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.

Wednesday, January 9, 2008

The death penalty for non-homicide crimes

By Rick Garnett

Tom asked (and asked again) what people thought of the possibility of justifying the death penalty for non-homicide crimes.  A few quick thoughts:

First, it seems likely that the Court will invalidate the Louisiana law under review in the Kennedy case.  (See here for more details.)  It will be interesting to learn why, though.  Will the Court say, "here's a bright-line rule:  the death penalty is never constitutional absent a conviction for a homicide crime."  If the Court does say this, what's the theory?  Certainly, it is possible for someone who intentionally (and wickedly, heinously, evilly, gruesomely, etc., etc.) rapes a child to be more blameworthy -- in terms of subjective culpability -- than someone who causes another person's death in a way and under circumstances that make him death-eligible.  I suppose the Court could just cite Tison and Coker and be done with it (ignoring the tone-deafness of that opinion with respect to the harm involved in the crime of rape, and also the fact that Coker talks about the rape of "an adult woman."  We'll see.

Second, with respect to Tom's statement that "taking a life by execution cannot be appropriate redress for a crime that does not involve the taking of a life":  Why not?  I mean, I am inclined to agree, but why?  What is meant by the word "redress" here?  Tom's statement, it seems, highlights what has long been, for me, a troubling aspect of the Catechism's "protect society" approach.  Because the Catechism does not say -- and the Church has not yet taught (has it?) -- that "it is never -- no way, no how -- morally permissible for the public authority to punish an offender by executing him", we are stuck wondering whether it could ever be the case that execution was necessary to "protect society" from someone who has been convicted of child-rape.

So, Tom . . . why not?  (See above.)

Robert George's "unrequited letter" to Anne Rice

By Rick Garnett

Here is Prof. Robert George's open letter to Anne Rice (of vampire-novel fame), regarding her endorsement of Sen. Clinton's campaign for the presidency (an endorsement that was, Ms. Rice stated, animated by her Catholic convictions).  A taste:

. . . For now, what I hope you will consider is simply this: The child in the womb either is or is not a human being–a member of the human family. If he or she is, then he or she is entitled as a matter of basic justice to the protection of laws and, indeed, to the equal protection of the laws. For a voter or public official to seek to deny to the unborn elementary legal protections against killing that we favor for ourselves and others we regard as worthy is a gross and appalling injustice. There is no way around this. Once one concedes the humanity of the child–as one must in view of the plain facts of human embryogenesis and early-intrauterine development–the principle of the profound, inherent, and equal dignity of every member of the human family requires the legal protection of the unborn.

Yet today the unborn are denied any legal protection and are slaughtered (there really is no other word for what is going on) at the rate of more than one million per year in our country. The scope and gravity of this injustice surely demands that we make the fight against it central in our own deliberations and actions as citizens. It is true that law cannot prevent all abortions; but unless the law recognizes the humanity and rights of the child in the womb we cannot begin doing what you and I wish to do–namely, end the horror of abortion. Recognizing what abortion is–the killing of an innocent human being–is the first step; and that step cannot be taken while we legally protect abortion and even confer on it (as the Supreme Court did) the status of a constitutional right. Our regime of law, as things stand, speaks loudly, clearly, and falsely. It proclaims that no being who matters–no creature possessing dignity and human rights–is destroyed when we tear off the limbs, burn off the skin, or suck out the brains of a human fetus. . . .

A million page views!

By Rick Garnett

A few days ago, Mirror of Justice went over the one-million-page-views mark.  I know, I know . . . this is piddly compared to Volokh, Reynolds, Kos, Sullivan, and the rest, but . . . not bad!  Thanks so much to all readers and bloggers, these past four years.

If you read and enjoy MOJ . . . tell your friends!

Sunday, January 6, 2008

Philip Bess responds to Greg Sisk (read this!)

By Rick Garnett

MOJ-friend Philip Bess sends in the following, in response to Greg's recent post, and as part of our ongoing conversation on suburbs, growth, and the like (Greg?  Others?):

My thanks to Greg Sisk for his kind words and thoughtful response to 
my reflections upon urban design and natural law; and also to my 
friend and colleague Rick Garnett for originally bringing these 
reflections to Professor Sisk's attention. . . . 

By way of explanation at the outset, I should mention 
that the monograph link that Rick provided to Professor Sisk was a 
draft that underwent subsequent development prior to its eventual 
publication last year in my book Till We Have Built Jerusalem.  The 
argument published there is essentially the same as the one to which 
Professor Sisk was responding, except that the key proposition / 
hypothesis that in the former draft was stated as "Human beings 
should make settlements in accordance with the Urban Transect" (and 
that was stated this way in the link Rick provided to MOJ), was 
restated in the published essay as "Human beings should make mixed-
use walkable settlements."  I reformulated the proposition primarily 
because the newer phrasing is a simpler way to state the general 
principle, but also because there seems to be a great deal of 
controversy and confusion among lay people about the nature of and 
the claims to be made for the idea of the Rural-to-Urban Transect.   
Better therefore, I have come to think, not to confuse matters at the 
outset by focusing upon the Transect per se as a possible natural law 
precept, and instead to use the simpler revised formulation.

Continue reading

Thursday, January 3, 2008

Courts, legislatures, and the death penalty

By Rick Garnett

Thanks to Michael P. for posting the Times article on states' reluctance to "lead change on executions."  To the extent the article is (additional) evidence that state legislatures have grown so used to federal-court supervision of state and local policies relating to crime, punishment, public morals, etc., that they are now too infantilized, or cowardly, to actually revisit their policies and take account of changing views and circumstances . . . well, that's bad.  (If states are reluctant to "lead change" because, at the end of the day, the people to whom state legislatures are accountable don't really want "change", that's a different matter, it seems to me.) 

Now, to be clear, and in response to Michael:  The reason  why I want the death penalty to be abolished legislatively, and not by federal courts, is because I am confident that the Constitution does not require the abolition of the death penalty, and so any federal-court decision abolishing the death penalty would be, in my view, an anti-democratic overreach.  If I thought -- as, I gather, Michael does? -- that the death penalty is unconstitutional, my preference for legislatively driven abolition over abolition-by-judicial-decision would be, like Michael's, much less strong.

Wednesday, January 2, 2008

The Angelic Doctor on Urbanism

By Rick Garnett

A regular reader sent me some choice quotes on cities and urbanism from St. Thomas Aquinas:

[T]hat city enjoys a greater measure of peace whose people are more sparsely assembled together and dwell in smaller proportion within the walls of the town, for when men are crowded together it is an occasion for quarrels and all the elements for seditious plots are provided. Hence, according to
Aristotle’s doctrine, it is more profitable to have the people engaged outside the cities than for them to dwell constantly within the walls. But if a city is dependent on trade, it is of prime importance that the
citizens stay within the town and there engage in trade. It is better, therefore, that the supplies of food be furnished to the city from its own fields than that it be wholly dependent on trade.

   - Thomas Aquinas, De regno ad regem Cypri (II,iii).

A further requisite when choosing a site for the founding of a city is this, that it must charm the inhabitants by its beauty. A spot where life is pleasant will not easily be abandoned nor will men commonly be ready to flock to unpleasant places, since the life of man cannot endure without enjoyment. It belongs to the beauty of a place that it have a broad expanse of meadows, an
abundant forest growth, mountains to be seen close at hand, pleasant groves and
a copiousness of water.  However, if a country is too beautiful, it will draw men to indulge in
pleasures, and this is most harmful to a city. In the first place, when men give themselves up to pleasure their senses are dulled, since this sweetness immerses the soul in the senses so that man cannot pass free judgment on the things which cause delight. Whence, according to Aristotle’s sentence [Eth. Nic. VI, 5: 1140b 11-21], the judgment of prudence is corrupted by pleasure."

   - Thomas Aquinas, De regno ad regem Cypri (II,iv).

So, the city should be pretty, but not too pretty.  Hmmm.  Candidates, anyone?  The "mountains" criterion rules out much of the land, including my own South Bend.  Portland and Santa Fe might be too beautiful.  Hmmm.  "Where would St. Thomas live?"

Continue reading

Tuesday, January 1, 2008

The Christian Legal Society and "discrimation": Response to Susan

By Rick Garnett

In response to Susan's post, I'm inclined to think that, yes, the University of Montana should be completely indifferent to the possibility that the Christian Legal Society's understanding of what it means to be "Christian" does not track perfectly -- in fact, I am quite sure that it does not track perfectly -- other Christians' understanding of what it means to be "Christian." 

If the "Environmentalist Law Society" were to adopt a resolution stating that "respect for the environment, given the pressures of increasing population, must include a commitment to abortion rights and public funding of abortions", I would hope that lots of environmentalists would quit that organization (and start another one).  I would not think, though, that the University of Montana should take up the question whether the dissenting environmentalists' understandings were more "environmentalist" than those backing the rule, or that the University should. simply because the group's understanding of what it means to be "environmentalist" is not shared by all environmentalists, exclude the Environmentalist Law Society -- assuming it continued to meet the formal eligibility criteria -- from the array of funded student groups.

Question for Greg

By Rick Garnett

A question for Greg, prompted by his characteristically thoughtful and eloquent post on land-use, suburbs, cities, preferences, etc. . . .  I assume he would not accept the following claim, propounded by my friend and Notre Dame colleague, Philip Bess:

The Aristotelian-Thomist intellectual tradition’s understanding of natural law---which is the broad pre-modern tradition of western culture---is that there are certain foundational principles of morality that are (according to Thomas Aquinas) “the same for all, both as to knowledge and to rectitude”---in other words, principles of morality that are not only right for all human beings but knowable (and at some level known) to all human beings. These foundational principles of morality, along with their first few rings of implications, are known as the natural law.

The Urban Transect refers to that range of human habitats conducive to human flourishing within which human settlements are part of a sustainable (albeit not necessarily locally bio-diverse) eco-system. These habitats, diagrammatically depicted as Transect-zones (“Tzones”), range from less dense human settlements to more dense human settlements; but each urban T-zone denotes a walkable and mixed-use human environment wherein within each urban zone many if not most of the necessities and activities of daily life are within a five-to-ten-minute walk for persons of all ages and economic classes.

It is the thesis of this paper that, given this understanding and characterization of both natural law and the Urban Transect, the proposition “Human beings should make settlements in accordance with the Urban Transect” is generally valid for all human beings in all times and places---and therefore constitutes a natural law precept. If this is true, such a precept would be binding in conscience for---and acted upon with prudential judgment by---all persons who act in accordance with right (practical) reason; and especially for and by persons who understand themselves to be a part of the Aristotelian-Thomist intellectual tradition.

So . . .   Greg, do you think Prof. Bess is wrong?  Where has he gone wrong?

The Christian Legal Society and "discrimination"

By Rick Garnett

Sigh.  Here we go again.  Our own Steve Bainbridge has this post, over at his other blog, about the decision by the University of Montana's Student Bar Association to deny funding to the Christian Legal Society because of its "discriminatory" practice of limiting voting membership to, well, (those whom the CLS regards as) Christians.  More specifically, members must assent to a Statement of Faith which provides, among other things, that Christians ought not to engage in sexual relations outside of marriage between a man and a woman.

As I've often said, on this blog and elsewhere, it simply is not "discrimination" -- at least, not of the kind that the state should care about -- for a religious institution, association, or community to make decisions about membership, leadership, ministry, etc., on the basis of that institution's religious commitments.

Sunday, December 30, 2007

Sprawl and "privatization"

By Rick Garnett

Congrats to Eduardo on the publication of his excellent opinion piece, in The Washington Post, on sprawl, gas prices, etc.  I've been droning on for years now, on this blog, about urbanism (new and the original), and so I'm entirely on board with most of what Eduardo has to say. 

That said, one minor quibble.  Eduardo writes:

Although the end of sprawl will require painful changes, it will also provide a badly needed opportunity to take stock of the car-dependent, privatized society that has evolved over the past 60 years and to begin imagining different ways of living and governing. We may discover that it's not so bad living closer to work, in transit- and pedestrian-friendly, diverse neighborhoods where we run into friends and neighbors as we walk to the store, school or the office. We may even find that we don't miss our cars and commutes, and the culture they created, nearly as much as we feared we would.

In my view, it might be a mistake -- or, at least, it is too quick -- to connect too closely the land-use patterns and transportation we call "sprawl" with our "privatized" society.  Sure, there's something to the idea -- again, I'm sure I've endorsed it on this blog -- that urbanism is more authentically human, civic, public, and political than much of what goes on in "sprawl."  That said, "sprawl" can also be blamed, it seems to me, on the failure of our land-use policy to respect "private" ordering enough.  The zoning rules, which facilitate -- indeed, require -- the dysfunctional patterns Eduardo and I criticize are, after all, often government-imposed.  They interfere with -- indeed, they often prohibit -- land-uses and developments that Eduardo and I would like, and that private parties would be willing to construct, invest in, live in, etc. 

We might also wonder whether a greater reliance by cities on "privatized" service-delivery might have slowed the flight to suburban gated communities.  After all, it seems that at least part of the sprawl story is the entirely reasonable frustration of many people with the inability of many cities to do their basic civic, service-delivery jobs.

And finally, as Eduardo notes, there's education . . . .  Until we tame the education blob, and break the teacher-unions' lock on education-policy, and allow for genuine, religious-freedom-friendly choice in education, we will not get the "urban thing" right.  (I can live "in town", and feel smug about my front porch, sidewalks, walkable neighborhood, minimal commute, etc., but only because my neighborhood parish has a wonderful school.)

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