Justice Kennedy has acted in his capacity as Circuit Justice to stay, pending decision by the Ninth Circuit, a District Court order that the City of San Diego remove a Latin cross from a city-owned veterans' memorial at Mount Soledad. The Ninth Circuit earlier refused to grant a stay pending the appeal, which is due to be heard on an expedited basis in October. Especially interesting in Justice Kennedy's written intervention is the suggestion that, if things don't go as hoped, the Court might now grant cert. in litigation it has shied away from before. A friend reminds me that the California constitutional law at issue in the litigation doesn't favor those who would keep a cross standing on Mt. Soledad.
Tuesday, July 11, 2006
Talk about riding circuit
Wednesday, June 21, 2006
"The moral equivalent of Klansmen?"
Over at On the Square, J. Bottum has posted a haunting story. Here I'd be interested to know what other MOJ bloggers think of the whither of its analysis. "University professors" are mentioned as potential victims. I think it merits some attention here.
The seamless garment meets genocide
Jun. 21 (CWNews.com) - Cardinal Paul Poupard called for clemency for former Iraqi dictator Saddam Hussein, the Italian Ansa news agency reports.
"Human life is always inviolable," the French prelate said. Citing the Catechism of the Catholic Church, the cardinal-- who is president of the Pontifical Council for Culture-- said that "no one can claim any right over the life and death of another."
The right to life is "a universal principle, and there is no exception," Cardinal Poupard said. "God is master of life and death."
The cardinal spoke out as the trial of Saddam Hussein neared its conclusion, with Iraqi prosecutors calling for the death penalty. The former Iraqi ruler is charged with the massacre of civilians in the town of Doujail.
A final verdict in the trial is not expected until September. Even if he is sentenced to execution, Saddam Hussein is unlikely to be put to death at any time in the foreseeable future. He still faces separate trials on charges of having presided over a genocidal campaign against Kurds and the repression of Shi'ite Muslim.
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Thus Cardinal Poupard. Does "human life is always inviolable" mean that individuals are no longer entitled (and perhaps sometimes required) to use proportionate force to defend themselves against wrongful lethal force? The Cardinal's topic was the state's use of lethal force, but he spoke more broadly.
Friday, June 16, 2006
Cardinal McCarrick's silence
The website of the USCCB doesn't yet report what the media are celebrating. (The aforementioned website does already include news of the Conference's denunciation of U.S. immigration policy and of the Conference's approval of the revised translation of the liturgy). The Cardinal and his collaborators have decided, after years of reflection and study and consultation, that they don't have much or anything at all to say on the question of Holy Communion and public figures who cause scandal to the faithful. The Conference has so very much to say on so very many topics, on which the pastors are not by ordination expert, but nothing or very little on "the source and summit" of the life of the Church as it concerns public figures who scandalize the people of God. (The worried voted in favor of the revised translations of the liturgy hardly shows the bishops as great shepherds of the Church's sacramental tradition. On this issue, they were most concerned lest the faithful be shocked or challenged). I'm not sure what I think the Conference should have said on the communion-to-Kerry-at-the-cathedral-during-election-season question; I'm just sure that, given their proclivity for saying things, this long-pondered silence is signal. Friends predicted that McCarrick's effort would come, by design, to nothing. Perhaps we can hope for stronger sacramental leadership from Archbishop Wuerl. Given what his history and record reveal, there is reason for hope.
Wednesday, June 14, 2006
Summers, Women, Families, and CST
I read that one of Lawrence Summers's Harvard legacies will be improved institutional support of women and, lo if indirectly, their families. Harvard will be shelling out lots more for child care. Lisa Schiltz's forthcoming paper on where CST may lead on these questions, as they concern law faculties, is a must-read for those who care about where the Church's teachings invite in terms of the administration of her own institutions. Paying for child care entails trade offs, of course, and there are, of course, various other reasons that may militate in favor of leaving child care costs where they now lie. Nor do I suggest that Summers et al. are making a comprehensive moral statment. My guess is that they're after exactly the material conditions that will lead to something like numerical equality as between the sexes on the tenured or, proximately, tenure-track faculty. Still, the message from Harvard that child care is to be taken seriously by educational communities committed to the good(s) of their members should reverberate.
Apostasy, anyone?
Steve Shiffrin's recent post got me thinking, and, alas, there is no way to raise this question without seeming quaint, stupid, or snarky. But why isn't the answer to the question, "Why don't I leave the Church?", this one: "For a person baptised into the Catholic Church to leave is to commit the mortal sin of apostasy"? To be sure, if the Church is flawed in such a way as to justify one's "departing," then one hardly need worry that there is such a reality as "sin" (and its consequences) as understood by the Church. But on the tenet, which I accept in faith, that (as I sometimes hear when travel brings me to parishes with loquacious celebrants of Holy Mass) "It is God who gathers us together as Church," can there possibly be a reason to undertake to "leave" the Church?
I am always impressed when I hear from theologians and others who feel wronged by the Church or the magisterium that they do not see leaving as an "option." Their steadfastness to the reality of the Church gives credibility to their stuggle with holding what the Church teaches. Of course, when the struggle ends and the defined faith is rejected, then one has already put oneself outside the communion that is the Church, though without the power to remove the indelible mark of baptism.
Tuesday, June 6, 2006
Subsidiarity and Participated Theonomy
For any capacity it may have to advance the argument, I am grateful for Rob's invitation to clarify where he and I diverge in our understandings of subsidiarity. I am not hopeful, though, as the disagreement, which has been aired here many times, goes to whether things -- individuals and societies -- have goods that are for them a natural law.
Rob's work on subsidiarity (in, e.g., "Subsidiarity as a Principle of Governance: Beyond Devolution," 35 Indiana Law Revew 103 (2001) and "Subsidiarity as Subversion," 2 Journal of Catholic Social Thought 309 (2005)), which I admire, proceeds, as his recent post reiterates, from a concern lest we "limit subsidiarity based on the (highly contested) contours of the natural law." I deny the dilemma.
Subsidiarity, as I understand the principle, is a correlative of the natural law of human individuals and societies, a principle of coordination and non-absorption among various seekers, individual and societal, of the good. More important than my holding this view of subsidiarity is the fact that, as I read them, this is the view advanced in the encyclicals. Subsidiarity is the principle governing our participated, natural-law shares in the divine governance; subsidiarity simply doesn't apply except as principle of social justice reflective of the true common good. It's not a question of, as Rob writes, "local empowerment" ex nihilo. The question, as I understand it, concerns where certain ruling powers having already been located by nature (or supernature). Marriage is one of those places, and subsidiarity calls for its respect and nurturance. Subsidiarity is not "self-serving;" it serves the proper goods of individuals and of societies, and it seves the common good. That, at least, is how I read the Roman teachings. They affirm a certain sort of pluralism by affirming that the authority of societies seeking their respective goods is natural, not a contingent concession of a totalitarian or centralizing state.
Rather than quote the encyclicals, which everyone has easy access to, this excerpt from Joahnnes Messner's influential Social Ethics: Natual Law in the Western World (1949, 1965) nicely captures what the Church has, I think, been prosposing:
"The common good principle and the principle of subsidiary function are concerned with two sides of one and the same thing. Thus it was that Pius XI, when he coined the term 'subsidiary function', called it the 'fundamental principle of social philosophy.'. . . If the principle of subsidiary function were only a formal principle, then all natural law principles would have only a formal nature. . . . The principle of subsidiarity is what brings the functions of the state into the perspective of the actual common good. This is characterized by the fact that the political community is an association of invidivual and social persons with their own existential ends and their corresponding tasks, rights, and powers, who can reach their essential self-fulfillment only by complying with the corresponding responsibilities implied in these ends" (pp. 209, 211, 630).
I understand that this won't satisfy sceptics about the natural law. But, needless to say, the encyclicals that advanced the modern Catholic concept of subsidiarity entertained no scepticism regarding the bindingness (and knowability) of the natural law. For the origin of the term subsidiarity, as folded into the tradition by Leo XIII and Pius XI, Luigi Taparelli's work is the place to go.
A given body politic may not be up to the task of implementing the natural law, but this would not be with subsidiarity's blessing. And, as often happens, I'm reminded of this line spoken by Maritain: "Men know [the natural law] with greater or less difficulty, and in different degrees, running the risk of error here as elesewhere."
Monday, June 5, 2006
Save the date
We at Villanova are looking foward to hosting the first annual Scarpa Conference in Catholic Legal Studies on Friday, September 15, 2006. The topic wil be From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture. His Eminence Avery Cardinal Dulles, S.J., will deliver the keynote address. Also presenting papers will be MOJers Rick Garnett (Lilly Endownment Associate Professor, Notre Dame Law School), Amy Uelmen (Director, Institute on Religion, Law and Lawyer's Work, Fordham University School of Law), and Patrick Brennan (John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law).
The topic of the conference was chosen before Pope Benedict published Deus caritas est. The enclyclical now provides an excellent focal point for a study of the developing social doctrine of Pope Benedict. Topics will include love, subsidiarity, libertas Ecclesiae, evangelization, and justice.
If I can answer any questions about this Conference, please feel free to email me. We hope to see lots of old friends and new faces at Villanova this September. Those who cannot attend the conference will be pleased to know that all of the papers will be published in the Villanova Law Review. Those hoping to attend should plan early; we are informed that Parents' Weekend at Villanova will result in high demand for loding on the nights of Sept. 14 and 15. The Conference will be held in Villanova's Connelly Center, which is on the main campus.
By the way, Justice Antonin Scalia has graciously accepted our invitation to deliver the keynote at the Second Annual Scarpa Conference. We should be able to announce the date and topic in September of this year. Please stay tuned.
Wednesday, May 31, 2006
Of subsidiarity, marriage, and such
I'm just catching up, and the Kmiec-Vischer exchange caught my eye. Not that anyone's wondering, but I'm on record as favoring the proposed amendment. Subsidiarity is one of the reasons that combine to get me there.
I understand subsidiarity to be -- as worked out in the encyclicals of the last 125 yrs, the Catechism, the Compendium -- a principle in service of functions/authorities located by natural, divine, and, then, positive law. Subsidiarity is, primarily, a principle of non-usurpation of function/authority. The principle is to the effect that functions/authorities that have been assigned cannot properly be re-assigned; it also places upon those with responsibility for the common good, as well as others, the duty to assist those individuals or societies that have difficulty fulfilling their respective functions.
The function of marriage, with its correlative authority, is an example. The responsibility of the state, and of others, is to respect and, as necessary, assist, the function/authority given, by nature and supernature, in the marriage society. If you reject the proposition that marriage is naturally or supernaturally instituted, subsidiarity, as the Catholic social doctrine understands it, won't be relevant.
Assuming the Catholic s. d. perspective, the primary place of subsidiarity in the marriage amendment argument, as I understand it, concerns the government's responsibility to assist the body politic in giving effect to the particular function/authority that precedes the state. I therefore agree with those who insist that subsidiarity does not necessarily assign this task to the lowest possible level, e.g., states, governments, or individuals. Marriage needs help, and those charged with the common good are to provide it, consistent with their own proper functions.
As developed in the encyclicals, subsidiarity presupposes a world in which ruling power, such as the authority of the society that is marriage, has already been distributed. (In a world in which authority didn't already have ontological traction, subsidiarity would be infinitely slippery). If, then, marriage is the goal, the question, as concerns subsidiarity, is how to achieve marriage through modes that both activate and respect other given functions and their correlative authorities.
An alternative perspective on subsidiarity, if anyone would like to pursue it. Devolution is not the answer, clearly; nor is centralization.
Thursday, May 25, 2006
An excerpt from the Holy Father in Warsaw
The faithful expect only one thing from priests: that they be specialists in promoting the encounter between man and God. The priest is not asked to be an expert in economics, construction or politics. He is expected to be an expert in the spiritual life. With this end in view, when a young priest takes his first steps, he needs to be able to refer to an experienced teacher who will help him not to lose his way among the many ideas put forward by the culture of the moment. In the face of the temptations of relativism or the permissive society, there is absolutely no need for the priest to know all the latest, changing currents of thought; what the faithful expect from him is that he be a witness to the eternal wisdom contained in the revealed word. Solicitude for the quality of personal prayer and for good theological formation bear fruit in life. Living under the influence of totalitarianism may have given rise to an unconscious tendency to hide under an external mask, and in consequence to become somewhat hypocritical. Clearly this does not promote authentic fraternal relations and may lead to an exaggerated concentration on oneself. In reality, we grow in affective maturity when our hearts adhere to God. Christ needs priests who are mature, virile, capable of cultivating an authentic spiritual paternity. For this to happen, priests need to be honest with themselves, open with their spiritual director and trusting in divine mercy.
On the occasion of the Great Jubilee, Pope John Paul II frequently exhorted Christians to do penance for infidelities of the past. We believe that the Church is holy, but that there are sinners among her members. We need to reject the desire to identify only with those who are sinless. How could the Church have excluded sinners from her ranks? It is for their salvation that Jesus took flesh, died and rose again. We must therefore learn to live Christian penance with sincerity. By practising it, we confess individual sins in union with others, before them and before God. Yet we must guard against the arrogant claim of setting ourselves up to judge earlier generations, who lived in different times and different circumstances. Humble sincerity is needed in order not to deny the sins of the past, and at the same time not to indulge in facile accusations in the absence of real evidence or without regard for the different preconceptions of the time. Moreover, the confessio peccati, to use an expression of Saint Augustine, must always be accompanied by the confessio laudis – the confession of praise. As we ask pardon for the wrong that was done in the past, we must also remember the good accomplished with the help of divine grace which, even if contained in earthenware vessels, has borne fruit that is often excellent.....
Stand firm in your faith! To you too I entrust this motto of my pilgrimage. Be authentic in your life and your ministry. Gazing upon Christ, live a modest life, in solidarity with the faithful to whom you have been sent. Serve everyone; be accessible in the parishes and in the confessionals, accompany the new movements and associations, support families, do not forget the link with young people, remember the poor and the abandoned. If you live by faith, the Holy Spirit will suggest to you what you must say and how you must serve. You will always be able to count on the help of her who goes before the Church in faith. I exhort you to call upon her always in words that you know well: "We are close to you, we remember you, we watch."
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