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.

Wednesday, September 14, 2005

John Courtney Murray conference at Villanova

By Rick Garnett

As has been noted before here at MOJ, the Villanova University School of Law, and the Journal of Catholic Social Thought, are hosting a conference, "The Legacy of John Courtney Murray for Law and Politics" this Friday, September 16.  Here is a link to more conference information.  The conference should be a wonderful MOJ reunion, with speakers and commentators including Patrick Brennan, Fr. Robert Araujo, Mark Sargent, Kathleen Brady, Tom Berg, Susan Stabile, and others.  Judge Noonan is the keynote speaker.  If you are in or near Philly, check it out.

Rick

The Pledge: Here We Go Again . . .

By Rick Garnett

A federal district court in California has ruled that the reciting of the Pledge of Allegiance in public schools violates the First Amendment because it coerces school-children to "affirm God."  Here is a news story about the case.  Here is another.  And here, thanks to Howard Bashman, is the opinion.

As the Declaration on Religious Freedom, Dignitatis humanae, makes clear, coercion in matters of religion is inconsistent with human dignity.  So, I have to say, I prefer to see courts analyzing cases like this in terms of "coercion" than to have them speculate about whether "reasonable people" would perceive in challenged state actions government "endorsement" of religion.  That said, I am confident that reviewing courts will not affirm the district court's conclusion that the (voluntary) recitation of the Pledge involves unconstitutional (or immoral) coercion.

Rick

Katrina and the New (Old) Conservatism

By Rob Vischer

Brian Tamanaha takes note of conservatives' post-Katrina embrace of aggressive government action in securing the citizenry's health and welfare, and bolsters the understanding of conservatism as more than a "don't tax me" mindset with extensive quotes from the work of Friedrich Hayek.  Tamanaha concludes that Hayek:

identifies a minimum baseline of shared expectations from government that conservatives and liberals can agree upon as a starting point. Today the conservative dominated government is not meeting this minimum. Never mind disaster relief, what about the millions and millions of Americans without health insurance?

The irony of Bush's "compassionate conservatism" slogan is that its mere formulation is a reminder of how cold conservatism has become. Former conservatives, before conservatism was captured by ideological extremists, built compassion into their conservative ideas, so adding the word would have seemed redundant to them. Hayek constantly referred to the primacy of the general welfare, which his conservative doctrines were designed to serve.

In Hayek--one of the most important conservatives of the 20th Century--conservatives might find a guide for the new (old) conservative view of government.

Read the whole thing here.

More on Judge Roberts & JFK

By Rob Vischer

Patrick O'Hannigan has answered my question -- for whom does the Church speak if it does not speak for Judge Roberts? -- over at The American Spectator.

I'm glad Mr. Vischer is paying close attention, but I'm not sure the kabuki dance of a confirmation hearing warrants that kind of attention. . . .

On the evidence of the intelligence he has shown so far and the fact that everyone watching the proceedings knew Specter would bloviate until his time ran out, it's safe to assume that John Roberts meant nothing revolutionary in agreeing with Kennedy's timeworn assertion. His answer is either a delineation of roles or a simple failure of nerve. In other words, said the nominee, "I'm Catholic, but I'm a judge, not a spokesperson for the Catholic Church. You want Fulton Sheen, you're a little late. You want Benedict XVI, you know where to find him. Meanwhile, here's the soundbite you all knew was coming. It's a crying shame you guys are still asking questions you asked forty-five years ago."

Anyone so inclined could also read Roberts' answer as a tacit admission of Christian failure. If you accept the twin Catholic propositions that we live in a fallen world and that the church speaks not simply for Christians but also for Christ, then any divergence between what the church says and what individual Christians say, while not necessarily regrettable, is at least cause for pause. Individual Christians (never mind Americans) can't presume to have the benefit of doubt if we've ignored the voice from the clouds saying "This is my Son, on whom my favor rests. Listen to him."

It's safe to say that Roberts did not have such theology in mind, not because he's incapable of humility or lofty thought, but because a Senate committee hearing run by the likes of Joe Biden, Arlen Specter, Ted Kennedy, Pat Leahy, and Dianne Feinstein is more properly cause for meditation on verses like "By their fruits you shall know them," "I send you forth as sheep among wolves," and (too late for Roberts on this one) "shake the dust of that town from your feet."

Read O'Hannigan's full response here.

Rob

Tuesday, September 13, 2005

JFK's Houston Speech versus The Doctrinal Note

By Steve Bainbridge

With reference to Susan and Rob's posts, personally I think the "JFK at Houston" position staked out by Judge Roberts is a cop-out that's inconsistent with Church teaching. According to the Congregation for the Doctrine of the Faith’s Doctrinal Note on Some Questions Regarding The Participation of Catholics in Political Life:

The Church recognizes that while democracy is the best expression of the direct participation of citizens in political choices, it succeeds only to the extent that it is based on a correct understanding of the human person. Catholic involvement in political life cannot compromise on this principle, for otherwise the witness of the Christian faith in the world, as well as the unity and interior coherence of the faithful, would be non-existent. …

… legislative proposals are put forward which, heedless of the consequences for the existence and future of human beings with regard to the formation of culture and social behaviour, attack the very inviolability of human life. Catholics, in this difficult situation, have the right and the duty to recall society to a deeper understanding of human life and to the responsibility of everyone in this regard. John Paul II, continuing the constant teaching of the Church, has reiterated many times that those who are directly involved in lawmaking bodies have a “grave and clear obligation to oppose” any law that attacks human life. For them, as for every Catholic, it is impossible to promote such laws or to vote for them. As John Paul II has taught in his Encyclical Letter Evangelium vitae regarding the situation in which it is not possible to overturn or completely repeal a law allowing abortion which is already in force or coming up for a vote, “an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality.”

In this context, it must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals.

Of course, as those who followed my extended debate with David Giacalone know, as do those who have followed the many fine discussions here at MOJ of the obligations of Catholic judges, there are important distinctions between the duties of Catholic judges and politicians. Yet, I must confess to being disappointed in SCOTUS CJ nominee John Roberts's casual endorsement of JFK's Houston position. I find it difficult (to say the least) to reconcile what JFK said with what the Church taught in the Doctrinal Note, especially with the following excerpt from the Note:

When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. …

The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic’s duty to be morally coherent, found within one’s conscience, which is one and indivisible. “There cannot be two parallel lives in their existence: on the one hand, the so-called ‘spiritual life’, with its values and demands; and on the other, the so-called ‘secular’ life, that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture. The branch, engrafted to the vine which is Christ, bears its fruit in every sphere of existence and activity. …”

JFK's position in the famous Houston speech can only be understood as an assertion that there are "two parallel lives." The same can be said for the position most Democrat/Catholic politicians carve out on abortion, of course: "I'm personally against it, but ..." As I understand Church teaching, there is no justification for the JFK position.

For Those In or Near NYC Next Week

By Michael Perry


A reminder of our panel next Monday
Hope to see you!

Fordham Center on Religion and Culture

Monday, 19 September | 5:30-7:30 p.m.
Fordham University

Can We Talk?
Discussion, Dialogue and Debate in the Catholic Church
Leon Lowenstein Center|12th Floor Lounge |113 West 60th Street |New York City

Disagreement is an old story among Catholics; the church’s record in handling it is decidedly mixed. The combination of an educated laity and modern means of communication has complicated the picture. The panel will look at:

• What is the place of disagreement, dialogue and debate in today’s Church?
• How should disagreement and criticism be conducted?
• How important is frank public discussion? What are the costs of
   avoiding or repressing it?
• If not Catholic forums, what forums will provide people with ideas and information about Catholicism?


Join us for this discussion organized by the Fordham Center on Religion and Culture, moderated by co-director Peter Steinfels.

Panelists will include:
Bishop Joseph Sullivan | Brooklyn Diocese
Leslie Tentler, Ph.D. | Professor of History, Catholic University of America
Rev. Joseph Koterski, S.J. | Professor of Philosophy, Fordham University
Geoffrey Boisi | Chairman and Senior Partner, Roundtable Investment Partners LLC

Free and open to the public
R.S.V.P. | [email protected] | (212) 636-6927


Margaret Steinfels, Co-director
Fordham Center on Religion and Culture
113 West 60th Street, Room 224
New York, NY10023-7484
Phone: 212-636-7624
Fax: 212-636-7863
e: [email protected]
web: www.Fordham.edu/religculture/

JFK to the Houston Ministerial Association

By Susan Stabile

Since Rob referenced it in his last post, I thought it worth posting the link to Kennedy's 1960 address to the Houston Ministerial Association, which I recently had cause to re-read.

Although I can't say how either Roberts or Specter interpreted Kennedy's statement, I think Kennedy intended to make clear that his presidential decisions on "public matters" would be based on his own belief as to what was in the national interest.  The part of the speech from which the language quoted by Specter comes says:

"I am not the Catholic candidate for President. I am the Democratic Party's candidate for President who happens also to be a Catholic. I do not speak for my church on public matters--and the church does not speak for me.

"Whatever issue may come before me as President--on birth control, divorce, censorship, gambling or any other subject--I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise."

   Kennedy went on to add that "if the time should ever come--and I do not concede any conflict to be even remotely possible--when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same."

For Whom Does the Church Speak?

By Rob Vischer

I just noticed this snippet from the Roberts confirmation hearing:

Mr. Specter, a Pennsylvania Republican, wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."

"I agree with that, senator, yes," said Judge Roberts . . . .

I don't necessarily disagree with Judge Roberts, but this raises a question for me: when the Church speaks on public matters, for whom is it speaking?  I understand that the Church does not impose, but simply proposes; however, it still must be proposing views that are deemed claims of truth from someone's perspective.  So on public matters, is the Church's perspective somehow separable from the laity's perspective, or at least potentially separable -- i.e., can and should faithful Catholics discern for themselves whether they will embrace the Church's stated perspective?  Or is Roberts implicitly defining the category of "public matters" to involve issues where prudential judgment is key, and where the Church may not have more expertise than the laity?  Or does the Church speak for the laity in their roles as citizens, but not when they take on public roles like President (JFK) or judge (Roberts)?  What exactly does it mean for Roberts to say that the Church does not speak for him?

Rob

Tom Berg on Noah Feldman

By Michael Perry

For fellow blogger Tom Berg's review of Noah Feldman new book, Divided By God:  America's Church-State Problem--and What We Should Do About It, click here.
_______________

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A bit more on academic credentials

By Robert John Araujo, SJ

I would like to thank Rick and Michael for their recenting postings about the Ph.D. factor in considering credentials for teaching law. Ph.D.'s are nice things to have, and I am certain that they can and do contribute to some faculty members credentials. But are they a sine qua non? I am inclined to join Rick and Michael in their views. Law teachers, when all is said, are asked to teach law. And to teach law well, the teacher must desire to grow personally in wisdom about the world, human nature, and beyond. The roles of philosophy, history, economics, political theory, etc., etc., etc. are helpful in this regard. Of course, those who teach in the field of patent and intellectual property law might also benefit from academic work in technical disciplines or performing arts or literature. This is not an exhaustive list, but I think the point is clear: law teachers can enhance their views and perspectives by being exposed to other academic fields. But there is nothing to stop them from this in their work even with a humble J.D.-- or B.Phil., or LL.M., or J.S.D., or B.C.L., or M.Div., or S.T.L....

What is needed is the law professor's desire for wisdom so that he or she can learn more and understand better. A Ph.D. can help, but is it essential to the task? I do not believe that it is.

A wise person may or may not have a Ph.D. But there have been many wise people who have not had the opportunity to pursue a Ph.D. That did not stop them from seeking wisdom and knowledge and understanding. A wise person probably knows that he or she needs to learn something more, and this individual does not let the absence of three letters of the alphabet stop them from this pursuit. Michael mentioned one illustration. I would like to mention one other: Fredrick Copleston.

Fr. Copleston was an English Jesuit who died a few years ago. He is well known in the academy as the author of the multi-volume History of Philosophy. He took a BA/MA from Oxford, and his honors level was of the second class (I do not recall if it was an upper or lower second). He was quite capable of meeting and debating in diverse academic settings. One of his more famous debates was with Bertrand Russell. He was also one of the wisest people I had ever met. He showed me that even though he was considered famous by many in the academic community, he still had a lot to learn. Fr. Copleston would regularly come to Campion Hall, the Jesuit Hall at Oxford University. He was always interested in hearing what the young priests and scholastics were doing and thinking. He absorbed what he heard, and he learned from what he absorbed. One day, one of the other English Jesuits, who happened to take a first class honors degree, mentioned in the dining room: "Oh, look, there's poor old Freddy. Only took a second, you know!" It was clear to us gathered within hearing range that this other Jesuit was reminding us in his peculiar fashion that he considered himself more intelligent than Fr. Copleston. Well, this did not stop one of my English confreres from reminding the priest who took a first: "Yes, Father, that is true. But look at what Fr. Copleston did with his Second! While we are at, could I ask you what you did with your First?" End of conversation.

A law teacher who wishes to be good at the craft can be like Fr. Copleston. The absence of a particular degree or level of honors need not arrest the search for wisdom and the desire to convey in lucid fashion what has been learned so that others may also learn and grow wise.

Now, if I can only find out from where Thomas More, Benjamin Cardozo, Thomas Jefferson, and John Marshall, just to mention a few other names, received their Ph.D's...

RJA sj

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