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.

Tuesday, January 24, 2006

Law, Morality, Hugo Black, and Father Coyle

By Rick Garnett

Today at Notre Dame Law School I heard a very interesting talk by Judge William Pryor, of the United States Court of Appeals, on the 1921 murder in Birmingham, Alabama of Father James Coyle by Edwin Stephenson, a methodist minister.  I do not have a link, but here is an account of an earlier version of the talk, along with some discussion about the case.

One of the defense lawyers for Mr. Stephenson was Hugo Black, who went on, of course, to serve in the United States Senate and on the Supreme Court of the United States.  Like (it appears) most of the players in the trial, Hugo Black was a member of the Ku Klux Klan, and anti-Catholicism and racism figured prominently in his defense.

Judge Pryor's primary theme was that lawyers -- even defense lawyers -- are not excused by their role, or by canons calling for "zealous advocacy," from their obligation to avoid evil.

Rights Talk and its Remedies

By Rick Garnett

John Hagen, Jr., has a nice piece in the Jan. 2 issue of America, providing an overview of the leading themes in the work of Professor Mary Ann Glendon.  Unfortunately, it is not available -- except to subscribers -- on-line.  It's definitely worth reading, though. 

UPDATE: A helpful reader had provided a link to the piece.  Here is the conclusion:

A leading theme in Glendon's writing is the importance of intermediate institutions in society-neighborhoods, churches, voluntary associations and the family. Echoing the 19th-century French thinker, Alexis de Tocqueville, she constantly stresses the role of these groups as "schools of citizenship" and "seedbeds of civic virtue." They teach cooperation, empathy, sacrifice, responsible use of freedom and concern for the common good. She frequently speaks of such groups in environmental terms, and warns that "the fragile ecology" that they embody is weakening. Mass culture, bureaucracy and global corporations all tend to stifle them. This speeds the atrophy of democratic skills and habits already set in progress by activist courts.

Glendon's emphasis on local "communities of memory and mutual aid" is classically Catholic. It reflects the key principles of solidarity and subsidiarity and stands in contrast to the rights-focused individualism of both the cultural left and the cultural right.

A striking summation of Glendon's outlook is to be found in the quotation she selected as the heading for her Web site . . . . It is taken from the Jesuit theologian Bernard Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new development, exploring now this and now that new possibility. But what will endure is a perhaps not numerous center, big enough to be at home in both the old and the new, painstaking enough to work out one by one the transitions to be made, strong enough to refuse half measures and insist on complete solutions even though it has to wait."

The Commonweal exchange

By Rick Garnett

Michael posted, below, an exchange between Cathy Kaveny and me -- in the "letters" section of Commonweal -- growing out of her recent column on constitutional interpretation.  Because I think highly of MOJ readers, I am confident they have little interest in any sur-surreply I might have to Kaveny's original piece.  It is enough to say that I am comfortable standing by my letter.

Phoning it In

By Eduardo Penalver

Rick -- I definitely think people of good will can disagree on these issues.  And I definitely think you are a person of good will.  :-)  My point is not that this administration is not walking the walk on abortion.  I think it is, for the reasons you point to in your post.  My point is that the Culture of Life, as distinct from a narrow anti-abortion platform, means that the Catholic tradition is concerned with far more than abortion. 

Yes, people can disagree about a particular war, but is there any evidence that this administration treated the process of deciding to go to war with the moral seriousness required by Catholic teachings?  Or did they instead, as the Downing Street Memo said, fix the evidence to reach the policy conclusions they already desired?

Yes, people can disagree about the application of the death penalty in extreme cases, but this appears to be a man who has never met an execution he didn't like in a state that executes more than any other.  (Remember how he mocked Karla Faye Tucker's plea for clemency?)  I suppose she, and the many other defendants executed under his watch, don't count as a one of the "inconvenient" lives he was talking about in his comments. 

And, yes, reasonable people can disagree about the tax structure that best serves the common good, but do you honestly believe that when Bush and his advisors are discussing tax policy (or any other policy, for that matter), they really sit there and grapple with tough questions about how the "strong" can best serve the "weak"?

I don't object to Bush claiming credit for his anti-abortion policies, which are, I agree, quite different than those that would have been put in place by a democratic administration.  I simply object to his appropriation of the rhetoric of the Culture of Life when he, like the Democrats, refuses to be challenged by its breadth and depth.

Rick Garnett's letter and Cathy Kaveny's response ... from COMMONWEAL

By Michael Perry

The following correspondence appeared in the January 27th issue of Commonweal:

Rick Garnett writes:

I appreciate Cathleen Kaveny'’s timely essay, “Letter v. Spirit (December 16, 2005). Kaveny is right, of course, that “good judges do far more than apply the law” and that “the real question is how”--­not whether--­“a justice will approach the task of constitutional interpretation.” But President Bus'h’s “mantra” that Kaveny criticizes--­that he wants judges who will not “legislate from the bench--”­is quite consistent with her observation. To want a judge who will not “legislate” is not to demand, or to imagine, a judge who refuses to “interpret”; it is to want a judge who will interpret the Constitution appropriately--­that is, in a way that is democratically legitimate and that is consistent with the text, history, and structure of that document and the government it constitutes. Kaveny notes that “we have to ask how we should make sense of the ‘basic law’ of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined.” The primary challenge we face, though--­one that the founders could and did imagine--­remains the challenge of exercising self-government responsibly under and through a written Constitution. That many of the difficult moral and policy questions presented today were not contemplated even by the most engaged minds of the eighteenth century is not surprising. Still, the Constitution they drafted and ratified is more about structuring government and allocating decision-making and legislative authority than about providing--­or authorizing federal judges to provid--e­answers on the merits of difficult new moral questions.

Yes, “an approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate,” but rigidity usually is. The question is whether a different approach--­one that would authorize and encourage judicial invalidation of democratically crafted policy choices on the basis of unelected judges'’ understanding of “political realities”--­is legitimate. To insist on the importance of this question is not to define the right approach to constitutional interpretation “solely in terms of outcome” or to raise doubts about the justice of the holding in Brown v. Board of Education.

richard w. garnett
Notre Dame, Ind.

Cathy Kaveny replies:

My colleague Richard Garnett thinks my complaint is misplaced because Bush's mantra reasonably protests “legislating from the bench.” But he quotes only half the mantra. Bush repeatedly calls for judges who “will strictly apply the Constitution and laws, not legislate from the bench.” As I stated in my first paragraph, I object to that mantra because it creates a false dichotomy. Garnett thinks it obvious that the president didn’t mean to rule out the essential tertium quid of interpretation. Obvious to whom? Many non-lawyers aren'’t familiar with the disciplined creativity that legal interpretation regularly involves. I fear that Bush’s mantra misleads voters by implying that much legitimate interpretation is illegitimate judicial legislation.

The rest of Garnett’'s letter raises issues I didn'’t address in my column; they deserve brief comment. He suggests the Constitution is more concerned with setting up government structures and establishing lines of authority than with addressing moral issues and social realities. I don'’t agree. What about the Bill of Rights? Or the Antislavery Amendments? And even structural questions have controversial moral and social implications. We can’'t ignore the torture memos, where Bush administration lawyers argued that Congress has no constitutional authority to outlaw torture authorized by the president in prosecuting the war on terror. Garnett'’s main worry is judicial tyranny; he fears judges will usurp the rightful place of democratically elected representatives in making policy on controversial moral and social issues like abortion or gay marriage. That is certainly a reasonable worry. But I don’'t think it’s best addressed by adopting a truncated approach to constitutional interpretation, such as Scalia'’s textualism or Garnett’'s own prioritization of governmental structure over moral substance. Furthermore, untempered focus on the dangers of an activist judiciary can make us less vigilant against other sources of tyranny equally repugnant to the framers. Congress has threatened to eliminate federal court jurisdiction over petitions for the writ of habeas corpus filed by suspected terrorists. The president has defended domestic spying without judicial authorization. With all due respect, I don'’t think that tyranny of the judicial branch poses the most immediate threat to our constitutional democracy.

cathleen kaveny
_______________
mp

Commonweal on Alito

By Rick Garnett

The Commonweal editors' take ("Justice & Alito") on the Alito nomination is, as one would expect, reasonable and responsible, even if (in my view) misguided.  To their credit, the editors squarely contend that the Democrats' devotion to Roe is unfortunate and that the opinion itself is indefensible.  Unlike the editors, I strongly support Alito's nomination; like the editors, I believe that he is a gifted lawyer and a decent person; unlike the editors, I believe that his approach to constitutional interpretation and his understanding of the judicial role under our Constitution are sound, not "narrow and troubling."

The editors write:

There is little doubt that Alito’s embrace of “judicial restraint” will result in rulings restricting the federal government’s efforts in areas such as environmental protection, campaign-finance reform, voting rights, workplace safety and discrimination, and the rights of criminal defendants. Most worrisome, Alito gives every indication of being excessively deferential to the executive branch at a time when the president is asserting virtually unprecedented authority with regard to national defense, domestic spying, and the right to imprison people, including U.S. citizens, without trial.

More is needed, it seems to me.  I cannot believe that the editors believe that the merits of a judge's approach to his or her work is reducible to the question whether the application of that approach "will result in rulings restricting the federal government’s efforts in areas such as environmental protection, campaign-finance reform, voting rights, workplace safety and discrimination, and the rights of criminal defendants."  (Put aside my strong disagreement with the editors that so-called campaign-finance reform is, like the "rights of criminal defendants", something that those of us who endorse constitutionalism and individual rights should embrace). 

Nor do the editors tell us by what measure Judge Alito's deference to the executive is "excessive[]."  (Is the rule of deference for Justices interpreting the Constitution:  Defer to legislatures, as they are enacting regulations we approve, but not to the executive, which is acting in ways we disapprove?  One might think, after all, that Congress asserted "virtually unprecedented" authority to regulate political and election-related speech, in the latest round of campaign-finance reform.)

Interestingly, the editors seemed most focused on Judge Alito's observation, during his short opening statement, that some of his privileged college classmates behaved irresponsibly, and on his failure to acknowledge, at the same time, that some in power behaved irresponsibly as well and that the "culture wars" were the product, in part, of important steps forward in the civil rights arena.  In my view, the editors are making too much of this -- it is the case that some privileged campus radicals behaved very badly -- and make the unwarranted charge that Alito resorted to the "ploy" of endorsing the "culture wars that pit the religious and traditional against the unreligious and disrespectful are a pernicious simplification and a lie."  I didn't hear him do any such thing.

"Phoning it in"

By Rick Garnett

Let's concede -- as I am entirely willing to do, and as I hope Eduardo is willing to do -- that reasonable Catholics of good will can and do disagree about, say, the content of International Law relevant to war-making, the appropriate application in particular cases of just-war principles, and the particulars of the tax structure that best serves the common good.  Let's concede that reasonable Catholics of good will can conclude that, all things considered, President Bush's commitment to "the Culture of Life", properly and richly understood, is not what it could and should be.  It does not follow, in my view, that Bush's talk, in the context of the March for Life, is "drivel", or "focus-group candy."  (That one could easily characterize as disingenuous "drivel" the use by some on the left of "seamless garment", "solidarity", or "values" rhetoric is, of course, is not, of course, the point).

It is simply wrong to say that the present Administration -- whatever its other faults -- has not walked the walk, within the obvious constraints imposed by realities on the Court and in the Senate, when it comes to protecting the lives of unborn children.  Even if we think this fact is not everything, it isn't nothing. 

However much we might disagree with, or even abhor, the Administration's Iraq or tax policy, and however cynical we might think the GOP has been in exploiting voters' pro-life views, it remains useful to recall the facts about Bush's pro-life record since his election in 2000 (the linked-to list is far too long to reproduce here).  I would urge everyone -- particularly those inclined to think that, on the abortion issue, the Bush administration has not performed markedly different than the alternative administration would have -- to review the list (current as of 2004, and so does not include, for example, the recent nominations to the Supreme Court).  It is quite striking.

Now, I do not intend to revisit, in my blogging, the debate we had here in the Fall of 2004 about the election, about how Catholics may or should vote, about how we should weigh and balance all the competing issues, and so on.  I believe now, and I believed then, that reasonable people could and can disagree about this.  I'm not telling people how to vote or whom to support.  That said, I do not believe -- and I believe the linked-to list supports my view -- that it can plausibly be denied that the Bush Administration has, within the restraints imposed by the Court, done a great deal, and achieved a great deal of good, on the pro-life front.  That there is more to be done is, of course, something we can all agree on.

Monday, January 23, 2006

That pesky slippery slope . . .

By Rob Vischer

In my Family Law class, I press students to articulate a compelling state interest in banning polygamy if, in the post-Lawrence world, such a ban cannot rest on social tradition or straightforward moral condemnation.  We manage to extract a few possibilities, but it's tough to find any that justify a categorical prohibition.  Apparently the Canadian government is having similar difficulties.

Rob

Bush and the Culture of Life/Death

By Eduardo Penalver

As for the President's address, I for one have no stomach for his discussion of the culture of life.  This from the governor who presided over more executions than any other, who is currently waging an unjust war in Iraq that has claimed the lives of thousands of Americans and Iraqis, and whose version of protecting the "weak" is tax cuts for the rich and audits for the poor...  grr...  Isn't it patently obvious that his "culture of life" rhetoric is just Rove-doctored, Catholic focus-group candy?  Is anyone actually buying this drivel?  (Of course, this is not to say that the Democrats are any better...)

UPDATE:  I couldn't help but notice this last paragraph from the Reuters article on the Bush address:

As anti-abortion activists gathered in Washington and elsewhere across the country, Bush headed for Kansas where he spoke about the war on terrorism. As he has in past years, the president phoned in his support rather than attend in person.

Phoning it in.  Doesn't that just perfectly sum up Bush's commitment to the Culture of Life?

Another preview

By Patrick McKinley Brennan

Benedict XVI's Address on Forthcoming Encyclical
"I Wished to Show the Humanity of Faith"

VATICAN CITY, JAN. 23, 2006 (Zenit.org).- Here is a translation of the address Benedict XVI gave today to the participants in a meeting organized by the Pontifical Council "Cor Unum" on the theme "But the Greatest of These Is Love" (1 Corinthians 13:13).

* * *

The cosmic excursion in which Dante wants to involve the reader in his "Divine Comedy" ends before the everlasting Light that is God himself, before that Light which at the same time is the love "which moves the sun and the other stars ("Paradise" XXXIII, verse 145). Light and love are but one thing. They are the primordial creative power that moves the universe.

If these words of the poet reveal the thought of Aristotle, who saw in the "eros" the power that moves the world, Dante's gaze, however, perceives something totally new and unimaginable for the Greek philosopher.

Eternal Light not only is presented with the three circles of which he speaks with those profound verses that we know: "Eternal Light, You only dwell within Yourself, and only You know You; Self-knowing, Self-known, You love and smile upon Yourself!" ("Paradise," XXXIII, verses 124-126). In reality, the perception of a human face -- the face of Jesus Christ -- which Dante sees in the central circle of light is even more overwhelming than this revelation of God as Trinitarian circle of knowledge and love.

God, infinite Light, whose incommensurable mystery had been intuited by the Greek philosopher, this God has a human face and -- we can add -- a human heart. In this vision of Dante is shown, on one hand, the continuity between the Christian faith in God and the search promoted by reason and by the realm of religions; at the same time, however, in it is also appreciated the novelty that exceeds all human search, the novelty that only God himself could reveal to us: the novelty of a love that has led God to assume a human face, more than that, to assume the flesh and blood, the whole of the human being.

God's "eros" is not only a primordial cosmic force, it is love that has created man and that bends before him, as the Good Samaritan bent before the wounded man, victim of thieves, who was lying on the side of the road that went from Jerusalem to Jericho.

Today the word "love" is so tarnished, so spoiled and so abused, that one is almost afraid to pronounce it with one's lips. And yet it is a primordial word, expression of the primordial reality; we cannot simply abandon it, we must take it up again, purify it and give back to it its original splendor so that it might illuminate our life and lead it on the right path. This awareness led me to choose love as the theme of my first encyclical.

I wished to express to our time and to our existence something of what Dante audaciously recapitulated in his vision. He speaks of his "sight" that "was enriched" when looking at it, changing him interiorly [The textual quotation in English is: "But through the sight, that fortified itself in me by looking, one appearance only to me was ever changing as I changed" (cf. "Paradise," XXXIII, verses 112-114)]. It is precisely this: that faith might become a vision-comprehension that transforms us.

I wished to underline the centrality of faith in God, in that God who has assumed a human face and a human heart. Faith is not a theory that one can take up or lay aside. It is something very concrete: It is the criterion that decides our lifestyle. In an age in which hostility and greed have become superpowers, an age in which we witness the abuse of religion to the point of culminating in hatred, neutral rationality on its own is unable to protect us. We are in need of the living God who has loved us unto death.

Thus, in this encyclical, the subjects "God," "Christ" and "Love" are welded, as the central guide of the Christian faith. I wished to show the humanity of faith, of which "eros" forms part, man's "yes" to his corporeal nature created by God, a "yes" that in the indissoluble marriage between man and woman finds its rooting in creation. And in it, "eros" is transformed into "agape," love for the other that no longer seeks itself but that becomes concern for the other, willingness to sacrifice oneself for him and openness to the gift of a new human life.

The Christian "agape," love for one's neighbor in the following of Christ, is not something foreign, put to one side or something that even goes against the "eros"; on the contrary, with the sacrifice Christ made of himself for man he offered a new dimension, which has developed ever more in the history of the charitable dedication of Christians to the poor and the suffering.

A first reading of the encyclical might perhaps give the impression that it is divided in two parts, that it is not greatly related within itself: a first, theoretical part that talks about the essence of love, and a second part that addresses ecclesial charity, with charitable organizations. However, what interested me was precisely the unity of the two topics, which can only be properly understood if they are seen as only one thing.

Above all, it was necessary to show that man is created to love and that this love, which in the first instance is manifested above all as "eros" between man and woman, must be transformed interiorly later into "agape," in gift of self to the other to respond precisely to the authentic nature of the "eros." With this foundation, it had then to be clarified that the essence of the love of God and of one's neighbor described in the Bible is the center of Christian life, it is the fruit of faith.

Then, it was necessary to underline in a second part that the totally personal act of the "agape" cannot remain as something merely individual, but, on the contrary, it must also become an essential act of the Church as community: that is, an institutional form is also needed that expresses itself in the communal action of the Church. The ecclesial organization of charity is not a form of social assistance that is superimposed by accident on the reality of the Church, an initiative that others could also take.

On the contrary, it forms part of the nature of the Church. Just as to the divine "Logos" corresponds the human announcement, the word of faith, so also to the "Agape," which is God, must correspond the "agape" of the Church, her charitable activity. This activity, in addition to its first very concrete meaning of help to the neighbor, also communicates to others the love of God, which we ourselves have received. In a certain sense, it must make the living God visible. In the charitable organization, God and Christ must not be strange words; in fact, they indicate the original source of ecclesial charity. The strength of "Caritas" depends on the strength of faith of all its members and collaborators.

The spectacle of suffering man touches our heart. But charitable commitment has a meaning that goes well beyond mere philanthropy. God himself pushes us in our interior to alleviate misery. In this way, in a word, we take him to the suffering world. The more we take him consciously and clearly as gift, the more effectively will our love change the world and awaken hope, a hope that goes beyond death.

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