Those wishing for a panorama of the history of originalism in constitutional interpretation and an overview of contemporary originalist debates would benefit greatly from taking a look at Larry Solum's excellent draft chapter on the subject. Solum lays out crisply the major currents and cross-currents. May I also highly recommend Steve Smith's terrific piece, which (as always with Steve's work) has deeply influenced some of my own views on the subject.
Monday, May 2, 2011
Solum's Originalism Primer
Sunday, May 1, 2011
Vengeance, Resentment, Repentance, Forgiveness
I just made my way through Jeffrie Murphy's thoughtful and highly readable book, Getting Even: Forgiveness and Its Limits. I highly recommend it to anyone who is interested in the relationship of vengeance, repentance, and forgiveness to criminal law. Murphy makes some deft arguments about the proper place of at least certain features of vengeance (resentment in particular, and its relationship to self-respect -- there is a well-known chapter titled, Two Cheers for Vindictiveness) for punishment. In one section, he draws on R.A. Duff's important work involving the communicative function of punishment -- communicative in the sense both of its being about the transmission of ideas to the offender, and that those ideas ought to be the community's. At one point I was attracted to the somewhat communitarian, or, if you prefer, paternalistic, feel of some of this -- I'm less so now. There are some arguments that I'm a little skeptical about -- e.g., that self-imposed suffering through repentance ought to be relevant to the issue of official, state-sanctioned mitigation of the sentence -- but all in all it is a terrific monograph.
I want to raise for MOJ denizens a somewhat peripheral claim that Murphy makes relating to the circumstances in which forgiveness is a Christian value. The question arises whether it really is true that Christians ought to forgive unilaterally, or instead forgive bilaterally -- in conjunction with repentance. Murphy's view is that forgiveness should wait for repentance, and he notes that others in his own religious community (Anglican) sometimes take this position as verging on the blasphemous. His opponents generally cite Jesus's words on the cross, "Father forgive them for they know not what they do" and the passage in the Lord's prayer, "Forgive us our trespasses as we forgive those who trespass against us" as conclusive evidence that forgiveness is a universal and unconditional obligation for Christians. Murphy is not a theologian, and neither am I, but to this untutored philistine, he makes some interesting points:
Jesus's words from the cross are surely not offering universal forgiveness. Indeed, Jesus takes the trouble to offer a reason why forgiveness should be bestowed on these particular wrongdoers -- namely, their ignorance that they are sacrificing the true son of God. (Do you think -- in different circumstances -- that he would have said, "Father forgive them even though they know full well what they are doing"?)
And consider the passage from the Lord's Prayer. One natural reading of the English word, "as," is "in the manner of" -- for example, "Do it as I do." Thus one perfectly natural reading of . . . "forgive us our trespasses as we forgive those who trespass against us" is this: "In the realm of forgiveness, God, I pray that you treat me in the manner that I treat those who wrong me. If I will not forgive them unless they repent, I do not expect you to forgive me unless I repent." (36)
There are other biblical passages (noted by Murphy) which also suggest that forgiveness and repentance are conjoined (e.g., Luke 17:3 -- "If thy brother trespass against thee, rebuke him; and if he repent, forgive him"), but the larger point is that a fully worked-out Christian theology of forgiveness is a complicated and difficult endeavor not resolved in the least by citing a couple of translated selections from the Bible. Thoughts?
Friday, April 29, 2011
The Catholic Who Would Be King
Mike has a really nice post below criticizing the refusal of the Church of England to overturn the 1701 law which prohibits an heir from marrying a Catholic. I appreciate the sentiment very much -- it seems, somehow, wrong that Catholics are discriminated against in this way. It seems unfair, unequal. I don't share the view that there is something inherently wrong with established churches writ large (though of course I think there is something wrong with them in this country), but I think Mike rightly laments the regrettable anti-Catholic "vestiges" of the Anglican Church.
But whatever one may say about the 1701 law's beginnings, maybe today the law is just fine. Given the cultural history of the Anglican Church, I think it would be quite wrong for a Catholic to want to be head of the Church of England, or married to the head. To assume that position would be to ignore the history of the Anglican Church, and all that it meant for Catholicism in England, just for the sake of gaining a kind of formally equal footing with everyone else. As a Catholic, I'm delighted to be unequal, discriminated against, on this ground. I have no business there. It isn't only that this isn't the sort of discrimination that ought to be concerning. More than that, this sort of discrimination and inequality -- today -- may well be a positive good. It is a reminder and reinforcement of cultural, historical, and religious difference and separateness.
Equalization here would disturb that difference in a way that, to put the matter perhaps slightly bluntly, is a betrayal of the past. If this law prevents the Catholic who would be king from even considering it, might we not say, 'so much the better'?
Wednesday, April 27, 2011
"In Defense of Flogging"
This is an interesting and provocative piece by a professor at the John Jay College of Law and a former police officer. Whether the author is truly serious about flogging is less clear than the larger point that he is making -- that the rehabilitative model of punishment was itself a cause (not the cause, but a cause) of the proliferation of penitentiaries (where one ought to be, of course, penitent) and later (round about the 1950s) "correctional institutions." I suppose the argument fits neatly with the claim that we entertain politely, comfortably, liberal ideas that by incarcerating the offender we are improving him, we are communicating to him his moral wrongdoing with the hope that he internalize the message, we are righting some sort of mystical imbalance in the universe which he created. But really what we are doing is using the force of law (it is always the force of law which in the end matters) to remove him from our midst and congratulating ourselves that we are treating him with the "respect" that the liberal state purports to owe its villainous subjects.
Corporal punishment, says the author, would return the punished to the public eye -- it would make the rest of us, for whom the world of crime is a shadowy specter that we hide from compulsively, that we tremble to see, confront it after a fashion. I once heard Judge Alex Kozinski say that if we are to retain capital punishment, executions ought to be publicly broadcast, so that we can see and sense and feel what we are doing. Here's James Fitzjames Stephen on the subject (from the piece, Pain, in his collection, Essays by Barrister):
It should not be wished that whatever is wrong and bad should be penned off from the rest of the community in a moral cesspool . . . . A somewhat more precise acquaintance than is commonly possessed with some of the secrets of prisons and hospitals would make many of us sadder, and most of us wiser.
Sunday, April 24, 2011
Gounod's Sanctus
Just back from Easter services, on this comparatively balmy day here in New York. The choir was particularly excellent -- beside the standard favorites, they also performed the Sanctus of Charles Gounod. Gounod is one of those (for me) hugely underrated composers of stunning Masses (and one of the best renditions of Faust, too).
But I had never heard the Sanctus, from (as I discovered here at home) his Messe Solennelle de Saint Cécile. Here is a recording with the great Jessye Norman in the lead (ours was good, but not this good -- wait for the crescendo and explosion at about the 3:40 mark). Happy Easter.
Thursday, April 21, 2011
"The Sacredness of Human Life"
Along the course of any little writing project, one may come across thought-provoking material that does not necessarily fit within the scope of the project itself. That has certainly happened to me lately. My project has been in part to understand Sir James Fitzjames Stephen's ideas about criminal punishment. Stephen was a towering figure in late-Victorian criminal law as well as the law of evidence, and a powerful political writer as well.
Here he is on a subject near and dear to Catholic Social Thought -- inherent human dignity, or the "sacredness" of human life -- offering some interesting though surely controversial thoughts (from an article by the same title in "The Saturday Review," June 25, 1864):
Few phrases are oftener on our lips than "the sacredness of human life." It is used on both sides, for instance, in the argument about capital punishments, and on almost all occasions it passes muster as the expression of an accredited maxim which it is impossible either to misunderstand or to deny to be true. It is not, however, easy to assign to it a meaning which fulfills both these conditions by plainly asserting an indisputable truth . . . . [jump through for more]
Wednesday, April 20, 2011
Christianity and Human Rights, An Introduction
Here's a concise write-up of this book, edited by John Witte and Frank Alexander (wonderful scholars in their own right, as well as innovators and impresarios when it comes to all kinds of exceptional writing in law and religion). With contributions by, among others, Robert Bellah, Nicholas Wolterstorff, Kent Greenawalt, and Rick Garnett.
Saturday, April 16, 2011
Symposium Discussion of Doug Laycock's Religious Liberty
Here's a terrific series of reviews by our Tom Berg, Steve Smith, and Jay Wexler of the first volume of Doug Laycock's projected four-volume (whoa...) series on religious liberty. There is also a response by Doug after the reviews. Read 'em all, and get yourself the book too!
Thursday, April 14, 2011
(Yet) Another Standing Decision in an Establishment Clause Case
It is Freedom From Religion Foundation v. Obama, decided by the Seventh Circuit (Judge Easterbrook). The case involves the issue whether citizens have a claim that the law (36 U.S.C. section 119) asking the President to proclaim a national day of prayer violates the Establishment Clause. Plaintiffs don't have standing, according to the court. The President would but, as the court says, he "is not complaining."
Legal Theories of Honor
Nate Oman has posted a very interesting looking paper (h/t Larry S.) that attempts to revive and update a theory of honor to explain and justify private law. A while back, Paul Horwitz tried to do something similar in the realm of public law for oaths (see here and also in this little review of Philip Hamburger's Law and Judicial Duty).
Putting aside their substantive merits (both papers have a lot to offer), these assays to reconstruct honor for modern sensibilities are interesting as a sociological matter -- just as a matter of mapping the moods and movements of academic thought. Oman quotes a piece by Peter Berger from the late '80s that I remember reading a while back called, "On the Obsolescence of the Concept of Honor," but it seems that obsolescence may be a cyclical rather than linear phenomenon. Likewise, and as Oman notes, Charles Taylor in Sources of the Self describes a transition from 'honor' societies to societies of 'dignity.'
All of this leads to a question: in what way (if at all) does the concept of honor figure into Catholic writing and thought? If it is right that a dignitarian outlook has largely replaced the honor ethic (pace the good efforts of folks like Oman), was it always the case that Catholic writers spoke in terms of dignity? And are there Catholic writers who rely explicitly on ideas of honor (and not dignity) to explain their views?
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