It appears that I (uncharacteristically) missed a chance to bask and brag, and forgot to note that this blog marked its ninth anniversary (!!) a few weeks ago. Here's my first post, on "Moral Anthropology and the Law":
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?
And, nine years ago today, Rob Vischer reflected on the charge that then-candidate Sen. John Kerry was engaging in "religious posturing for political gain."
Here's a short clip from an upcoming PBS documentary, "Constitution USA with Peter Sagal", in which I very . . . efficiently explain (what I think is) the "right way to understand" the separation of church and state. Another way to describe the video would be to say that it presents "two very bald guys wandering around a courtyard."
For all those in, near, or dying to visit South Bend: Here's a really cool upcoming event, sponsored by Notre Dame's Center for Ethics and Culture:
Rock'N'Roll as Search for the Infinite
At 8PM on Thursday, April 11th, in the McKenna Hall Auditorium, John Waters, Irish music journalist, author, and playwright, will give a presentation entitled, "Three Chords and the Desire for Truth: Rock'N'Roll as Search for the Infinite." In this presentation, Mr. Waters will discuss the work of different rock'n'roll musicians and examine the way in which this work reflects a longing for something much greater than the drugs, sex, and fame normally associated with the genre. Artists discussed will include Mumford and Sons, U2, Dave Matthews Band, Pink Floyd, and others.
Go here to learn more about Doe v. Elmbrook, an interesting new cases being handled by the good folks at the Becket Fund for Religious Liberty. The en banc CTA7 ruled that it was unconstitutional for a school district to hold graduation events in a church auditorium -- which was selected because it was an appropriate and cost-effective venue (objectively better than the school gym) -- because "the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive . . . a message of endorsement" and because using church space in this way was "religiously coercive." One of the dissenters, though, Judge Easterbrook, noted that the “only message a reasonable observer would perceive is that comfortable space is preferable to cramped, overheated space. * * * No reasonable observer believes that renting an auditorium for a day endorses the way the landlord uses that space the other 364 days.”
Continuing the conversation that's been going on, in recent months, among folks like Patrick Deneen, Phillip Munoz, Paul Griffiths, and others, about "American liberalism": This essay, in the latest First Things, by Robert Miller (now at Iowa, formerly at Villanova), struck me as well worth a read. In particularly, his distinction between "philosophical liberalism" and "pragmatic liberalism" seems worth keeping in mind. A bit:
An Aristotelian-Thomistic eudaimonist can thus be a pragmatic liberal in contemporary America. There is a deeper point here, however, and it is that, although the philosophical liberal must reject as immoral any form of government other than liberal democracy, the Aristotelian-Thomist can be much more flexible. Leaving aside some extreme systems that would substantially prevent a person from attaining his final end (e.g., a Shari’a theocracy or a Nazi or communist dictatorship), an Aristotelian-Thomist should conclude that, in the right circumstances, almost any form of government may be the best available. Hence, St. Paul urged respect for the Roman emperor, who was an absolute autocrat;St. Wenceslaus was a feudal overlord; and St. Thomas More served Henry VIII, who was a constitutional monarch.
The Aristotelian-Thomist would endorse these forms of government not because they answer to certain political principles but because, in the circumstances, they were more likely to produce conditions under which people could live good lives than were any of the practically available alternatives.
"For the first time, a state court has affirmed the constitutionality of a Modern Orthodox-sponsored prenuptial agreement meant to protect agunot — Jewish women “chained” by husbands who refuse to grant them a religious divorce."
As the other Richard already noted, Indiana's Supreme Court (unanimously) rejected the attempt by school-choice opponents to overturn the Hoosier State's exciting new program. We should hope that the Indiana Court's analysis serves as a model, in the future, for other state courts dealing with state-constitutional-law challenges to school-funding reforms. This paragraph, for example, nicely responds to the objection that school-choice programs unconstitutionally direct public funds for the "benefit of [a] religious or theological institution":
We first find it inconceivable that the framers and ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit -- for example, fire and police protection,municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public. Any benefit to religious or theological institutions in the above examples, though potentially substantial, is ancillary and indirect. We hold today that the proper test for examining whether a government expenditure violates Article 1, Section 6, is not whether a religious or theological institution substantially benefits from the expenditure, but whether the expenditure directly benefits such an institution. To hold otherwise would put at constitutional risk every government expenditure incidentally, albeit substantially, benefiting any religious or theological institution. Such interpretation would be inconsistent with our obligation to presume that legislative enactments are constitutional and, if possible, to construe statutes in a manner that renders them constitutional. Section 6 prohibits government expenditures that directly benefit any religious or theological institution. Ancillary indirect benefits to such institutions do not render improper those government expenditures that are otherwise permissible.
Here (Download Glenn on NH Blaine) is the expert testimony prepared by Prof. Charles Glenn (BU) -- a leading scholar in the relevant areas -- in connection with the New Hampshire tuition-tax-credit case. The document is called "The Discriminatory Origins of New Hampshire's 'Blaine Amendment'" and is a very helpful resource for those interested in learning more about the "schools questions" generally.
Following up on Michael's post regarding Andy Koppelman's review of George et al.'s book (phew!) . . . here's a piece by Prof. Steven Smith, with whose work I imagine most of us are familiar, from Public Discourse, called "The Red Herring of 'Marriage Equality.'" As both the George et al. book and Andy's review of it remind us, it is not possible to avoid, in the argument / debate / conversation about same-sex marriage and whether its legal recognition is constitutionally or morally required, the question of what "marriage" is. And, I'm inclined to agree with Steve that, often, the appeal to "equality" (as in "marriage equality") in this context unhelpfully skips past this question, or assumes a contestable answer to it. (And, Andy would say, in response, that those who oppose legal recognition of same-sex marriage do the same thing.)
This sometimes happens, of course, in the abortion debate, too, when the question is framed as "why shouldn't a woman have the right to decide what to do with a part of her body?" when, after all, those who abortion would agree that (generally speaking) we all have a right to decide what to do with a "part of [our] bodies" -- the right question is, "is the unborn child, for purposes of answering a question about what we may do to him or her, a person?"
