The Washington Post reports on a new study exploring the efficacy of prayer (or purported lack thereof). In response, Touchstone Magazine's blog, with some insightful help from C.S. Lewis, considers the "real efficacy" of prayer.
Rob
Friday, July 15, 2005
Studying Prayer
Brief blogging hiatus for Rick
I'll be away from the blog for a week or so -- researching singletrack and brewpubs in Colorado -- but will look forward to returning to dozens of interesting and provocative posts by my MOJ colleagues!
Rick
Thursday, July 14, 2005
Gonzales and the ALL Statement: Some Help from Thomas More
Regarding the recent American Life League statement -- that Rob, Fr. Araujo, and I have been discussing -- on Attorney General Gonzales: Friend and law prof Eric Claeys passes on a helpful reminder from "A Man for All Seasons" about the importance of the rule of law (congrats to Rob for getting to be St. Thomas!):
Alice: Arrest him!
Margaret: Father, that man's bad.
More: There is no law against that.
Roper: There is! God's law!
More: Then God can arrest him.
Roper: Sophistication upon sophistication!
More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
Roper: Then you set man's law above God's!
More: No, far below; but let me draw your attention to a fact--I'm _not_ God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester. . . .
...
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down--and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil the benefit of law, for my own safety's sake.
Again, this discussion is not about the "I'm personally opposed to abortion but cannot impose my morality on others" stance. It is about (what appears to be) ALL's claim that a commitment by a lower-court or state-court to apply even offensive laws and precedents is, morally speaking, reducible to the "personally opposed" stance.
Rick
Wednesday, July 13, 2005
The rule of law and the Catholic judge
I would like to thank Rick and Rob for their recent postings on the topics of Catholic members of the judiciary and the rule of law. It strikes me that these topics and their treatment also invite reflection on the current circumstances of one and possibly two vacancies on the United States Supreme Court. I am confident that many of us—be we readers or contributors of MOJ—will be addressing these and related matters in the coming weeks. It’s also clear that all of us (law teachers, lawyers, citizens) can spend a life time thinking about and discussing or debating these interrelated issues. With that caveat, I would like to offer a few thoughts at this stage.
Any judge is called to uphold the rule of law. Of course, other office holders, lawyers, and citizens share in this fundamental responsibility. I cannot do justice to explaining my view of the rule of law in an American context in this posting, but I hope to offer some basic insight into my understanding of the judge’s role in exercising and protecting the rule of law. The judge works with cases that contain the facts, the legal texts (both public and private), and past judicial decisions that have some bearing on the case. This is the basic legal framework in which the facts are evaluated and judgments are made.
Many of us are teachers, and we spend hours explaining to ourselves and our students how the judge is often called to tackle the case in the context of the law’s ambiguity. But sometimes the law that seems to apply doesn’t simply have ambiguity, it probably does not address the issue at hand. It may not even apply, but there is the urge to do something to resolve the case and administer “justice.” So, what does the judge do? Some are tempted to fill in the gap by taking over the role of the legislator (which could include Constitutional amendments). Others may say that the matter is one that belongs not in the courts but before a coordinate branch of the government, i.e., it is a political question rather than a case or controversy.
When the temptation to be substitute for the coordinate branch prevails, I believe the rule of law suffers on several fronts. It suffers because someone or somebody (a judge or judges) is doing the work of someone else. Those of us on the sidelines begin to wonder if this is simply zeal to decide a case or to usurp the authority which properly belongs to someone else. In the context of the matter of “privacy,” I think a judge acts properly if the case involves a search of a person’s home or property. The Constitution addresses this sort of thing in the Fourth Amendment. The same text should also apply to a case in which the State invades the body of the person. This does not mean that the State must lose and the person must win. It does mean that there is a text that exists and this is what guides the judge, the citizen, and the enforcer alike.
But does the text say anything about “privacy” as Roe discusses the matter? I do not think so. This is an illustration of how the rule of law suffers and continues to do so. Volumes could be inserted here, but I’ll refrain from this temptation now!
But let me make a suggestion about what should the Catholic judge do? If the text is clear but presents grave moral questions, the Catholic judge might be able to recuse himself or herself from the case. The judge can also resign to protect his or her conscience. There are still other alternatives. A Catholic judge, like any other, is called to be a virtuous person and official. Some of us have already talked a bit about virtues and judicial office. I’ll suggest once more that they are crucial to the manner in which any judge conducts the exercise of judicial office.
But there remains some guidance from a Catholic perspective that can contribute to what the Catholic judge does in those cases involving matters like abortion, marriage, and emerging cases involving biomedical and biotechnology. One source is John Paul II’s encyclical Evangelium Vitae Here. Another two are the complementary texts issued by the CDF on "Considerations regarding proposals to give legal recognition to unions between homosexual persons" (July 31, 2003) Here and the "Doctrinal Note on some questions regarding the participation of Catholics in political life" (January 16, 2003) Here . They all provide the Catholic citizen and public office holder (including judges) vital guidance on some of the major contemporary issues of the day. And, from the perspective of the Catholic faith, they contribute to the proper exercise of the rule of law. If I may borrow from St. Augustine, “Take and read!” RJA sj
What is a Catholic Judge Supposed to Do?
As Rick notes, over at Wired Catholic, the premise of my inquiry on Gonzales is not finding a particularly warm embrace. An excerpt:
Maybe Prof. Vischer is just being provocative, but I doubt it. I think he probably has no clue what Natural Law is or what legitimate Catholic legal theory should be. This is fairly ironic given that Natual Law was pretty much developed by St. Thomas Aquinas, the namesake of Prof. Vischer's university. . . .Vischer's statement reveals he has done little to intellectually understand and embrace a Catholic theory of law - that man's law is no law at all when it rebels against the Author of Life.
I'm not sure how this translates into a workable approach to judging, but I'll give Wired Catholic and like-minded others a chance to explain it. It's one thing to recognize that a U.S. Supreme Court ruling conflicts with the Natural Law; it's quite another thing to insist that a state court judge articulate and invoke the Natural Law as a basis for rejecting a precedent that he is bound to follow in interpreting the U.S. Constitution. We're not just talking about stare decisis, remember. Gonzales was a justice on the Texas Supreme Court. Assume that the Texas legislature passed a law prohibiting all abortions except for cases of rape and incest. Putting the resignation/recusal option to the side for a moment, on what grounds and with what language should a Catholic Texas state court judge uphold such a statute in light of Roe and its progeny? Are you suggesting that Catholic judges employ a version of jury nullification, effectively thumbing their noses at the injustices of the governing legal regime? (Jury nullification serves the intended result, of course, as the jury's acquittal is the final word; judicial nullification would last only as long as appellate review took to run its course.)
Rob
The American Life League statement
Thanks to Rob for posting, and raising questions about, the recent statement by the American Life League in opposition to the nomination to the Supreme Court of Attorney General Gonzales. I share what I take to be Rob's doubts about the statement. Here, again, is what the Attorney General said, as reported by ALL:
"[My] own personal feelings about abortion don't matter… The question is, what is the law, what is the precedent, what is binding in rendering your decision. Sometimes, interpreting a statute, you may have to uphold a statute that you may find personally offensive. But as a judge, that's your job."
In my view, Rob is right to question ALL's complaint that "Gonzales' position is clear: the personhood of the preborn human being is secondary to technical points of law, and that is a deadly perspective for anyone to take." In fact, it is a judge's job, sometimes, to apply and uphold "offensive" statutes. (That said, laws authorizing abortion -- that is, laws excluding unborn children from the protection of homicide laws -- are, in my view, not merely "offensive"; they are also unjust. But I assume -- I welcome correction on this point -- that a judge sometimes may uphold and apply even an "unjust" law without culpably cooperating with evil).
It strikes me that, in fact, nothing in the Attorney General's statement is inconsistent with what I take to be the truth of the matter, namely, that Roe and Casey were wrongly decided and are incorrect interpretations and understandings of the relevant "law" and "precedent" that are "binding" on a Justice. As a Justice of the Supreme Court of the United States, it seems to me that Gonzales's "personal feelings about abortion" in fact wouldn't (and shouldn't) matter (with the exception, of course, that Gonzales -- like anyone else -- would have a moral obligation to avoid culpable cooperation with evil, and so he would need to attend to the possibility that, in participating in an abortion-related case, he might fail to act in accord with that obligation.). Gonzales could reasonably (and morally) believe, it seems to me, that, as a lower-court judge or executive official, his opposition to abortion does not authorize him to ignore "binding" law and precedent -- even offensive and wrong law and precedent -- though it might require him to recuse himself or resign in order to avoid scandal or sin. This does not (necessarily) mean that he would not vote to reverse or cut back on Roe.
The ALL should also remember that, as a Justice, Gonzales could believe that "technical points of law" do trump "personal feelings", and also that (a) Casey should be interpreted, as Justice Kennedy advocated in Stenberg, to permit restrictions on the abortion "right" (e.g., the partial-birth-abortion ban); that (b) Roe was wrongly decided, and should not be expanded or extended; and / or that (c) Roe and Casey should be overruled, not because abortion is immoral, or because of Gonzales's "personal feelings", but because the considerations that usually weigh in favor of stare decisis are outweighed by the egregiousness of Roe's error and its pernicious effects on our law and politics.
I'm not advocating the nomination of Attorney General Gonzales. There are, I believe, strong reasons to believe that the President would do better to nominate someone else. I hope the next Justice(s) on the Supreme Court have a firm commitment to rule-of-law values, a well-developed "judicial philosophy," and a clear understanding both of the structural features of our Constitution and of the constraints on the Court's power and right to second-guess democratic decisions regarding moral questions. But my impression is that some on the pro-life side (i.e., my side) are reading too much into Gonzales's opinions as a Texas judge in a few parental-notification cases, and are too quick to assume that statements like the one quoted by ALL necessarily mean that "Justice Gonzales" would perpetuate, or fail to remedy, Roe's error. It is, it seems to me, perfectly reasonable to oppose the nomination of Attorney General Gonzales, and to advocate the nomination of someone who has spoken correctly and clearly on the question of Roe specifically and constitutional interpretation more generally. It is mistaken, though, to set up as the touchstone for an acceptable nominee a willingness to put "personal feelings" above "technical points of law."
I could be wrong, of course; I would appreciate others' takes.
UPDATE: Here, from "Wired Catholic," is a long complaint about and objection to Rob's post. It seems to me that the author misunderstands, and overreacts to, Rob's questions.
Tuesday, July 12, 2005
Unborn Babies vs. The Rule of Law
The American Life League has issued a statement in opposition to the potential nomination of Alberto Gonzales to the Supreme Court. Here is an excerpt:
When asked if his own personal feelings about abortion would play a role in his decisions, Gonzales told the Los Angeles Times in 2001 that his "own personal feelings about abortion don't matter… The question is, what is the law, what is the precedent, what is binding in rendering your decision. Sometimes, interpreting a statute, you may have to uphold a statute that you may find personally offensive. But as a judge, that's your job." Gonzales' position is clear: the personhood of the preborn human being is secondary to technical points of law, and that is a deadly perspective for anyone to take.
(HT: CT)
I'm fairly confident that Gonzales was not speaking of mere "technical points of law" (whatever those are), but of a judge's responsibility to uphold settled legal principles, regardless of how distasteful he finds them. The American Life League apparently would like judges to further the interests of the unborn regardless of legal constraints.
Do any co-bloggers or readers agree with the American Life League? Does Catholic legal theory contemplate that a judge subvert the rule of law in order to protect the unborn? Once a judge reasonably finds a law to be indeterminate, does that create space for the insertion of his own beliefs? In the case of abortion, is a judge morally obligated to stretch to find indeterminacy? Or should a judge advance the cause of the unborn whenever the opportunity presents itself, even when the constitutional and interpretive issues resist such advancement under any reasonable legal analysis?
Rob
Monday, July 11, 2005
Michael Hernandez's "Flawed Foundation": A History of Christian Influence on American Law
While the predominant Christian influences upon the early years of our nation are commonly recognized, and while some regularly call for a return of the "Christian Nation," a thorough examination of both the influences of our Christian faith upon early American law and the reasons for the decline of that influence over the decades has been wanting. A recent article by Regent law Professor Michael Hernandez in the Rutgers Law Review, "A Flawed Foundation: Christianity's Loss of Preeminent Influence on American Law," begins to fill that gap. (Although this article is not available on-line directly, the following link should take you to the article on Westlaw if you have Westlaw access.) [Note: Although the article is included in the Spring 2004 issue of the Rutgers Law Review, that is the most recent edition of that journal and I believe the article has just been published.]
In "Flawed Foundation," as the title suggests, Professor Hernandez does not simply harken for the better days of Christian predominance but thoughtfully and critically examines why Christianity lost its preeminent influence on American law. Professor Hernandez lays the blame squarely upon the Christian faithful who, by reason of conflicts within Christianity were unable to provide a firm foundation, and who, through betrayal of Christ's teaching through inhumanity to Native Americans and tolerance of the evils of slavery left the door open for the influence of secular ideologies.
Professor Hernandez concludes the article with these words:
"The liberties Americans enjoy are directly traceable to the influence of Christian principles. The relatively short-lived nature of that influence does not disprove the truth of Christianity. Rather, as the views of the Founders and early leaders of our nation reveal, not everything done in the name of Christianity fairly and truly reflects the faith. Theological abuses undermined Christianity’s influence on American law and politics. The rejection of a full appreciation of the higher law origins of human law, the mistrust of human reason, the embrace of racism and greed, and the wholesale denial of the basic human rights of people created in God's image, all contradict the teachings of Christ.
A triumphal call to return to America’s Christian past would accordingly be misguided. All Americans should be aware of the extent to which authentic Christianity influenced the founding of this nation, and Christians should proudly affirm that aspect of America's heritage. However, unless and until Christian theorists constructively address the history described in this article, including proposing solutions to the continuing problems caused by our nation's failings, Christianity's influence on American law and culture will continue to wane. Christians are called not to whitewash the sins of our forebears, but “[t]o act justly and to love mercy and to walk humbly with [our] God.”
Greg Sisk
Weigel, Smith, and Disowning Our Past
A few weeks ago, on a long airplane trip, I had a chance to read George Weigel's new book, "The Cube and the Cathedral: Europe, America, and Politics Without God", and also Steve Smith's essay, "Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past?". The recent Ten Commandments decisions, and all of the debate about the place, if any, for acknowledgment -- even endorsement -- of religion in public spaces and discourse, got me thinking again about these two works.
Smith’s essay is a reflection on Justice Douglas’s (in)famous observation that "we are a religious people whose institutions presuppose a Supreme Being." Smith believes that this statement – one that might today seem incongruous with what we now know, or think we know, about Justice Douglas – is true. That is, he contends, most of “we are the people” are -- in some meaningful, if sometimes less-than-deep, sense -- “religious.” What’s more, he continues, our “institutions” do – or can plausibly to be said to – “presuppose”, rest upon, and proceed from claims and commitments regarding a “Supreme Being” and that Being’s connection to human affairs and action.
If all this is true, Smith asks, why are we so uncomfortable with Douglas California
This and other questions lead Smith to a reflection, inspired by Orwell’s “1984,” on memory, history, truth-telling, and identity. As he puts it, "if we are cut off from our history, or if we degrade our history into a mutable fabrication fashioned not according to truth but rather by present perceived needs, then we lose our identity and become merely transitory phantoms of shifting consciousness and conversation, without continuity or substance. . . . For a nation, history is not merely what holds it together: it is only as a historical entity that a nation enjoys reality in the first place. After all, does anyone believe that a political community has anything like an immaterial soul that might give it identity independent of its temporal history? And in this view, it seems that whetehr this nation exists and can 'long endure', as Lincoln put it, depends among other things on having leaders who are bold enough, or at least reckless enough, to proclaim the large, enduring truths that constitute it. Truths like 'we are a religious people whose institutions presuppose a Supreme Being.'"
Weigel’s book is short, accessible, and engaging, but it covers a whole lot: freedom, faith, democracy, Europe Europe
Here is a First Things essay by Weigel that explores some of the same themes as does "The Cube and the Cathedral."
Rick
One Public Religion, Many Private Religions
John Witte has a new paper out, "One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution." Here is the abstract:
John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.
(HT: Solum)
Rob
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