There's a new paper posted on SSRN, that's forthcoming (sigh) in the Yale Law Journal, called "The New Law of the Child." Here's the abstract:
This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency or the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, rights, and responsibilities that aims to transform how law treats children and their interactions with others. The framework addresses children’s needs for state and parental control in many instances while also moving beyond those concerns to foster children’s interests in the here and now.
So far, it's (basically) the same move we've encountered before, perhaps most notably from James Dwyer, which involves expanding the basket of rights and "interests" the pursuit and protection of which is invoked to justify expanding state power over children's lives at the expense of parents' natural rights. I hope all those who read the paper will also read Melissa Moschella's new book, "To Whom Do Children Belong?" or, if they are pressed for time, this golden-oldie of mine:
Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm?
The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.
More info is here. Congrats to my Notre Dame colleague Dan Philpott for his great work on this project.
Saturday, March 10, 2018
Yet another great event coming up from the good people at The Lumen Christi Institute. Check it out!
Friday, March 2, 2018
I have to admit, when I first clicked on, and then started reading, this review of Clare Chambers's Against Marriage (OUP 2017), I was confident that it was a kind of Larry-Solum-level-genius parody of contemporary Rawlsian political-liberalism moves. Alas, it's not. Both the review (and, assuming the review is accurate, the book) take what I can only regard as a dangerous, even tyrannical turn. For example, "Chapter 6 distinguishes the marriage-free state from the marriage-free society and considers the circumstances under which the state might be justified in intervening in private marriages. Here Chambers clearly distinguishes her own position from a libertarian one by focusing on the state's role in preventing harm to vulnerable populations and to ensuring discriminatory practices are prohibited in the private sector." And, "[t]he latter chapter balances the need to protect women's (and children's) rights with the need to protect religious freedom, deftly arguing that religious freedom cannot include the right of religious leaders to discriminate against members of their own religion." Is this really what's coming? Is this what "liberalism" is coming to (or, perhaps, as Patrick Deneen would argue, it's always what it was or was on the way to becoming).
Monday, February 26, 2018
There's been a fair bit of commentary -- here at MOJ and elsewhere in the Catholic interwebs -- about the Janus case, which presents the question (as I'd put it) whether the Constitution permits governments to require public employees to support public-employee unions and their activism as a condition of public employment. Here is the transcript from today's oral argument. (Those MOJ readers who went to law school will have flashbacks, during the questions of certain justices, to those awkward moments in law-school moot-court events when one was expected to respectfully answer questions from "judges" who hadn't read the record, the briefs, or the relevant precedents.)
MOJ readers might also be interested in this exchange between Distinctly Catholic's Michael Sean Winters and Bench Memos's Ed Whelan. Whelan has, in my view, the better of the argument. Particularly wrongheaded is MSW's embrace and praise of Bishop David Zubik's entirely wrong argument:
The man who brought the lawsuit took a union job, agreed to the union terms, and then sued on free speech grounds because he objected to the union's political positions. It's similar to someone who has taken a job in the Catholic Church arguing that he should be allowed to keep his job while also publicly advocating for abortion. He knew the terms of employment when he accepted them.
This is (all due respect) just wrong. The constitutional question is whether the First Amendment permits the government to make endorsing the "union's political positions" a condition of employment; it's not about what churches may or may not make conditions of church employment. This is simply sophistry. (And, no, it's not "libertarian" to point out "sophistry.")
This piece, by Archbishop Chaput, is timely, covers a lot of ground - the Florida school shooting, the 2016 election, immigration and change, capitalism and development, church-state relations, sexuality, mercy, moral anthropology, and a long quote from Charles Camosy -- and is well worth a read. A bit:
. . . Polanyi showed how the industrial revolution disrupted and reorganized the entire fabric of English life. It revolutionized the structure of the British economy. That much was obvious. But in doing so, it also reshaped every other aspect of the nation’s culture — from family relations, to politics and education, to the use of time, to patterns of thought and behavior.
The same thing is happening right here, in our own country, in our own time and space. A consumer market economy tends to commodify everything and recast all relationships as transactional. In practice, it depersonalizes a culture by commercializing many of our routine human interactions. It also very easily breeds a practical atheism by revolving our lives around the desire and consumption of new things. . . .
More:
There are no new paradigms; no new hermeneutical principles; no revolutions in thought; and no possible concordats with the world and its alibis, that can the erase the radicalism and liberating beauty of Christian anthropology.
Key to that anthropology is the nature of our sexuality, expressed in the complementarity of male and female, and ordered to new life and mutual support. Human sexuality and relationships have a God-given purpose. That purpose is a source of true freedom and joy. It can’t be changed, or reinterpreted, or medically reimagined away.
This is the truth about who we are as embodied creatures, no matter what our personal confusions or weaknesses might be. We need to affirm that truth for our own sakes, and the sake of our whole society, because the meaning of our humanity depends on it. And while truth spoken without love and patience can be a weapon, not speaking it is a form a theft. Mercy without truth is not mercy.
Monday, February 19, 2018
As Michael Perry noted a few days ago, the USCCB filed an amicus brief in the Janus case, which does not -- contrary to the suggestion in the USCCB's brief -- present the question whether right-to-work should be constitutionalized in the private sector, but instead asks the Court to decide whether the First Amendment permits governments to condition public employment (employment that is, collective bargaining aside, heavily regulated and protected) on affiliating with a political association (i.e., a public-sector-employee union) whose activities and expression one opposes.
In my view -- and I've gone through my reasons here at MOJ many times (Ed.: Talk about an understatement!) it is a mistake both to (a) think that strong support rightly expressed in Catholic Social Thought for the dignity and rights of workers means that Catholics should support the policy agenda of today's unions (e.g., opposing school choice) and (b) to fail to distinguish between the labor-capital dynamic, on the one hand, and the taxpayer/government/party/public-employee dynamic, on the other. But, I understand, many intelligent Catholics disagree with me, though I cannot help being frustrated that some persist in the tired and inaccurate claim that my view is somehow "libertarian" or (shudder) "neo-liberal." In any event, and notwithstanding my huge admiration for the General Counsel, I think the challengers' legal arguments are the stronger ones. And, here (in City Journal) is a helpful and, in my view, compelling analysis of the case.
All that said, here is a statement from Bishop Thomas Paprocki (Springfield), responding to the USCCB's brief.
