For those in the Philadelphia area or nearby, Villanova Law will be hosting a symposium on Friday, October 17 at 1:30pm in Law School Room 101 on the US Supreme Court’s decision last term in McCullen v. Coakley, unanimously striking down on First Amendment grounds a Massachusetts abortion clinic buffer zone statute. The lead plaintiff in the case, Eleanor McCullen, will participate and will be in attendance along with her husband, Joseph T. McCullen, Jr., a Villanova alumnus and benefactor. Also participating will be the attorney who represented Mrs. McCullen before the Supreme Court. Confirmed participants include:
Gregory P. Magarian
Professor of Law, Washington University School of Law
Professor Gregory Magarian is an expert in free speech, the law of politics, and law and religion. Before joining the law faculty at Washington University, he was on the faculty of Villanova University School of Law from 1999 to 2008. He has written about a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process. As part of an ABA project, he led a team of faculty examining the work of Supreme Court Justice Elena Kagan during the nomination process. Before becoming a law professor, he clerked for US Supreme Court Justice John Paul Stevens, as well as for Judge Louis Oberdorfer of the US District Court for the District of Columbia. Professor Magarian also practiced law for five years with the Washington, DC firm of Jenner & Block. He earned his BA from Yale University and his JD and MPP from the University of Michigan.
Mark L. Rienzi
Counsel for Eleanor McCullen, Senior Counsel at the Becket Fund for Religious Liberty, and Associate Professor of Law, The Catholic University of America
Professor Mark Rienzi's litigation and research interests focus on the First and Fourteenth Amendments, with an emphasis on free speech and the free exercise of religion. As Senior Counsel at the Becket Fund for Religious Liberty (a non-profit, non-partisan religious liberties law firm dedicated to protecting the free expression of all religious faiths), Professor Rienzi is counsel in several challenges to the HHS Mandate. Prior to joining CUA, Professor Rienzi served as counsel in the Supreme Court and Appellate Practice Group at Wilmer Hale LLP in Washington, DC. Prior to joining Wilmer Hale, he served as law clerk to the Hon. Stephen F. Williams, senior circuit judge for the US Court of Appeals for the DC Circuit. He earned his JD from Harvard Law School and BA from Princeton University.
Carrie Severino
Chief Counsel and Policy Director, Judicial Crisis Network
As chief counsel and policy director of the Judicial Crisis Network, Carrie Severino has testified before Congress on assorted constitutional issues and briefed Senators on judicial nominations. Mrs. Severino has been extensively quoted in the media and regularly appeared on television, including MSNBC, FOX, CNN, C-SPAN and ABC’s This Week. She has written and spoken on a wide range of judicial issues, particularly the constitutional limits on government, the federal nomination process, and state judicial selection. Mrs. Severino regularly files briefs in high-profile Supreme Court cases. In the 2013 term those cases included Hobby Lobby v. Burwell, McCullen v. Coakley, and Schuette v. BAMN. Until March 2010, Mrs. Severino was an Olin/Searle Fellow and a Dean's Visiting Scholar at Georgetown University Law Center. She was previously a law clerk to US Supreme Court Justice Clarence Thomas and to Judge David B. Sentelle of the US Court of Appeals for the DC Circuit. She received a BS from Duke University, an MA in Linguistics from Michigan State University, and a JD from Harvard Law School.
Kevin C. Walsh
Associate Professor of Law, University of Richmond School of Law
Professor Kevin Walsh teaches and writes in the areas of federal jurisdiction and constitutional law. His scholarship focuses on doctrines that define the scope of federal judicial power, and has appeared in the Stanford Law Review, New York University Law Review, and Hastings Constitutional Law Quarterly. Prior to joining the Richmond Law faculty in 2009, Professor Walsh was a Visiting Assistant Professor at Villanova University School of Law. He earned his AB from Dartmouth College, his MA in Theology from the University of Notre Dame, and his JD from Harvard Law School. He clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit.
Wednesday, October 1, 2014
Today is the Memorial of Saint Thérèse of Lisieux (1873-1897), a figure from the Catholic tradition all too easy to sentimentalize about and thereby fail to appreciate her remarkable achievement. At the end of the nineteenth century amid a secularizing culture in Europe, a French girl from a small town in Normandy led a short, tragic, and holy life in a cloistered convent, leaving behind a spiritual classic that Charles Taylor notes in A Secular Age illustrates the possibility of religious faith amid moden disbelief (p. 765 and p. 850, n. 64). A century later, she was declared a doctor of the Church (one of only four women), and, as Dorothy Day wrote in 1949, "on the frail battleground of her flesh was fought the wars of today." For more on Thérèse and what she means for our world and for all of us in our various vocations, see this from the Houston Catholic Worker (on Dorothy Day's devotion to Thérèse), this from Rusty Reno, and this from Philip Zaleski.
Tuesday, September 23, 2014
At the Libertas Project workshop on economic freedom this past summer, one of our sessions took up the issues posed by Cass Sunstein and Richard Thaler's Nudge, which is generating a cottage industry of commentary around issues of freedom, autonomy, and government paternalism. This interesting review at the NY Review of Books by Jeremy Waldron of two (!) new books by Sunstein nicely frames the debate.
Waldron points out in the review the danger in Sunstein's claim that "we should design policies that help the least sophisticated people in society while imposing the smallest possible costs on the most sophisticated" of what Bernard Williams memorably called "Government House Utilitarianism":
There are deeper questions, too, than these issues of trust and competence. As befits someone who was “regulation czar” in the Obama White House, Sunstein’s point of view is a rather lofty one and at times it has an uncomfortable affinity with what Bernard Williams once called “Government House utilitarianism." Government House utilitarianism was a moral philosophy that envisaged an elite who knew the moral truth and could put out simple rules for the natives (or ordinary people) to use, even though in the commissioner’s bungalow it was known that the use of these rules would not always be justified. We (the governors) know that lying, for example, is sometimes justified, but we don’t want to let on to the natives, who may not have the wit to figure out when this is so; we don’t trust them to make the calculations that we make about when the ordinary rules should not be followed. Williams saw the element of insult in this sort of approach to morality, and I think it is discernable in Sunstein’s nudging as well.
Here's an interesting question for Catholic legal theory: Does the Catholic tradition's robust commitment to the common good sit comfortably with Sunsteinian nudging of citizens by the state (one might even think that, pace Sunstein, nudging should include not merely health, safety, and economic choices but also moral virtue)? And how much does the answer to that question turn on accepting something like Sunstein's welfare maximization account, which is hardly what the tradition means by the common good? But if the political common good is merely instrumental to other human goods, one has reservations about the competence of the state in such matters, or one is concerned about the autonomy of our choices (a libertarian view one doesn't readily encounter in Catholic social thought), then perhaps the critics of nudging are right to worry about it. (See Waldron's comments about how Sunstein's equation of autonomy with welfare is "remarkably tone-deaf to concerns about autonomy").
Monday, September 22, 2014
With the appointment of Bishop Blase Cupich of Spokane to be Archbishop of Chicago, products of Omaha, Nebraska are now leaders of two of the most important institutions of American Catholicism: the Archdiocese of Chicago and the University of Notre Dame (Father John Jenkins, CSC). Also, former Bishops of Rapid City, South Dakota will now be Archbishops of two of the six largest dioceses in the United States (in addition to Archbishop-elect Cupich in Chicago, my own Archbishop, Charles Chaput, OFM Cap. of Philadelphia, was formerly Bishop of Rapid City).
The prominence of Omaha and Rapid City may be a geographic coincidence, but there might also be a larger point here about the rise of Midwestern Catholicism in the American Church.
Consider that almost all of the ordinaries of the redoubts of the East Coast Catholic Church are Midwesterners: Boston (Cardinal O’Malley is from Lakewood, Ohio and Pittsburgh), New York (Cardinal Dolan is from St. Louis), Philadelphia (Archbishop Chaput is from Concordia, Kansas), and Washington (Cardinal Wuerl is from Pittsburgh). (Pittsburgh is a close call, but I say the Midwest begins when you pass the Alleghany Mountain Tunnel on the Pennsylvania Turnpike—and surely Pittsburgh historically has been more like Cleveland or Detroit than it’s been like New York or Philadelphia.) Only Archbishop Lori of Baltimore—a priest of the Archdiocese of Washington originally from Kentucky—is from an East Coast diocese. None of the American cardinals serving now as archbishop of a diocese is native to the East Coast: besides O’Malley, Dolan, and Wuerl, Cardinal DiNardo of Galveston-Houston is from Pittsburgh (via Bishop of Sioux City, Iowa). And Catholic university presidents at Notre Dame (Nebraska, as mentioned), Boston College (Father William Leahy, SJ is from Iowa), and Villanova (Father Peter Donohue, OSA is from Michigan) are from the Midwest.
The larger story, if there is one, may be that those formed by Midwestern Catholicism—less clerical, less dependent on the large institutions that have marked East Coast Catholicism—are suited to address the challenges of the 21st century American Church. Regardless, congratulations to Bishop Cupich and best wishes in retirement to Cardinal Francis George, OMI (originally from...Chicago).
Wednesday, September 17, 2014
Those of us from an Irish Catholic background are inevitably reserved, to say the least, about British Unionism. But as Rick pointed out last week, the prospect of Scotland voting tomorrow to secede from the United Kingdom seems extraordinarily foolish and may, as argued here by Walter Russell Mead, usher in an era of wider political instability that we will all soon regret (and some of the damage may already be done). Two offhand thoughts on this eve of the referendum:
First, rather than a modern domesticated version of Robert the Bruce, the Scottish nationalist movement today seems more a Caledonian variant of Peronism—socially progressive, yes, but also a brew of authoritarianism, economic populism, and class resentment (see Tom Gallagher's piece earlier this summer). Many voting for Scottish independence tomorrow have hopes of creating a Scandinavian welfare state utopia shorn of retrograde English capitalism, but they are more likely to get economic stagnation, debt crises, currency instability, and political turmoil. And as John Haldane wrote here, none of this will be good for the Catholic Church or for religious liberty.
Second and as a matter of political and legal theory, there is something odd about the bare majoritarianism at work in tomorrow’s vote. 50% plus one of Scottish citizens age 16 and older (well, those who live in Scotland—Scots living in other parts of the UK can’t vote in the referendum) can decide to form an independent country and abrogate the 1707 Act of Union with England—and that result binds 50% minus one of Scots. Jeremy Waldron elegantly argues in The Dignity of Legislation (Cambridge UP, 1999) against the arbitrariness of majoritarianism and the legitimacy of Locke's "physics of consent" by majority rule. Fair enough as to normal politics—popular voting for candidates or legislative majorities. Ultimate questions of sovereignty, though, seem to me to require an account of authority and a background political culture that majoritarianism alone can’t provide--a problem rarely (and fortunately so) posed in the modern state. As Tyler Cowen wrote this morning, crudely posing certain questions and asking the people to resolve them (here by bare majority rule) threatens any political order, and independence "might just be a question which should not be asked in such a blatant form." And as he wrote presciently some months ago, "If a significant segment of the British partnership wishes to leave, and for no really good practical reason, it is a sign that something is deeply wrong with contemporary politics and with our standards for loyalties.”
