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.

Friday, December 14, 2007

New Jersey does it right

By Rick Garnett

The New York Times reports here that "[t]he New Jersey Senate voted Monday to make the state the first in the country to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976 and established the nation’s current system of capital punishment."  The Assembly is expected to follow suit.  Here's more from the piece:

For those opposed to capital punishment, New Jersey’s repeal would represent a victory that has so far eluded them in the modern history of the death penalty.

Though legislatures across the country have tried to abolish capital punishment since 1976, none have succeeded. This year alone, the legislatures in Nebraska, Montana, Maryland and New Mexico have debated bills to repeal their death penalties, but each of those measures failed, often by a slim margin.

So far, opponents of the death penalty have succeeded only through court rulings, like a decision declaring New York’s capital punishment statute unconstitutional, or through moratoriums imposed by a governor, like in Illinois and Maryland.

“What New Jersey is going to do is have a Legislature-initiated repeal, and that’s different,” said Franklin E. Zimring, a law professor at the University of California, Berkeley, who has been critical of American capital sentence laws. “This is a degree of legislative action in the undoing of the death penalty which is a fairly significant step forward.”

This (and not through decisions by federal courts) is, in my view, how abolition should happen.  More like this, please.

The Founders and religion . . . who cares? Cont'd

By Rick Garnett

Adding to Steve Smith's, Tom Berg's, Chris Eberle's, and Rob Vischer's earlier remarks, Prof. Eric Claeys writes:

I think Steve Smith's arguments explain why history is interesting to people who incline toward points of view conventionally viewed as conservative in interpretation or law & religion.  But in most areas of individual rights con law, Steve's arguments don't respond to the concerns that animate the progressives who most often ask Eberle's question -- who cares how it was done 180 years ago if the reasons for doing it the old way can't earn their own keep today[?] 

IMHO, Everson and McCollum have to be part of the explanation.  Constitutional religion law is slightly odd.  It has always relied less on normative political philosophy and more on history than other areas of individual rights law -- say, free speech or family law/reproductive rights.

I this is primarily the result of an accident.  By the 1960s, the Warren Court and some academics had made "living Constitution" interpretation respectable enough that judges could repudiate earlier and non-progressive constitutional doctrines using Eberle's argument   But religion law started going secularist in the late 1940s -- before Warren was Chief Justice and before living Constitution interpretation was respectable.  In their own way, Robert Jackson, Hugo Black, & other Justices on the Court thought of themselves as originalists.

So the important opinions from Everson and McCollum used Jefferson's Danbury Baptist letter and other historical sources to make legally respectable doctrines that broke significantly with earlier case law.  The interpretive choices made in those cases stayed in religion doctrine even as the Warren Court used living Constitution interpretive methodology to change doctrine elsewhere.  And since a lot of academic scholarship is at least a little reactive to what the Supreme Court is doing, a lot of historians and legal scholars to assume that Founding Era history has normative authority it doesn't get elsewhere in con law.

It will be interesting to see whether the scholarly discussion changes in the next five or so years.  Everson and McCollum have been taking a beating in Philip Hamburger's book, Noah Feldman's book, & other scholarship.  My bet is that the conversation shifts away from history to normative political theory straight up.

More on Romney

By Rob Vischer

Joe Knippenberg defends Romney's speech against critics who object to his apparent exclusion of nonbelievers.  David Neff offers an evangelical perspective on the speech.

Cultural Selection

By Rob Vischer

William Saletan explains why an emerging theory of evolution suggests that today's driving force of natural selection is culture.

Thursday, December 13, 2007

Constitutional Protestantism and Constitutional Catholicism

By Michael Scaperlanda

Almost 20 years ago now Sandy Levinson published a book, Constitutional Faith,  in which he makes the analogical move mentioned by Tom Berg in a recent post by exploring "Catholic" and "Protestant" interpretations of the constitution.

Why We Care About the Founders

By Thomas Berg

In response to Chris Eberle, we -- and not just we lawyers -- talk and argue about the founders for a couple of reasons.  (This post is mostly description, and only in part justification.)  First, in the legal realm, the originalist theory of interpretation holds that the Constitution, like other legal documents, should be interpreted now according to the meaning it had at the time of its adoption, either for those who enacted/ratified it or for the general public (as to whom the founders' statements are still evidence).  The argument is that the authoritative legal act took place at that time and so its meaning should be set as of then, combined with an argument (championed e.g. by Justice Scalia) that alternative inquiries  (like "what should be the role of religion in public life today?") are far more disputed and uncertain than asking "What led the founding generation to coalesce behind certain constitutional enactments?"  Originalism can be criticized of course, and it's by no means the exclusive view, but it's significant enough -- and there's enough agreement in legal culture that original meaning is a significant factor in interpretation -- to warrant having arguments over the Founders' views.

Second, not only judges and lawyers but a lot of Americans seem to care about the Founders' views.  Because our nation is built less than others on geographic and ethnic ties and more on a sense of a shared project, the people who started that project -- who are seen as its source, or closer to its source, of inspiration -- have an extra claim on attention.  In contrast to Prof. Eberle, I see this attitude as having "Protestant" overtones, in that Americans look back to the original documents and the generation that produced them -- much as evangelical Protestants look back to the scriptures and the first-century church -- more than they emphasize an evolving tradition.  (I just saw Steve Smith's comments making the same point.)  Of course you can question the analogy between the Christian relevatory generation and the American founding, but for "a nation with the soul of a church" the analogical move isn't that surprising.  Even if the analogy is bad, the sense that our national project starts from some founding principles, to which that generation was closest, is very understandable.

Tom 

Steve Smith's response to Chris Eberle

By Rick Garnett

A few days ago, Chris Eberle asked:

. . . Even if we assume, as is surely not the case, that there was some one position, even broadly construed, that the founders took with respect to the proper public role of religion, of what normative significance is that fact?  After all, suppose that we agree that, as Prof. Stone says, "the Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state."  Why should that matter to me any more than their belief in Newtonian physics? . . .

In response, Steve Smith writes:

(1) One standard response, more or less Burkean, emphasizes the superiority of collective, accumulated wisdom over that of any single person or generation.  This claim is debatable, of course, and it may not apply to the kind of argument that focuses not so much on an ongoing tradition as on the particular thinking of the founding generation.  In this respect, Chris says his perplexity may reflect his Protestant skepticism of tradition.  Maybe.  But insofar as the sort of talk he is uncertain about isn't about "tradition" so much as about "the Founders" (and especially, of course, if the Founders are being cited in figuring out the meaning of the Constitution, as is often true), this sort of argument isn't really about tradition.  It might be closer to a "sola scriptura" type of thinking that Protestants presumably would be comfortable with.

2. Or we might just think that the Founders, or their generation, happened to be unusually wise or prescient, so it would be prudent to give weight to their judgments.  Reasons might be offered for thinking this.  A variation is that their generation was part of, or at least closer to, a worldview that understood truths that a modern worldview has trouble grasping.  So we might be interested in what they thought because for us this might be a sort of window into a world that we no longer have good access to.

3. Actually, though, I suspect that perhaps the major reason why we care so much about what the Founders thought is because they were in an important sense constitutive of the identity of our political community.  On a personal level, any sane normative reflection will take into account the kind of person I am, or you are. "What should I do?" or "How should I live?" can't be sensibly addressed without some understanding of "Who or what sort of person am I?"  The same seems true for a community.  But what gives a community its character or identity?  It's a large question, but surely a major part of the answer has to refer to the traditions of the community, and in particular to its origins or founding.  I think we all basically understand this when we give normative weight to what the Founders thought.

Thoughts?

Free Exercise? Tragic Exercise!

By Michael Perry

Sightings 12/13/07
 
The Lord Taketh Away
-- Shawn F. Peters

[Shawn Francis Peters' latest book, When Prayer Fails: Faith Healing, Children, and the Law, was published this month by Oxford University Press. He teaches at the University of Wisconsin-Madison.]
 
In 1980, a four-year-old Indiana girl named Natali Joy Mudd fell victim to a fast-growing, highly malignant tumor called rhabdomyosarcoma.  Even after the growth sprouted from near the girl's right eye and "eventually grew to the size of her head," as one press account later put it, Natali's parents did not to take her to a doctor for medical treatment.  Instead, adhering to the tenets of their church, the Faith Assembly, they chose to treat her malady with prayer alone – unsuccessfully, as it turned out.  After Natali died and her parents called the police to report her passing, investigators discovered trails of blood along the walls of the Mudd home. They surmised that the crimson stains had been left where the nearly blind Natali, groping her way through the house, had dragged her grotesquely disfigured head.
Harrowing incidents of religion-based medical neglect – in which devout parents like the Mudds, following the doctrines of their faiths, refuse to furnish conventional medical care to their ailing children – are not unique to a single church or a particular geographical area.  Since the late nineteenth century, this phenomenon has imperiled the youngest and most vulnerable members of a variety of religious faiths in every region of the United States.  From Massachusetts to California, hundreds of children have died as Natali Joy Mudd did – in agony, and aided by little more than the ardent bedside prayers of their parents and fellow church members.

It is difficult to determine precisely how many children have lost their lives in such tragic circumstances.  But even the limited evidence that has been compiled on religion-based medical neglect of children is unsettling.  A wide-ranging 1995 study funded by the National Center on Child Abuse and Neglect investigated whether lesser-known forms of religion-related child abuse, such as the faith-based medical neglect that proved so deadly in the case of Natali Joy Mudd, posed a greater risk to children than other, more widely publicized threats, such as ritual satanic abuse.  By surveying thousands of psychologists, psychiatrists, and social workers, the study's authors identified dozens of instances in which parents had withheld medical care from their children for religious reasons.  The prevalence of such cases led the authors of the study to conclude that "there are more children actually being abused in the name of God than in the name of Satan."

Many such cases of abuse have resulted in criminal prosecutions of parents under manslaughter and neglect statutes.  The defendants in these cases typically have claimed that the First Amendment safeguards their decision to adhere to their faiths' religious traditions and treat their ailing children solely by spiritual means, as they believe the scriptures mandate.  They also claim that they possess a fundamental right as parents to direct the upbringing of their children without interference from the state.  Prosecutors, however, generally have balked at the notion that constitutional protections for religious liberty provide an absolute bar to state regulation of religious conduct, particularly when that behavior puts the safety of children at risk.  They also have disputed the claim that the state has no right to limit the authority of parents to direct the upbringing of their children.

Many parents who spurn medicine for prayer would agree with the assessment of John Alexander Dowie, the great Chicago-area spiritual healer of the late nineteenth and early twentieth centuries, who argued that Christians should "forget about the law" as it relates to furnishing medical treatment to their children because they "are Christians first, citizens afterward."  Dowie's comment cuts to the heart of the dilemma that still confronts devoutly religious parents who choose to treat their sick or injured children with prayer rather than medicine.  Not only must they endeavor to safeguard the flagging health of their sons and daughters; they also must try to reconcile their devotion to God with their duties as citizens in a society that, while ostensibly honoring the principles of tolerance articulated in the First Amendment, boasts a long and sometimes checkered history of regulating the religious conduct of adherents to uncommon faiths.  For spiritual healers, balancing those sacred and secular responsibilities – weighty obligations that often dramatically conflict with one another – remains no less vexing a task today than it was in Dowie's time.

----------

 

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

"Separation Anxieties: Church & State"

By Rick Garnett

This past weekend, I was a panelist -- along with Judge McConnell, Prof. Chris Eisgruber, and Holly Hollman of the Baptist Joint Committee -- on an episode of "Dan Rather Reports."  The show (filmed in a Hogwarts-y room on Princeton's campus) was called "Separation Anxiety:  Church and State."  If you are interested, here's the link.

The Church and Birth Control, Revisited

By Michael Perry

The Tablet
The International Cathoilic Weekly
December 1, 2007

Bishop wants ban on birth control lifted
Christa Pongratz-Lippitt

A popular bishop has called for an end to the Church's ban on married priests and the use of birth control, arguing that a backlog of necessary reforms is draining the Church of its strength and preventing it from asserting its presence in today's world.

In his new book, A Church with a Future: 12 essays on seemingly insoluble church problems, Bishop Helmut Krätzl, an auxiliary in Vienna, accuses the Church of having shied away from sensitive issues such as mandatory celibacy, because it considers such problems insoluble and was waiting for "God to intervene".

He cites surveys that show celibacy to be a key reason for the drastic fall in vocations to the priesthood and says he is convinced that the policy is out of step with reality, would weaken the Church, and prevent its urgently needed message from reaching the world. The bishop advocates the model of the Greek Catholic Church, which is in full communion with Rome and yet permits married men to become priests, but not bishops.

The bishop says that the issue of birth control has to be discussed openly and calls for "responsible parenthood" based on the informed conscience of the individual, which the Second Vatican Council confirmed as the final instance for moral decisions. He says the fact that the Church forbids birth control but that so many Catholics practise it has lost the Church much credibility.

Bishop Krätzl also says it is imperative to go back to the declarations of the Second Vatican Council and study not only what they said but how they came about, because they pointed the way forward on church reform. The question of centralism versus collegiality must be brought back on to the discussion table, he argues.

Bishop Krätzl also tackles the subject of remarried divorcees in Austria, where many have either left the Church or feel neglected by it, because they may not receive the sacraments or be godparents or confirmation sponsors, and are often barred from parish councils. Acknowledging that divorce is on the increase, Krätzl notes a solution practised in the Orthodox Church, where a second church marriage is possible and divorcees are not barred from the sacraments, and says something similar should be considered.

Here, as elsewhere in the book, he quotes Joseph Ratzinger, now Pope Benedict XVI, who as Archbishop of Munich in 1980 wrote to all his priests and deacons advocating "greater compassion" for remarried divorcees in line with the Orthodox Churches. The bishop also called for steps to be taken towards intercommunion with the other Churches.



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