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.

Saturday, September 3, 2005

William H. Rehnquist, RIP

By Rick Garnett

I learned tonight, just a few minutes ago, that Chief Justice Rehnquist died tonight.  He was a great lawyer, an excellent judge, and a good, decent man.  Like his colleagues, and like all of his clerks, I admire him very much, and have great affection for him.  He was, in person, light-hearted, witty, caring, and an excellent teacher. I hope that the political spin will not drown out what Americans should remember about the Chief:  He was a dedicated publilc servant, committed to the rule of law and to the Court as an institution.  He regarded himself as the bearer of a great trust, and of a heavy obligation of stewardship.  He was faithful to that trust, and he fulfilled that obligation.  God bless him.

Rick

UPDATE:  Here is a short, personal reflection I did for Slate.com about the Chief.

Call for Papers / John Paul II

By Rick Garnett

Call for Papers: The Jurisprudential Legacy of Pope John Paul II
On March 23-24, 2006, St. John's University School of Law and the Journal of
Catholic Legal Studies will sponsor a conference on the Jurisprudential
Legacy of Pope John Paul II.

John Paul II enjoyed a 26-year papacy, during which he exerted great
influence on both Catholics and non-Catholics. He made a vast contribution
to our understanding of the dignity of the human person and of the Church's
social doctrine, and was passionately committed to social justice and to
peace. St. John's and the Journal of Catholic Legal Studies invite papers
exploring the legacy of the Pope on law, politics and culture generally and
on the development of Catholic legal theory. Papers presented at the
conference will be published in the Journal of Catholic Legal Studies.

Paper proposals should be sent by October 1, 2005, to Prof. Susan J. Stabile
at [email protected], or at St. John's University School of Law, 8000
Utopia Parkway, Jamaica, New York 11439.

Freedom and Property

By Rick Garnett

Larry Solum passes on the link to an interesting-looking article, Jedediah Purdy's "A Freedom-Promoting Approach to Property."   Here is the abstract:

In this article, Professor Purdy identifies, articulates, and defends a normative approach to property as an institution that promotes human freedom. The conception of freedom that the article defends is derived from the work of the Nobel laureate economist Amartya Sen, and defines freedom as the achievement and enjoyment of capabilities, the power to do things along various dimensions of human potential - social, economic, political, physical, intellectual, artistic, and so forth. Professor Purdy's argument has several complementary dimensions. One is close attention to several areas of concrete, ongoing debate over reform in basic features of property rights: land title in the urban slums of developing countries; control over cultural production in intellectual property law; and the development of sophisticated, market-based risk-management strategies that amount to a new frontier in the commodification of individual luck and talent. The second dimension is conceptual. Debates over the reform and extension of property systems are haunted by anxieties about distributive fairness, the effect of commodification on qualitative values, and the relationship between private property and forms of social domination all haunt. Professor Purdy argues that the freedom-promoting approach that he defends can help both to answer these concerns and to pick out cases where they properly set limits on property rights. It can thus considerably enhance the promise of the reforms with which his discussion begins. The third dimension is historical. The article shows how the conception of freedom that Sen advances, and the idea that the basic rules of property are essential promoting freedom, were first richly articulated in the Scottish Enlightenment jurisprudence and political economy of Adam Smith and his successors. The purpose of the article is thus to revive a tradition of thinking about property regimes while showing the continued relevance of that tradition to current debates.

Judging only from the abstract, it strikes me that this article is consonant with what is, in my view, the better understanding of the approach toward property rights taken in the Catholic Social Thought tradition.  That is, property is good, and to be protected, not so much for libertarian reasons, but because of the role it plays in promoting authentic freedom and the common good, properly understood.

Rick

Olmstead responds to critics

By Rick Garnett

I was critical, a few weeks ago, of an op-ed in an Arizona paper that lectured Bishop Olmstead on the error of his decision to exclude speakers to support abortion rights from Catholic churches in Phoenix.  The editorialist wrote:

This society, which treasures religious freedom, also cherishes free speech, and it thrives on open communication and respect for diverse opinions and beliefs.

In these polarized times, people with different opinions benefit from seeing what they have in common. Not from focusing on their disagreements.

I thought, and think, that this was both pablum and presumptuous.  Here is an op-ed by Bishop Olmstead, "Church Must Defend Its Basic Beliefs," defending his own decision:

The right to life is indeed an inalienable one. To stand up for the dignity of every person, then, and to speak out against intrinsic evils such as abortion, euthanasia, racism and sexual acts outside of marriage is a service that God requires of us on behalf of all persons, not only members of our own faith.

To do this by actions as well as by words underlines the seriousness of these teachings and the depths of our convictions. One such action is to prohibit the giving of honors or the provision of a platform in Catholic institutions for those who support actions contrary to these core moral principles.

I trust that this position is not that difficult to understand. Why would we honor or give a platform to someone who radically disagrees with our fundamental teachings? We should instead be criticized if we allowed such things to happen.

This does not mean that we will cease praying for public officials or end our efforts to be in conversation with them and others about these and similar matters.

In fact, the continuity of such conversations is vitally important, precisely because of the serious ramifications of them. There are a variety of appropriate forums for this dialogue to occur, beyond public events at church facilities.

Thanks to Amy Welborn for the link.

"Catholic" judicial temperment?

By Rick Garnett

A few weeks ago, I blogged about an essay in the Boston Globe that discussed, among other things, Professor Sandy Levinson's book, "Constitutional Faith."  The post, and the essay, considered whether there is really a "Protestant" or a "Catholic" way of reading the Constitution.  In a similar vein, here is an opinion piece by Dennis Coyle, in which he considers whether Judge John Roberts's Catholicism tells us anything about his judicial "temperment":

So where should we look, to get a glimpse of what a Justice Roberts would be like on the Court? I would suggest that part of answer lies in his Catholicism. Described as a "devout" Catholic, Roberts received a Catholic education before heading to the strongly secularist world of Harvard — in the 1960s, no less. When I see Roberts speak, ever so succinctly, or read his equally succinct writings, I see one of my students. In my 15 years at not only a Catholic university, but the Catholic University of America, many capable (and occasionally not so capable) students have come through my Constitutional Law classes. Many of my better students have been quiet, thoughtful, respectful, and very attentive to their obligations — but drawing them into critical argument can be another matter. Roberts's record seems to reflect a Catholic discipline and comfort with hierarchical roles and authority; he has learned how to tame — in an amiable manner — his intellect and emotions for a larger cause or obligation, be it a president, a client, or the law itself.

Rick

Friday, September 2, 2005

Katrina and Justice and Equality

By Susan Stabile

I share the difficulty with the images Amy describes.  We all have seen over the years images depicting the horrors faced by refugees in third world countries.  But the images of people in our own country, rich as it is in so many ways, without any food or water for days, using the floor as toilets, sitting among rotting cadavers, or women with infants (in one report I read) being given two diapers and told to scrape them off and reuse them, are hard to accept.

I agree with Amy that this raises questions about how our vision of justice and equality "can inform a push toward social structures which reflect a commitment in which no one – in this country or in any country – is left without what they need to lead a dignified human life."  It also not only raises questions about how we treat the poor among us, but forces us to confront some difficult issues about race in this country.  Ann Althouse asks over on her blog, "Were the provisions for flood prevention and for evacuation and shelter so inadequate because mostly black people were affected? Would the rescues have come more quickly if the victims were white? Would viewers and reporters express more outrage at the pace of relief if we were seeing white victims?"  Good questions.

Katrina's Moment of Truth

By Amy Uelmen

To chime in on the recent posts in response to the “fault lines” emerging from Katrina’s destruction . . . Like Rob, I was also struggling with a certain sense of the surreal as I compared the peaceful calm of the cool New York end-of-the-summer in New York, and the enthusiastic buzz of students beginning a new semester –– with the images of chaos and suffering coming through the internet and television.  How to “come alongside,” as Rob put it?  And how to process the shock of the images of total anarchy?   

At mass this morning I was able to name what was hardest for me to digest: the images of who was left behind, who was without water and medical help – images, as David Brooks has put it so well in his recent New York Times editorials, of economic and racial inequality.  The whole event enveloped me as a massive “moment of truth” for the entire country. 

True, we may want to discuss, as Steve suggests, the moral dilemmas of the use of force to reassert authority in the midst of anarchy.  But I believe we may come closer to the heart of “what we do best” when we reflect on the resources that  Catholic Social Thought may offer to inform a vision of justice and equality that emerges when we see every person as a child of God, and prioritize our own economic choices accordingly – to the point that they inform how I use material resources (e.g., how much gasoline I consume), what I buy, when I turn on the air conditioner, how through dozens of daily choices I respect the environment as a common patrimony for humanity…

But it can’t stop with personal choices and examples.  We are also in dire need of reflection on how to take it to the next level – to discuss how this vision can inform a push toward social structures which reflect a commitment in which no one – in this country or in any country – is left without what they need to lead a dignified human life. 

We have tremendous resources to draw on – not least of which, the profound vision of the unity of the human family – or as so well expressed in a beautiful line from this morning’s readings: “…in him all things hold together.”  (Col. 1:17).

Amy

New Orleans and America's Credibility

By Thomas Berg

Listening to the BBC on the radio tonight brought to my mind the effect of the images from N.O. on the world's view of America, especially right now when our government is trying forcefully to promote democracy and progress in the Middle East.  The horrible situation at the Convention Center as of Thursday night -- thousands of mostly poor people, stuck in the city often for reasons related to their poverty, with the various authorities seemingly losing control and inexplicably (so far as I can see) failing for two full days to get water and food to the heat-stricken people -- dramatizes the severe problems we ourselves have, "the unacknowledged inequalities" in David Brooks' words.  It's more and more apparent that the mess can't be chalked up just to the natural disaster; there have also been disasters involving governments and societal structures, as well as some criminal acts by individuals.

The large number of people around the world who view America's assertion of moral leadership as arrogant and hypocritical will see these images as powerful confirmation for their belief.  The terrorists will certainly make hay of it.  How can America preach to the world, they will say, when it has such horrible problems festering right below the surface, and inherent in its own system of individualism and competitiveness?  Reinhold Niebuhr described the phenomenon almost perfectly more than 50 years ago in The Irony of American History:  "The progress of American culture toward hegemony in the world community as well as toward the ultimate in standards of living has brought us everywhere to limits where our ideals and norms are brought under ironic indictment."

It's unfair and unwarranted to treat every moral failing by America as evidence of hypocrisy.  No human individual or group can stand for ideals without also failing to meet them.  But there's also some legitimacy in asking a nation to fix its own serious problems before -- or at least at the same time as -- it undertakes aggressively to fix others.'

It's now a familiar thesis that Brown v. Board of Education and other federal government moves against segregation were motivated in part by the need to shore up America's image among people around the world who were choosing, during the Cold War, between capitalist democracy and Communism.  See, e.g., Mary Dudziak, Brown as a Cold War Case, 91/1 Journal of American History (June 2004), abstract here.  Could the new global war against terrorism ever be an impetus to do something more vigorous about poverty here, to improve America's image among the world's persuadable Muslims?

Tom B.

   

Thursday, September 1, 2005

Avarice

By Robert John Araujo, SJ

I am sorry that I have been away from MOJ for two weeks; however, I have just caught up with the most recent postings. What do I say to the many eloquent and insightful commentaries to issues ranging from the enormous tragedy in our Gulf Coast, to the questions emerging from the Spokane diocese bankruptcy, to those dealing yet again with interest groups challenging Judge Roberts? And, of course, what do we as lawyers and law teachers say and do regarding these and other pressing matters of the day?

I return from an unexpected trip to Washington, DC. The wife of one of my best friends of almost forty years asked me to do the funeral of her husband who was also my college roommate for three years. He died unexpectedly whilst he and his family were on vacation. He and he son were swimming when he suffered a fatal heart attack that took his life instantaneously. His son brought him back into shore. I mention this because I think my dear friend’s life has something for us in the legal community, especially teachers, to ponder regarding the subjects I have mentioned.

My friend who was in reality another brother was a good man, a devoted father, a faithful husband, and a great public servant. He was a career civil servant in the Federal Government who rose to be the Deputy Undersecretary of Commerce for International Trade and Affairs. He was one of the most intelligent people I ever met. He was also a man of outstanding virtue. That is probably why Republican and Democrat political appointees, including current and former Cabinet secretaries, and many others, came to pay their respects. He had many opportunities to leave government service to make a fortune, but he chose not to do this. Because he was a person of great virtue, he understood the common good and how it intersected not only his life but the life of everyone else. He had over 2,500 people who worked for him in all sorts of capacities. Most of them attended either the wakes or the funeral. In life and death he taught me something of great value, and that is this: greed corrupts the human soul. That is what he taught so many people who came to honor him.

I think those of us who are or who have been law teachers, and those of us who are practicing attorneys could learn from his example. Yesterday, I read about the closing of that well established law firm Coudert Brothers. Whilst the newspapers kept mentioning money and profit motivation, I saw something in the New York Times article that may have suggested there were many people of virtue in the firm. It seemed that many of their lawyers were most interested in doing the best job they could for their clients; billing for the services came after the fact. While this may have been their Achilles’ heel in today’s world of competitiveness, I just wonder if the souls of many were saved from the “success” of this world because greed was not what drove them and their firm. The article mentions that many top drawers of the firm could have made more money elsewhere, but they stayed and continued to labor for those whom they represented.

So, now I come to the aftermath of Katrina, the news about Spokane, etc. What is driving people in these contexts to plunder in the aftermath of a natural disaster, a bankruptcy, and a judicial nomination, just to mention a few issues of the day

Avarice.

There are many great souls I am certain who are struggling to bring aid to the people in the Gulf, to protect the Church and its good works, and to enable a decent man to be a Supreme Court Justice. But, there are those driven by avarice: they loot on different fronts to serve themselves and their interests, but they forget something else: the common good. I bring up a personal point about Spokane that reinforces one made by Prof. Steve Bainbridge. Last year when I was still in
Spokane and heard lawyers claiming they would attach all assets of the diocese including the cemeteries, I wondered if they would first exhume the bodies or if they would simply develop over them?

And, that is where we who are Christian come into the play. How do we practice the profession of law? How do we teach it? I know there are many extraordinary and edifying responses to these two inquiries. But, perhaps we can learn the lesson taught to me by the friend I buried last week: avarice does not ennoble the human soul and person; rather, it corrupts. And now we find corruption at the heart of too many problems some of which are on the verge of overwhelming many good people and the national spirit.

So, what can we do in response? We can live a life of example to demonstrate to the world and to our students that avarice does not profit anyone in the long term. If we can do this, I believe that God will be ready to step in and take care of the rest. RJA sj

PS  I have been having extraordinary problems with the spacing of the text of this posting. I apologize. I tried to fix it more than a dozen times, but something is wrong with TypePad tonight, at least over on my side of the Great Pond. Thanks for your understanding.

The Flood and the Poor

By Thomas Berg

I guess this falls into the arguably-premature category of lessons to be drawn from Katrina, and perhaps it's obvious to all.  But watching the horrors on TV, one must be struck by a point David Brooks makes in his N.Y. Times column today:

Hurricanes come in two waves. First comes the rainstorm, and then comes what the historian John Barry calls the "human storm" - the recriminations, the political conflict and the battle over compensation. Floods wash away the surface of society, the settled way things have been done. They expose the underlying power structures, the injustices, the patterns of corruption and the unacknowledged inequalities. . . .

Civic arrangements work or they fail. Leaders are found worthy or wanting. What's happening in New Orleans and Mississippi today is a human tragedy. But take a close look at the people you see wandering, devastated, around New Orleans: they are predominantly black and poor. The political disturbances are still to come.

The poor not only face more pervasive challenges in daily life; they tend to suffer more severe complications spinning out from natural disasters (as opposed to the disasters themselves, which fall upon all).  I expect there will be discussion in future days of why -- granting that all are suffering greatly in N.O. and Mississippi -- the devastation on the urban poor seems to be disproportionately spiralling out of control and leading to a life-threatening aftermath (as opposed to death from the storm itself).  The answers and the remedies will not be simple or obvious.  But as we begin to think about the meaning(s) of the hurricane and flood, one of those meanings will have a lot to do with Susan's post quoting John Paul II on the problems faced by the poor:

"It is impossible not to take into account the existence of these realities.  To ignore them would mean becoming like the 'rich man' who pretended not to know the beggar Lazarus lying at his gates."  He goes on to say that both our daily life and "our decisions in the political and economic fields must be marked by these realities."

Tom B.

UPDATE:  Jack Shafer on Slate discusses the issue, including barriers to urban poor residents evacuating the city beforehand (no car, not enough money on hand to take with them, insufficient resources to borrow during the time away, etc.).

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