My thanks to Eduardo for his posting on Authority and Reason. I need some more time to think about his challenging post before I could respond properly. However, his question has prompted another one that, in fairness, I think needs to be considered along with his. Should a scholar who thinks and writes from a perspective of what might be called “The Politics of Identity” be evaluated differently from a “very orthodox Catholic academic”? Assuming that both are sincere in their scholarship, would not some third party examining and critiquing their work do so in a similar fashion? However, if different standards are applied, why? It strikes me that both scholars could be asserting truth claims that might conflict when each addresses the same topics. RJA sj
Tuesday, April 18, 2006
A preliminary response to Eduardo
Monday, April 17, 2006
Subsidiarity, the New Federalism, and Katrina
William & Mary law prof Erin Ryan has posted her new article, Federalism, Subsidiarity, and the Tug of War Within: How the New Federalism Failed Katrina Victims, and What We Can Learn. From the abstract:
By failing to anticipate the "interjurisdictional gray area" of state and federal regulatory concern, New Federalism idealism dangerously subordinates the subtle problem-solving values that have historically counterbalanced the critical check-and-balance values of traditional American ("Old") federalism. Taken to its extreme, the New Federalism would obstruct interjurisdictional problem-solving by effectively assigning jurisdiction over a matter that implicates both local and national expertise to either state or federal agents, mutually exclusively, and then zealously guarding the designated boundary against defensible (even desirable) crossover by the other. While strictly segregating local from national regulatory authority would serve the critical "check-and-balance" purpose of Old Federalism, it would also undermine other underlying principles. In addition to the anti-tyranny value of checks and balances, Old Federalism operates from the premise of subsidiarity, or the principle that regulation take place at the most local level of government with actual capacity. The principle of subsidiarity partners a preference for localized decisionmaking (to promote diversity of preferences and regulatory competition) with a reasonable expectation for capacity in regulatory problem-solving.
Rob
Authority and Reason
I wanted to post a link to Rick's op-ed in USAToday, but he beat me to the punch.
So instead I'll ask an inflammatory question. This question came to me (again) after reading some legal theory by a very orthodox Catholic academic who will remain unnamed (no one on this site). It occurred to me that this person's scholarship seems to coincide perfectly with the Catholic hierarchy's authoritative teachings on every issue I have seen it address. Now, this person's scholarship is not written in terms of authority but rather in terms that are reasonably accessible, though not necessary convincing, to anyone, irrespective of his religious views.
It seems to me that this pattern is perfectly in line with what the hierarchy expects of "good" (obedient) Catholic academics (or any Catholic for that matter) with regard to authoritative Church teachings. But does the expectation that Catholic academics will assent to authoritative teachings (and not publicly argue against them) undermine the legitimacy of Catholic legal theory? Assuming that the conclusions to which this person reasoned were set in advance by the magisterium, can we have any faith in the arguments themselves? Would the arguments have more credibility if we thought the person was following his line of thought where it took him? Or should the subjective motivations of the scholar have absolutely no bearing on the matter?
Perhaps this distinction only matters (or matters most) if one does not fully understand the arguments themselves. I myself would probably be marginally more willing to struggle to understand an argument if I thought the person who made it was pursuing his own line of thought rather than trying to gin up an argument to reach a preordained conclusion. That is, in the latter situation, I think I would be less inclined to conclude that the problem was with my own comprehension and struggle to remedy it. But maybe that is not fair. What do you all think?
Catholic identity: an Easter reflection
I am once again grateful to those who are responsible for the many illuminating and substantive postings presented over the last few days regarding a variety of important issues to which MOJ contributors have offered insightful and helpful commentaries. While it may initially appear to some that I am simply resurrecting—after all, it is Easter—an old theme, namely Catholic identity in higher education, I use this theme as an opportunity to discuss the relevance of the Easter promise to our work (and, perhaps even a passion—another Holy Week theme) as teachers, students, practitioners, and others who share an interest in “Catholic legal theory.”
Catholic identity—yes. Rick, I believe, posted the link to Fr. Bill Miscamble’s open letter to Fr. Jenkins on the Monologues a few days ago. There is a great deal in the Miscamble letter to which I commend your careful and prayerful reflection. It represents, first and last, the work and discipleship of one good man and priest commenting on a problematic decision made by another good man and priest. These associated events (the letter and the decision) have been one catalyst for this posting.
Another catalyst is in the copy of the latest “Company” magazine, which is distributed by some of the Jesuit provinces in the US, and which I received the other day. My attention was drawn to this issue’s “letters to the editor” section. I was edified by four letters about a great man, priest, and medical doctor, Fr. Myles Sheehan, who has helped many people for many years deal with a fact of the human condition—one day we all must go home to God for our judgment and reconciliation with Him and our neighbor. How do we approach that day and the medical decisions that are made as the approach gets closer? The authors of these letters responded to a great article about a great human being who is, first and last, a man who strives to be faithful to God and the Church.
But then, there were two other letters from laity about one of the Jesuit universities that invited a dynamic young politician, who is acquiring a reputation as an up-and-coming US Senator, to give the key-note address to the new freshman class that entered this past fall. There is a problem, though, with this particular invitation based on the letters I read. Some of this politician’s major policy positions contravene the Church’s teachings. I need not go into which issues at this point. The authors of these two letters, and I am sure many other individuals sharing similar views and concerns, asked two questions about this invitation. The first: who else was considered to address the new class? The second question quickly follows: why was this person selected to address the new freshmen? After all, those who speak about important matters to a new class at a Jesuit/Catholic university have a peculiar ability to influence a large group of young people who will likely become influential people in the not-too-distant future. Was this young politician, who many claim to be dynamic and forward-looking, really a good choice if he does not understand the simple difference between what is right and what is wrong? The two individuals who wrote the letters said that the selection of this speaker was profoundly mistaken. I think they are right.
So I come back to the matter of Catholic identity.
A number of us have been addressing and wrestling with this issue for some time. I won’t reiterate past positions today. Rather, I would like to speak about the matter from a different perspective: the faith we share and have just celebrated in an extraordinary manner this past weekend. We have renewed our remembrance that God loved us so that He gave His only son so that we, who believe in him, may not perish but have eternal life. Such a deal! I could critique the young Senator for not having spoken of this, but I will not. I could critique the many colleges and universities that call themselves “Catholic” but tend to support or pursue views and positions that are not, but I shall not.
I hasten to add here that very few of these institutions posted Easter greetings on their websites (a powerful tool for evangelizing the Gospel!). I will stick with those schools that refer to themselves as Jesuit or following the Jesuit tradition, or some variation thereof, since I know them best. None had Easter greetings or proclamations of any sort. Four did post some type of reference to Holy Week and/or Easter services/Mass schedules. I hasten to add, once again, that if you were persistent in website navigation, you would likely come up—if you labored long enough—with a schedule of Holy Week liturgies at most of these schools. But this information required some effort—and, in certain cases, a great deal. But, other messages, many not particularly Catholic or Christian, were prominently featured on the websites. A fifth school had nothing on the main page of the website about Holy Week religious services and Masses; however, it did proclaim that there would be an “Easter egg hunt at noon Saturday.” Nothing was said about Holy Thursday, Good Friday, the Easter Vigil, or Easter Sunday. But, if you were interested in Easter eggs, “we have them”! I began to wonder if Bugs Bunny would be present to confer honors upon whoever found the most eggs? But, I digress.
I looked high and low for some, any message about Christ crucified for us, but I found none. Instead, I found variations on themes of “empowerment,” “leadership,” etc. In short, the messages presented proclaimed: it is about “me.” Or it’s about “you” as the prospective student who might be willing to pay a small fortune to attend this school where “men and women are made persons for others.”
And this is where we enter my Easter season reflection. The authors of MOJ postings are academics who have the ability (in the proper exercise of their academic freedom) to suggest, to propose something about the glory of God’s promise, God’s covenant every day to some or all of the people they meet. Sometimes it’s easier to do on some occasions than on others, I admit, but it is still possible. And it is the very work that each disciple—regardless of whether he or she is teacher, practitioner, student, or other human who bears the likeness of God—who claims to follow Christ, is called to do. I have little hope in the empty promises of website jargon, but I do have much hope in the one who came to save us all. Is it not possible that this is at the center not only of the institutions in which we find ourselves laboring but also of us?
If this suggestion about the nature of the institutions with which we associate ourselves or about the nature of ourselves is correct, then surely this is the day the Lord has made: come, let us rejoice and be glad!
If not, then there is a lot more work to do. And it is the work of the one called to assist in the gathering of His abundant harvest.
A blessed Easter to one and all! RJA sj
Politics from the Pulpit
Shameless self-promotion time: I have an op-ed in today's USA Today, discussing the constraints and considerations that should apply to "political" expression by religious ministers. Here is a bit:
It is the regulation of the churches' expression, and not their expression itself, that should raise constitutional red flags. Religious institutions are not above the law, but a government that respects the separation of church and state should be extremely wary of telling churches and religious believers whether they are being appropriately "religious" or excessively "political" or partisan. Churches and congregants, not bureaucrats and courts, must define the perimeter of religion's challenges. It should not be for the state to label as electioneering, endorsement, or lobbying what a religious community considers evangelism, worship or witness.
Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.
Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.
The Sanctuary Movement and the Rule of Law
In response to my earlier query, Brendan Wilson forwarded me a recent article recounting the 1980s sanctuary movement. Included was this important set of statistics:
Characterizing the Salvadorans and Guatemalans as "economic migrants," the Reagan administration denied that the Salvadoran and Guatemalan governments had violated human rights. As a result, approval rates for Salvadoran and Guatemalan asylum cases were under three percent in 1984. In the same year, the approval rate for Iranians was 60 percent, 40 percent for Afghans fleeing the Soviet invasion, and 32 percent for Poles.
So when churches took it upon themselves to help refugees from those countries enter the United States illegally, they had a formidable argument that an otherwise reasonably just system had been corrupted by political considerations so that it no longer served its prudent and proper purpose. Perhaps this is as close to an operative standard as we can get. Under the law as it stands today, is there any similar argument available to support assisting the act of illegal immigration from Latin America? E.g., would Catholic legal theory support categorical distinctions between "economic migrants" and "political migrants?" (Exclusion of the former, I assume, is grounded in practical reality -- i.e., billions could have an economic claim for entry into the United States -- more than particularized justice -- i.e., a hungry child seems every bit as morally compelling as an oppressed political dissident.)
Rob
Empowerment Through Segregation?
The plight of public schools, especially as the fall-out traces racial lines, is of obvious concern to the Catholic legal theory project. Perhaps it's because my grandfather was a public high school principal in Omaha for many years, but I'm fascinated (and perplexed) by that city's effort to reshuffle the deck by bringing race to the foreground, as reported by the New York Times here (with comments from Yale law prof Jack Balkin here).
Rob
"Maternal Bond" Memorial
It looks like there's an interesting conversation going on at Villanova about Catholic identity and campus memorials. (HT: Open Book)
Rob
Sunday, April 16, 2006
If We Assist Illegal Immigrants, Should We Assist Illegal Immigration?
Joe Knippenberg, in addition to citing an interesting letter sent by House GOP leaders to the U.S. Conference of Catholic Bishops insisting that the immigration bill has been misconstrued, responds to criticism of his earlier comments on Cardinal Mahony:
I probably should have softened the language a bit, arguing that the threat of civil disobedience runs the risk of turning natural law into a cover for all sorts of defiance of positive law. I stand behind the thrust of my analysis and would continue to raise the following question. Does Cardinal Mahony think it should be a crime actually to assist people to cross the border illegally, regardless of one’s motives in so doing? It’s one thing to help out immigrants, no questions asked, who present themselves at your doorstep. It’s another altogether to help them into the country.
This is an intriguing question, and perhaps other MoJ-ers have pondered this already. Certainly the Church recognizes a nation's legitimate interest in maintaining its borders, but under what circumstances would the Church call to help others enter a country illegally? I assume that there are such circumstances, but that they would not be common. The immigrant's needs, the situation in the country of origin in relation to those needs, and the stated rationale for the new country's legal exclusion of the immigrant would all be important factors. In the end, the question will be, what degree of deference do we owe to a nation's own weighing of these factors in crafting their immigration and asylum laws? How unjust must the laws be before their violation is morally warranted or compelled, and what level of injustice must be present in a particular case to justify defiance of laws that function well overall?
Rob
Illegal Immigration
Thanks for the plug, Rick. That Washington Post op-ed is just a teaser for a longer, more CST-relevant article that will be published in the April 27 issue of Commonweal.
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