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, December 12, 2011

"The Least Evil Option"

By Rick Garnett

Fr. Wilson Miscamble (Notre Dame), my friend and colleague, has posted a response to Chris Tollefsen, and a "defense of Harry Truman," over at Public Discourse.  Fr. Miscamble writes, among other things, the following:

. . . I suggest that, in retrospect and within the privacy of his heart, Truman likely understood that he had been forced by necessity to enter into evil. And so, I argue in my book, he had. He ordered the bombing of cities possessing significant military-industrial value, but in which thousands of noncombatants, among them the innocent elderly and the sick, women and children, were annihilated. Evaluated in isolation, each atomic bombing was a deeply immoral act deserving of condemnation. The fact that the bombings entailed the least harm of the available paths to victory, and that it brought an end to destruction, death, and casualties on an even more massive scale, cannot obviate their evil; it should, however, satisfy those who accept a utilitarian approach to morality, in which good ends can justify certain immoral means. I am not in that number.

Yet I remain sympathetic in evaluating Truman and his decision. . . .

Review of Taylor & Maclure, "Secularism and Freedom of Conscience"

By Rick Garnett

Ruth Abbey's (Notre Dame) review of Charles Taylor's & Jocelyn Maclure's "Secularism and Freedom of Conscience" is available here, at Notre Dame Philosophical Reviews.  The conclusion:

This short work offers a clear and accessible account of some of the central issues at stake in theoretical and practical debates about the relationship between religion and politics in contemporary western societies. One question I was left with at the end, however, was who its intended audience is. Because A Secular Age had little to say explicitly about political philosophy, this work might satisfy some residual curiosity about Taylor's views on straightforwardly political questions that fall within its orbit. Secularism and Freedom of Conscience traverses a lot of ground in very short space, which prevents it from going into great detail on any single topic. Its engagement with the vast scholarly literature on the topics it touches on is light, suggesting that its primary audience is newcomers to this topic, and perhaps the elusive general reader, rather than academic researchers in this field.

Some recent posts about "Distributism"

By Rick Garnett

Here's Thaddeus Kozinski; Joe Carter; John Couretas; and Patrick Deneen.  Read 'em all. 

I'm really torn -- or maybe just mixed up -- about "distributism," in many of the same ways I'm torn (or mixed up) about "new urbanism" and the "slow food" movement.  I am attracted to the aesthetics, and even to the underlying anthropology, but put off by the lack of interest these ideas' advocates often seem to display with respect to details about transitions, legal structures, practicalities, coercion, and costs.  I love Chesterton and Berry and all that but, dang it, markets and incentives and trade-offs are (this side of Heaven) permanent realities.  What I really appreciate is when I read someone who's working on what we might call "applied" and "modest" distributism or new urbanism, someone who proposes reasonably efficient and realistic "nudges" we might use to help people move along the trajectory of real flourishing.      

Fed Soc Faculty Conference at AALS Annual Meeting

By Rick Garnett

For many years, the Federalist Society has held a one-day Faculty Conference that coincides with the Annual Meeting of the AALS.  Information on this year's conference -- about the speakers and topics, and also about how to register -- is available here.

Friday, December 9, 2011

Paulsen on "The Most Important Religious Liberty Case of the Past Thirty Years

By Rick Garnett

My friend Mike Paulsen makes a powerful case, here, at Public Discourse, for the high-importance of the Court's 1981 Widmar decision.  As he points out, Widmar formed the basis for the Court's repeated rejection -- between 1981 and the Court's Zelman decision -- of the claim that the Establishment Clause generally requires discrimination against private religious speakers, speech, and activity:

Widmar thus broke the Establishment Clause logjam that had become a barrier to true religious freedom. The former skewed thinking--that separation required discrimination--began to give way. Much as Brown v. Board of Education had broken the back of separate-but-equal state racial segregation a generation earlier, Widmar broke the back of separate-and-unequal official religious discrimination. . . .

. . . Despite exceptions and odd departures, Widmar states the bedrock rules: The Free Speech Clause forbids government from excluding or discriminating against private parties' religious expression because of its religious content. The Establishment Clause does not authorize or justify such discrimination, ever. Where government has provided a program or a benefit on a general basis, it may not exclude religious persons or groups on the basis of their religious expression or identity. It is hard to think of a better, more succinct statement of the essentials of religious freedom.

Tuesday, December 6, 2011

"School Choice is Social Justice Concern"

By Rick Garnett

Indeed, it is.  A report from a recent conference at Catholic University.

Thursday, December 1, 2011

"Liberty's Refuge"

By Rick Garnett

I was delighted to receive today my copy of John Inazu's hot-of-the-presses book, "Liberty's Refuge:  The Forgotten Freedom of Assembly" (Yale).  To quote one Paul Horwitz, "This is a splendid act of retrieval. . . .  Thoughtfully argued, beautifully written, and drawing on a wealth of sources, Inazu's book is a valuable contribution to First Amendment law and theory."

Congrats, John! 

Wednesday, November 30, 2011

"The Authority to Kill"

By Rick Garnett

Joseph Bottum has an (I think) intriguing essay up at Public Discourse, called "The Authority to Kill," in which he presents an argument that I remember hearing at a conference, at Notre Dame, about 12 years ago, but not since.  In a nutshell, Bottum's point is that there are some powers that some, but not all, governments (legitimately) have and exercise?  Obviously, not all governments are vested by their constitutions with the same powers, but these variations among different jurisdictions' positive laws is not Bottum's subject.  Instead, and focusing on the death penalty and war-making, Bottum asks whether there are some "forms of government" that may legitimately execute murderers, or go to war, while some others may not.  Are there some forms of governments that lack what it takes to apply the death penalty "because its killers deserve to die?"

Check it out.  

"The Costs of Taking Conscience"

By Rick Garnett

Check out (my student) Michael Fragoso's piece, over at Public Discourse, called "The Costs of Taking Conscience."  In it, he notes (among other things) that the move to limit the rights of physicians and nurses to refuse to participate in abortions will reduce the supply of physicians and nurses in important fields -- a result that those who purport to care about health-care access and reform should want to avoid.

Tuesday, November 29, 2011

"Marriage and Divorce in a Multicultural Context"

By Rick Garnett

I cannot remember if others have mentioned it here at MOJ, but I recently received a copy of Joel Nichols' (St. Thomas) really engaging edited volume called Marriage and Divorce in a Multicultural Context:  Multi-Tiered Marriage and the Boundaries of Civil Law and Religion.  Check it out.  The various chapters will be of interest, I'm sure, to Catholic Legal Theory types, dealing as they do will all kinds of family-, subsidiarity-, pluralism-, and legal-moralism-related questions.

Here is my back-cover blurb:

"The institution of marriage is ancient and everywhere; it is also increasingly vulnerable and contested. It involves relationships that are intimate and private; at the same time, it makes contributions and has consequences that are social and public. It is both a sacrament and a state-action; it is both prior to, and pervasively structured by, the law. Responding to these facts and tensions, this engaging collection of interdisciplinary essays by a diverse array of legal scholars explores carefully the provocative possibility that marriage can and should be dealt with in different ways, in different communities, by plural authorities. They ask whether it is possible, justifiable, and desirable to separate marriage's private and religious dimensions from the coverage and concern of the state's power, and call our attention to both the attractions, and the dangers, of such a move."

- Richard W. Garnett
Professor of Law and Associate Dean, Notre Dame Law School

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