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, April 25, 2007

Getting it right

Commenting on the Court's capital-sentencing decisions today, Michael notes that the 5 Catholic Justices split (1-4) in ruling that the Texas Court of Criminal Appeals -- I'm quoting Lyle Denniston -- "wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing."  Michael asks, "which Catholic[s] got it right?"

I don't know.  (The opinions are here.)  I am confident, though, that the question presented -- whether a defendant's pretrial objections to jury instructions preserved for review a particular constitutional challenge to those instructions -- is one to which the Catholic faith does not supply an answer.  Do you disagree, Michael?

"A Pro-Life Issue"

Michael urges -- "urgent[ly]" -- those of us who vote Republican to "do something about the unholy folly [of OSHA employing 'voluntary compliance strategies'].  This too, after all, is a pro-life issue."

Is it?  I mean, is it a "pro-life issue" in a way that distinguishes it from any question -- or, at least, many, many policies -- of regulatory policy?  I have no idea whether OSHA is employing sensible policies or not.  But, I am confident that OSHA is not acting in a manner that involves the constitutionalization of a license to kill human fetuses.  Certainly, I concede the rhetorical usefulness of calling this a "pro-life issue", but isn't there a non-trivial risk of missing the point associated with suggesting that, say, the question whether the government should fund abortions is really the same, and of the same import, as the question how best to promote workplace safety?

Mexico, abortion, and us

As Michael notes, Mexico City has voted to legalize abortion in the first trimester.  Or, as Reuters reports, "Mexico City legalizes abortion, defies church."  (Which half of that headline was more fun for the Reuters person to write, I wonder?)  Here's a (slightly) tongue-in-cheek thought:  Lucky Mexico City!  They are allowed to vote on the matter, and to limit abortion to the first trimester!

Monday, April 23, 2007

Elshtain on Tocqueville and the Freedom of the Church

This appeared recently in the Chronicle Review, and I thought it was well worth re-printing:

JEAN BETHKE ELSHTAIN

God Talk and American Political Life

American civic life is indecipherable if severed from its entanglement with American religion -- most important, Protestant Christianity of a Methodist variety. (This Methodist variety was various indeed, with dozens and dozens of spinoffs.) As Alexis de Tocqueville observed about the young nation in Democracy in America, the action of religion on politics, and politics on religion, was "something new" under the political sun, as the rich associational intermingling took place absent a struggle for ascendance. That reciprocal relationship continues in American civil society today. Everybody now recognizes the fact, but it presents difficulties for scholars. It is almost impossible to argue that one influences the other disproportionately.

Religion in its dominant American forms of Protestantism has paid a price for its cultural centrality, of course. One charge against the Protestant mainline is that in the past 40 years it has "followed" the culture and its tendency to value individualism and play down a sense of community. Rather than offering a bracing alternative to rapacious individualism, Protestantism has fallen in line. One important task of religion is to challenge the political world and what it makes most important, to raise questions when politics overreach. You cannot do that very effectively if you are simply absorbed within the forms of politics and lose a robust "separateness."

Here is one place where the rubber hits the road. The First Amendment of the Constitution's section on protecting the free exercise of religion has come increasingly to mean "free religious expression," something that refers to a subjective belief. What the framers had in mind may have been more robust -- not just freedom of individual conscience but a form of institutional autonomy, real libertas ecclesiae. It is very difficult for religion to serve as "salt and light to the world" (that, at least, is what Christians are called to do, which is of some cultural import since the United States remains overwhelmingly Christian) if religion has no independent, vigorous institutional site. Yet we remain suspicious -- or many do -- when "churches" act, especially if the church in question happens to be Roman Catholic. In that I see not only the continuing echoes of our historic anti-Catholicism but a real fear, even animus, against the notion of "church" or "institutional religion." We are happier with "spirituality," but, as one wag put it, "What does that mean? That I've watched many episodes of Touched by an Angel?"

Let's circle back to Tocqueville. He had in mind not only the subjective freedoms of believing citizens but also the mutual interaction of religious institutions and associations. That is what appears to have withered. And it is through religious institutions and communal bodies that the "politics" of religion comes through. It isn't a politics that dictates a particular policy outcome in any simple sense but that instead presents to a highly subjectivist culture an alternative understanding of persons and the common good. That may be the most important "political" contribution of all. If there are changes in the relationship of religion to American society, they very likely lie in accommodationism rather than continuing and sustained challenge.

Of course, America's elites don't mind if "religion," speaking institutionally, shares their enthusiasms. But as soon as "religion" trenches on their turf -- on the abortion issue, say, or the cloning and destruction of human embryos for research -- they voice cries of the illicit intrusion of religion into politics.

As to new directions for research: Here the issue of religion in civil society has certainly been joined. But there are fewer scholars than there should be reminding both religious and political forces how fractious the engagement can andI would insist -- ought to be. American society has all sorts of ways of working this out. But one party to the deep moral questions that vex us should not be forced to operate under a cloud of suspicion that it speaks from, and to, a "sectarian" perspective that is unacceptable in American life.

Jean Bethke Elshtain is a professor of social and political ethics at the University of Chicago.

http://chronicle.com
Section: The Chronicle Review
Volume 51, Issue 9, Page B7

China and the Church

Amy Welborn has this post up about the death of Michele Fu Tieshan, "Patriotic Archbishop of Beijing," who will, according to the news report, "receive a funeral fit for a 'head of state.' There will be no Vatican representative present, neither the religious ceremony nor the state burial."  Also:

The capital’s faithful notice with some bitterness that the patriotic bishop’s body was “sequestered” by the PA – of which Fu was national president – in order to publicize his “contribution to the nation”, without a single reference to the Catholic faith. “He died as he lived – one woman notices – that is as Communist Party property”. The same official Party statement, exalts him as a “patriotic religious leader, social activist and great friend of the Chinese communist party”.

For more of my take on the "Patriotic Association," and religious freedom in China, go here.

"Why I am Not a Moderate Muslim"

Interesting piece by Asma Khalid, in the Christian Science Monitor, called "Why I am not a Moderate Muslim."  A bit:

In the aftermath of September 11, much has been said about the need for "moderate Muslims." But to be a "moderate" Muslim also implies that Osama bin Laden and Co. must represent the pinnacle of orthodoxy; that a criterion of orthodox Islam somehow inherently entails violence; and, consequently, that if I espouse peace, I am not adhering to my full religious duties.

I refuse to live as a "moderate" Muslim if its side effect is an unintentional admission that suicide bombing is a religious obligation for the orthodox faithful. True orthodoxy is simply the attempt to adhere piously to a religion's tenets.

The public relations drive for "moderate Islam" is injurious to the entire international community. It may provisionally ease the pain when so-called Islamic extremists strike. But it really creates deeper wounds that will require thicker bandages because it indirectly labels the entire religion of Islam as violent.

"Personal law"

This article, by Jeff Redding, looks really interesting.  (HT:  Larry Solum).

In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of "personal law" that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state's different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to generally-applicable law. That being said, the U.S. Supreme Court has also recently given renewed emphasis to state sovereignty and other federal values. As this piece argues, what results from this worship of federalism is a truly American-style personal law system, where territorial communities have taken the place of other personal law systems' religious and ethnic communal constituencies. This being the case, I conclude by questioning recent innovations in American constitutional jurisprudence which devalue religious pluralism, while simultaneously elevating territorial communalism.

Sunday, April 22, 2007

"Why Notre Dame?"

Here is a must-read essay by my friend in Notre Dame's history department, Brad Gregory.  Brad is a very distinguished scholar, whom ND lured away from Stanford.  And, in this piece, he explains why he moved.  (It builds on things Brad wrote, in the context of l'affaire Vagina Monologues, about why a University's decision to actually worry about the content of what it sponsors does not render it an intellectual backwater.)

Now, I want to bracket the question whether Notre Dame actually has those characteristics that, in Brad's view, more than justify a move from Stanford.  But, assume that it does:

Were it not for this difference -- and Notre Dame's potential to become a kind of institution never before seen in American higher education, namely a first-rank research university that is also genuinely Catholic -- I never would have left Stanford for it. What would have been the point, if Notre Dame's Catholicity were as vestigial and vaporous as that of so many other institutions that had lost their formerly robust religious character? Better simply to stay at a great secular university to begin with.

What drew me to Notre Dame was its Catholic identity. Numerous academics think that any university with a religious mission must be inhibiting academic freedom, marking itself as sectarian and advertising itself as intellectually narrow. Such a characterization justly applies to some religiously affiliated colleges and universities, which want to keep the wider world at bay. Not so Notre Dame. In fact, in my experience, there is greater academic freedom at Notre Dame than at leading secular universities, in ways that both derive from and reach beyond its Catholic mission.

"What would have been the point"?  Exactly.  Educational (and other) institutions that chafe at the suggestion that "Catholic" should describe reality, rather than origins, need to face (and to be made to face) the question:  "What is the point?"  (The question should also always be squarely in the view of those who make decisions about institutions like Notre Dame.) 

Also:  Non-Catholic universities, and those who believe that an authentically Catholic university is, in the end, an impossibility (because "Catholic" limits "university"), need to ask themselves, "where has Prof. Gregory gone wrong?", when he says:

It is liberating to be at a University with a wider scope for academic freedom because it lets religion be religion on its own terms.

Law Prof bloggers at 7th Cir. Conference

Here is the schedule for the 7th Circuit Bar Association's Annual Meeting in Milwaukee, on May 6-8.  I'm participating on a panel -- "Bloggers and the Courts" -- on May 7, along with Judge Sykes, the inimitable Howard Bashman, and some other widely read law-prof bloggers.  (According to the program, I'm appearing in my "Prawfsblawg" capacity, and not my MOJ capacity; as the man said -- "that is something we shall have to remedy.")

Friday, April 20, 2007

Faith-Based Justices

My colleague, Professor Geoff Stone, contends that the majority in this week's partial-birth-abortion case acted as "Faith-Based Justices."  In a follow-up post, also on the University of Chicago Law Faculty blog, I disagree.