Tuesday, March 7, 2017
"Felix Culpa" is a theological idea, according to which man's Fall through disobedience to God was a "happy fault." God in his providence, by means of the Incarnation and the Resurrection, brought forth out of the wreckage of the Fall a new creation, greater still than the old. Absent the Fall, the summit of felicity might never have been attained.
Whether or not this is good theology is controverted. C.S. Lewis for one thought it was not, arguing in his letters that unfallen man might have enjoyed felicities unimaginable to us, and greater still. On the greater authority of St. Augustine, however, it is plausible that "God judged it better to bring good out of evil than not to permit any evil to exist.”
Whatever its theological merits, the Felix Culpa is nonetheless full of interest for constitutional theory. Given that, as Carl Schmitt taught us, constitutional theory is sublimated theology, one wonders whether there are constitutional analogues to the Felix Culpa.
The structure would have to look as follows. A constitutional Felix Culpa argument would have to show (1) a serious constitutional mistake or error at Time 1 (according to some suitably specified theory); (2) a correction or undoing of that error at Time 2; (3) such that the state of constitutional law and political culture at Time 2-or-later is superior overall (according to some suitably specified theory) to the state that would have obtained at Time 2-or-later if the mistake at Time 1 had never occurred. (Nota bene: the comparison is not to "the state that would have obtained at Time 1 had the mistake never occurred." One wants to compare the long-run consequences of the world with and without the original mistake).
The content of the normative theory -- used at Steps (1) and (3) to identify a mistake and to compare states of the law -- is, I think, irrelevant to the structure of the Felix Culpa argument, which would be the same no matter what the specifics of the underlying normative theory. The key to the constitutional Felix Culpa argument is that the package of mistake-plus-repudiation or mistake-plus-correction yields a better state than would have obtained absent the mistake. It is thus an intertemporal relative of the general theory of second-best, but I will not pursue that connection here.
In an entirely speculative spirit, I offer a few possible examples below. (I include examples from administrative law, which is sublimated constitutional law just as constitutional law is sublimated theology). Let me add the obvious but essential disclaimers: I don't necessarily believe any of these examples to be correct, although some of them might be. In some of the cases, I don't necessarily believe that the Time 1 mistakes really are such (although some of them surely are), but rather I assume so for the sake of getting the idea off the ground. Finally, none of this is intended to minimize the gravity of the Time 1 mistakes. The theological Felix Culpa does not minimize the seriousness of the Fall, nor does it claim that the Fall was somehow a good thing. Rather it is intended as a testament to God's power that even out of grave evil, He can fashion a greater good.
(1) Korematsu and later: Perhaps Korematsu and its aftermath constitute a genuine Felix Culpa. Absent Korematsu, the statutory and symbolic repudiation of Korematsu by Congress, and by the near-unanimous consensus of the legal profession, would never have occurred. That repudiation plausibly conduces to put ethnic minorities, including immigrants who are also ethnic minorities, in a stronger constitutional and cultural position today than they would occupy if the Korematsu episode had never taken place at all.
(2) Lochner and later: Absent the Court's overreach in Lochner, there would be no standing symbol of the epistemological arrogance of the judiciary, a symbol that is often used to name and shame judges who would do the same under different circumstances. Perhaps those collateral benefits are so great that that the mistakes of the Old Court amount to happy faults.
(3) Hybrid rulemaking, and the Paralyzed Veterans doctrine: absent those mistaken doctrines of administrative law, which were impossible to square with the text and structure of the Administrative Procedure Act, we would lack the ringing repudiations in Vermont Yankee and Perez v. Mortgage Bankers respectively. Given that those two decisions clarify the deep principles of administrative law in ways that are useful in all sorts of other settings, it is plausible that the state of the law is now better than if those mistakes had been avoided in the first place.
(4) If Chevron were ever overruled, its critics might nonetheless see the invisible hand of Providence at work, Felix Culpa-style, in the overall history of the Chevron episode. As compared to the state of the law pre-Chevron, which featured competing lines of caselaw, some deferential and some not, it might be that Chevron-plus-eventual-repudiation yields a clearer and indeed (on certain premises, which I don't share) better state of the law than would have obtained if Chevron had never been decided in the first place.
Are all or any of these unconvincing? Other possible examples?
Monday, March 6, 2017
Notice anything odd about this screenshot from a few minutes ago?
Hint: Does MOJ believe you should donate to Planned Parenthood to "Save Roe"? (I guess "Save Casey" or "Save Whole Woman's Health" doesn't have the same cachet?)
I wonder what it was in my browsing history or whatever else Google has learned about me that makes me on MOJ a good target for the "Save Roe" ad. They got the supermarket ad right, after all. Kroger is our supermarket of choice in these parts of suburban Richmond.
We'll have to figure out if there's a way for MOJ to avoid being a billboard for Planned Parenthood. In the meantime, here's a podcast that explains why it might not be so good for you to let the "attention media" services use your Facebook and Twitter and other of your feeds that are really theirs as mobile billboards either. This episode of the Federalist Radio Hour features Cal Newport, author of Deep Work.
Sunday, March 5, 2017
I've been thinking about the challenges presented by Americans' diminishing trust in institutions - a trend that has been accelerated by our President's troubling brand of conspiracy-fueled populist narcissism. As The Economist observed in December, Trump succeeded as a candidate by "systematically undermining trust in any figure or institution that seemed to stand in his way," and as President, his best chance for political survival is to keep fomenting cynicism on a "destructive mission to make America less like Sweden and more like Sicily."
But the decline of trust goes much deeper than Trump's rise. Bill Bishop makes this point in today's Washington Post, arguing that there isn't much that can be done to reverse course:
Everything about modern life works against community and trust. Globalization and urbanization put people in touch with the different and the novel. Our economy rewards initiative over conformity, so that the weight of convention and tradition doesn’t squelch the latest gizmo from coming to the attention of the next Bill Gates. Whereas parents in the 1920s said it was most important for their children to be obedient, that quality has declined in importance, replaced by a desire for independence and autonomy. Widespread education gives people the tools to make up their own minds. And technology offers everyone the chance to be one’s own reporter, broadcaster and commentator.
We have become, in Polish sociologist Zygmunt Bauman’s description, “artists of our own lives,” ignoring authorities and booting traditions while turning power over to the self. The shift in outlook has been all-encompassing. It has changed the purpose of marriage (once a practical arrangement, now a means of personal fulfillment). It has altered the relationship between citizens and the state (an all-volunteer fighting force replacing the military draft). It has transformed the understanding of art (craftsmanship and assessment are out; free-range creativity and self-promotion are in). It has even inverted the orders of humanity and divinity (instead of obeying a god, now we choose one).
Like my MoJ colleagues and other advocates of Catholic social teaching, my reflex is to jump in and supplement Bishop's gloomy analysis with a reference to civil society. My own work in the area has been premised, at least in part, on civil society's importance as a wellspring of the type of trust on which our political community depends. But what if we're wrong?
Calvin College prof Kevn den Dulk offers a provocative essay in the current issue of Comment in which he argues that we cannot assume "that political trust will flow inevitably out of the ordinary work of churches and soccer leagues." He explains:
[T]he empirical evidence that social trust breeds trust in government is largely non-existent. Some studies even suggest the influence might flow more clearly in the other direction: Political trust—confidence in the reliability, openness, responsiveness, and fairness of government— often acts as a precondition for social trust, not the other way around.
The revival of political trust is a separate challenge from the revival of civil society, in his account. So what does Catholic social teaching have to offer as a path forward for restoring trust among citizens as citizens? What do we as Catholic legal theorists have to offer?
Saturday, March 4, 2017
Notre Dame has decided to invite Vice President Pence to speak at the university’s commencement ceremony and receive an honorary degree. I agree with Rick that extending this honor is appropriate for a Catholic university.
Honoring President Trump would present a much thornier dilemma. I don’t believe that Trump’s stated policy positions necessarily preclude an honor even though some positions conflict directly with Church teaching. The concern surrounding the bestowal of these widely publicized honors is that they create muddled institutional messages. The potential harm stems from confusion caused by the honor. As the Catechism puts it, the sin of scandal refers to “an attitude or behavior which leads another to do evil,” and typically “operates by giving a bad example.”
If muddled messages are the concern, then the analysis has to be contextual, as I argued in an essay I wrote after Notre Dame’s decision to honor President Obama. Checking a box on a particular issue does not, standing alone, determine the appropriateness of the honor. The university must weigh whether the honor “would amount to a surrendering of [its] public witness.” It may not be enough to point to the honoree’s views on a single issue. Even when an honoree rejects Church teaching on an essential matter such as abortion, “there are many instances where the honor is unlikely to amount to ‘scandal’ because the honoree is overwhelmingly associated with work through which the Gospel is proclaimed.” Context matters.
Context makes it more difficult for a Catholic university to honor President Trump without creating muddled institutional messages, but not because he espouses more positions that are contrary to Church teaching than past Presidents have. (Reasonable Catholics can argue about that.) Rather, the more dangerous confusion arises from the fact that his words and actions reflect an absence – indeed, a deliberate rejection – of the virtues that Catholic universities seek to impart to their students. While we all fall short, we have not witnessed a President in recent memory who so enthusiastically celebrates what Catholics (and previous generations of Americans) would have viewed as personal shortcomings; President Trump appears not to see them as shortcomings at all.
Consider the cardinal virtues: prudence, justice, fortitude, and temperance. Or recall the fruits of the Spirit: charity, joy, peace, patience, kindness, goodness, generosity, gentleness, faithfulness, modesty, self-control, and chastity. Now consider the qualities that our President seeks to cultivate in himself and others. Even in his visit to a Catholic elementary school yesterday, President Trump encouraged one young student to get rich and two others to become famous (by getting their photos taken with the President). Minor episodes, to be sure, but part of a consistent pattern over the decades. Even the President’s supporters defended a widely perceived lack of “character” on the part of their chosen candidate by insisting that the country needs a strong leader, “not a Sunday school teacher.” Very few defend our President as virtuous, of strong character, or exhibiting “the fruits of the Spirit.” For some supporters, it is this absence of virtue that makes him appealing – the ability to do what needs to be done without worrying about social niceties. His rejection of traditional virtues is not an afterthought -- it was core to his candidacy, and it is an inescapable dimension of his public reputation as President.
Is this something that a Catholic university can overlook? I recommend, to cite but one of many illuminating examples, Catholic University President John Garvey’s remarks on the dangers of separating the cultivation of intellect from the cultivation of moral virtue in the mission of Catholic higher education. If Catholic universities are called to guard their public witness by avoiding muddled institutional messages, an honoree’s publicly known indications of character are as relevant as the honoree’s publicly known policy positions. As such, Catholic universities should think twice before honoring President Trump.
