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.

Monday, November 14, 2005

"State, Be Not Proud"

By Rick Garnett

FSU law prof (and Prawfsblawgger) Dan Markel has posted an interesting paper on SSRN, "State, Be Not Proud:  A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution."  Here is the abstract:

In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.

Dan's is, in my view, a very important argument.  As I see it, retributive justice (properly understood) is the primary end of, and justification for, "punishment."  It is unfortunate that Christian thinking about punishment often runs along a "retribution bad, rehabilitation and restoration good" line -- see, e.g., the statement by the United States Conference of Catholic Bishops, "Responsibility, Rehabilitation, and Restoration."  (Rehabilitation and restoration are good, of course.  But it is a criminal's moral desert that, as I see it, justifies punishment.)  The best arguments against the death penalty, I think, are those that -- like Dan's -- proceed from retributivist premises, which strike me as being more consonant, in the end, with the dignity of the human person.  (I flesh out this view a bit more here.)

Dorf on the Court's Catholic majority

By Rick Garnett

Columbia law prof Michael Dorf has this opinion piece, "A Catholic Majority on the Supreme Court: The Good News in Judge Alito's Nomination, and a Warning":

[I]n a country with a history of anti-Catholic bias, anti-Semitism, anti-Mormonism, and pogroms against Jehovah's Witnesses as recently as the 1940s, members of the majority religious group will, it seems, have just two of nine seats on the Supreme Court with nary an issue being raised. That fact shows that, in important respects, we have become a religiously pluralist nation.

Yet the news is not entirely good. As I explain below, there remain doubts about Americans' capacity for religious tolerance for persons of other faiths, and beyond the sectarian divisions, there appears to be a new line of battle being drawn. This line separates, on the one hand, non-believers and believers who treat their faith as a private matter, and, on the other hand, believers of all faiths who question the notion of church-state separation.

"Government vs. Happiness"

By Rick Garnett

"Government vs. Happiness" is the title of this post over at the Volokh Conspiracy.  According to this study, by three Swiss economists, "government involvement is detrimental to individuals' quality of life."

I'm not competent to evaluate the study's methodology, so I do not know if it is true that "life satisfaction decreases with higher government spending. This negative impact of the government is stronger in countries with a leftwing median voter. It is alleviated by government effectiveness - but only in countries where the state sector is already small."

If this conclusion is true, though -- or even if it were true -- then what should we think?

African Americans and the Establishment Clause

By Thomas Berg

The relationship between American legal/social attitudes toward race relations and toward church-state relations is an interesting and not sufficiently explored area.  I have one piece on it, and there are a few others.  Among the tensions in the subject is that while African Americans can be expected to have a disproportionate suspicion of majoritarianism and therefore favor strong readings of the Estalbishment Clause to protect religious minorities, such strong separationist readings can also run headlong into the fact that African American churches have long had a strong public, almost community-defining role in their neighborhoods -- they resist the kind of privatization that white churches have often embraced and that so often correlates with strict separationism.  Now on SSRN, Chicago law prof Tracey Meares and law clerk Kelsi Brown Corkran post a rich and wide-ranging draft article discussing some of these issues, titled "When 2 or 3 Come Together":

This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago's West Side. Strikingly, the local police district's commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the "Chicago School" of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, to promote community capacity to resist crime and to complete other goals and projects of residents. The article's end addresses constitutional questions. If collaboration between churches and the police through religious activity enhances the community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? We focus on the extent to which African Americans have been able to influence this jurisprudence through litigation rather than the internal structure of Establishment Clause jurisprudence. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establishment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church-state interaction has had, and continues to have, important racial consequences. African Americans, through representative litigating institutions, have consistently recognized the disparate impact of church-state partnerships, but the Court has never acknowledged the non-religious implications of its Establishment Clause decisions. As a result, Establishment Clause jurisprudence is disconnected from the realities of disparate impact, and that is potentially problematic for African-American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state.

Tom

Where is international law?

By Robert John Araujo, SJ

I would like to thank Rob for his important posting on the Ninth Circuit decision in Fields v. Palmdale School District. Judge Reinhardt does not mention international law as a source of support for the position of the parents. I find that interesting since that was a principal justification for Lawrence overturning Bowers. I hasten to add that in another forum (the Villanova John Courtney Murray Symposium), I questioned whether there was international law to rely on in Lawrence. International law was also a source of support for the juvenile death penalty case in Simmons. In neither of those cases was the United States a party to the fundamental principles on which the majorities relied. But for those majorities, that did not seem to matter. Justice Scalia, in blunt words, indicated in his Simmons dissent that to invoke "alien law" when it agrees with one's own thinking and ignore it otherwise is "not reasoned decision-making but sophistry."  Following Justice Scalia's argument, can one argue that there might be a problem with the Fields case? 

The Ninth Circuit decision in Fields does not refer to the Universal Declaration of Human Rights which is arguably customary international law to which the Court could have deferred. Article 26.3 appears to support the contention of the parents about their rights which were downplayed by the Ninth Circuit. But we don't have to argue about the role of the Universal Declaration. There is another component of international law that clearly does apply to the case. The United States is a party to the International Covenant on Civil and Political Rights. Article 18.4 addresses the issue at stake in this case. It would seem, then, that the Ninth Circuit failed to follow applicable international law that is dispositive of the case. Consequently, the concern raised by Justice Scalia in Simmons is boosted to another level. Here international law should apply since the law of the United States, through its being a party to an international instrument, states that the parents do have the right that was denied to them by the Ninth Circuit. However, that law was not relied upon by the Ninth Circuit. It appears that some courts call something international law and use it when they have questionable grounds for doing so. However, when they should apply international law but do not, the problem is intensified. Perhaps Justice Scalia is on to something.   RJA sj

School Choice and Parental Authority

By Rob Vischer

I finally got around to reading the (already) infamous Fields v. Palmdale School District ruling issued earlier this month, in which the Ninth Circuit held that "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it," and that "parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students."  The parents had sued after their first-, third-, and fifth-grade children were asked questions about sex as part of a survey at their public school.  The kids were asked, among other questions, to indicate how frequently they were "thinking about having sex," "thinking about touching other peoples' private parts," "not trusting people because they might want sex," and "washing [themselves] because [they] feel dirty on the inside."

The court reasoned that "parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."  The Meyer-Pierce line of constitutionally protected parental authority is distinguishable, in the Ninth Circuit's view, because "once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished."

The problem, of course, is that Meyer and Pierce are rendered meaningless for parents who cannot afford private school.  The Palmdale ruling may make sense in a system where school choice is the reality, but the choice to attend the local public school is not any choice at all in most instances.  If parents could choose a school based on the particular mission cultivated by that school, limiting parental standing to challenge curricular decisions might actually enhance the school's ability to function as a mediating structure.  Absent school choice, though, the marketplace does not exist, and the mediating function is a non-starter -- the only values imparted are those of a researcher with a scandalous understanding of age-appropriate inquiry.  Parental rights in this context do not mean that any parent could trump a school's curricular decisions, but simply that parents would need to be given the opportunity to pull their child out of a particular objectionable activity. 

As it stands, there is no exit option, no market pressure, and no hope for the financially strapped parent who believes that her first-grader should not spend her school day contemplating how often she is or should be thinking about touching other people's private parts.

Rob

Sunday, November 13, 2005

Legal Theory Lexicon: "Virtue Ethics"

By Rick Garnett

Larry Solum has posted an(other) invaluable entry in his "Legal Theory Lexicon" series, on "Virtue Ethics."  (Here is the entry for "utilitarianism", and here is the one for "deontology.")  Oddly enough, Solum says nothing about the role of virtue ethics in the work of, say, Aquinas, Finnis, or MacIntyre.  This seems particularly strange, given that (as I understand it, though I could be wrong) G.E.M. Anscombe -- who is often given credit for the "aretaic turn" in moral philosophy -- was a serious and committed Catholic.

Papal Address to New U.S. Ambassador

By Michael Scaperlanda

This from Zenit:

"Confident That Your Nation Will Continue to Demonstrate a Leadership …"

VATICAN CITY, NOV. 13, 2005 (Zenit.org).- Here is the address Benedict XVI delivered Saturday to Francis Rooney, the new U.S. ambassador to the Holy See, on the occasion of the presentation of his credentials.

* * *

Mr. Ambassador,

I am pleased to welcome you to the Vatican and to accept the Letters of Credence by which you are appointed Ambassador and Minister Plenipotentiary of the United States of America to the Holy See. I am grateful for the message of greetings which you have brought from President Bush; I would ask you kindly to assure him in a particular way of my prayerful solidarity with all those affected by the recent storms in the southern part of your country, as well as the support of my prayers for those engaged in the massive work of relief and rebuilding.

In his Message for the 2005 World Day of Peace, my predecessor, Pope John Paul II, called attention to the intrinsic ethical dimension of every political decision, and observed that the disturbing spread of social disorder, war, injustice and violence in our world can ultimately be countered only by renewed appreciation and respect for the universal moral law whose principles derive from the Creator himself (cf. Nos. 2-3). A recognition of the rich patrimony of values and principles embodied in that law is essential to the building of a world which acknowledges and promotes the dignity, life and freedom of each human person, while creating the conditions of justice and peace in which individuals and communities can truly flourish. It is precisely the promotion and defense of these values, which must govern relations between nations and peoples in the pursuit of the common good of the human family, that inspires the presence and activity of the Holy See within the international community. As the Second Vatican Council stated, the Church's universal religious mission does not allow her to be identified with any particular political, economic or social system, yet at the same time, this mission serves as a source of commitment, direction and strength which can contribute to establishing and consolidating the human community in accordance with God's law (cf. "Gaudium et Spes," 42).

For this reason, I appreciate your kind reference to the Holy See's efforts to contribute to finding effective solutions to some of the more significant problems facing the international community in recent years, such as the scandal of continued widespread hunger, grave illness and poverty in large areas of our world. An adequate approach to these issues cannot be limited to purely economic or technical considerations, but demands broad vision, practical solidarity and courageous long-term decisions with regard to complex ethical questions; among the latter I think especially of the effects of the crushing debt that feeds the spiral of poverty in many less developed nations. The American people have long been distinguished for their generous charitable outreach to the disadvantaged and the needy on every continent. In a world of increasing globalization, I am confident that your nation will continue to demonstrate a leadership based on unwavering commitment to the values of freedom, integrity and self-determination, while cooperating with the various international instances which work to build genuine consensus and to develop a unified course of action in confronting issues critical to the future of the whole human family.

Mr. Ambassador, I take this opportunity to recall that just over two decades ago full diplomatic relations were established between the United States and the Holy See, thanks to the efforts of then-President Ronald Reagan and the late Pope John Paul II. I appreciate the dialogue and fruitful cooperation which these relations have made possible, and I express my hope that in years to come they will be deepened and consolidated. As you begin your mission, I offer you my prayerful good wishes for the work you will undertake in the service of your nation, and I assure you of the constant readiness of the offices of the Holy See to assist you in the fulfillment of your responsibilities. Upon you and your family, and upon all the beloved American people, I cordially invoke God's blessings of prosperity, joy and peace.

"Catholic Jonestown"

By Rick Garnett

The Wall Street Journal on Friday ran this story, "Bringing a Law School Down:  Should Ave Maria be part of 'Catholic Jonestown'?", reporting on the rumblings and dissension that (apparently) surround the question whether Ave Maria School of Law should "relocate to rural Florida," where the school's primary financial supporter, Tom Monaghan, is planning to create a Catholic community, "Ave Maria Town."  According to Monaghan:

"We'll own all commercial real estate," Mr. Monaghan declared, describing his vision. "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."

Ann Althouse describes Monaghan's vision as "creepy."  (On a more pedestrian note, I wonder if it could even be implemented, legally).  And, Lior Strahilivitz talks about the Town's "exclusionary vibes" in this excellent paper, "Information Assymetries and the Rights to Exclude." 

My own take -- which is consonant, I think, with Althouse's -- is that (a) although it is not "creepy" to care about the enterprise of sustaining a distinctively and authentically Catholic law school, (b) it is big mistake to think that the enterprise is well served by retreating to a homogenous, planned community without an established, rich university environment.  As Althouse puts it:  "You can't retreat and purify yourself.  You have to become involved with the complexities of life, not shrink away from them."  (It sounds like many of Ave Maria's faculty and students agree.)

Friday, November 11, 2005

The Teachings of Modern Christianity

By Patrick McKinley Brennan

That's the title of the new two-volume study published this month by Columbia University Press; it's subtitle reads "On Law, Politics, and Human Nature."  Edited by Emory's John Witte, Jr. and Frank Alexander, the study is the culmination of a three-year project funded by the Pew Charitable Trusts and encouranged in various ways by the University of Notre Dame and Emory's Law and Religion Program.  "Praise" found on the jacket comes from Martin Marty, Jean Elshtain, Robert Bellah, and Don Browning.  Martin Marty and Judge Noonan have each provided a Foreword to the study; its Afterwords are by Kent Greenawalt and Harold Berman.  This is not Christianity Lite. 

The volumes pursue law, politics, and human nature as they have emerged in reflection and teaching in the Catholic, Protestant, and Orthodox traditions since the late nineteenth century.  One volume is packed with original essays on the leading contributors in each of the three traditions; the other volume is an anthology of original writings, of those leading figures.  Among the Catholics covered are Leo XIII, Jacques Maritain, John C. Murray, Gustavo Gutierrez, Dorothy Day, and Pope John Paul II.  Among the Protestants are Abraham Kuyper, Susan B. Anthony, Karl Barth, Dietrich Bonhoeffer, Reinhold Niebuhr, Martin Luther King , Jr., and William Stringfellow.  The Orthodox figures studied are Vladimir Soloviev, Nicholas Berdyaev, Vladimir Lossky, Mother Maria Skobtsova, and Dumitru Staniloae.

The combination of analytical essays and corresponding primary sources, plus a magisterial introduction to each of the three traditions, should make this a valuable teaching tool.  But this is not just a teaching tool.  These volumes contain much to be mined by many, including those interested in Catholic Legal Theory  I'll leave it to other readers of the volumes to begin here a discussion of the volumes' theses, insights, and significance.  Congratulations to John Witte, Frank Alexander, and all their collaborators and supporters for bringing us all this great gift of learning.  As Martin Marty says of the study, "It stands alone."         

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