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.

Friday, October 18, 2013

The Pope's message on World Mission Day

Here is the "Message of Pope Francis for World Mission Day 2013."  (Clearly, this is not -- his unremarkable expressions of concern about inappropriate "proselytizing" notwithstanding -- the message of a pope who wants Christians to put aside evangelization!).  Here is a bit:

The work of evangelization often finds obstacles, not only externally, but also from within the ecclesial community. Sometimes there is lack of fervour, joy, courage and hope in proclaiming the Message of Christ to all and in helping the people of our time to an encounter with him. Sometimes, it is still thought that proclaiming the truth of the Gospel means an assault on freedom. Paul VI speaks eloquently on this: "It would be... an error to impose something on the consciences of our brethren. But to propose to their consciences the truth of the Gospel and salvation in Jesus Christ, with complete clarity and with total respect for free options which it presents... is a tribute to this freedom" (Evangelii Nuntiandi, 80). We must always have the courage and the joy of proposing, with respect, an encounter with Christ, and being heralds of his Gospel. 

In this essay of mine -- now several years old -- I suggested (among other things) that: "the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons."

Pope Francis and Abraham Lincoln

A reader sent me a very interesting reflection about Abraham Lincoln, Pope Francis, and what folks today call "messaging."  With permission, I am posting it here at Mirror of Justice:

It seems to me like there is an apt analogy to Pope Francis's change in messaging (not doctrine) within American political history. 

I'm reminded of Lincoln's speech to the Washington Temperance Society.  He pointed out, "The cause itself seems suddenly transformed from a cold abstract theory, to a living, breathing, active, and powerful chieftain, going forth 'conquering and to conquer.' The citadels of his great adversary are daily being stormed and dismantled; his temple and his altars, where the rites of his idolatrous worship have long been performed, and where human sacrifices have long been wont to be made, are daily desecrated and deserted. The trump of the conqueror's fame is sounding from hill to hill, from sea to sea, and from land to land, and calling millions to his standard at a blast."  Not too different from the pro-life movement today.  Ultrasounds and CPCs transform the unborn "from a cold abstract theory" to "living, breathing, active" humans.  We are storming and dismantling abortion clinics where human sacrifices are made.  Public opinion trumpets increasing support for the Catholic position "from hill to hill, from sea to sea, and from land to land".

But Lincoln didn't provide a therapeutic speech to his audience.  He called upon them to consider why "that success is so much greater now than heretofore" and attributes it to "rational causes".  He encourages them that "if we would have it continue, we shall do well to inquire what those causes are."  He then lays into a significant part of the temperance movement, saying that the "old school" had in fact set back the gains.  Their method was wrong.  "Too much denunciation against dram sellers and dram drinkers was indulged in" which was both "impolitic and unjust". 

The old school used "thundering tones of anathema and denunciation, with which the lordly Judge often groups together all the crimes of the felon's life, and thrusts them in his face just ere he passes sentence of death upon him, that they were the authors of all the vice and misery and crime in the land; that they were the manufacturers and material of all the thieves and robbers and murderers that infested the earth; that their houses were the workshops of the devil; and that their persons should be shunned by all the good and virtuous, as moral pestilences".  Lincoln calls it impolitic "to have expected them not to meet denunciation with denunciation, crimination with crimination, and anathema with anathema" because that would be "to expect a reversal of human nature, which is God's decree, and never can be reversed."  The old school was unjust because they argued "that all habitual drunkards were utterly incorrigible, and therefore, must be turned adrift, and damned without remedy, in order that the grace of temperance might abound to the temperate then, and to all mankind some hundred years thereafter".  This is "so uncharitable, so cold-blooded and feelingless... so fiendishly selfish, so like throwing fathers and brothers overboard, to lighten the boat for our security" that a noble mind shrinks from the "manifest meanness of the thing".

In contrast, there was the new temperance movement:  the "victim of intemperance" who "appears before his neighbors 'clothed, and in his right mind,' a redeemed specimen of long-lost humanity, and stands up with tears of joy trembling in his eyes, to tell of the miseries once endured, now to be endured no more forever; of his once naked and starving children, now clad and fed comfortably; of a wife long weighed down with woe, weeping, and a broken heart, now restored to health, happiness, and a renewed affection; and how easily it is all done, once it is resolved to be done; how simple his language, there is a logic, and an eloquence in it, that few, with human feelings, can resist."  Their methods are just.  "They go for present as well as future good. They labor for all now living, as well as all hereafter to live. They teach hope to all -- despair to none. As applying to their cause, they deny the doctrine of unpardonable sin. As in Christianity it is taught, so in this they teach, that 'While the lamp holds out to burn, The vilest sinner may return.'"

Now take Lincoln's speech and use it as a lens through which to view Pope Francis.  Just like Lincoln, he's not stopped decrying the target of the rhetoric (abortion for Francis, alcohol for Lincoln), but he's been calling for moderation in the rhetoric.  Just as with Lincoln, it's not all that off based to suggest that we could use some moderation.  A quick run through the comboxes on traditionalist/conservative Catholic blogs or the rhetoric used in fundraising e-mails by Catholic political organizations makes plain the sentiment that the President is utterly incorrigible, without remedy, and that the White House is the workshop of the devil.  That sort of language is over the top and both impolitic and unjust, as Lincoln believed.  That's not to say it's always the case that pro-lifers use that language in every case, but that we use it in too often a case.  It's something I think Pope Francis sees, too.

Go back to his interview for Jesuit magazines.  He said, "We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods. This is not possible. I have not spoken much about these things, and I was reprimanded for that. But when we speak about these issues, we have to talk about them in a context."  This was immediately preceeded by a discussion of a post-abortive woman who regrets the abortion and now has a large family.  He wants us to realize the context in which our listeners exist.  The woman who has come to sincerely regret her abortion and embrace life is Lincoln's "redeemed specimen of long-lost humanity" who is "restored to health, happiness, and a renewed affection."  But if we seek to have more people like that, we must be in the new school which seeks to draw people in rather than divide them and condemn the opposition.  Incorporate into the discussion Pope Francis's General Audience of 25 September and see how he condemns gossip as the source of disunity.  Like Lincoln, this is a man very conscious of words and their power.  He wants that power used wisely.

Turning then to the American context, we'd do well to do a better job of self-policing.  We build up echo chambers of mutual reinforcement rather than reproaching ourselves.  We scarcely recall the phrase that Pope Francis uses often: "I am a sinner."  We may see ourselves less as the older brother and more as the younger if we kept in mind the log pole in our own eyes.  But this is uncomfortable.  So just as the Church under Benedict and John Paul II made many people on the left uncomfortable, perhaps its good that the right now feels uncomfortable as well.  It may make us grow in new areas and be more cognizant of other parts of the Christian life in which we must take action.

Wednesday, October 16, 2013

Rosen reviews Forsythe on Roe

Here is Jeff Rosen's helpful and I think fair review of Clarke Forsythe's new book -- "Abuse of Discretion" -- on the Roe decision.  Here's a bit:

. . . "Abuse of Discretion" provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions. . . .

Justice Ginsburg has said that the court should have ruled more narrowly in Roe, striking down
the extreme Texas law while leaving it up to the states to debate the precise
contours of the right to choose. Mr. Forsythe agrees that a narrower ruling
could have allowed the debate to continue while participants observed how public
health was affected in the 13 states that allowed abortion under certain
circumstances. A wiser and more restrained approach, in other words, might have
been "wait and see."

Mr. Forsythe is especially critical of the Supreme Court for deciding Roe on an incomplete
factual record, with no trials or evidence in the lower courts or examination of
medical evidence. "Courts should not formulate rules of constitutional law
broader than required by the facts," Mr. Forsythe concludes. Today liberals
criticize conservative justices for delivering overly broad decisions in cases
like Citizens Unitedv. Federal Election Commission, which struck down
campaign-finance restrictions on corporate spending, and Shelby County v.
Holder, which struck down a key provision of the Federal Voting Rights Act. Mr.
Forsythe's book is a useful chronicle of the most prominent case in the past 40
years when the shoe was on the other foot.

Again, I think the review is well done, and I'm very happy for Mr. Forsythe, who has been working hard on this important project.  I do have one minor quibble / question regarding the review, though.  Rosen writes:

The most surprising omission in this book is that Mr. Forsythe fails to discuss in any
detail the transformative impact of Gonzales v. Carhart, the 2007 decision by
the Supreme Court upholding the federal partial-birth abortion law, which
doesn't contain a health exception and allows restrictions on abortion both
before and after fetal viability. The Gonzales case, which Americans United for
Life has invoked in defending current laws that restrict abortions throughout
pregnancy, calls into question Mr. Forsythe's claim that the U.S. today is one
of only four nations allowing abortion "for any reason after fetal
viability."

But, the partial-birth-abortion law (if I remember correctly) restricts post-viability abortions of a certain type, not abortion itself.  So, it doesn't seem to me that the Court's decision undermines Clarke's claim about America's outlier status in terms of allowing abortions after viability.  Still, as Rosen writes, the longer-term effects of the decision remain to be seen.

Monday, October 14, 2013

More on Pope Francis, misunderstandings, risks, and older brothers

Returning to my ongoing conversation-with-myself about the content and reception of some of Pope Francis's recent and highly publicized less-formal interventions:   I got together the other night with some good friends-and-colleagues here at Notre Dame to reflect on the America interview and the "letter to the Italian atheist."  This gathering gave me an excuse to re-read both items, and I was struck, again, by (at least) three things:  First, I really like their warm and inviting tone.  While. I admit, I am not entirely sold on the idea that magazine interviews and semi-private correspondence is the ideal vehicle for the Pope's pastoral or teaching roles, it seems impossible to deny (and, of course, why would one want to?) the appeal of these and similar writings and statements.

Second, I'm struck -- hammered, really -- by how badly these writings have been presented in most press coverage.   (This means, among other things, that some "conservatives" who have been complaining -- or worse! -- about the Pope's statements are really complaining about un-made statements.)  For example, it was not evangelization but "proselytism" -- which has long meant in Church teaching and papal writings a particular unworthy mode of communication that is inconsistent with the human dignity of the hearer -- that was dismissed by the Pope as "pious nonsense."  And, the Pope did not say, in America, that Catholics or the Church are "obsessed" with abortion and marriage; he did say that he did not think it was necessary to speak about these issues "all the time" (no one thinks that it is, it seems to me) and that it is better to speak about them in context, in the right way, as connected with the deep, core truths of the Gospel and about the human person.  And, his point that we cannot "interfere spiritually" with people is an echo of John Paul II's reminder that the Church must "propose, not impose" -- it was not a statement about laws relating to marriage or about sexual morality.  And on and on.  (To be clear:  I am not here "parsing the Pope", in an effort to avoid or water down something he said that I don't like.  I am venting frustration over the fact that it's being reported, said, and complained that he said things he didn't say.)

Third, I did have a sense that John Allen was (as he so often is) right to raise the possibility of the Holy Father needing to respond to an "older son problem", in the sense that some Catholics -- I'm thinking particularly of those who have, without being "obsessed" or "legalistic", heroically labored in the trenches of the pro-life movement -- might wonder if their work -- which is, after all, precisely the kind of love-and-mercy-in-action that the Pope is challenging all of us to take up -- is getting short-changed a bit.  It would be a blunder -- not so much a doctrinal or "culture war" one, but a pastoral one -- if the Pope or a bishop were to -- unwittingly, obviously -- cause the self-sacrificing and inspiringly other-regarding people (I am thinking of Ann Manion, the incredible person behind Indiana's "Women's Care Center") who have given a lot to help vulnerable women and unborn children to doubt the Church's gratitude and support.

Now, I think that some of my friends at the gathering were (not without reason!) confused or even frustrated by my simultaneous expressions of (a) appreciation for the Pope's statements, (b) criticism of misinterpretations and misrepresentations by misguided critics and perhaps-disingenuous fans, and (c) concerns about the message some statements could send but, well, there it is.  Now . . . what does any of this have to do with law?  Maybe (for now) this:  A challenge facing any legislator or legislature is the crafting, in a prudent way, of laws that work -- that move the ball in the direction of their object or goal, in a reasonably efficient way, with reasonably low risk of unintended sub-optimal consequences and side-effects.  It will be the rare law that comes with no such risk or causes no such consequences, but still we press on with law-making.  What choice do we have?  Well, given all the givens about communication, context, and the press's blind-spots and pathologies, it will be a rare papal statement -- whether a letter to a news-editor or to the universal Church -- that will not be misunderstood or misrepresented by some.  It would be wise, and pastoral, for Church leaders, including the Holy Father, to do what they can to reduce the risks of misunderstanding or the dangers of misrepresentation but, at the end of the day, these risks and dangers are ineradicable and, I suppose, have to be faced if the Church is going to be salt and light, teacher and prophet, friend and "field hospital."   

Wednesday, October 9, 2013

Dreher on the religious liberty and SSM debate

Rod Dreher has this essay at The American Conservative about the ongoing debate -- to which many of us have contributed -- about the extent to which religion-based objections to expanding the legal category of marriage to include same-sex couples can, will, or should be accommodated in the context of, e.g., anti-discrimination laws.

Monday, October 7, 2013

Justice Scalia talks about some things-Catholic in interview

Lots of people are blogging and buzzing about the recent wide-ranging interview Justice Scalia gave to nymag.com.  Here is a link to some parts of the interview having to do with things-Catholic.  Interesting stuff.  I hope that this bit reminds everyone of a certain great scene in a certain great movie:

Have you seen evidence of the Devil lately?

You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot.  And that doesn’t happen very much anymore.

No.

It’s because he’s smart.

So what’s he doing now?

What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

 

Wednesday, October 2, 2013

"Pragmatic Eudaimonism"

Recently -- both online at Public Discourse and in the pages of First Things -- there has been an interesting conversation about law, liberalism, happiness, culture, etc. among Robert Miller, Patrick Deneen, David Tubbs, and others.  Here is a link to Prof. Miller's latest intervention, "The Practical Eudaimonist."  Here is a bit from his opening paragraphs:

[My first point] was that, although the liberal political institutions of the United States can easily and naturally be justified on the basis of a liberal political philosophy, they can also be justified as pragmatic political compromises worked out by people who disagree sharply on moral issues and have divergent interests and life goals. I called the former kind of justification for liberal institutions philosophical liberalism and the latter pragmatic liberalism.

My second point was that a Roman Catholic like me, who understands morality to be eudaimonistic in the manner of the Aristotelian-Thomistic tradition, can and should be a pragmatic liberal, because, in the totality of current circumstances, liberal political institutions comprise the best available system of government in the sense that they afford the best chance of allowing people to lead good human lives, which is the central concern of eudaimonistic moral philosophy. . . .

I am sympathetic to Miller's claims (and think that his responses to his critics -- including my friend and neighbor Deneen -- are convincing).  Of course -- and I'm sure Miller would agree -- there are dangers posed by "liberal political institutions" like ours to human flourishing.  One of those dangers, in fact, is that these institutions will become less liberal and more (illiberally) statist and monistic, and this danger is a very live one, I think, today.  Still, I think that Miller (like John Courtney Murray) is right to think that America's "liberal political institutions" can be regarded, and defended, by Catholics as maintaining the space and order within which the work of moral formation and integral human development can be done by families, communities, the Church, and so on.

Tuesday, October 1, 2013

"Freedom of Expression and Religion" at Butler University

In case you are interested, here is a link to video from my presentation and participation at an event, sponsored by Butler University's Center for Faith and Vocation, last week on the "Freedom of Expression and Religion."  My remarks -- during which I steal shamelessly from John Witte -- start at about 29:00.  And, starting at about 1:10:00, there's a good 45 minutes or so of Q & A.  

Monday, September 30, 2013

The role of the Knights during the Cristiada

Our own (sort of) Maria de Lourdes Ruiz Scaperlanda has a really nice piece up about the role of the Knights of Columbus during the 1920's Cristiada. (Here, in case you have not read it in a while, is Quas Primas.)

Viva Cristo Rey!

Thoughts on the Court's new legislative-prayer case

I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting.  (Go here for a list of all the very-worth-reading contributions.)  Here's a bit:

. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment.  What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings.  “Establishments” of religion do exist in the world, but this is not one.  Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches.  “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.

The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions.  The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .