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, September 17, 2010

Bainbridge responds to Sen. Gregg regarding "social justice"

By Rick Garnett

Here is former MOJ-er Prof. Bainbridge, responding to Sen. Gregg on the issue of promoting "social justice":

What's wrong with promoting social justice?

The Hill:

"My concern is that she would use the agency for the purpose of promoting social justice," [GOP Senator Judd] Gregg said [about Elizabeth Warren] on ABC's "Top Line" webcast.

Is social justice now a verboten subject in the new, post-Palin conservative movement? And, if so, why?

As a Catholic and Christian, do I not have a moral obligation to promote social justice? The Catechism treats social justice as part of the life in Christ. Pope John Paul II wrote that "peace is built on the foundation of justice." He situated "daily work and struggles for justice in the context of bearing witness to Christ the Saviour."

Granted, many progressive Catholics conflate the moral obligation to pursue social justice with the teachings of liberation theology. This is probably why people like Glenn Beck dismiss social justice as just a code word for a left-liberal political agenda. Granted also, Elizabeth Warren's politics probably overlap a lot with adherents of liberation theology.

As John Paul himself illustrated, however, it is possible to have a commitment to social justice without embracing the socialistic politics of liberation theology.

Conservative Catholic scholar Michael Novak powerfully addressed this point in his essay Social Justice: Not What You Think It Is. He quotes Pope Leo XIII, for example, as teaching that:

Therefore, let it be laid down in the first place that in civil society, the lowest cannot be made equal with the highest. Socialists, of course, agitate the contrary, but all struggling against nature is in vain. There are truly very great and very many natural differences among men. Neither the talents nor the skill nor the health nor the capacities of all are the same, and unequal fortune follows of itself upon necessary inequality in respect to these endowments.

Novak further explained that:

Friedrich Hayek wrote a really powerful little book called The Mirage of Social Justice, in which he picked up on the way the term "social justice" was being used in the first half of the 20th century. He said "social justice" had become a synonym for "progressive," and "progressive" in practice means socialist or heading toward socialism. Hayek well understood the Catholic lineage of social justice, how the term had first appeared in Catholic thought, until almost 100 years later it became dominant on the secular Left.

The Popes, Hayek noted, had described social justice as a virtue. Now, a virtue is a habit, a set of skills. Imagine a simple set of skills, such as driving a car. The social habit of association and cooperation for attending to public needs is an important, newly learned habit widely practiced, especially in America. Social justice is learning how to form small bands of brothers who are outside the family who, for certain purposes, volunteer to give time and effort to accomplishing something. If there are a lot of kids who aren't learning how to read, you volunteer for tutoring. ...

And that's what, in a word, social justice is--a virtue, a habit that people internalize and learn, a capacity. It's a capacity that has two sides: first, a capacity to organize with others to accomplish particular ends and, second, ends that are extra-familial. They're for the good of the neighborhood, or the village, or the town, or the state, or the country, or the world. To send money or clothes or to travel to other parts of the world in order to help out--that's what social justice is: the new order of the ages, Rerum Novarum.

Interestingly, Timothy Dalrymple argues that if we adopt Novak's definition "the Tea Party movement is in fact a social justice movement."

The great majority of those attending the rallies would tell you that the policies they advocate are for the common good of all, including the poor. On the conservative way of seeing things, the interests of the haves and the have-nots are not as easily divisible as Wallis portrays them. Much though it may strain the credulity of the trained progressive, Tea Partiers sincerely believe that taking more and more money away from society's most productive citizens, and thus disincentivizing productivity and diminishing the resources for private investment; spending more and more in Washington, and thus making economic decisions on political criteria and expanding a federal government that is rife with self-serving inefficiency and corruption; and giving more and more through government distribution, fostering a culture of dependency and vote-buying, is poisonous to our national character and economy and will adversely affect everyone, the poor most of all.

(HT: Joe Carter)

If Senator Gregg wants to worry that Warren will pursue a left-liberal political ideology that will negatively impact the economy, I'd probably agree. But his disdain for the concept of social justice is sadly misplaced.

Bainbridge responds to Sen. Gregg regarding "social justice"

By Rick Garnett

Here is former MOJ-er Prof. Bainbridge, responding to Sen. Gregg on the issue of promoting "social justice":

What's wrong with promoting social justice?

The Hill:

"My concern is that she would use the agency for the purpose of promoting social justice," [GOP Senator Judd] Gregg said [about Elizabeth Warren] on ABC's "Top Line" webcast.

Is social justice now a verboten subject in the new, post-Palin conservative movement? And, if so, why?

As a Catholic and Christian, do I not have a moral obligation to promote social justice? The Catechism treats social justice as part of the life in Christ. Pope John Paul II wrote that "peace is built on the foundation of justice." He situated "daily work and struggles for justice in the context of bearing witness to Christ the Saviour."

Granted, many progressive Catholics conflate the moral obligation to pursue social justice with the teachings of liberation theology. This is probably why people like Glenn Beck dismiss social justice as just a code word for a left-liberal political agenda. Granted also, Elizabeth Warren's politics probably overlap a lot with adherents of liberation theology.

As John Paul himself illustrated, however, it is possible to have a commitment to social justice without embracing the socialistic politics of liberation theology.

Conservative Catholic scholar Michael Novak powerfully addressed this point in his essay Social Justice: Not What You Think It Is. He quotes Pope Leo XIII, for example, as teaching that:

Therefore, let it be laid down in the first place that in civil society, the lowest cannot be made equal with the highest. Socialists, of course, agitate the contrary, but all struggling against nature is in vain. There are truly very great and very many natural differences among men. Neither the talents nor the skill nor the health nor the capacities of all are the same, and unequal fortune follows of itself upon necessary inequality in respect to these endowments.

Novak further explained that:

Friedrich Hayek wrote a really powerful little book called The Mirage of Social Justice, in which he picked up on the way the term "social justice" was being used in the first half of the 20th century. He said "social justice" had become a synonym for "progressive," and "progressive" in practice means socialist or heading toward socialism. Hayek well understood the Catholic lineage of social justice, how the term had first appeared in Catholic thought, until almost 100 years later it became dominant on the secular Left.

The Popes, Hayek noted, had described social justice as a virtue. Now, a virtue is a habit, a set of skills. Imagine a simple set of skills, such as driving a car. The social habit of association and cooperation for attending to public needs is an important, newly learned habit widely practiced, especially in America. Social justice is learning how to form small bands of brothers who are outside the family who, for certain purposes, volunteer to give time and effort to accomplishing something. If there are a lot of kids who aren't learning how to read, you volunteer for tutoring. ...

And that's what, in a word, social justice is--a virtue, a habit that people internalize and learn, a capacity. It's a capacity that has two sides: first, a capacity to organize with others to accomplish particular ends and, second, ends that are extra-familial. They're for the good of the neighborhood, or the village, or the town, or the state, or the country, or the world. To send money or clothes or to travel to other parts of the world in order to help out--that's what social justice is: the new order of the ages, Rerum Novarum.

Interestingly, Timothy Dalrymple argues that if we adopt Novak's definition "the Tea Party movement is in fact a social justice movement."

The great majority of those attending the rallies would tell you that the policies they advocate are for the common good of all, including the poor. On the conservative way of seeing things, the interests of the haves and the have-nots are not as easily divisible as Wallis portrays them. Much though it may strain the credulity of the trained progressive, Tea Partiers sincerely believe that taking more and more money away from society's most productive citizens, and thus disincentivizing productivity and diminishing the resources for private investment; spending more and more in Washington, and thus making economic decisions on political criteria and expanding a federal government that is rife with self-serving inefficiency and corruption; and giving more and more through government distribution, fostering a culture of dependency and vote-buying, is poisonous to our national character and economy and will adversely affect everyone, the poor most of all.

(HT: Joe Carter)

If Senator Gregg wants to worry that Warren will pursue a left-liberal political ideology that will negatively impact the economy, I'd probably agree. But his disdain for the concept of social justice is sadly misplaced.

Thursday, September 16, 2010

Some vintage Walker Percy

By Rick Garnett

A friend sent me this, from Percy's The Second Coming:

As unacceptable as believers are, unbelievers are even worse, not because of the unacceptability of unbelief but because of the nature of unbelievers themselves who in the profession and practice of their unbelief are even greater a**holes than the Christians. 

The present-day unbeliever is a greater a**hole than the present-day Christian because of the fatuity, blandness, incoherence, fakery, and fat-headedness of his unbelief.  He is in fact an insane person.  If God does in fact exist, the present-day unbeliever will no doubt be forgiven because of his manifest madness.

 

The present-day Christian is either half-assed, nominal, lukewarm, hypocritical, sinful, or, if fervent, generally offensive and fanatical.  But he is not crazy.

 

The present-day unbeliever is crazy as well as being an a**hole--which is why I say he is a bigger a**hole than the Christian because a crazy a**hole is worse than a sane a**hole.

 

C'mon Dr. Percy . . . tell us how you really feel!

Wednesday, September 15, 2010

Esbeck on the Establishment Clause

By Rick Garnett

This paper, by church-state scholar Carl Esbeck, will likely be of interest to many readers:

 

Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation

Carl H. Esbeck
University of Missouri School of Law



Utah Law Review, Vol. 2011, No. 2
University of Missouri School of Law Legal Studies Research Paper No. 2010-19


Abstract:
The Supreme Court’s decision in Everson v. Board of Education (1947) is regarded as ushering in the modern era of jurisprudence in church-state relations. Instead of looking to the record of the debates of the First Federal Congress of 1789, the Everson Court adopted the principles animating the disestablishment struggles in Virginia and other newly formed States to give substantive content to the Establishment Clause. Indeed, there was not in the Everson majority even so much as an acknowledgment that the text (“… make no law respecting an establishment …”) was the hard-won effort of the Federalists in the First Congress laboring the summer of 1789 to report amendments that became the Bill of Rights.

This article takes up the curious tale as to why the more obvious text and the drafting record in the House and Senate were ignored by the Court in Everson and what it can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred over others. This is called “nonpreferentialism.” A second theory is that the clause was only intended to deny the national government power to disturb how States arranged their church-state affairs. I call this “specific federalism.” Neither theory is supported by the text or the congressional record.

As the scholarship has unfolded liberals are just as eager to array the congressional debates on their side. One recent initiative is to relegate the Establishment Clause to safeguarding only liberty of conscience. A more common claim, seemingly sensible to the uninitiated, is that the free exercise and no-establishment principles are in “tension,” as if the Establishment Clause was somehow promulgated to hold organized religion in check rather than to hold government in check. Still another thesis would remove original meaning of the Establishment Clause when applied to the states to 1868, and in doing so remake the clause into an individual right. Again, this article demonstrates why these claims do violence to either the text or debates of 1789 in Congress.

Answers to textual and original-meaning inquiries cannot resolve all of the interpretive questions about church and state. However, they do narrow the range of issues that are properly disputed by closing the door to errant interpretations of the Establishment Clause. With distractions such as “specific federalism” and “tension between the clauses” confidently put aside, the courts can focus on determining those government actions that bring about the sorts of evils associated with religious establishments in 1789.

Monday, September 13, 2010

Perry on Rights, Constitutions, and Courts

By Rick Garnett

Here is a link to a recent paper of Michael's, "Rights, Constitutions, Courts":

1. Why entrench certain rights - certain rights of the sort we today call human rights - in a constitution, rather than solely in legislation? 2. We could sensibly entrench such rights in a constitution without empowering courts to enforce the rights. Albert Venn Dicey, in An Introduction to the Study of the Law of the Constitution (1885), wrote : “The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.” Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights - qua “maxims of political morality” - can serve as shared, fundamental grounds of political-moral judgment in a political community. So, why empower courts to enforce - and therefore to interpret - constitutionally entrenched rights? 3. If the judiciary is to be empowered to enforce constitutionally entrenched rights, how great a power should it have? The power to have the last - the ultimate - word, overrulable only by constitutional amendment or by the judiciary itself? (I have called this the power of judicial ultimacy.) Or the power to have only the penultimate word, overridable by legislation? (I have called this the power of judicial penultimacy.) Or some even lesser power? We see the power of judicial ultimacy exercised in the United States, by the federal judiciary, and the power of judicial penultimacy exercised in (for example) Canada. We see an even lesser power exercised in the United Kingdom, under the Human Rights Act of 1998. 4. Given that, for better or worse, the U.S. Supreme Court exercises the power of judicial ultimacy, should it exercise that power deferentially, along the lines recommended by James Bradley Thayer in his classic essay “The Origin and Scope of the American Doctrine of Constitutional Law” (1893)? Or should it exercise the power nondeferentially? Should Thayerian deference be at least the default position - with exceptions for certain categories of cases? What categories? 5. What does it mean to “interpret” the Constitution. What should it mean?

Check it out!

Tuesday, September 7, 2010

McConnell on Kennedy and Church-State Separation at Notre Dame

By Rick Garnett

More info here:

In recognition of the 50th anniversary of President John F. Kennedy’s historic speech on the separation of church and state, the University of Notre Dame will present “Remind Me: Why Did Anyone Care if JFK was a Catholic?” on Sept. 10 (Friday) from 4 to 6 p.m. in the auditorium of the Hesburgh Center for International Studies. The presentation is free and open to the public.

The keynote speaker is former federal judge Michael W. McConnell, the Richard and Frances Mallery Professor of Law at Stanford University and leading expert on constitutional law. McConnell also directs Stanford’s Constitutional Law Center.

Sponsored by Notre Dame’s Department of Political Science, the Rooney Center for the Study of American Democracy and the Tocqueville Program, the presentation is the inaugural lecture of the James P. Reilly Jr., series on religion and public life.

Come one, come all . . . and spread the word!

Sunday, September 5, 2010

McGraw, "Faith in Politics"

By Rick Garnett

Here is a new book by my friend and Wheaton political theorist Bryan McGraw, called "Faith in Politics:  Religion and Liberal Democracy."  John Witte's blurb suggests to me that this is a must-read:

"In this breakthrough book, Bryan McGraw offers a judicious argument for a new integration of religion and politics. Silencing religion as some liberals would do is no less fundamentalist than establishing religion as some Christians have done, he shows. It is far better for modern democracies to foster open toleration and robust engagement of all forms of faith and non-faith that can test and contest each other's policies. It is also far better for modern faith communities to develop an integrated political theology that balances responsible self-rule with reasonable public advocacy - following the example of several nineteenth-century European religious groups. Political historians and political philosophers will learn much from these learned and elegant pages."

Thursday, August 26, 2010

Prayers for Doug Kmiec

By Rick Garnett

Doug Kmiec, a longtime friend and colleague of many MOJ readers and bloggers, and also the current Ambassador to Malta, was in a serious car accident yesterday afternoon in Malibu, California.  I have not been able to find news coverage, and all I know is that Doug was taken to the UCLA Medical Center Trauma Center.  Oremus.

UPDATE:  A short news story is here. Another is here.  Doug is reported to be in good condition.

Saturday, August 21, 2010

Fides et ratio's implications for universities

By Rick Garnett

Randall Smith asks, here, asks what taking John Paul II's important encyclical Fides et ratio seriously would mean for Catholic universities.  A taste:

One of the greatest popes in history writes a remarkably nuanced and intellectually profound encyclical — one basically exhorting Western civilizatpes in history writes a remarkably nuanced and intellectually profound encyclical — one basically exhorting Western civilization not to lose its faith in reason — and a dozen years later the response from the halls of the academy is still a collective yawn: “We can’t be bothered with this. We’re much too busy doing cutting-edge scholarship.” Cutting-edge scholarship that very few people read, much less care about, and that is largely subservient to the categories of modern thought, rather than a challenge to them.

Like the modern corporate executive who is too busy doing whatever it is he does to ask why he is doing it, or to think more broadly about how what he does contributes to the larger goals of the corporation (let alone society) as a whole, so too the modern corporate Catholic university is much too busy doing whatever it does (raising money, seeking greater levels of prestige, sucking up to secular counterparts) to engage the kind of fundamental issues that Pope John Paul II is asking be considered in Fides et Ratio.esponse from the halls of the academy is still a collective yawn: “We can’t be bothered with this. We’re much too busy doing cutting-edge scholarship.” Cutting-edge scholarship that very few people read, much less care about, and that is largely subservient to the categories of modern thought, rather than a challenge to them.

Like the modern corporate executive who is too busy doing whatever it is he does to ask why he is doing it, or to think more broadly about how what he does contributes to the larger goals of the corporation (let alone society) as a whole, so too the modern corporate Catholic university is much too busy doing whatever it does (raising money, seeking greater levels of prestige, sucking up to secular counterparts) to engage the kind of fundamental issues that Pope John Paul II is asking be considered in Fides et Ratio. . ..

Thoughts?

Friday, August 20, 2010

The Becket Fund stands up (to ACLU) for Catholic hospitals

By Rick Garnett

As was observed the other day by David Gibson at the Commonweal blog, Catholic hospitals do a "better job".  They are important for society.  And, as Jody Bottum explained a few months ago, authentically Catholic hospitals are important not only to America, but also to the mission of the Church.  So, it's too bad that the ACLU is pressuring the government to, in turn, push Catholic hospitals to perform abortions.  (Read this letter regarding the "denial of reproductive health care" at Catholic hospitals.)

The merry band of religious-freedom defenders at the Becket Fund have, in turn,threatened to sue HHS if it gives in to the ACLU's pressure.  According to the Becket Fund:

“The ACLU has no business radically re-defining the meaning of ‘emergency health care,’” writes Becket Fund President Kevin “Seamus” Hasson.  "Just as it has no business demanding that religious doctors and nurses violate their faith by performing a procedure they believe is tantamount to murder. Forcing religious hospitals to perform abortions not only undermines this nation’s integral commitment to conscience rights, it violates the numerous federal laws that recognize and protect those rights.”

Forcing Catholic or any religiously-affiliated hospital to perform abortions will only result in nationwide closures, thereby reducing access to healthcare for everyone, a blow the healthcare system could not weather. Legally forcing doctors and nurses to perform abortions in violation of their consciences would constitute a large step backwards for religious freedom and would turn this nation’s foundational commitment to conscience rights on its head.

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