systems that previously facilitated the transmission of the faith should continually spur Catholic institutions of learning to create new and effective networks of support. In every aspect of their education, students need to be encouraged to articulate a vision of the harmony of faith and reason capable of guiding a life-long pursuit of knowledge and virtue. As ever, an essential role in this process is played by teachers who inspire others by their evident love of Christ, their witness of sound devotion and their commitment to that sapientia Christiana which integrates faith and life, intellectual passion and reverence for the splendor of truth both human and divine.
In effect, faith by its very nature demands a constant and all-embracing conversion to the fullness of truth revealed in Christ. He is the creative Logos, in whom all things were made and in whom all reality "holds together" (Col 1:17); he is the new Adam who reveals the ultimate truth about man and the world in which we live. In a period of great cultural change and societal displacement not unlike our own, Augustine pointed to this intrinsic connection between faith and the human intellectual enterprise by appealing to Plato, who held, he says, that "to love wisdom is to love God" (cf. De Civitate Dei, VIII, 8). The Christian commitment to learning, which gave birth to the medieval universities, was based upon this conviction that the one God, as the source of all truth and goodness, is likewise the source of the intellect’s passionate desire to know and the will’s yearning for fulfilment in love.
Only in this light can we appreciate the distinctive contribution of Catholic education, which engages in a "diakonia of truth" inspired by an intellectual charity which knows that leading others to the truth is ultimately an act of love (cf. Address to Catholic Educators, Washington, 17 April 2008). Faith’s recognition of the essential unity of all knowledge provides a bulwark against the alienation and fragmentation which occurs when the use of reason is detached from the pursuit of truth and virtue; in this sense, Catholic institutions have a specific role to play in helping to overcome the crisis of universities today. Firmly grounded in this vision of the intrinsic interplay of faith, reason and the pursuit of human excellence, every Christian intellectual and all the Church’s educational institutions must be convinced, and desirous of convincing others, that no aspect of reality remains alien to, or untouched by, the mystery of the redemption and the Risen Lord’s dominion over all creation.
During my Pastoral Visit to the United States, I spoke of the need for the Church in America to cultivate "a mindset, an intellectual culture which is genuinely Catholic" (cf. Homily at Nationals Stadium, Washington, 17 April 2008). Taking up this task certainly involves a renewal of apologetics and an emphasis on Catholic distinctiveness; ultimately however it must be aimed at proclaiming the liberating truth of Christ and stimulating greater dialogue and cooperation in building a society ever more solidly grounded in an authentic humanism inspired by the Gospel and faithful to the highest values of America’s civic and cultural heritage. At the present moment of your nation’s history, this is the challenge and opportunity awaiting the entire Catholic community, and it is one which the Church’s educational institutions should be the first to acknowledge and embrace."
Thank God for this instruction. When will the hierarchy in the U.S. wake up and call universities such as Georgetown to do what the Holy Father instructs them to do? The U.S. Bishops must call Georgetown and other Catholic colleges and universities to account for -- and repent of -- their rejection of their mission in the Church, to the Church, and to all those who seek the truth with a sincere heart. The principal problem with the choice of Sebelius as a commencement speaker at Georgetown is not her errors as such. Catholic universities can and should be places of critical intellectual engagement among all those who have a voice to contribute to the search for and recognition of the truth. Timing, circumstances, context, and purpose matter. Commencement speakers are not lecturers or participants in conference dialogue. Sebelius is, it appears, the leading federal government official, after the President himself, currently engaged in a public war against the rights and interests of the American Catholic Church, the likes of which we haven't seen before. Yet Georgetown has just elevated her to its commencement podium. The surpassing problem with this invitation is its symbolic slap in the face of the Bishops and all those faithful who, in these darkening times for the liberty of the Church in the U.S., have rallied to defend the truth of that liberty against the Administration's apparent willingness to reduce and decompose the Church, bit by regulated bit, to a fully compliant government subdivision. (Complete "congruence" is what the political theorists call the ideal in their disarming euphemism). This symbolic injury will assure greater injuries.
Friday, April 27, 2012
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