There is a lot of (welcome and appropriate) interest in the question whether law schools' curricula are sufficiently comprehensive and doing enough to prepare law students to understand the legal enterprise and practice law in the 21st century. This essay, at Slate, suggests that law schools, among other things, "aren’t doing enough to educate future policymakers about reproductive rights issues." This is true, though probably not in the way that the author believes.
Monday, October 31, 2011
Are American law schools short-changing "reproductive rights" law?
Tuesday, October 25, 2011
The "Note on Financial Reform"
Others have called attention to the Pontifical Council for Justice and Peace's "Note on Financial Reform." (The Note is available here.) The responses to and readings of the Note have been, I think, what one would have predicted: Some are crowing that "the Vatican" has endorsed the demands and aims of the "Occupy Wall Street" participants, others are insisting that the Note is misguided Euro-talk and, in any event, carries little authority. And so it goes.
There can be no doubt, I think, that it is entirely appropriate for the Church (or, in this case, for particular offices in Vatican City) to call attention to economic and social problems, to remind persons of good will of the content and foundations of Christian humanism, to challenge governments and persons alike to act in ways that are consistent with morality and the truth about the human person, and to share well-considered judgments or suggestions regarding sound policy. It also seems clear -- with respect to this business about "supranational authorities" -- that the post-Westphalian set-up is not an article of faith (even if a commitment to the rule of law and the requirement that secular authority democratic have legitimacy should be).
That said, and at the risk of being accused by some friends in the left-of-center sectors of the Catholic blogosphere of "ranting" or being a "neo-con", I'll confess that I think (a) many are (perhaps strategically and tactically) mis- and over-reading the Note in order to overstate the consonance between its vision and the current policies of the Democratic Party in the United States and its special-interest constituencies; (b) many are making the mistake that was widely made with respect to the Pope's Caritas, i.e., imagining that the Church proposes a list of "economic policy proposals" that can be conveniently lifted, to the extent they strike the lifter as attractive, without any attached moral anthropology (which might, in turn, come with some unwelcome implications for, say, religious liberty, the family, education, etc.); and (c) it is a mistake to think that the Note, with its focus on world-wide financial markets, somehow baptizes our and other governments' current overspending, or the self-interested (dare we say "greedy"?) and damaging positions being staked out by, e.g., public-employee unions.
A final thought: When a document like the Note is released, it is often "played," like a good card, in policy and other debates by people who do not, in fact, believe that the Church has the teaching authority it claims. (Maureen Dowd, for example, does this kind of thing a lot.) Such "playing" of writings by Church leaders and teachers is, to me, irritating. I do believe, after all, that even (what strike me as) the somewhat wooly-headed proposals and diagnoses that are sometimes offered on various subjects by Catholic bishops, councils, conferences, etc., demand and deserve my respectful engagement, even when not my embrace or submission. But, I do not think these proposals and diagnoses should be invoked or deployed as authoritative by people who deny that the Church has anything worth listening to -- let alone submitted to -- when it comes to, say, the obligation of a political community to extend the law's equal protection against private violence to the disabled and the unborn.
UPDATE: As usual, John Allen has an interesting take:
Focusing on how much papal muscle the note can flex, however, risks ignoring what is at least an equally revealing question: Whatever you make of it, does the note seem to reflect important currents in Catholic social and political thought anywhere in the world?
The answer is yes, and it happens to be where two-thirds of the Catholics on the planet today live: the southern hemisphere, also known as the developing world. . . .
Great news from Notre Dame: Snead appointed to direct Center for Ethics & Culture
Many MOJ readers will be familiar with the work of Notre Dame's Center for Ethics & Culture, and with the wonderful Fall Conferences that the Center's founding director, David Solomon, has hosted for the past decade. I am pleased to pass on the news that Dean John McGreevy has announced the appointment of my friend and colleague, Carter Snead, to succeed Prof. Solomon. Congratulations to Carter, and all good wishes to the Center for continued success, growth, and scholarly contributions!
"Defending Our First Freedom"
Over at First Things, the Archbishop of Los Angeles, Jose Gomez, has a nice essay up on the importance of religious liberty, our "first freedom." He concludes with this:
In our history, religious freedom has always included the rights of churches and religious institutions to establish hospitals, schools, charities, media outlets, and other agencies—and to staff these ministries and run them, free from government intrusion.
And religious freedom has always included the churches’ rights to engage in the public square to help shape our nation’s moral and social fabric. We see this throughout our history—from the abolitionist movement, to the civil rights movement, to the pro-life movement.
America’s founders understood that our democracy depends on Americans being moral and virtuous. They knew the best guarantee for this is a civil society in which individuals and religious institutions were free to live, act, and vote according to their values and principles. We need to help our leaders today rediscover the wisdom of America’s founding. And we need to help believers once more understand the vital importance of this “first freedom.” At stake are not just our liberties but also the future character of our democracy.
Monday, October 24, 2011
Fragoso on conscience, health care, and takings
My student, Michael Fragoso, has just published a student note that will be of interest to many MOJ readers. It's called "Taking Conscience Seriously or Seriously Taking Conscience? Obstetricians, Specialty Boards, and the Takings Clause." Check it out.
Friday, October 21, 2011
Bishop Kevin Rhoades's Red Mass homily on religious freedom
My bishop, Kevin Rhoades, gave at the local Red Mass an excellent homily on the importance of, and some of the threats to, religious freedom. A bit:
. . . As Americans, we enjoy the guarantee of freedom of religion, enshrined as the first Amendment to our nation’s Constitution. Religious freedom is something we Americans cherish. It is something that we as Catholics hold to be a fundamental human right, a right rooted in the very dignity of the human person. It is rooted in human nature, part of the natural law. The right to religious freedom, like the right to life, is an essential element of human dignity.
In his address to the United Nations in 2008, Pope Benedict spoke about religious freedom and about the need for recognition of the religious and the social dimensions of the human person. He said: “it is inconceivable that believers should have to suppress a part of themselves – their faith – in order to be active citizens. It should never be necessary to deny God in order to enjoy one’s rights.”
I am speaking about these things at this Red Mass this evening because of the current situation the Catholic Church is facing here in the United States. There is a subtle, and increasingly not so subtle, effort by some in our society to restrict our religious liberty. And they are enjoying some success. . . .
Thursday, October 20, 2011
Low, crude, and nasty . . . even for Maureen Dowd
I know, I know . . . why do I (why does anyone) read Maureen Dowd? It's all snark, snarl, preen, repeat. Still, her recent piece on Gov. Mitt Romney's Mormon religion is, even for her, stands out. After not-remotely-subtly calling attention to Mormon practices and beliefs that she knows her readers will find strange or objectionable, she then acts as though she's just reporting and warning about those nasty other folks "who have made faith part of the presidential test," rather than stoking the fires of anti-Mormonism herself (obviously, with an eye toward the 2012 general election). (To be clear, I don't think it's necessarily wrong for citizens to think and talk about candidates' religious beliefs and commitments, and -- if they are relevant, as they surely can be -- to take them into account when voting. What is wrong, I think, is to stoke prejudice while purporting to criticize it.)
Aidan O'Neill on the EU human-embryo decision
Following up on Fr. Araujo's post: Over at EutopiaLaw, MOJ-friend Aidan O'Neill has posted this discussion of the Court of Justice's decision (quoting Fr. Arajuo) that "the process of removing stem cells from a human embryo, which necessitates death of the embryo, cannot be patented." A taste:
Whatever one thinks of the merits of the decision, the reasoning of the CJEU is of particular interest from a legal and ethical point of view in its reference to and reliance upon “fundamental rights and, in particular, the dignity of the person” as regards the treatment of the human embryo. The relevant background to this decision, and the specific reliance upon “the dignity of the person” is undoubtedly to be found in the terms of the EU Charter of Fundamental Rights, Title I of which is headed “Dignity” and contains five articles . . .
I recall Steven ("The Stupidity of Dignity") Pinker's complaint that the invocation of "dignity" in conversations about science and its limits was a "conservative" "ploy." I guess the Court of Justice disagrees.
Tuesday, October 18, 2011
"The American Bible"?
In this very engaging review, "Why Read Moby Dick?", the author quotes writer Nathaniel Philbrick as saying that Moby Dick is essential reading because "it's as close to being our American Bible as we have.
What a bizarre thing to say! Moby Dick is essential reading, but the "American Bible" is, of course, the Bible.
Monday, October 17, 2011
Smith on "Freedom of Religion or Freedom of the Church?"
As Paul Horwitz mentioned, over at Prawfsblawg, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church? You can get a version of the paper on SSRN (here). Here is the abstract:
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap. What's left for me to say, for the 30 years or so until I retire? Time to re-tool as a Third Amendment scholar . . ." Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests. Three come to mind:
First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation. There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.
Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.
Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.
Anyway, check out the paper.