A few days ago, I responded here to some correspondents and commenters who wondered why in the world considerations about liturgy and ecclesiology belong on a "Catholic law blog." Well, one might justly ask in the same breath why Hobbes included virtually the entirety of parts Parts III and IV of Leviathan. I think it's fair to say (following Edwin Curley) that Hobbes wanted to pull down all or most of the churches. The author of Leviathan wasn't content with such wholesale devastation, however; he goes in for more detailed destruction as well, as in this passage in in Leviathan xliv, 11: "But (seeing for the frequency of pretending the change of nature in their consecrations, it cannot be esteemed a work extraordinary) it is no other than a conjuration or incantation,whereby they would have men to believe an alteration of nature that is not (contrary to the testimony of man's sight and of all the rest of his senses). As, for example, when the priest -- instead of consecrating bread and wine to God's peculiar service in the sacrament of the Lord's Supper, which is but a separation of it from the common use, to signify (that is, to put men in mind of) their redemption by the passion of Christ, whose body was broken and blood shed upon the cross for our transgressions -- pretends that by saying of the words of our Saviour, This is my body, and this is my blood, the nature of bread is no more there, but his very body (notwithstanding there appeareth not to the sight or other sense of the receiveer anything that appeareth not before the consecration)." This denial of transubstantiation comes smackdab in the middle of the greatest state-building effort of all time!
It's important that the Eucharistic liturgy and its site be in the varied and appropriate ways beautiful, which is why in my judgment so many (though my no means all) of the recent developments in terms of church architecture, music, art, iconography, and the like have been so unfortunate and damaging. But from this it does not follow that the final judgment on a liturgy should be made with the five senses Hobbes brought to bear. Demands for what the eyes and ears can register lead in the direction Hobbes brilliantly indicated. No one -- expect a Hobbesian -- should be opposed to the faithful's *participating* in the liturgy, but it's another question entirely what form(s) true participation can or must take.
The most important political philosopher of modernity saw with perfect clarity why the Catholic Mass had to be reduced to just so many physical manifestations. I think it's a fortiori that liturgy -- especially defense of the Catholic theology of liturgy -- has a place on MOJ. You can blame it on Hobbes.
I've received some sprited correspondence concerning my "eye contact" post, as I expected and even hoped I would. Some of that correspondence wonders why I would post something about liturgy on a Catholic "law blog." That's easy, and I thought it would have been obvious (especially given its development here at MOJ over the years). We are not "Catholic" if we are not Eucharistic. Who we are as a Eucharistic people is not, furthermore, just about (as one corresdpondent called it) "liturgical aesthetics." Our sense of who we are as lawyers, citizens, servants must be, in part, a function of who we are as Christians, and that depends in part on how we understand ourselves in relationship to the Lord and others in his Mystical Body. Congregationalism, for example, leads to a different view of the state than does a rich theology of the Mystical Body.
Which leads to the second point I'd like to address. A number of correspondents have accused me of being condescending with respect to Fullam's claims. But let's ask for a moment, if it's possible, how the established Eucharistic community Fullam visited would likely receive her published, disseminated, and fairly widely discussed decision that its church should be deconsecrated and the community itself thus put into diaspora. What if they read and pondered her post? Would they feel respected? Think about it: Fullam parachuted in and posthaste declared the community's life not worthy of continuance, then she returned to Berkeley (which, as I say, I love).
Pullam's words were flippant, I would suggest; her respect for the integrity of the worshipping community she visited was, it seems to me, lacking. One of my great joys in traveling in Europe is the rich diversity of liturgical communities I've been privileged to participate in. Some of them are more resonant with me than others, to be sure -- but what bearing has that on whether the less resonant communities should be terminated? I defy someone to show me how, given the reasons she marshaled for its closure, Prof. Fullam respected the community she visited.
When Fullam arrived, there were souls gathered to pray in the Lord's name, indeed to celebrate the Mass -- yet Fullam, the visitor, calls now for the community to be dispersed. In my humble judgment, Fullam's stance/agenda merits careful consideration, rejection, and, further, the rebuke I tended to deliver. Turnabout is fair play, and I replied as I did in order to create a sense of how Fullam's victims might feel about her treatment of their lived reality. Fullam ignores the side she doesn't live. I pointed out that she is apparently tone deaf to what it is that had in fact gathered the Eucharistic community she was gifted to be able to visit (and then condemn).
Let this be clear. My reply to Fullam was only indirectly related to what is condescendingly and dismissively referred to as "liturgical aesthetics." She called for the deconsecrating of a church and thus the end of the community's life together in worship. I meant to show -- as I would again -- the insufficiency (and nature) of the reasons for that judgment by a visitor to that worshipping community. It was her insistence upon a certain kind of aesthetic that led to her call for closure! I'm much more tolerant.
While I'm at it . . . . Someone called Lisa Fullam, who (I am informed) teaches at the Jesuit School of Theology in Berkeley (which is real estate I love, Berkeley that is) does quite a number here on (what I suspect was a valid celebration of) the Holy Sacrifice of the Mass. It begins with her report that, after leaving the big ethicists' conference in Trent, she "ducked into" Mass (though she doesn't use the noun) in another (and unnamed, no doubt to protect the innocent -- surely not the guilty) town. She then begins by accusing the "presider" of leading the congregation (though that noun is not used) through an "expressionless Eucharistic prayer." What would count as an adequate "expression?" Never mind that the Eucharistic prayer was prayed inaudibly by the celebrant until five minutes ago. Then comes the indictment that said presider never provided "eye contact." Mirabile (non) visu! Do Christians go to Mass for eye contact? I can get that at the grocery store. Further, she indicts, he "didn't even bother to preach -- that might have revealed engagement." I am grateful to hope that Assoc. Prof. Fullam would have been docile in the presence of the requested preaching. Further, at the Sign of Peace, her bill of particulars goes on, this pour presiding soul "didn't deign to greet." "Offerte vobis pacem", though, isn't an imperative for a round of "greet[ing]." Perhaps the celebrant was a man of good taste? Sound theology? Would Fullam credit these as reasons from not having a meet-and-greet in mediam Missam? I doubt it. Fullam reaches her climax with the indictment that this bumbling fool "dispensed Eucharist mechanically." One wonders what this apparently dutiful and devoted priest could possibly say in his own defense. Perhaps he believes he was faithfully following the Novus Ordo. Perhaps he doesn't think celebrating Mass is a demand to make "eye contact" for those who "duck[] in" or even crawl in for Holy Mass. "No wonder so few bother to attend," Fullam winds up in her closing argument. No wonder, indeed -- if you adopt Fullam's theology. Her last judgment: "might as well deconsecrate the place."
As a believer in ex opere operato (which, obviously, is only the beginning of what there is to say about liturgy), I remain more hopeful than Fullam appears to be. Still, I think this bit from Evelyn Waugh, in his piece "Changes in the Church: Questions for the 'Progressives'" (Catholic Herald, 7 August 1964), which -- for the record -- I wouldn't quite wish to embrace in its entirety, is the beginning of a response to Fullam: "Finally, a word about liturgy. It is natural to the Germans to make a row. The torchlit, vociferous assemblies of Hitler Youth expressed a national passion. It is well that this should be canalized into the life of the Church. But it is essentially un-English. We seek no 'Seig Heils'. We pray in silence. 'Participation' in the Mass does not mean hearing our own voices. Only He knows who is 'participating' at Mass. I believe, to compare small things with great, that I 'participate' in a work of art when I study it and love it silently. No need to shout. . . . 'Diversity' is deemed by the progressives as one of their aims against the stifling Romanita. May they allow it to English Catholics. I am now old but I was young when I was received into the Church. I was not at all attracted by the splendour of her great ceremonies -- which the Protestants could well counterfeit. Of the extraneous attractions of the Church which most drew me was the spectacle of the priest and his server at low Mass, stumping up to the altar without a glance to discover how many or few he had in his congregation" . . . or even if someone called Fullam had "ducked in."
Pope Benedict has taught and demonstrated that there are many worthy forms of Catholic worship. We can hope that the Fullams won't succeed in deconsecrating sacred plaes in which worthy worship is said not to take place because it doesn't deliver "eye contact" or other coveted phenomena obtainable elsewhere.
Someone named Michael Sean Winters says he's not happy with Judge Walker's decision and (more particularly) opinion overturning Proposition 8. In developing his disagreement, Winters distinguishes Lawrence v. Texas: "I understood why the majority of the Court ruled in Lawrence v. Texas that privacy concerns demanded that they overturn a sodomy law." It's hard to know where to start, so I'll be brief. First, was "privacy" the stated right in Lawrence? Second, are "concerns" sufficient reason to overrule the legislation of a "sovereign" state? Does Winters really mean that? I am reminded of what I once heard a young and guileless intern tell a group of us she was leading on a tour of the Supreme Court: "The dissent is where some Justices tell the majority they were in bad taste." It's not surprising that Winters admits not understanding "Justice Scalia's concern, voiced in his dissent, that the Lawrence ruling would expedite gay marriage."
Once there is a judicially enforceable constitutional right to be free from the impositions of a normative anthropology, little that follows can be surprising. Winters elides this by transmuting Lawrence into a privacy decision.
I recognize I'm a tiresome bore (not boor, I hope) on this topic, but would intelligent (and other) people, please, please stop talking about the evils of "judicial activism" simpliciter? The commentary leading up to and now following Elena Kagan's nomination and confirmation has pivoted, as it has on many recent Supreme Court (and other) judicial nominations and confirmations, around the question of whether the nominee would be -- quod Deus avertat!! -- an "activist," the asserted *assumption* being that activism is both (a) defined and (b) very, very, very bad. The first thing I don't see, though, is the argument behind (a). What is activism? What is the evidence concerning what our Constitution actually charges judges to do? What *exactly* is prohibited? And why? What makes some offical judicial act passive rather than "active"? Moving on to assumption (b), passivism is not *inherently* a virtue, not even of a judge -- as Aristotle made clear the day before the day before yesterday. The opponents of "judicial activism" invoke the Constitution, but they rarely and barely explain, in the contexts I have in mind (as well as some others), what exactly they mean by such activism and exactly why it is prohibited (or just plain evil). Respect for the Constitution, at least, requires precision with respect to the Article III power. We all understand what is going on behind and through this talismanic treatment/invocation of "judicial activism," but we can do better. And we would be better for doing so.
Helen Alvare has a strongly reasoned piece up at Public Discourse on Commonweal's apparently willful naivete about the coming effects of Patient Protection and Affordable Care Act. Check it out.
And so the thot plickens (and other Spoonerisms) . . . My response to Rick's rich questions begins, as Rick knows (from, inter alia, the public discussions many of us had at the recent "Annual Roundtable on Law and Religion"at Brooklyn Law (thanks again, Nelson!)), from the premise that the focal case (prime analogate) of law is: the ruling *mind* ordering other *minds* toward the common good. I regard the substitution of texts for mind, as the locus/source of law, as *the* problem (yes, symptom of the deeper problem (of voluntarism)). Now, the regulating mind of the lawgiver does indeed need to be promulgated (as a condition, indeed, of its becoming *law*), and that promgulation typically takes the form of a written (as opposed to oral) statement. But I don't take writtenness, even of a constitution (even *our* Constitution), as a reason to conclude that a text takes on a law-giving role independent of the lawgiver. To be sure, lawgivers' obligation to *promulgate* what they mean to be law will usually assure that there's a pretty tight convergence between the law, on the one hand, and what is promulgated, on the other, but scriveners' errors are just one example of why text does not equal law. The impossibility of perfect transmission/translation of the *mental word* into the *spoken word* -- and this is the core issue -- assures that texts cannot rule. An additional reason texts cannot "rule" is that the very conditions for taking promulgations-in-the-name-of-law seriously as *law* is that they are to contribute to the common good; where promulgations don't facially contribute to the common good, there is reason, though it too has constraints, to construe them in such a way as to cause them to do so. So, I take the written texts very seriously indeed, but I don't imagine that I or anyone else can be ruled by a text as such. "Textualism" is just the limit case, it seems to me, of an attempt to substitute stuff (e.g., *probabilities* of meaning generated by dictionary surfing) for (the meaning of an authoritative/ruling) mind. Saying as much, I recognize the transaction (and other) costs of not stipulating that texts ("objectified intent," as Scalia calls them) are "law."
What say you, Rick?
Obviously, if one doesn't share my starting points (about law's being *exactly* [in the focal case] authoritative mind ruling subordinate mind), textualism (and other equally well-intentioned evils) are good to go.
I agree with my friend Rick that what judges (or other legal officials) should do is principally a function of their office, that is, of what the people have charged them with doing. In the case of federal judges, this means, in part, figuring out what the Article III "judicial power" is. Which is why, for example, Ronald Dworkin is wrong to talk about the judicial office without distinguishing between state and federal judges. With respect to federal judges in particular, I'm persuaded by Jeff Powell's argument that the Framers were torn "between a global rejection of any and all methods of construction and a willingness to intepret the constitutional text in accordance with with the common law principles that had been used to construe statutes." But even if Powell and I are wrong about the Framers' intent on this issue, there's another reason to favor an approach to legal texts that "textualism" seeks to rule out. I'll make the point with one of my favorite examples. The APA defines a "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ." Commenting on this definition, then-professor Scalia said this: "Since every statement is of either general or particular applicability, and since everything an agency does is 'designed to implement, interpret, or prescribe law or policy, etc.' the only limiting (that is to say, defining) part of the definition of [a rule of law] is 'agency statement . . . of future effect.' that is of course absurd. It means, for example, that an EPA directive that a particular company must, in order to comply with existing law and regulations, install particular emission-control equipment at a particular factory is a rule rather than an order; that the proceeding looking to its issuance is a rulemaking rather than an adjudication . . . . Such an analysis produces a categorization which is . . . contrary to the common understanding of what constitutes a rulemaking . . . ." What to do about this absurdity and violation of the "common understanding? According to then-professor Scalia: "It is generally acknowledged that the only responsible judicial attitude toward this central APA definition is one of benign disregard." So, my position, in relevant part, is that while it is principally a question of positive law what judges can do (with respect to the Constitution, statutes, agency outputs, judicial decisions), the grant of judicial office should be construed, where possible, to favor the conditions that allow for law to be made and implemented. To require judges to give effect to silly texts, such as the APA definition of a rule, would undermine the conditions for making law; implementing silliness is not making ordinances of reason for the common good. Scalia's willingness to ignore the definition at the heart of our second-level Constitution, the APA, is a case in point; judges need a certain measure of flexibility that the wooden application of statutes would eviscerate. I see the question of what access judges should have to the natural law as on a continuum with the question of what freedom judges should have to give intelligent, purposive interpretations to statutes, the Constitution, etc. If my test seems a little flabby (to borrow an adjective that Justice Scalia has used to great effect), that's because I don't think the business of making law, as opposed to giving effect to the will of legislature, admits writ large of a more precise metric. Needless to say, it's the voluntarism lurking behind "textualism" that I think needs to be slain if law is to be understood and treated, as it should be, as a thing of reason.
Hadley Arkes's new book, Constitutional Illusions and Anchoring Truths (Cambridge, 2010), raises (in that elegant Arkes way) lots of interesting questions, including the one about judicial access to the natural law. Arkes and I disagree, to some extent, on how to frame the issues concerning judges and the natural law, but we are united in bebunking the default legal positivism of much contemporary American conservativism. You can read more here.
A very perceptive person I was talking with today opined that most Americans oscillate between bald individualism, on the one hand, and totalitarianism, on the other, leaving little (or only awkward) conceptual room for what Catholic social doctrine prizes in the terms of subsidiarity and solidarity. I hadn't thought of it quite that way before, but it immediately struck me as right on the money. The Church's claim is that there must be -- in that marvelous phrase of Caritas in veritate, which phrase I am told comes from the Missal of Pius V -- "breathing space." The liturgical source of the phrase underlines the shared or associational nature of "breathing space."
