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.

Monday, July 27, 2015

"De Descriptione Temporum"

As I think I've mentioned before here at MOJ, I loved and was really shaped in my thinking by C.S. Lewis's The Discarded Image.   And, some of my favorite parts of the new (excellent) biography of "The Inklings" -- The Fellowshipby Philip and Carol Zaleski -- were about that book's theses.  Along the way, I encountered for the first time the inaugural lecture that Lewis gave when he was appointed to his chair at Cambridge University.  It's called "De Descriptione Temporum" (sometimes also called "The Great Divide"), and it's well worth a read.  Among other things, Lewis takes on the labels we use, and the premises those labels reflect, for describing historical periods, ages, and epochs ("The Dark Ages," for example).  And, he suggests provocatively that there has been a modern "un-Christianing" that has separated us, sharply, from the literary and other traditions of "the west."  Here's the conclusion:

And now for the claim: which sounds arrogant but, I hope, is not really so. I have said that the vast 
change which separates you from Old Western has been gradual and is not even now complete. Wide 
as the chasm is, those who are native to different sides of it can still meet; are meeting in this room. 
This is quite normal at times of great change. The correspondence of Henry More 13 and Descartes is 
an amusing example; one would think the two men were writing in different centuries. And here 
comes the rub. I myself belong far more to that Old Western order than to yours. I am going to claim 
that this, which in one way is a disqualification for my task, is yet in another a qualification. The 
disqualification is obvious. You don't want to be lectured on Neanderthal Man by a Neanderthaler, still 
less on dinosaurs by a dinosaur. And yet, is that the whole story? If a live dinosaur dragged its slow 
length into the laboratory, would we not all look back as we fled? What a chance to know at last how 
it really moved and looked and smelled and what noises it made! And if the Neanderthaler could talk, 
then, though his lecturing technique might leave much to be desired, should we not almost certainly 
learn from him some things about him which the best modem anthropologist could never have told us? 
He would tell us without knowing he was telling. One thing I know: I would give a great deal to hear 
any ancient Athenian, even a stupid one, talking about Greek tragedy. He would know in his bones so 
much that we seek in vain. At any moment some chance phrase might, unknown to him, show us 
where modem scholarship had been on the wrong track for years. Ladies and gentlemen, I stand 
before you somewhat as that Athenian might stand. I read as a native texts that you must read as 
foreigners. You see why I said that the claim was not really arrogant; who can be proud of speaking 
fluently his mother tongue or knowing his way about his father's house? It is my settled conviction 
that in order to read Old Western literature aright you must suspend most of the responses and unlearn 
most of the habits you have acquired in reading modem literature. And because this is the judgement 
of a native, I claim that, even if the defence of my conviction is weak, the fact of my conviction is a 
historical datum to which you should give full weight. That way, where I fail as a critic, I may yet be 
useful as a specimen. I would even dare to go further. Speaking not only for myself but for all other 
Old Western men whom you may meet, I would say, use your specimens while you can. There are not 
going to be many more dinosaurs.

Great news from North Carolina

The state's Supreme Court has upheld North Carolina's school-choice program.  It is just too bad that the Court split on party lines, 4-3, and that the 3 dissenting justices embraced (as a matter of state constitutional law) the unsound no-aid separationism that so distorted Establishment Clause caselaw between Everson and Mueller / Witters / Zobrest / Agostini / Zelman.   

"Is Ecology Haunted"?

This reflection, by Doug Sikkema, on the new encyclical was, for me, helpful and illuminating.   It draws on C.S. Lewis, Dante, Charles Taylor, Wendell Berry . . .  .  Check it out.  A bit:

So today we live within what Taylor calls the “immanent frame,” a world reduced to naturalist explanations, increasingly closed off to the transcendent. And whether we're aware of it or not (and whether we're religious or not), this frame has shaped much ecological thought in our secular age. This means environmentalists,especially Christian environmentalists, don't get to hop on to the subtraction-narrative bandwagon, lamenting everything we've lost since the fifteenth century—as if dysentery were something to get nostalgic over. We have to admit that disenchanting the world allowed for the possibility of major breakthroughs in applied science (particularly modern medicine) that have improved life. We also have to recognize that the flattening of the world allowed for a really robust look at life on the x-axis.

Yet while we might be grateful for the growing body of scientific knowledge accumulated within the scope of the immanent frame, there are still troubling consequences when we lose sight of the y-axis. As we become increasingly buffered from even the possibility that “something” might transcend our sensible world, we have a much more difficult time really believing that humans are not justanother type of animal and the world is not just a place of inert, material resources for us to use up in any way we can.

Laudato Si': Recovering Ecology's Y-Axis

In Laudato Si', Pope Francis attempts something Wendell Berry in his fiction, Annie Dillard in her essays, and even Christian Wiman in his poetry have all attempted in the past decades: to recover the y-axis within ecological thought.

The NYT on the current abortion controversy

This piece might be as close at the NYT can come to covering an abortion-related controversy in a way that does not merely repeat the talking points and agenda items of the abortion-rights lobby.  A bit:

But anti-abortion activists say their new efforts are forcing their opponents to defend their own words and beliefs on the issue in a way they had not had to before.

“It’s very difficult to deliver a message that people don’t basically believe,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a group that funds anti-abortion candidates. “We’re the source of the information, so they think we’re biased.” But in this case, she added, “it’s coming from them, not us.”

Abortion opponents hope the videos will provoke people to consider the humanity of the unborn, much like discussing ultrasounds can — albeit in a much more jarring and graphic way. Ms. Conway, the Republican pollster, calls this a “shock the conscience, warm the heart” approach.

On the other hand, the piece also employs, chillingly, an abortion-related euphemism that was new, even to me:  "The group also says it knows that Mr. Daleiden or his colleagues were admitted into a clinic area that processes tissue after abortions, and it believes they may have obtained footage of that as well."  "[A] clinic area that processes tissue . . . ".  God help us.

Sunday, July 19, 2015

"End of an Illusion"

The other day, America re-ran this piece, "End of an Illusion," which originally appeared in June of 1973, a few months after Roe v. Wade.   It's definitely (still) timely.  Take a look.

Friday, July 17, 2015

Reese on Laycock on religious liberty

Fr. Thomas Reese has this piece, at NCR, about the views and work of Prof. Doug Laycock regarding the current religious-liberty landscape.   I'm not sure the title of the piece captures the range of what Laycock is saying -- he is quite clear-eyed about the fact that religious liberty's vulnerable status has to do with a lot of things besides "bishops' strategy" and most of the piece focuses on what sure looks to me like the intransigence and aggressiveness of religious-freedom's opponents -- but put that aside.  The piece is worth reading to get a good sense of Laycock's position.  (I've been working with him on a few legislative proposals, and believe that he is one of the most important, and admirably fair and liberal, persons in the public square.)  

One thing that comes out in the piece is Laycock's view that "conservatives'" opposition to the "sexual revolution" is contributing to the waning support for religious liberty among "liberals."  This raises a tricky challenge, though, because -- I would think, and I would assume Fr. Reese would agree -- Christians ("conservative" or "liberal") don't have much of an alternative to opposing -- at least in terms of our teaching, formation, and witness -- a whole lot of what comes under the heading of the "sexual revolution."  The extent to which this opposition should or can be expressed in positive law is another matter but, increasingly, it seems as though the opposition itself is something that it has now become the mission of a certain understanding of political liberalism to push aside.

Wednesday, July 15, 2015

An erroneous allegation of an "erroneous claim of anti-Catholic discrimination"

Prof. Robert Goldstein (UCLA) has posted a paper, "The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination."  In my view, there is a lot in the paper that is valuable and insightful.  For example, Prof. Goldstein emphasizes the "structural" dimension of our no-establishment rule and also the importance of broadening the religious-freedom narrative to include 19th century church-state conflicts in Europe.   Where the piece goes wrong, in my view -- that is, its "erroneous claim" -- is in endorsing the argument that it is wrong to emphasize the importance of anti-Catholicism in the development of Establishment Clause doctrine, or in the school-funding and Blaine Amendment controversies, because what some of us (me, for example:  here and here) call anti-Catholicism is really just a manifestation of "a popular constitutional commitment to liberal democracy; that commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics."  But, anti-Catholicism preceded, by a lot, Mirari Vos, and pre-dated, by a lot, 19th century American reactions to, say, the 19th century popes' struggles during the Risorgimento (or the Lateran Accords with Mussolini).  And, the efforts in the piece to defend Justice Hugo Black and author Paul Blanshard's American Freedom and Catholic Power from anti-Catholicism charges strike me as strange and, certainly, unsuccessful.  

All that said, the closing section includes a long discussion of Dignitatis Humanae (happy birthday!) and John Courtney Murray, which is always a nice thing to see in a law review!

Tuesday, July 14, 2015

The coming attacks on school choice

This story, out of the Philadelphia area, reminds us not only that Catholic (and other religious) institutions are going to face "internal" pushback, sometimes, when they insist on hiring-for-mission, but also that those states that have (wisely) enacted school-choice programs will face pressure to condition participation in such programs on adopting the current understanding of the antidiscrimination norm, whether or not it conflicts with schools' religious character.

Sunday, July 12, 2015

Skinner on the "Genealogy of Liberty."

This video is well worth a watch.   A stunningly detailed history of the idea(s) of "liberty."

Screwtape on "Discrimination"

"Helpful" (for his purposes) thoughts from Screwtape on the use of the term/label/epithet "discrimination."   For more from me on the same topic, go here  and here .  The abstract of the latter piece:

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.

When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage it.

The important enterprise of respecting and protecting religious freedom in and through law is closely related, in several ways, to the also-important enterprise of deploying public power to identify, regulate, and discourage wrongful discrimination. It is suggested in this chapter the rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law. This is because the near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that the political authorities tolerate a wrong – i.e., “discrimination” – which they would otherwise prohibit, penalize, or discourage. Such requests then raise the question whether it is “worth it” for the authorities to do so – that is, whether doing so would complicate too much the government’s own projects or conflict too glaringly with its values – and so, when they are granted, accommodations are regarded all around as concessions. Sometimes, to be sure, we do and probably should think about legal rights as protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). We should not forget, though, that a dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong – sometimes it is, sometimes it isn’t – but because it is inextricably tied to a human right and is, sometimes, beyond political authorities’ legitimate reach.