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.

Friday, June 24, 2005

Still more on Kelo

By Rick Garnett

The folks at SCOTUS Blog assembled an all-star team of commentators and scholars (including one Professor Nicole Stelle Garnett, whose views are, of course, exceedingly wise) who offer their diverse and insightful takes on Kelo, here.  Also, here is an essay by our own Professor Bainbridge.

In his post, Mark provides a wonderful picture -- one that is often hard to capture in litigation -- of the community at issue here.  (That said, everyone remembers Poletown from first-year Property, right?).  He writes:

But when we evaluate government takings for purposes of redevelopment, I don't worry so much about the property rights question. I don't get as emotional about government interference with private property as my friends on the right.  While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. . . .  So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting  private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community.

For what it's worth, I think that my concern for "property rights" and Mark's worries (which I share) about "the destruction of community" are more closely related, or less in opposition, than Mark's post might suggest.  It strikes me that the kinds of communities that Mark vividly evokes, and about which he is concerned, and which he thinks (it appears) the Fifth Amendment should be deployed to protect, require for their development, health, and continuation a legal regime that constrains government and protects private property.  People don't feel rooted -- they are not, in fact, rooted -- and do not belong, reach out, take chances, identify with, make sacrifices for communities (or so it seems to me) whose survival and existence are subject to little more than the utilitarian calculations of local officials eager to accommodate rent-seeking outsiders.

Mark also refers to the "well-worn groove of the takings argument, which pits the right in private property against the public interest in the taking.  I'm proposing what the question might be under Catholic legal theory: is the taking constructive or destructive of community?"  Certainly, Catholics -- and Catholic legal theorists -- should think about the effects of legal doctrines, and court decisions, on "community."  At the same time -- and I'd appreciate Mark's reaction to this claim -- it is just as much "the question under Catholic legal theory" whether, in a context where government is constrained by a (presumably) valid legal provision (here, the Fifth Amendment), rule-of-law values (which, I think, Catholics should embrace) permit us to endorse the under-compensated taking of private property merely for economic development -- or, to put the matter more bluntly, merely to increase a town's tax base. 

At oral argument, the lawyer for New London admitted that the Constitution would permit localities to take Motel 6's, and given the land to the Ritz, whenever such a move would increase tax revenues.  A regime that permits this result does not respect private property, and -- therefore -- does not really respect subsidiarity or community.

Rick

Thursday, June 23, 2005

On Kelo v. New London from New London

By Rick Garnett

Rob and Rick have a great thread going that focuses very sharply on the question of how we should come out on this case from the perspective of Catholic legal theory -- which is what we're all about here at MOJ. I'm no constitutional scholar or expert on takings, but I've been engaged by this case ever since it developed, because I grew up in New London, and still spend a lot of time there with family. So I'm a bit less theoretical and legalistic about this case than I am about most. I knew the old "Fort" neighborhood well, and had friends and relations who lived there. I've also followed the fortunes of New London redevelopment and the fate of the old neighborhood over the years.

When I think about this case, I see first what is gone -- an old Italian neighborhood, with a few Irish leavening the mix (but very few of what we called "Yankees" back then - and I don't mean Joe DiMaggio). It was at the lower end of the economic scale when I knew it -- mostly in the 50s and 60s -- with its denizens working mostly in nearby factories, warehouses and military bases. By the late 60s that employment was already drying up, but the Fort remained an isolated community of older Italians and Irish, surrounded by neighborhoods victimized by the white flight of the era and populated by very poor African-Americans and, later, Hispanics. As its population continued to age, the neighborhood literally withered with abandoned and boarded up houses becoming more and more common. The adjacent post-industrial area had become a typical brownfield wasteland. The Fort was one of hundreds (or thousands) of once thriving communities bound together by ties of ethnicity, religion (overwhelmingly Catholic) and class. It was the kind of place that striving second and third generation Italian-Americans sought to escape , but there was something real about those places -- they meant something in a way that suburban neighborhoods rarely do. I don't want to get sentimental about a neighborhood that could be amazingly narrow-minded and harsh, but did represent a community that had value and that we have lost. But enough sentimentality.

Similar eighborhoods in New London were destroyed not just by white flight and deindustrialization, but by the brutal "redevelopment" efforts of the 60s -- like Robert Moses' eviscerating of the Bronx, the attempt to destroy Fells Point in Baltimore and so on (the Fort was spared that). Talk about takings! But when we evaluate government takings for purposes of redevelopment, I don't worry so much about the property rights question. I don't get as emotional about government interference with private property as my friends on the right.  While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. That sort of reason raises all sorts of Catholic legal theory concerns: destruction of a subsidiary community (a neighborhood); a bureaucratic, rationalistic, technology-driven conception of the common good; a progressivist ideology that devalues human rootedness in community and tradition. So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting  private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community.

So -- do I think the Court got it wrong in Kelo? On balance (and perhaps surprisingly), no. By 2005, the Fort was no longer a community. It was mostly dead and gone. Very few people remained -- most had left not because of the new pressure for economic development but because of decades of deindustrialization and white flight in the surrounding areas. I deeply sympathize with the attachment of the few remaining people, mostly elderly Italians (like my own relatives), too frail, frightened or stubborn to move.  But if the balance point is not the inviolacy of property rights, but the needs of community (by which I mean something more specific than the common good), then the scales tilt toward the deeply impoverished old city of New London, desperate for tax revenue to support a poor, isolated and highly dependent population. The economic development that did take place was certainly more successful than the disasters of the 60s, and has generated revenues that helped create the possibility of rebuilding community in the New London. (I should note, of course, that there is debate about how much the benefits of the economic development have benefited the citizens of New  London - but it's the principle I'm trying to develop here.)

Is what I've suggested here a "legal" argument? Not in comparison to the well-worn groove of the takings argument, which pits the right in private property against the public interest in the taking. I'm proposing what the question might be under Catholic legal theory: is the taking constructive or destructive of community? I guess I'm proposing that as an alternative to Rick's reading of Catholic legal theory as intensifying the property interest by incorporating it within Catholic conceptions of human dignity. I'm not sure I disagree with Rick about that argument - I guess I regard it as incomplete when used in isolation.

-Mark

Kelo, the Common Good, and the Rule of Law

By Rick Garnett

Rob reports on the Supreme Court's latest revision of the Constitution, Kelo v. New London, in which the Justices ruled (in Rob's words) "that local governments may seize private property for private development as long as the development is in furtherance of a public purpose."  (Here are the opinions).  After noting that the majority (which supported the seizure) offers a "stirring invocation of the common good by the majority, putting down individuals' attempts to sabotage the limited collective action needed to promote human flourishing", while the dissent provides a "stirring invocation of civil rights acting as a needed bulwark against the encroachments of collective power -- a position seemingly buttressed by subsidiarity", Rob asks, "from the perspective of Catholic legal theory, who's right"?

Before turning to that question, I cannot help insisting that, from the "perspective" of constitutional law, the majority has effectively read out of the Constitution a limitation on coercive government action -- i.e., that "takings" of private property" be for "public use" -- that the founders, to say the least, regarded as central to a regime of ordered liberty.

I would also submit that the Court's failure to take more seriously the constraints that constitutionalism places even on well-meaning government action should also be objectionable from a "Catholic legal theory" perspective, because that perspective includes a commitment to the rule of law.  A regime in which the government may take the rightful property of A, and give it to B, simply because (in the government's view) the local economy would be better served by B's use than A's is, in my judgment, one that trafficks more in arbitrary power and cronyism than the rule of law, ordered liberty, human dignity, or the common good, properly understood.

The "common good", after all, is not  -- in Catholic Social Thought -- merely the "greatest good for the greatest number", or "the good of the state", or even the "good of the community."  In Gaudium et spes, we are told that the common good is well understood as "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."  What's more, Gaudium et spes and the Catechism of the Catholic Church proclaim that:

First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."

So, it strikes me that the regime approved in Kelo -- i.e., one in which one's ability to use and enjoy rightfully owned property is subject to the government's continuing belief that some other person's use would not be more beneficial, economically -- is difficult to square with "respect for the person as such."  (To be clear:  I am not endorsing an absolutist approach to property rights -- the Constitution permits, as would I, "takings" of private property, for "public use", with "just compensation.").   What's more, a rule-of-law / property-rights / public-use regime strikes me as one of the "conditions for the exercise of . . . natural freedoms" in which the "common good resides."

Whatever understanding of the "common good" is doing the work in Justice Stevens's opinion, it is not clear to me that this understanding is the same as the one that pervades the CST tradition.

Rick

A Brief Comment and Question for Rob

By Michael Perry

Rob asks, in his post immediately below, "who's right" as a matter of Catholic legal theory.  I don't think we can answer this question until we answer a prior question:  Who's right as a matter of the correct interpretation of the takings clause of the Fifth Amendment?  I have no expertise with respect to that question.  Who does?  Rick?  Anyone else?

Michael P.

Kelo v. New London

By Rob Vischer

Today the Court ruled (5-4) that local governments may seize private property for private development as long as the development is in furtherance of a public purpose.  Justice Stevens, for the majority, writes:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us . . . to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

A stirring invocation of the common good by the majority, putting down individuals' attempts to sabotage the limited collective action needed to promote human flourishing.

On the other hand, Justice O'Connor, in dissent, writes:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment.

Ah, a stirring invocation of civil rights acting as a needed bulwark against the encroachments of collective power -- a position seemingly buttressed by subsidiarity.

From the perspective of Catholic legal theory, who's right?

Rob

Church is "Too Busy" to Support Graham Crusade

By Rob Vischer

As I noted yesterday, the relationship between Catholics and evangelicals is still evolving.  Witness the Church's tepid response to this weekend's Billy Graham crusade in New York City.  (HT: Open Book)

Rob

Wednesday, June 22, 2005

The USCCB and Catholic Schools

By Rick Garnett

Here is a link to a new statement by the Bishops, "Renewing Our Commitment to Catholic Elementary and Secondary Schools in the Third Millennium."  There's some really good stuff (and also, I'm afraid, some clunky cliches about "young people" as a "resource", etc.) in the statement.  Here is a taste:

Young people of the third millennium must be a source of energy and leadership in our Church and our nation.  Therefore, we must provide young people with an academically rigorous and doctrinally sound program of education and faith formation designed to strengthen their union with Christ and his Church.  Catholic schools collaborate with parents and guardians in raising and forming their children as families struggle with the changing and challenging cultural and moral contexts in which they find themselves.  Catholic schools provide young people with sound Church teaching through a broad-based curriculum, where faith and culture are intertwined in all areas of a school’s life. By equipping our young people with a sound education, rooted in the Gospel message, the Person of Jesus Christ, and rich in the cherished traditions and liturgical practices of our faith, we ensure that they have the foundation to live morally and uprightly in our complex modern world. This unique Catholic identity makes our Catholic elementary and secondary schools “schools for the human person” and allows them to fill a critical role in the future life of our Church, our country, and our world (Catholic Schools on the Threshold, no. 9).  It is made abundantly clear in an unbroken list of statements, from the documents of the Second Vatican Council to Pope John Paul II’s 1999 exhortation The Church in America (Ecclesia in America), that Catholic schools play a vital role in the evangelizing mission of the Church. They are the privileged environment in which Christian education is carried out . . . Catholic
schools are at once places of evangelization, of complete formation, of inculturation, of
apprenticeship in a lively dialogue between young people of different religions and social
backgrounds. (Catholic Schools on the Threshold of the Third Millennium, no. 11)

I was pleased, in particular, by the Bishops' strong and explicit endorsement of educational-choice programs. 

Advocacy is not just the responsibility of parents and teachers, but of all members of the Catholic community. As the primary educators of their children, parents have the right to choose the school best suited for them. The entire Catholic community should be encouraged to advocate for parental school choice and personal and corporate tax credits, which will help parents to fulfill their responsibility in educating their children. . . .

Parents have the constitutional right to direct the upbringing and education of their children
(Pierce v. Society of Sisters), and we call on the entire Catholic community to join in advocating for the opportunities and resources to implement this right through constitutionally permissible programs and legislation . . . .

In some states, so-called “Blaine” amendments, which ban or severely limit assistance to private and/or religious schools, make the attainment of this goal very difficult, if not impossible. These amendments are part of an anti-religious and, more specifically, anti-Catholic legacy in our nation’s history. We need to advocate for the repeal of these relics of unfortunate bigotry.

The primary and most powerful obstacles to school choice are the teachers unions, many members of which are Catholics.  Do these members do enough to challenge their unions (which also, of course, do many good things) about their implacable hostility to choice-based reforms?

Also welcome, in my view, were the Bishops' clear challenges to Catholic laypeople to take more seriously their stewardship and social-justice obligations, and -- even more important -- the connection between those obligations and supporting Catholic schools. 

We call on the entire Catholic community—clergy, religious, and laity—to assist in addressing
the critical financial questions that continue to face our Catholic schools. This will require the Catholic community to make both personal and financial sacrifices to overcome these financial challenges. The burden of supporting our Catholic schools can no longer be placed exclusively on the individual parishes that have schools and on parents who pay tuition. This will require all Catholics, including those in parishes without schools, to focus on the spirituality of stewardship.  The future of Catholic school education depends on the entire Catholic community embracing wholeheartedly the concept of stewardship of time, talent, and treasure, and translating stewardship into concrete action.

It is unfortunate, but true, that many Catholics (in my experience) seem to regard Catholic schools as (a) the business and concern of parents with school-age children only; or (b) helpful back-up choices for those who live in areas with lousy public schools.  This statement connects Catholic schools to the heart of the Church's ministry.  One wants to be charitable and pastoral, of course, but I wonder if the Church does enough to challenge Catholic parents who can, but don't, send their children to Catholic schools?

The statement ends on a rock-solid note:

As we, the Catholic bishops of the United States, and the entire Catholic community continue our journey through the twenty-first century, it remains our duty to model the Person of Jesus Christ, to teach the Gospel, and to evangelize our culture. We are convinced that Catholic elementary and secondary schools play a critical role in this endeavor. “Thus it follows that the work of the school is irreplaceable and the investment of human and material resources in the school becomes a prophetic choice . . . it is still of vital importance even in our time” (Catholic Schools on the Threshold, no. 21).

Thanks to my student, Chris Pearsall (formerly with the USCCB) for alerting me to the new statement.

Rick

"Jesus is Lord" and the Law

By Rick Garnett

The various posts (here and here and here) about the United Church of Christ's recent resolutions reminded me of an article I hand out to my students every semester, "The Sign of the Cross and Jurisprudence," by Notre Dame's beloved contracts scholar, Ed Murphy (R.I.P.).  He wrote: 

Every class I have taught in Notre Dame Law School has begun with the same action and the same words. I have made the ancient Sign of the Cross, while saying: "In the name of the Father, and of the Son, and of the Holy Spirit."  What has this to do with law and legal education?  A good question.

He also noted, later on:

[T]here are many people who are receptive to the idea of Jesus Christ as Savior who experience difficulty with a necessary corollary, viz., Jesus Christ as Lord. Here one confronts the commands of the Savior, His laws, stipulations as to how we are to live our lives and how society should be governed. Indeed, there are professing Christians who insist that Christian morality and law pertain exclusively to personal salvation and should in no way be authoritative or determinative in areas of public policy. This is implicitly a denial of God's sovereignty and opens the way for "other gods" to rule the world. There are, of course, no shortage of "other gods" eager to oblige. By this view Jesus may be one's personal "savior," but He is not "lord" or "king." Jesus is thus rendered irrelevant to the world, and Christian influence in worldly matters becomes weak and impotent.

What does it mean, I wonder -- for those of us who are lawyers and legal scholars, living in a pluralistic, secular (i.e., not run by the Church), democracy -- that "Jesus is Lord"?

Rick

The Journey to Rome (and What's Lost Along the Way)

By Rob Vischer

For those interested in the evolving relationship between evangelicals and Catholics, a new article by Mark Noll and Carolyn Nystrom, Is the Reformation Over? (derived from their forthcoming book of the same name), is a must-read.  Of particular interest is their reporting on notable recent evangelical conversions to Catholicism, asking their subjects not just the reasons for their conversions, but what they lost along the way.  BC philosophy prof Peter Kreeft is one example:

What does Kreeft feel he lost and gained? He gained an appreciation for the richness of God's mystery. Having come to think of Protestant theology as overly infected with Descartes' scientific view of reason, Kreeft learned to appreciate "wisdom rather than mere logical consistency, insight rather than mere calculation." He also learned to worship God through all of his senses, not merely the mouth and ears of Protestantism. Perhaps most important, he found himself swimming within the two-thousand-year stream of historical Christianity. But Kreeft also speaks of losses. He inherited from his evangelical roots a serious concern for truth that he finds sadly missing among many Catholics. For example, although he finds Catholic theology quite clear on the subject of justification by grace through faith, "well over 90 percent of the students I have polled … expect to go to Heaven because they tried, or did their best, or had compassionate feelings to everyone, or were sincere. They hardly ever mention Jesus." And he misses music. He remembers evangelical worship with "beautiful hymns, for which I would gladly exchange the new, flat, unmusical, wimpy 'liturgical responses' no one sings in our masses." Kreeft envisions a time when all of these losses will be redeemed. "I think in Heaven, Protestants will teach Catholics to sing and Catholics will teach Protestants to dance and sculpt."

As a former evangelical, I know the feeling.  I'm consistently surprised by how quickly the sanctuary empties out after communion, how infrequently the homily diverts from the "do good to others" theme, and how most parishes I've found seem to think that spiritual formation and education stop in childhood.  (I was pleased to find one parish with an "adult education" committee, only to learn that its only task was to make sure that the pamphlet racks in the back of the church were filled.)  Indeed, even for the youngsters, there is much to be desired -- e.g., on a recent Sunday as we picked up our daughter from her "children's liturgy," we discovered the class watching this video.  Couldn't quite make out the spiritual connection.

Then again, don't get me started on the pitfalls of an evangelical upbringing.  In this regard, Noll and Nystrom remind us that:

evangelicals who remain highly critical of Catholic theology and practice have much to teach members of both traditions. Their persistence in criticism points to genuine weaknesses within Catholicism as well as to outdated prejudices. Both bodies can also become self-corrective as they listen to firsthand accounts of conversion.

Rob

Tuesday, June 21, 2005

What Was Wrong With the Original?

By Rob Vischer

Thanks to Michael for uncovering the substitute resolution passed by the UCC, but I'm puzzled by the perceived need to propose a substitute.  What is objectionable about the original resolution?  The only thing I can decipher is its statement that "the Lordship and divinity of Jesus Christ"  is not an optional doctrine for UCC members and pastors.  But shouldn't one who joins a Christian community be required to believe that Jesus is Lord?  What else can a Christian believe?

Perhaps the problem with the resolution is that those who proposed it are known to be "fundamentalists."  This is a term that seems to be used with the same sort of pejorative abandon as "liberal" was back in the 1988 presidential campaign.  Are they fundamentalists because they want to require members to believe that Jesus is Lord, or because they oppose gay marriage, or for some other reason?  Gay marriage and the divinity of Christ seem to be readily separable issues.  It strikes me that the original resolution was much less political than the substitute one; I'm wondering if the embrace of the substitute stemmed more from its implicit (and justified, in my view) repudiation of the Religious Right than from any doctrinal substance.

Rob

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