Rob beat me to Tamanaha over at Balkanization, but now I have even more say, though I'll try to keep it brief. As far as the relevant context goes, Aquinas is not the ally against the Bush administration that Tamanaha makes him out to be. Aquinas does think that the prince/legislator (the English Dominicans' translation of the Summa theologiae that Tamanaha relies on, the standard translation, renders the Latin word "princeps" and the like as "sovereign," but this is a seriously misleading mistranslation, a function, I'm afraid, of the time at which the learned translators were at work), should follow the law, even though no one can legally coerce him to do so. But does the screening of Justice Department applicants entail a disregard of, or a call to disobey, the law? As such, no. Tamanaha's recent work has worried about the pouring of ideological agendas into the skins of the rule of law, but the question about the Justice employees who get appointed is simply whether in their work they are following the laws set down. The screening may raise people's worries that they'll be incapable of following the law that has been laid down, but that's another matter.
One should add, of course, that Aquinas's point in q. 96 art. 5, from which Tamanaha quotes, is not that the princeps cannot change the law or act beside the letter of it. At the end of the reply to obj. 3 of 96.5, Aquinas writes "Again the princeps is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place." In the next question, 96.6, Aquinas further spells out the conditions under which someone who is under the law can act beside the letter of that law. The permission, shaped and limited by the law's necessary commitment to the common good, is impressive, especially from the perspective of the flat-footed textualism or originalism that some conservatives and others insist is the remedy for our cultural woes.
Tamanaha writes that "the ultimate guarantor of the rule of law is the power to threaten and exert violence." Aquinas does not agree. On Aquinas's account, the reasonableness of the law is a necessary condition of its being binding, and its reasonableness comes from, among other sources, its being in the interest of the common good. This alignment with and contribution to the common good, this "reasonableness," is, of course, no part of the account of Hobbes, whom Tamanaha identifies as Aquinas's ally. For Aquinas, what we might call "the rule of law" occurs focally in the the prince's or his subjects' free conformity to the reasonable dictate of the prince, that is, the person charged with the common good of the community. When force -- even lawful force -- has to enter, in some sense the rule of law has broken down or failed.
In sum, or so it seems to me: Vague worries about the arrival of ideology that threatens "the rule of law" are a distraction from the clean questions put by Aquinas: Are the officials operating within their grant of authority under the laws set down, that is, the reasonable ordinances put in place for the common good? The reason why we shouldn't talk about "sovereigns" in this context is that, when that portentous word is used, there's inevitably an (at least) implicit claim that one can be above the directive force of the law. On Aquinas's account, if the law be reasonable, that is, if it be a genuine law, no one is above its directive force, even if no one is in position lawfully to impose it through coercion.
Morning's Minion, over at the (excellent) Reasons and Opinions blog, says "yes." My view is a bit different. But, as Michael and Eduardo have argued, I could be wrong . . .
Morning's Minion writes:
"[T]here are those who will undoubtedly defend the actions on the majority on legal technical grounds. There are those who will argue that there is no authoritative Church teaching directing how to vote on these kinds of procedural grounds. But this is surely misguided. While the Church does not claim that the death penalty is always and everywhere wrong (like abortion), it does carve out conditions under the death penalty may and may not be immoral, namely, that there must be no other way to defend society (see here, here, here, here, and here for more). No death penalty in the United States meets this strict condition, and hence Catholics are obliged to oppose capital punishment in this country. In the present case, it would seem that "erring on the side of life" calls for granting a new trial.
It is not clear me, though, that the "hence", above -- which I agree applies to Catholic citizens and legislators -- applies to Justices deciding cases presenting technical questions of criminal procedure. In any event, Reasons and Opinions is a great blog.
Thanks to Michael at Evangelical Catholicism for giving Mirror of Justice a "Thinking Blog" award. Back 'atcha!
"Religious Groups Reap Federal Aid for Pet Projects," is the headline of Diana Henriques's latest religion-related piece for the Times. As MOJ readers probably remember, Ms. Henriques produced a five-part series for the Times, a few months ago, on religious exemptions (or, on "how American religious organizations benefit from an increasingly accommodating government").
Here's the article's basic story:
Religious organizations have long competed for federal contracts to provide social services, and they have tried to influence Congress on matters of moral and social policy — indeed, most major denominations have a presence in Washington to monitor such legislation. But an analysis of federal records shows that some religious organizations are also hiring professional lobbyists to pursue the narrowly tailored individual appropriations known as earmarks.
A New York Times analysis shows that the number of earmarks for religious organizations, while small compared with the overall number, have increased sharply in recent years. From 1989 to January 2007, Congress approved almost 900 earmarks for religious groups, totaling more than $318 million, with more than half of them granted in the Congressional session that included the 2004 presidential election. By contrast, the same analysis showed fewer than 60 earmarks for faith-based groups in the Congressional session that covered 1997 and 1998. . .
Clyde Wilcox, a Georgetown University professor who has written extensively on religion and politics, said religious groups would naturally justify earmarks. But their moral authority in Washington — “the extra prophetic power of the religious voice,” as he put it — largely arises from the fact that they are not seen as self-interested, he said. “The loss of that prophetic voice would be profound.”
Kenneth Wald, a professor at the University of Florida who also studies religion in the political arena, foresees a more pragmatic danger for religious organizations that lobby for earmarks. “If they start to act like any other special interest, they’ll start to be treated like any other special interest,” he said. “I think it’s nuts to take that risk.”
I was critical of the earlier five-part series. This article, though, struck me as informative and (in a good way) provocative, raising important questions.
