One theme that runs through conversations about Catholic legal and political theory involves the importance of "mediating institutions" and civil society. So, this Weekly Standard piece, by Gerard Alexander, "The Nonprofit Industrial Complex: Is there such a thing as too much civil society?", might provide a good occasion for reflection: What, exactly, do we want non-state institutions to do, and to look like?
Sunday, April 29, 2007
"Too much civil society"?
Friday, April 27, 2007
"Religion and the Common Good"
Here's Archbishop Chaput, on "religion and the common good." A bit:
Only one question really matters. Does God exist or not? If he does, that has implications for every aspect of our personal and public behavior: all of our actions, all of our choices, all of our decisions. If God exists, denying him in our public life—whether we do it explicitly like Nietzsche or implicitly by our silence—cannot serve the common good, because it amounts to worshiping the unreal in the place of the real. . . .
We most truly serve the common good by having the courage to be disciples of Jesus Christ. God gave us a free will, but we need to use it. Discipleship has a cost. Jesus never said that we didn’t need a spine. The world doesn’t need affirmation. It needs conversion. It doesn’t need the approval of Christians. It needs their witness. And that work needs to begin with us. Bernanos said that the “scandal of Creation [isn’t] suffering but freedom.” He said that “moralists like to regard sanctity as a luxury; actually it is a necessity.” He also said that “one may believe that this isn’t the era of the saints; that the era of the saints has passed. [But] it is always the era of the saints.”
The only thing that matters is to be a saint. At least we can try. And if we do, God will take care of the rest.
"Talking past each other" on Catholic judges?
My friend Eric Claeys (SLU / George Mason) wonders if Eduardo, Michael, and I (see below) are "talking past each other" in our recent posts about Catholic judges. Here's what he writes:
I've been reading your exchange with Michael Perry and Eduardo Penalver about the recent SCt death penalty cases and the Catholic Church's teaching. Thus far, it's seemed to me that the three of you are talking past each other. . . . Reading between the lines, I think Eduardo and Michael are assuming that Supreme Court Justices should incorporate the Catechism's teaching on the death penalty relatively directly into their analysis of the merits of the questions presented.I read you to be assuming that the Catechism's teaching plays a relatively remote role in federal habeas, for reasons having to do with federal-state comity, the functions of appellate review, and rule-of-law respect for the habeas statutesThis difference is important, because it relates to a more general question how prudential Church teachings apply to different actors in a government with separated or specialized offices. So, to each of you: How should a Catholic federal appellate judge reconcile his religious and his legal obligations when procedural rules and habeas statutes focus the merits of an appeal on considerations that, from the Catechism's standpoint, seem not particularly important -- or even irrelevant to the basic question of justice? Inquiring minds want to know.
I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the "merits" of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented. Michael?
Sargent on SNAP and vengeance
Fr. Neuhaus discusses here Mark's recent Commonweal essay, "Vengeance Time," which is critical of some of the tactics employed by advocates for victims of sexual abuse by clergy. Here's an excerpt from Mark's (excellent) piece:
It is not enough to say, however, that bishops, priests, and the church are finally getting what they deserve. The vengeance game is a dangerous one. When the original offense is terrible, we feel empowered to do terrible things in response. Blinded by our righteous rage and convinced of our moral superiority, we may do things we later regret.
The consequences of the terrible assault of 9/11 on the innocent serve as an example. The moral horror of 9/11 provided, for a while, the sense that we were entitled to transgress our own moral boundaries. Torture seemed reasonable. Equally important, it made the rule of law seem a trivial charade. Why bother with the constitutional rights of Guantánamo prisoners? Why not enact legislation invading the privacy rights of millions of Americans, if that would make it easier to punish our enemies and protect ourselves from harm? In the “war on terror,” it seems that anything goes. In the purity of our victimhood, we can do no wrong-or so we think until wrong has been done.
Our self-righteousness makes us impatient with the law. The law’s careful balancing of rights and interests, its goal of evenhandedness, and its insistence on due process seem to be pettifoggery, mere “technicalities,” and an obstacle to achieving the justice we know in our hearts. This impatience with the law, however, can lead to injustice. The nauseating image of rich white jocks at Duke drugging and raping a black woman at a party led a prosecutor to abuse his prosecutorial discretion, violating the most basic rules for deciding whether to prosecute. The terrible nature of what could have happened made the prosecutor and many members of the Duke and Durham communities indifferent to the legal obligation to prove what actually happened. Who needs the rules of evidence when we somehow know that something awful took place?
"God is not great"
When it comes to anti-religion stemwinders, give me Christopher Hitchens over Sam Harris or Richard Dawkins anytime. Here is a bit:
There is no need for us to gather every day, or every seven days, or on any high and auspicious day, to proclaim our rectitude or to grovel and wallow in our unworthiness. We atheists do not require any priests, or any hierarchy above them, to police our doctrine. Sacrifices and ceremonies are abhorrent to us, as are relics and the worship of any images or objects (even including objects in the form of one of man's most useful innovations: the bound book). To us no spot on earth is or could be "holier" than another: to the ostentatious absurdity of the pilgrimage, or the plain horror of killing civilians in the name of some sacred wall or cave or shrine or rock, we can counterpose a leisurely or urgent walk from one side of the library or the gallery to another, or to lunch with an agreeable friend, in pursuit of truth or beauty. Some of these excursions to the bookshelf or the lunch or the gallery will obviously, if they are serious, bring us into contact with belief and believers, from the great devotional painters and composers to the works of Augustine, Aquinas, Maimonides, and Newman. These mighty scholars may have written many evil things or many foolish things, and been laughably ignorant of the germ theory of disease or the place of the terrestrial globe in the solar system, let alone the universe, and this is the plain reason why there are no more of them today, and why there will be no more of them tomorrow. Religion spoke its last intelligible or noble or inspiring words a long time ago: either that or it mutated into an admirable but nebulous humanism, as did, say, Dietrich Bonhoeffer, a brave Lutheran pastor hanged by the Nazis for his refusal to collude with them. We shall have no more prophets or sages from the ancient quarter, which is why the devotions of today are only the echoing repetitions of yesterday, sometimes ratcheted up to screaming point so as to ward off the terrible emptiness.
It 's more complicated . . .
I'm not sure what it means to say that the Catholic Justices who were in the majority in Carhart, or in the minority in the Texas cases, "were not motivated by the authoritative teachings of the Church." Yes, and again, in neither case did Justices Kennedy, Roberts, Alito, Thomas, or Scalia substitute their religiously-grounded moral commitments for the law, as they understand it. That said, and although -- to be clear -- I would like to see the death penalty abolished, I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.
Thursday, April 26, 2007
"Future of Freedom" conference
Here is an announcement for a blockbuster church-state-law conference, "The Future of Freedom of Religion: A Dialogue," sponsored by Sidley & Austin, the American Constitution Society, and Catholic University's Interdisciplinary Program in Law & Religion.
Casey, Carhart, and the Court's Catholics
Here's an op-ed of mine, now up on Jurist, called "Carhart, Casey, and the Court's Catholics." It's an expansion of the exchange that Prof. Geoff Stone and I had over at the University of Chicago law faculty blog. Here's a bit:
It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
It is, of course, hardly a secret that a Catholic justice is taught by his or her Church, and should believe, that abortion is a grave moral evil. However, all judges – Catholic or not – come to the bench with views, commitments, and experiences that shape their decision-making and reasoning. We can, and should, ask of every judge that she work conscientiously in every case to identify not her own preferred or “faith-based” outcome but the answer that is given by the relevant legal texts, rules, and precedents. As it happens, the Catholic understanding of vocation, and of justice under law, extends to Catholic judges the same invitation.
Saint Louis University
Blogger Matthew Fish has an interesting post up about the recent court decision involving the religious nature (or not) of Saint Louis University. (For earlier MOJ comments on this case, go here). Matthew is not a Jesuit-basher, at all (indeed, I gather from his blog that he is considering joining the Society of Jesus) so his reflections struck me as particularly worth engaging. Here's a bit:
[A]ccording to this decision, and what seems to be the case, the Jesuits (today at least) are no longer really in control of their universities, but only merely affiliated. Of course individual Jesuits may be incompetent or may be exemplary in their respective positions, but as a corporate body, it seems that they cannot change these schools in any kind of direct way any longer. For me, this seems to point to the importance of having patience with the present attempts of the Society of Jesus to continue to faithfully live out its charism and renew itself, particularly in its educational apostolates.
Still, the question remains: can we call these (and most Catholic universities then) “Catholic”? Or are our Catholic universities in fact “secular” in mission and identity (at least, insofar as the Constitution may be concerned)?
What hasn’t been mentioned is, in my mind, the greater responsibility possessed by the local ordinary. It is his responsibility as Bishop to hold “Catholic” institutions accountable, as well as protect or warn his flock. A Bishop can always tell a University they cannot call themselves Catholic, offer the sacraments on campus, as well as tell the Jesuits not to operate in the diocese.
In the end, I am left wondering, what does it mean after all to be a
? Does it mean much of anything anymore? Catholic
University
See also, of course, John Breen's "Justice and Jesuit Legal Education: A Critique".
Response to Michael
Well, Michael, my friend: With respect to hiring and firing U.S. Attorneys, I say ("shrugging [my] shoulders"), the White House is entitled -- of course -- to do what it wants. And, I suspect I am as clear about the merits of OSHA's policies as you are, yet I retain my doubts about whether it makes sense to assimilate debates about OSHA policy to, say, debates about a ban on partial-birth abortion.
As for your comment about the death-penalty cases, I share your admiration for Judge Noonan. That said, I'm curious: Is your claim that -- since, after all, any case that reaches the Supreme Court is one about which reasonable people can disagree -- no decent judge may ever vote against a claim brought by an inmate on death row? You and I agree that the death penalty should be abolished. Does this mean, though, that we are precluded from thinking that not everyone on death row has a winning legal argument?
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