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.

Tuesday, January 18, 2011

"America, America"

In a recent issue of First Things, James Nuechterlein had an interesting essay called "America, America" (subscription required).  In the course of more general reflections about "patriotism", and echoing a line of argument that I associate with, among others, our colleague Tom Berg, he explained helpfully (I thought) the role and importance of the "under God" language in the Pledge of Allegiance.  A bit:

. . . For Christians of an Augustinian persuasion, it is finally only the city of God to which they owe unqualified allegiance, and they understand, or ought to understand, that on earth we have no abiding city. In the orthodox Christian view of things, all our cities—even the best of them—are greater or lesser Babylons in which we sojourn as strangers and pilgrims. We are alien residents, on the journey to our ultimate citizenship in the New Jerusalem.

This is not to suggest that Christians must be estranged from their own countries. But they do understand that neither politics nor patriotism is of ultimate concern. These things may engage us deeply, but our understanding of human sin and finitude—especially as manifested in collective behavior—serves to inoculate us against the utopian and salvific temptations that lie behind nationalist enormities. The very best of political arrangements, those calling for our deepest attachment, can bring only a very rough justice. That is not nothing, but neither is it worthy of total or unqualified commitment.

All this may sound, in tone if not in substance, vaguely un-American, and so, by extension, somewhat unpatriotic. But in fact it is just that off-center angle of vision that makes orthodox Christians safe for patriotism. They can love America—feel for it that gratitude, pride, and affection that it is natural for people to extend to their homeland—without being tempted to the idolatrous nationalism that has deformed so much of modern history. How can Augustinian Christians make an idol of a nation whose philosophical assumptions of enlightenment liberalism, recurring religious impulses to gnostic antinomianism, and prevailing spirit of romantic optimism stand athwart their most basic understandings? Because Christians are in a deep sense strangers in America, they can be safely at home there.

And, so long as they keep their ultimate reservations always in mind, they can be quite thoroughly at home and quite at ease in saying so. When Americans speak of the United States as a redeemer nation, or refer to it as a city on a hill, or argue that the Constitution is the nation’s bible, they are not—at least not most of them most of the time—speaking literally. They use providential and biblical language because it is for them a common idiom, not because they really think that America is the new Israel. Not every reference to God’s providence extending to America’s role in the world is an exercise in idolatry, and the declaration in the Pledge of Allegiance that we are a nation “under God” is properly understood as a plea of humility rather than an assertion of pride. . . .

10,000 MOJ posts

This is the 10,000th blog post at Mirror of Justice.  Here is the first (authored by our friend Mark Sargent), from Feb. 3, 2004 -- almost seven years, and more than 2.5 million site-visits, ago:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

Monday, January 10, 2011

Richard Stith on "Happy Holidays"

MOJ-friend Prof. Richard Stith was kind enough to share with me this short essay, called How "Happy Holidays" Hurts:

Good people are often mystified at the offense taken by many Christians to the salutation “Happy Holidays!” After all, they reason, the word “holidays” includes everyone, instead of excluding anyone, so what’s the problem?

My short response would be that, to the ears of many of us, “Happy Holidays” actually silences all faiths rather than welcoming any of them. In order to explain my point, let’s go back and see what the problem was with “Merry Christmas,” our culture’s traditional December greeting.

As far back as I can remember, Christmas was named and celebrated by people of varied faiths and of no faith at all. No doubt many have just liked the bright lights or the tradition of giving associated with Christmas, but some have surely recognized the irreplaceable gift of Christmas itself to world civilization, in terms not only of art and music but of the radical dignity of the humblest birth.

Unfortunately, some contemporary cultural engineers think that Christmas is tainted by its religious origin and that the best or only way to accommodate the many religions found in today’s America is to reduce them all to their lowest common elements. Since every religion celebrates “holidays” (a word derived from “holy days”), our politically correct mentors tell us that “holidays” are all we may mention. We may not name the specific holiday that each community is celebrating (at least not if that holiday is one celebrated by a majority religion like Christianity).

However, it doesn’t make sense to try to include all religions by excluding every possible reference to any of them. A simpler strategy would be to include by including. This point was brought home in a delightful and profound way in a recent Northwest Indiana Times column by Christine Kraly (“Yes, I said ‘Merry Christmas’”, Dec. 26, 2010). She pointed out that her “Merry Christmas” need not exclude any other greetings. As a Christian about to marry a Hindu, she is also comfortable wishing her in-laws-to-be a “Happy Diwali.” Nor does she take offense when in their exuberance they wish her a “Happy Diwali.” In a multicultural world, we can give one another much joy by sharing our feasts.

By contrast, just repeating “Happy Holidays” is an empty and boring way to live together.  It’s really not multicultural at all; it’s just a flat one-size-fits-all unicultural expression. In rightly rejecting domination by one religion, it rejects the content of all religions. That’s why “Happy Holidays” hurts the feelings of many Christians, while “Happy Diwali” (or “Happy Hanukkah” or “Happy Eid”) does not. “Happy Diwali” gives, while “Happy Holidays” takes away.

Those who have trouble seeing this point might consider how many of us would feel irked if there were pressure to substitute “Happy Holiday” for “Happy Valentine’s Day,” on the ground that St. Valentine was a Christian. Wouldn’t that change be felt widely to be a loss, a flattening? People might even gradually become less likely to give candy or flowers; after all, we don’t do so to commemorate most of what we call “holidays”.

Indeed, the merchants who switch to “Happy Holidays” instead of “Merry Christmas” may be cutting their own throats. Christmas calls for the giving of presents far more than any other holiday. Once we have been trained not to think about “Christmas presents” anymore, our felt need to purchase them may slowly disappear.

Monday, January 3, 2011

The "Central Question" about Marriage

Here, at Public Discourse, is the latest (I think!) installment in the ongoing conversation between George, Anderson, and Girgis (on the one hand) and their interlocutors / critics (on the other) about the meaning of marriage, and the implications of that meaning for law and policy. 

I propose that Robby put up the next few installments of the conversation exclusively here, at MOJ, so we can reap the huge benefits of the web-traffic attending it.  (Ed.:  You do realize, Rick, that MOJ makes no money, right?).

Pope Benedict emphasizes importance of religious freedom

This, from ZENIT:

Pontiff Stresses Urgent Need for Religious Freedom

 

Decries Extremes of Secularism, Fundamentalism

 

VATICAN CITY, JAN. 1, 2011 (Zenit.org).- Benedict XVI is stressing the need for religious freedom throughout the world as the way of building peace.

The Pope stated this today before praying the midday Angelus with the pilgrims gathered in St. Peter's Square. He recalled in particular today's celebration of the World Day of Peace as well as the Solemnity of Mary the Mother of God.

"I invite all of you to join in heartfelt prayer to Christ the Prince of Peace for an end to violence and conflict wherever they are found," the Pontiff said.

He continued: "Yes, Jesus is our peace.

"He brought to the world the seed of love and peace, stronger than the seed of hatred and violence; stronger because the name of Jesus is superior to any other name, containing all the dominion of God."

This World Day of Peace, the Holy Father noted, is an "opportunity to reflect together on the great challenges facing humankind in our time."

"One of these, dramatically urgent today, is that of religious freedom," he added.

Benedict XVI acknowledged, "Today we see two opposite trends, both negative extremes: on one side secularism, which often in hidden ways marginalizes religion to confine it to the private sphere; on the other side fundamentalism, which in turn would like to impose itself on all by force."

"Religious freedom is the privileged way to build peace," he said.

The Pope affirmed that "peace is the work of consciences that open themselves to truth and love."

He concluded, "May God help us progress in this way in the new year that he has given us to live."

 

Monday, December 27, 2010

The Incarnation

The earthiness of Catholicism -- its willingness to see (indeed, its insistence on seing) tangible things, stuff, and places (relics, rocks, images, paths) as vehicles for the impartation of grace and the movement towards God -- has long been, and remains, a scandal to many, including (especially?) many Christians.  I was reminded of this, the other day, when I was reading various blog entries, written by travellers to Israel, regarding places like the Church of the Nativity, Holy Sepulcher, the Basilica of the Annunciation, Peter's house at Capernaum, etc.  For many, the lines of pilgrims waiting to see, and touch, things like the stone where Jesus was born, or the rock where he was crucified, etc., were more humorous (or off-putting) than inspiring.  And, there's no getting around it, there's something absurd about the "scene" inside Holy Sepulcher, with its turf wars and all.  For the critics, the fact that I was eager to reach through a hole in the marble and touch the rock -- the actual rock, Christians have long, long believed -- where Jesus was crucified shows a superstitious failure to appreciate the real (that is, the "spiritual") nature of our relationship with God, and of God's saving acts. 

I was happy, though, to touch the rock, to stand on the shore of Galilee, to stand on the *actual* Roman paving stones that Jesus would have walked on His way to the Temple, and to look at Peter's house in Capernaum and imagine Jesus stopping by to say "hi".  And, I was moved, as much as I have ever been moved, by those Jews who, during the tour of the tunnels along the base of the Western Wall (an amazing tour, by the way) stopped, about halfway along and many feet underground, to touch and pray at the section of the 2000-year old wall that, they believe, is closest, physically, to where the Holy of Holies was once housed.   

God did not save us by becoming an idea, a spirit, or a feeling.  He saved us by becoming a flesh-and-blood person, who walked around, and had meals, and stood on rocks, and was "crucified, died, and was buried" in a real place, one that we can touch.

Monday, December 20, 2010

Observation and Update from Israel

I woke up this morning, near Tel Aviv, to a view, looking west, of the Mediterranean Sea, and am now preparing for the first session of my class, "Religious Freedom in the United States of America", at the IDC-Herzliya.  I thought I'd share a particularly insightful observation with MOJ readers:  Law students in Israel wear more black, and hipper sunglasses, than do law students in Indiana.  That is all.

Wednesday, December 1, 2010

More on the Church and "political" activity

Rob linked here to his very helpful and thoughtful Commonweal piece about the charge that Arbp. Nienstedt acted in a "political" (and, so, inappropriate) manner by opposing publicly same-sex marriage in the recent election. For what it's worth, I addressed similar questions in this USA Today op-ed, a few years ago:

Does politics have a place in the pulpit? Should places of worship be homes for engaged and unsettling activism — or tranquil havens, sealed off from the rough-and-tumble of today's bitter partisan debates? These questions are both cutting-edge and perennial. . . .

For starters, and with all due respect to Jefferson, the First Amendment does not constrain — in fact, it protects — "political" preaching and faith-filled activism. Yes, our Constitution preserves a healthy separation between the institutions of religion and government. This wise arrangement protects individual freedom and civil society by preventing the state from directing, co-opting or controlling the church. It imposes no limits, though, on conversations among religious believers — whether on Sunday morning, around the water cooler, or at the dinner table — about the implications of their faith for the controversies of the day. Our First Amendment protects religious freedom, individual conscience and church independence from government interference; it requires neither a faith-free public square nor politics-free sermons.

Even if the Constitution does not presume to tell ministers to stick to parables, is it bad citizenship, or just plain bad manners, for ministers to confuse our "public" role as citizens and voters with our supposedly "private" religious lives and beliefs? No. Religious faith makes claims, for better or worse, that push the believer inexorably toward charitable and conscientious engagement in "public life." To the extent that religion purports to provide insight into human nature and relations, it necessarily speaks to politics. We best respect each other through honest dialogue by making arguments that reflect our beliefs, not by censoring ourselves or insisting that religious believers translate their commitments into focus-group jargon or cost-benefit analysis. . . .

Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.

Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.

More on Sen. Rubio and religious identity

Following up on Marc's recent post:  Fr. Lorenzo Albacete comments here on the questions that have surfaced about Sen. Rubio's religion, and the possibility / merits of Christian eclecticism:

[T]he loss in awareness of what a Catholic identity means is indeed threatening the Hispanic Catholic community in the United States. Senator Rubio’s case may be a harbinger of where Hispanic Catholics in America are going. 

At the same time, this trend to reduce the meaning of a Catholic identity to folklore, to cultural traditions and to a content-free spirituality also threatens American Catholics in general. I am reminded of the observation of Curtis White in Harper’s Magazine (December 2007) already quoted in an earlier column here. We are dealing with the American kind of nihilism. For Nietzsche, European nihilism was the failure of any form of belief. “American nihilism is something different. Our nihilism is our capacity to believe in everything and anything all at once. It is all good!”

Tuesday, November 16, 2010

Torture, waterboarding, and the culture: A response to Rob

A few thoughts in response to Rob's recent post, regarding President Bush's candid acknowledgment that he authorized the waterboarding of several terrorists-detainees:  First, and simply to restate what any regular reader of MOJ already knows, I agree with Rob that torture is immoral, and that it is not rendered immoral by virtue of its success at saving lives, or by virtue of its being authorized by positive law.  Nor is it rendered moral by the fact that many to condemn it are, to put it mildly, inconsistent in their non-consequentialism.

That said, I was struck by this bit, in Dahlia Lithwick's piece reacting to President Bush's "damn right" quote (about which Rob commented): 

Those of us who have been hollering about America's descent into torture for the past nine years didn't do so because we like terrorists or secretly hope for more terror attacks. We did it because if a nation is unable to decry something as always and deeply wrong, it has tacitly accepted it as sometimes and often right. Or, as President Bush now puts it, damn right. . . .

All this was done in the name of moving us forward, turning down the temperature, painting over the rot that had overtaken the rule of law. . . .  If people around the world didn't understand what we were doing then, they surely do now. And if Americans didn't accept what we were doing then, evidently they do now. Doing nothing about torture is, at this point, pretty much the same as voting for it. We are all water-boarders now.

Now, my view is that Dahlia Lithwick is frustratingly prone to partisan analysis that does not reflect her intelligence and so does not really illuminate.  Here, though, it is different.  Here, her reaction to the "damn right" quote does point to something true (though, perhaps, not her intended target):  We are, in a sense, "all water-boarders now." 

By this I don't only mean (though, I suppose, I do in part mean) that those whose vote in 2008 was, in theory, influenced by their professed antipathy toward and disagreements with President Bush should not imagine that things are all that different now (or that the Democrats in Congress were not, at the time, happy to go along with activities and decisions they later professed to oppose), or that the current administration, if pressed, would refuse on principle to do what the last one did.  I mean that very few people actually believe, embrace, and work to operationalize consistently those truths that make it the case that it is wrong to torture even a malevolent person, even if that treatment is legally authorized, even if one is charged with the care of the lives and security of innocent citizens, and even if the treatment workes (i.e., reveals accurate and important information). 

If it was wrong to waterboard the detainees about whom President Bush was speaking (and, again, I believe that it was, though I hope I am appropriately sensitive to the fact that a President's choices are more difficult than a Professor's), it must be for non-consequentialist, non-reductionist reasons.  If human beings are reducible entirely to electrified, skin-encased sacks of organic goo, then it was not "wrong" -- because nothing is really "wrong" -- to waterboard the detainees in question.  And if one's objection to the waterboarding reflects only one's (likely not-fully-informed) sense that it was not really necessary (or if that objection sits comfortably alongside one's enthusiastic embrace of a fundamental right to procure a late-term abortion) . . . well, as Churchill supposedly said, we are just haggling about the price, aren't we?