The great saint, Jesuit cardinal, and doctor of the Church Robert Bellarmine died on this date in 1621. This gives me another opportunity to commend the work of the terrifically talented Stefania Tutino, including her book on Bellarmine's political theory, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford, 2010), and her edited collection of primary sources from Liberty Fund. Here's a bit from Stefania's conclusion to the chapter on Bellarmine and the "potestas indirecta":
Bellarmine followed the neo-Thomist doctrine of differentiating sharply between the natural power of the sovereign and the supernatural power of the pope, and indeed he grounded his view of the pope's empire of souls precisely on the unique, incommensurable, and supreme character of the pope's spiritual authority over both the Church and the Christian temporal commonwealths. This move, however, did not remove the seed of constitutionalism when it came to secular government, or, better, it weakened the authority of the sovereign with respect to the authority of the pope while at the same time granting to the temporal authority an autonomous space with respect to the authority of the Christian Church....
What this paradox highlights, I argue, is just how relevant Bellarmine's theory was in the political discourse of early modern Europe, precisely because it was engineered to safeguard and preserve the pope's spiritual primacy against both the Protestants and the authority of early modern monarchies. The significance of this issue transcends the question of the constitutionalist elements embedded in Bellarmine's and other neo-Thomists' doctrine: in a sense, in fact, precisely because Bellarmine's potestas indirecta was meant to oppose the supernatural and supernational empire of souls of the pope to the national and "natural" jurisdiction of the king, it became a fundamental springboard to rethink the secular arguments and foundations of constitutionalism and absolutism. 209-10.
Following on Tom's earlier post, Michael McConnell and John Inazu have co-authored an excellent amicus brief (available here) in the upcoming McCullen v. Coakley case challenging Massachusetts' public-sidewalk exclusion zone statute. The brief is on behalf of a range of religious groups, including the Christian Legal Society, National Hispanic
Christian Leadership Conference, Christian Medical Association, Ethics & Religious
Liberty Commission of the Southern Baptist Convention, National Association of
Evangelicals, Institutional Religious Freedom Alliance, InterVarsity Christian
Fellowship, Missouri Synod Lutherans, US Conference of Catholic Bishops, and
International Society for Krishna Consciousness.
As McConnell and Inazu note, even some sympathetic to abortion rights have roundly criticized Hill v. Colorado (Laurence Tribe has said it was "slam-dunk simple and slam-dunk wrong" and Kathleen Sullivan noted its weaknesses in a Pepperdine Law Review symposium). As I've been working my way through the canonical First Amendment cases in Constitutional Law II this semester, I am struck again by how rarely the government wins in contemporary free speech cases, Hill v. Colorado and Holder v. Humanitarian Law Project being notable recent exceptions, along with a smattering of government employee (Garcetti v. Ceballos) and student speech (Morse v. Frederick) cases. In cases that seemed to pose close questions--Brown v. EMA (violent video game sales to minors), for example--the Court has issued broad, bright-line, pro-free speech opinions. And the four members of the Court appointed since Hill v. Colorado seem at least somewhat more liberal (libertarian) on freedom of speech than their predecessors, all of whom were in the majority in Hill. Chief Justice Rehnquist, for example, was (to put it broadly) often pro-government in speech cases, see Renton v. Playtime Theaters. Hill's author, Justice Stevens, was also (again broadly) frequently pro-government in speech cases and said after his departure that he would have joined Justice Alito's dissent in United States v. Stevens (animal cruelty videos). With Hill's three dissenters (Justices Scalia, Thomas, and Kennedy) still on the Court and by replacing Chief Justice Rehnquist with Chief Justice Roberts, Justice Stevens with Justice Kagan (whose nascent record on the Court and earlier academic work is strongly pro-free speech), Justice Souter with Justice Sotomayor, and Justice O'Connor with Justice Alito, a clean majority to reaffirm Hill looks very unlikely.
As Rick noted, today is the Feast of Saint Augustine, an occasion for special celebration at Villanova, which is sponsored by the Augustinians. I've been dipping into Miles Hollingworth's splendid new intellectual biography of Augustine. Here's a bit, with profound relevance especially for teachers, parents, and those who reflect on our public life:
Clever university students of the right persuasion can affect a meticulous languor whose sole pleasure is noticing itself in grand poses of disinterest—what Evelyn Waugh called 'the relaxation of yet unwearied sinews, the mind sequestered and self-regarding'. But you can't cheat life like this; your character will continue to hound you. The emerging picture is of Augustine as a young man, with the blood really pounding in his ears. He will make every attempt to repose in the normal and acceptable life of his new city; yet he will feel unable to enjoy it with the same ease that he will observe in those around him. He will feel that he is being permitted to live only a fugitivam libertatem, a 'fugitive's freedom'. It is one of the particular consequences of individuality and the first-person perspective that you will always assume that you are the only one going through these things. And if God has been a part of your upbringing then this is the moment when God usually gets it in the neck—as the spiteful architect of it all. Why should we be obliged to call Him good and make up the shortfall in a disingenuous belief?
....
Augustine’s contribution to the psychology of adolescence seems to be to suggest that the stock intensities of this time arise within a complex about God; about parents (and particularly the father) as the earthly stand-ins for God; and about how the sensation of betrayal by these deities creates those hair-trigger responses to the world. 'For just as vinegar corrodes a vessel if it remains long in it, so anger corrodes the heart if it is cherished till the morrow.’ Those who newly enter the world as children are permitted a certain measure of goodwill about it all that the enemy of this has only to destroy by cultivating scenarios in which anger must be carried for long distances. For, by the laws of action and reaction, anger develops in complex and elongated ways into sets of rights—which are those negative assurances held so passionately against all-comers. And from the anger of children forced to compromise comes the adult triumph of the rights-based civilization of the Earthly City, holding its sharpest edge to the neck of God.
Miles Hollingworth, Saint Augustine of Hippo: An Intellectual Biography (Oxford UP, 2013), 112-13.
Michael Gerson has a typically thoughtful piece at the Washington Post today, but it is much more--a beautiful reflection on the joys and sorrows of parenting and the elusiveness of goods in life: "Parenthood offers many lessons in patience and sacrifice. But ultimately, it is a lesson in humility. The very best thing about your life is a short stage in someone else’s story. And it is enough." My colleague Thomas Smith wrote insightfully about this theme in a lecture on Tolkien's Catholic imagination, recently republished in a festschrift. A bit:
The point is that the transitory goods of this world are beautiful and attractive to us, and yet even as we enjoy them, we have an inkling that they will pass away – just as we will. Our enjoyment is mixed with grief because of the sense of impending loss. This is why the Buddha speaks of existence as suffering. He does not mean that there is no happiness in life. Nor does he mean that sometimes painful moments follow happy ones in turn. Rather, he says that life is like honey on a razor; we are cut as we taste its sweetness. Even in our most joyful experiences, a tragic sense lurks that they shall pass. We tend to push that away, shielding ourselves through various distractions. We also tend to cling possessively to our positive experiences and people, unwilling to let them slip through our grasp. Clearly, the ordinary sufferings of sickness, old age, or mental pain constitute part of the suffering of mortal life. Yet there is also suffering even in our joy because of the flow of time. For the Buddha, at the heart of suffering is a clinging possessiveness that expects the universe to meet all our demands, that refuses to let the world flow on through time because this flow frustrates our wish that enjoyment should last.
Texas Attorney General Greg Abbott announced earlier this summer that he is running for Governor, but a neglected aspect of the coverage was that Abbott (the favorite in the race next year) would, to my knowledge, be the first Catholic to hold major (Governor or US Senator) statewide office in Texas (Lorenzo de Zavala, Vice President of the Republic for a few months in 1836, notwithstanding). While this is only one small indicator, there is a major and still somewhat unappreciated shift underway in American Catholicism away from its historic geographic core in the belt running from Saint Louis and Chicago across the Great Lakes up to Boston (with outposts in places such as New Orleans and the major cities in California), one that I think is interesting to contemplate for the future of Catholic culture (in law and otherwise) in the US. But because many of us live in the vestigal culture of American Catholicism and read media (First Things, Commonweal, and America) produced out of it, the change is easy to ignore for now.
As dioceses in Northeastern cities close parishes, sell real estate, and face financial difficulty, the Church in Texas (as Rocco Palmo pointed out last year) is booming. Galveston-Houston is now a cardinalate see (occupied by a Pittsburgher), while Detroit and Saint Louis may never be again. What will emerge is a Church different in important respects--more influenced by Latino Catholicism and Evangelical Protestantism and much less dependent on large Catholic institutions. The liturgical forms of American Catholicism will likely become more mega-church than Tridentine. The massive system of universities, hospitals, and parishes of Midwest and Northeast Catholicism will probably not be replicated in Texas. Consider there are about 7.2 million Catholics in Texas and about 3.4 million in Pennsylvania (source: Pennsylvania and Texas Catholic Conferences), but Texas has seven Catholic colleges or universities and Pennsylvania has 26 (source: ACCU). While Catholics build up some institutional presence (under the presidential leadership, for example, of former Illinois and UST law dean Tom Mengler at St. Mary's in San Antonio), they will also be entrepreneurs in non-Catholic institutions, such as the outstanding Catholic campus ministry at Texas A&M. And just as Catholic social teaching in America for the last century was shaped by (and shaped) the New Deal and the Great Society, Texas is, to put it mildly, more libertarian and distrustful of the state, and this will surely affect how the Church thinks about social problems.
Now, I happen to love Texas and think this is all great (if disruptive and inevitable) for the American Church. The major institutions of higher education in Midwest and Northeast Catholicism--Boston College, Georgetown, Villanova, Notre Dame, Fordham, and so on--will endure, in part by educating the burgeoning Catholic population of Texas. But as we think about how Catholicism and its social doctrine contibute to our public life in the United States, we would do well to consider how the exuberant and "strange genius" (to lift a phrase from former Economist reporter Erica Grieder's recent book) of Texas and its religious and political culture may soon be the dominant force in the American Catholic Church.
I've long thought that a somewhat neglected topic in theology and law is the virtue of hope--not optimism, not despair, not wishful thinking, not pessimism, but the theological virtue of hope. Those looking for a start should read my friend Dominic Doyle's fine book on Christian humanism and St. Thomas on hope. And so on this Feast of the Assumption of Our Lady, here is Pope Francis speaking of hope in his homily at Castel Gandalfo:
Hope is the virtue of those who, experiencing conflict – the struggle between life and death, good and evil – believe in the resurrection of Christ, in the victory of love. We heard the Song of Mary, the Magnificat: it is the song of hope, it is the song of the People of God walking through history. It is the song many saints, men and women, some famous, and very many others unknown to us but known to God: mums, dads, catechists, missionaries, priests, sisters, young people, even children and grandparents: these have faced the struggle of life while carrying in their heart the hope of the little and the humble. Mary says: "My souls glorifies the Lord" – today, the Church too sings this in every part of the world. This song is particularly strong in places where the Body of Christ is suffering the Passion. For us Christians, wherever the Cross is, there is hope, always. If there is no hope, we are not Christian. That is why I like to say: do not allow yourselves to be robbed of hope. May we not be robbed of hope, because this strength is a grace, a gift from God which carries us forward with our eyes fixed on heaven. And Mary is always there, near those communities, our brothers and sisters, she accompanies them, suffers with them, and sings the Magnificat of hope with them.
Amid this memorial notice for Jean Elshtain (at the site of the splendid Lumen Christi Institute at the University of Chicago), the philosopher Jean-Luc Marion offers a tribute that is also (most especially as we prepare to start a new academic year) a magnificent summary of the vocation of a Christian academic:
Jean Bethke Elshtain had a tough-thinking mind and a friendly open heart, while most people—in the academy as well as outside it—are the reverse: weak in thought, hard in feelings. Her books on (just) war, gender and feminism, culture and democracy were not only able to raise the level of discourse, fuel fierce debate, and engage vigorously the most well-received idols of our days, but they also gave back to moral and political philosophy a renewed dignity as serious science....Christian faith gave her enough certitude to display radicality in thinking, unlimited energy in interacting with interlocutors, colleagues and students, and an obviously deep and sincere friendship for all. In her presence, I was proud not only to teach and work with her in Swift Hall, but also to share the same creed.
Among Jean Elshtain's many fine pieces engaging the Catholic social tradition (most written before she became a Catholic herself in 2011) was a reflection on subsidiarity and related themes in "Catholic Social Thought, the City, and Liberal America," in R. Bruce Douglass and David Hollenbach, eds., Catholicism and Liberalism: Contributions to American Public Philosophy (Cambridge UP, 1994), 151-71. A bit:
Perhaps, just perhaps, there is a distinction to be made between how we are compelled to talk, given the dominant rhetoric of individualism, and how, in fact, we act as members of families, communities, churches, neighborhoods. Perhaps. But surely it is the case that our social practices are under extraordinary pressure. What might be called the unbearable lightness of liberalism in fact disguises a heavy hand that swats back more robust notions of an explicitly social construction of the self. I have in mind here not an antinomy that poses individualism against a strong collective notion of the good, but a less stark, less dichotomous set of possibilities. Tocquevillians and Catholic social thinkers indebted to the principle of subsidiarity offer conceptual possibilities not locked into binary opposites. They allow us to pose such questions as: Is there any longer the possibility for the existence of multiple civitates not wholly dependent upon, or brought into being by, the state? What are the possibilities for reanimating these civic entities, including the city as a home for citizenship and solidarity, in order to stem the individualist-market tide? Is there available to us an understanding of rights tied to a social rather than atomistic theory of the self? Does this understanding really have any purchase on our current self-understandings and social practices?
....
Catholic social thought does not offer a “third way,” as if it were simply a matter of hacking off bits and pieces of the individualist-collectivist options and melding them into a palatable compromise. Rather, it begins from a fundamentally different ontology from that assumed and required by individualism, on the one hand, and statist collectivism, on the other. The assumptions of Catholic social thought provide for individuality and rights as the goods of persons in community, together with the claims of social obligation.
The Third Circuit has been on a tear recently in student free speech cases:Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) (en banc) (First Amendment prohibits high school's discipline of student for off-campus speech), J.S. v. Blue Mountain School District, 650 F. 3d 915 (3d Cir. 2011) (en banc) (same for middle school student), and, this past week, B.H. v. Easton Area School District, ___ F.3d ___ (3d Cir. 2013) (en banc) (First Amendment prohibits middle school from banning “I ♥ boobies! (KEEP A BREAST)” breast cancer awareness bracelets). Judge D. Brooks Smith has been especially forceful and articulate in these cases, concurring in J.S. with the conclusion:
J.S. said vulgar, offensive things about her principal on Myspace. And she went beyond that. She wrote cutting, mean-spirited things about members of his family. If we could suppress her speech without silencing other, more deserving speakers, public discourse would suffer no harm. But courts have long disclaimed the ability to draw a principled distinction between “worthless” and “valuable” speech. We must tolerate thoughtless speech like J.S.'s in order to provide adequate breathing room for valuable, robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination. Without condoning her disrespectful and mean-spirited tone, I support J.S.'s right to say the things she said free from government punishment. 650 F.3d at 941.
And writing for the court in B.H.:
School administrators “have a difficult job,” and we are well-aware that the job is not getting any easier. Besides the teaching function, school administrators must deal with students distracted by cell phones in class and poverty at home, parental under- and over-involvement, bullying and sexting, preparing students for standardized testing, and ever-diminishing funding. When they are not focused on those issues, school administrators must inculcate students with “the shared values of a civilized social order.”
We do not envy those challenges, which require school administrators “to make numerous difficult decisions about when to place restrictions on speech in our public schools.” And the School District in this case was not unreasonably concerned that permitting “I ♥ boobies! (KEEP A BREAST)” bracelets in this case might require it to permit other messages that were sexually oriented in nature. But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value. ___ F.3d at ___ (internal citations omitted).
I've been puzzling over these cases--I tend toward libertarian views on the First Amendment, so I'm sympathetic to the results. I also acknowledge, though, that many of us here at MOJ are concerned with the "moral ecology" of the culture and the virtuous formation of children, and we might be properly worried that hampering the ability of school officials to discipline students for their off-campus vulgar and offensive speech (as in Layschock and J.S.) or to prevent students from wearing (moderately) sexually suggestive clothing items takes the liberty of free speech too far, most especially because we are dealing with minors. (Though a reference to "boobies" among middle schoolers is surely tamer than most anything else they encounter.)
That said, I'm still on the side of the students in these cases, and for at least a couple of reasons based on a version of the public/private distinction--a distinction that can sometimes be overdrawn but does some valuable work here. First, parents, families, and networks of friends are, like schools, spheres in which children learn good manners, the virtues of reasonable discourse, and appropriate modes of expression. But families can do so in ways that are particular to each child and to the norms that parents seek to enforce in raising their children. Public school administrators, however, have to create broad policies and might not be good judges of what speech to punish (or not) under such policies, so there is good reason for courts to get them out of the business of doing so (subject to the Fraser and Tinker exceptions for plainly lewd or disruptive speech). That seems especially true in cases such as B.H., where the speech touches--however remotely and in the form of wearing a bracelet--on a matter of political or social commentary, and we don't want public school administrators enforcing an orthodoxy on either side. (Or, as in Layschock or J.S., reaching into the student's life away from school.)
Second, private schools--and a vibrant market in private and homeschooling options for families is important to civil society--are an available option for those whose sensibilities are more restrictive than the First Amendment requires in public schools. Parents have strong voice in private schools (smaller scale and tailoring to parents' and children's moral particularity) and strong exit options (leave and go somewhere else or homeschool). Both are weaker in public schools--districts can be, especially in urban or large suburban areas, bureaucratic and difficult to navigate and are the only option for many families (for financial or other reasons). If so, we might want the protection for speech to be quite broad in public schools, knowing that families can exercise opt-outs or persuasion and correction at home if they disagree with the robust--and properly so--freedom of speech children encounter at a public school.
One of the best books I've read this summer is Christian Wiman's My Bright Abyss (Farrar, Straus & Giroux), an extraordinary meditation on the possibility of religious belief in the modern world (Kathleen Norris's review in the New York Times is here). Wiman is a poet who rediscovered his Christian faith amid a diagnosis of cancer, and almost every page in this short and beautiful book is brimming with insight and theological sophistication. A bit:
Just as some of Jesus' first-century followers could not credit the presence of the risen Christ, so our own blindness, habit, and fear form a kind of constant fog that keeps us from seeing, and thereby believing in, the forms that grace takes in our everyday lives. We may think that it would be a great deal easier to believe if the world erupted around us, if some savior came down and offered as evidence the bloody scars in his side, but what the Gospels suggest is that this is not only wishful thinking but willful blindness, for in fact the world is erupting around us, Christ is very often offering us the scars in his side. What we call doubt is often simply dullness of mind and spirit, not the absence of faith at all, but faith latent in the lives we are not quite living, God dormant in the world to which we are not quite giving our best selves. (p. 74)
