Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 30, 2012

Movsesian on the Tanzimat

My colleague, Mark Movsesian, has posted a short, highly readable, and instructive piece about an important episode in nineteenth-century religion-state relations in the Middle East, The Price of Ottoman Failure.  Here's the abstract:

This essay, written for a symposium on secularity in the contemporary Middle East, explores the dangers secularization may pose for non-Muslims, especially Christians. It looks to a historical example, the 19th Century Ottoman reform movement known as the Tanzimat. The Tanzimat aimed to modernize the empire and revise its law to reflect secular European models. One major reform gave legal equality for the first time to non-Muslims. Equality contradicted classical Islamic law and contributed to a violent backlash against Christians that set the stage for genocide in the 20th Century. Of course, the story of the Tanzimat’s failure is complex. Factors other than religious law were also involved, and one cannot draw a direct analogy to events that occurred 150 years ago in a different society. Nonetheless, the story of the Tanzimat and its failure suggests that secularization in the Middle East is a delicate matter that poses risks for Christian communities.

Sunday, April 29, 2012

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer -- as a moment for loose impromptu brilliance.  And in his exceptional piece, "Constitutional Cadenzas," Dan Farber argued that there are sections of the Constitution which contain cadenzas -- "instructions for the interpreter to improvise on the Constitution's grand themes."  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment's Privileges or Immunities Clause as such sections.  "[B]oth of these constitutional provisions," he wrote, "call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration."  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation -- specifically, "transnational legal sources" and "contemporary social consensus" -- the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers -- he may perhaps take notice of past interpretations -- but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind -- the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, 'un appoggio' is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment -- it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody -- it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

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Saturday, April 28, 2012

A Picture is Worth a Thousand Words Department

It was an honor and a pleasure to host Justice Scalia earlier this month at our school.  During his visit with us, he taught my constitutional law class.  Here he is responding to a question I had about how originalism can accommodate and coexist with what will soon be more than a century of substantive due process precedent (after all, Pierce v. Society of Sisters turns 100 in about a decade).  The Justice was animated and incisive in his response.  In fact, my students quite reasonably suggested to me after class that, if given the choice, they'd probably prefer to finish out the rest of the semester with the Justice as their teacher.

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Wednesday, April 25, 2012

Report on the Colloquium in Law

Here is a story with some details on the Colloquium in Law law and religion seminar which my colleague, Mark Movsesian, and I taught this past semester as part of the activities of our Center for Law and Religion.  The format was experimental -- demanding that the students assess a body of scholarship and zero in on the new claims being made by our presenters -- and both Mark and I thought it worked very well.  Though the story does not quite say so, our students were really the stars of the course.  Their questions and engagement with the speakers were direct, targeted to the specific arguments made by the speakers, and incisive.  Mark and I were very proud of them.

Tuesday, April 24, 2012

Punishment Theory in the OSJCL

The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue.  There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe.  And there's something by me, too.

Folks interested in these issues will, I think and hope, enjoy the pieces. 

Monday, April 23, 2012

Constitutional Questions About Crusaders and Werewolves

I wanted to ask a few more questions about methods of adjudicating an Establishment Clause claim related to the issue of symbolism that I posted about yesterday, but I should first make clear that none of this discussion goes at all to the merits of the decision to change the name of the military unit from Werewolves to Crusaders.  As Patrick O'Donnell rightly points out in a comment, there are all sorts of reasons to decide that as a matter of policy, this was not a wise decision -- a point that I recognized in the comments and which I recognize here.  Others will have much more to say about the policy issues, but the questions I ask now relate to constitutional methodology, not to the wisdom of a military unit calling itself "Crusaders."

Here are the facts as reported in the complaining letter: the Marine unit used the name "Werewolves" from its inception in World War II until 1958.  In 1958, it changed its name to "Crusaders," and the letter states that the reason it made this change is that the unit flew "F-8 Crusaders."  It continued to use the name "Crusaders" for 50 years.  In 2008, a Lieutenant Colonel decided that in advance of a deployment to Iraq, the name "Crusaders" would be abandoned in favor of "Werewolves" because "[t]he notion of being a crusader in that part of the world doesn't float."  Most recently, the decision to return to "Crusaders" was made, and one report states that the reason was a return to the traditions of the unit.

I've framed my thoughts as questions; the questions may suggest my skepticism about the capacity of current approaches to the Establishment Clause to pass on this sort of issue.  But in light of the push-back to my original post and in the interests of (amply justified, in my case) modesty, I thought to ask questions, rather than offer any definitive opinions.  They follow the jump. 

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Sunday, April 22, 2012

Do Werewolves Violate the Establishment Clause?

It seems that The Military Religious Freedom Foundation has sent a cease and desist letter to the U.S.Wolfy Secretary of the Navy demanding that Marine Fighter Attack Squadron 122 stop using the name “Crusaders.”  The Squadron had at alternative times in its history used the name “Werewolves” and “Crusaders.”  The MRFF claims that ”Crusaders,” as well as the symbol of a red cross on a white shield used by the Squadron, violates the Establishment Clause.  “The most logical purpose of the Crusader moniker is to convey a message of approval of religion.”

I disagree; indeed, I find the position obtuse.  There may be many reasons to use the epithet “Crusader,” and in a military context “[t]he most logical purpose” may well be to associate oneself with the fearsome, bellicose spirit of the Crusaders — who, after all, were warriors.  I don't find anything "most logical" about the interpretation offered by the MRFF.  "Crusader" is used commonly -- and it can have both negative and positive non-religious connotations ("He's a crusader for justice."; "Batman is the caped crusader"; "He's taken this misguided cause on as a kind of crusade.").

But set all that aside.  Why is MRFF not upset about the name ”Werewolves”?  Doesn’t “Werewolves” violate the Establishment Clause too?  Lycanthropy (humans turning into wolves), I think, was a form of spiritual, animistic belief held by the Algonquian Native Americans (see the Wendigo), and I also believe that certain varieties of Wicca believe in something like lycanthropy.  Animism generally holds that there is a spiritual power in non-human beings, including wolves.  An early expression of pagan belief in werewolves may be located in Book 1 of Ovid’s Metamorphoses, where Ovid tells of King Lycaon, who is turned into a wolf by Zeus when he treats Zeus most inhospitably (“His arms descend, his shoulders sink away/ To multiply his legs for chase of prey./ He grows a wolf, his hoariness remains,/ and the same rage in other members reigns./ His eyes still sparkle in a narr’wer space:/ His jaws retain the grin, and violence of his face.”).  And, of course, werewolves are an integral part of that most pagan of holidays, Halloween.

At any rate, given these religious origins and the continuing association of werewolves with paganism, why should MRFF have a special problem with cultural symbols with Christian origins?  Let’s do this right, and get werewolves declared unconstitutional too.

Saturday, April 21, 2012

Commutation and Punishment Theory at St. Thomas

I was delighted to participate yesterday in a terrific program run by the Terence J. Murphy Institute at the University of St. Thomas School of law, and organized by the ever gracious and kind Lisa Schiltz.  Judge Richard Sullivan and I spoke at around lunch time, and it was a privilege for me to meet and listen to him.  We both offered some thoughts about the theory and practice of punishment today.  Our talks were integrated into a larger, very interesting symposium dealing with the problems and possibilities of sentence commutation and the executive pardon power, run by the St. Thomas Law Journal with the masterful organizational touch of Mark Osler.

As is always the case when I am lucky enough to visit my friends at St. Thomas, I was extremely impressed by their generosity, hospitality, intellectual depth, and genuine fellowship.  I enjoyed being there. 

It's Baseball Season

Two items.

(1) George Wright sends along this new course offered at NYU and taught by former law school dean and current president John Sexton: "Baseball as a Road to God." Here's the description:

Baseball As a Road to God aims to link literature about our national pastime with the study of philosophy and theology. This seminar aims to blend ideas contained in classic baseball novels such as Coover's Universal Baseball Association , Kinsella's Iowa Baseball Confederation , and Malamud's The Natural with those found in such philosophical/theological works as Eliade's Sacred and Profane , Heschel's God in Search of Man , and James' Varieties of Religious Experience . It discusses such themes as the metaphysics of sports, baseball as a civil religion, the nature of sacred time and space, and the ineffability of the divine. Not for the faint-hearted, this course requires students to read over two dozen works of varying lengths in addition to supplemental readings as they might arise. The course also requires weekly papers. As with any serious commitment of one's time, the rewards of taking a seminar such as this can be great.

(2) On a personal note, after the yearly parade and an early night (no smokes, no booze, no women -- coach's orders), my son Thomas's 2d grade little league team, 'The Infernos' (I had nothing to do with that outstanding name), came out swinging on a beautiful opening spring day today.  There's nothing like early season baseball. 

Thursday, April 19, 2012

The HHS Mandate at Yale Law School

I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students' Association and the St. Thomas More Chapel dealing with the HHS Mandate.  I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund.  I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the discussions we've had here (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted).  And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.

Thanks to Christian Burset for putting the event together.