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 7, 2016

"Our hearts will smile, even as our eyes glisten" -- Justice Scalia Bar Memorial and Special Session of the Supreme Court, November 4, 2016

On November 4, 2016, the Bar of the Supreme Court of the United States passed Resolutions honoring Justice Antonin Scalia at a special meeting at 1:45 p.m. in the Upper Great Hall of the Court. That was followed by a 3 p.m. special session of the Supreme Court of the United States in which those resolutions were presented to the Court by the Attorney General. Chief Justice Roberts responded on behalf of the Court. 

The audio and transcript of the special session, as well as a video of the bar meeting, are available at the Supreme Court's website. If you have time for just one thing, go straight to the transcript of the special session. Acting Solicitor General Gershengorn's remarks provide an abridged version of the resolutions, and Attorney General Lynch's comments show how commitments to professional excellence in the law can promote respect even for those who take different perspectives on the law. 

Most powerful and moving of all were Chief Justice Roberts's words. I'm not sure whether the emotion comes through the same way on the audio, but those present in the Courtroom heard and saw the Justices' affection and grief for their departed colleague. 

Chief Justice Roberts's concluding paragraphs: 

Justice Scalia was not restrained in stating his views clearly and forcefully, but he never ceased being our dear friend and valued colleague. He wrestled with ideas, not people, and he knew the difference. 

He made our days warmer, livelier, and happier. He sang loudest and best at our traditional birthday celebrations. He raised his glass highest to toast others' happy occasions, and his rich laughter filled our halls and our hearts.

Justice Scalia's life reached far beyond the law. He would never have said that the law was what was most important to him. He was steadfast in his Roman Catholic faith, and he was devoted beyond measure to his beloved wife, Maureen, and the nine children they raised.

On occasions such as this, speakers often employ so many laudatory adjectives that the effect can be to sow doubt rather than admiration. But no one who knew Justice Scalia, however they viewed his work, would dispute for a moment that he was patriotic, principled, loyal, courageous, engaging, and brilliant.

Those of us on the Court will miss Nino, but we will continue to feel his presence throughout this building. Our ears will hear his voice in this courtroom when advocates invoke his words searching for powerful authority. Our minds will move to the measure of his reason in our chambers when we study his opinions. And our hearts will smile, even as our eyes glisten, when we walk the halls and recall how happy we were whenever we saw him rounding the corner.

Sunday, November 6, 2016

John Finnis on the central case of the legal viewpoint and radically corrupted Potemkin legal systems

The sixth annual Scarpa Conference at Villanova (2011) was devoted to the work of John Finnis. Most of the papers delivered at the conference were published in Volume 57, Issue 5 of the Villanova Law Review. Those interested in learning more about the methodological starting point for a sound understanding of jurisprudence will profit from attending to the exchange between Michelle Dempsey and John Finnis regarding Chapter 1 of Natural Law & Natural Rights. 

Re-reading these essays recently, I took note of Finnis's description of "the central case of the legal viewpoint" and his discussion of "radically corrupted Potemkin [legal] systems." Quotations below.

Continue reading

Saturday, November 5, 2016

Hey guys ... a rope, a rope to hang the Pope

The fifth of November is a day we've been urged to remember (at least some of us anyway). It is Guy Fawkes Day, with evening celebrations marking Bonfire Night. 

Unlike Rick, I was not exposed to Guy Fawkes as a child through school celebrations. Instead, pretty much everything I know about Guy Fawkes I've learned from the internet. I wonder what he'd think about the popularity of his mask. I have no doubt, though, that he'd be amused to learn how "guy" is used these days, and how that came about from the way his death has been celebrated over time.

Friday, November 4, 2016

Forthcoming: Debating Religious Liberty and Discrimination

The prolific Ryan Anderson and Sherif Girgis team up once again to engage John Corvino, this time on the religious liberty implications of burgeoning SOGI laws. The point-counter-point book is set to be released by Oxford University Press this spring. 

Forthcoming: A Liberalism Safe for Catholicism?

Dan Philpott and Ryan Anderson have announced the forthcoming publication of a compilation of 70 years of articles from the Review of Politics. A Liberalism Safe for Catholicism: Perspectives from the Review of Politics is due out from University of Notre Dame Press later this spring.

Here's the summary of the book on Amazon:

In A Liberalism Safe for Catholicism?, editors Daniel Philpott and Ryan Anderson chronicle the relationship between the Catholic Church and American liberalism as told through twenty-seven essays selected from the history of the Review of Politics, dating back to the journal’s founding in 1939. The primary subject addressed in these essays is the development of a Catholic political liberalism in response to the democratic environment of nineteenth- and twentieth-century America. Works by Jacques Maritain, Heinrich Rommen, and Yves R. Simon forge the case for the compatibility of Catholicism and American liberal institutions, including the civic right of religious freedom. The conversation continues through recent decades, when a number of Catholic philosophers called into question the partnership between Christianity and American liberalism and were debated by others who rejoined with a strenuous defense of the partnership. The book also covers a wide range of other topics, including democracy, free market economics, the common good, human rights, international politics, and the thought of John Henry Newman, John Courtney Murray, and Alasdair MacIntyre, as well as some of the most prominent Catholic thinkers of the last century, among them John Finnis, Michael Novak, and William T. Cavanaugh. This book will be of special interest to students and scholars of political science, journalists and policymakers, church leaders, and everyday Catholics trying to make sense of Christianity in modern society.

As a student of the late Fr. Ernie Fortin's, I'm especially happy to see John Finnis' (specially commissioned) response to Fortin's 1982 review of Natural Law and Natural Rights. Finnis pre-released his response to Fortin last year in the American Journal of Jurisprudence, writing:

Of the published reviews of Natural Law and Natural Rights, one of the most, and most enduringly, influential was Ernest Fortin's review-article "The New Rights Theory and the Natural Law" (1982). The present essay takes the occasion of that review's latest republication [in the Philpott/Anderson book] to respond to its main criticisms of the theory of natural law and natural or human rights that is articulated in Natural Law and Natural Rights.

Perhaps one of Fr. Fortin's students will take up the good priest's mantle and offer a response. 

Thursday, November 3, 2016

A welcome ruling from British Columbia in the Trinity Western case

Here's the story (thanks to Paul Caron).  I'm not, I confess, entirely optimistic that what I assume will be eventual decision by Canada's Supreme Court will be as good as this one, but I certainly hope I'm wrong.  Here's a bit (which should be required reading for regulators and University administrators here in the United States, too):

In a unanimous decision, a panel of five judges said the negative impact on Trinity Western’s religious freedoms would be severe and far outweigh the minimal effect accreditation would have on gay and lesbian rights.

“A society that does not admit of and accommodate differences cannot be a free and democratic society, one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” says the 66-page judgment.

“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism can, if unchecked, impose its views on the minority in a manner that is in, itself, intolerant and illiberal.”

Upcoming lecture at Assumption College on Religious Liberty in America

I'm delighted to have the opportunity to visit Assumption College and to speak as part of the school's "President's Lecture Series" on religious liberty in America.  If you're in or near Worcester in Nov. 14, please come say "hello"!

Religious Liberty: Essays on First Amendment Law

Cambridge University Press has published Religious Liberty: Essays on First Amendment Law, which is a set of contributions that started in a lecture series at Brigham Young University's Wheatley Institution. My own contribution to the volume is "What Are We Really Arguing about When We Argue about the Freedom of the Church?" (or more salaciously titled "God, Groups, and Sex"), where I explore how differences about theological claims, the status of group personality, and sexual ethics underlie much of the recent debate about freedom of the church or institutional religious freedom. Other contributors include Akhil Amar, Roger Scruton, Robby George, Daniel Robinson, Hadley Arkes, Gerry Bradley, Brett Scharffs, and Michael Novak.

Tuesday, November 1, 2016

A couple of All Saints' Day reflections on Archbishop Chaput's call for hope despite the digestion of American Catholics by culture

Today, the Feast of All Saints, is a day of radical Christian hope. It is a daunting day. The feast's reminder of the universal call to holiness unsettles our accustomed ways of settling for less from ourselves.

In thinking about Christian hope this morning, I'm reminded of Archbishop Chaput's bracing remarks at Notre Dame a couple of weeks ago. Here's what he said about hope, in contrast with the "twin forms of self-deception" known as pessimism and optimism:

In describing a hard time, the words can easily sound dark and distressing.  That’s not my intention at all.  Optimism and pessimism are twin forms of self-deception.  We need instead to be a people of hope, which means we don’t have the luxury of whining.

There’s too much beauty in people and in the world to let ourselves become bitter.  And by reminding us of that in The Joy of the Gospel, his first apostolic exhortation, Pope Francis gives us a great gift.  One of his strongest qualities -- and I saw this at the World Meeting of Families in Philadelphia -- is his power to inspire confidence and joy in people while speaking candidly about the problems we face in a suffering world.

Serenity of heart comes from consciously trying to live on a daily basis the things we claim to believe.  Acting on our faith increases our faith.  And it serves as a magnet for other people.  To reclaim the Church for the Catholic imagination, we should start by renewing in our people a sense that eternity is real, that together we have a mission the world depends on, and that our lives have consequences that transcend time.  Francis radiated all these things during his time in Philadelphia.

If men and women are really made for heroism and glory, made to stand in the presence of the living God, they can never be satisfied with bourgeois, mediocre, feel-good religion.  They’ll never be fed by ugly worship and shallow moralizing.  But that’s what we too often give them.  And the reason we do it is because too many of us have welcomed the good news of Vatican II without carving its demand for conversion onto the stone of our hearts.  In opening ourselves to the world, we’ve forgotten our parts in the larger drama of our lives—salvation history, which always, in some way, involves walking past St. Cyril’s serpent.

Hope, joy, confidence, heroism, glory. The Christian has much to live for.

Archbishop Chaput asserts that "serenity of heart comes from consciously trying to live on a daily basis the things we claim to believe." This is worth holding on to, especially for those of us who feel consumed by the election. One way of living the things we claim to believe in times like these may be precisely to put aside worries about the election and to focus more on how we can live in salvation history. And this can be uncomfortable for many of us in ways that it wasn't for generations of American Catholics before us. Here's Archbishop Chaput again: 

Catholics came to this country to build a new life.  They did exceptionally well here.  They’ve done so well that by now many of us Catholics are largely assimilated to, and digested by, a culture that bleaches out strong religious convictions in the name of liberal tolerance and dulls our longings for the supernatural with a river of practical atheism in the form of consumer goods.

To put it another way, quite a few of us American Catholics have worked our way into a leadership class that the rest of the country both envies and resents.  And the price of our entry has been the transfer of our real loyalties and convictions from the old Church of our baptism to the new “Church” of our ambitions and appetites.

Doesn't this hit a bit too close to home? Even so, we should repent but not despair. As my Twitter timeline helpfully reminded me earlier today, via the intervention of Fr. William Dailey, CSC, today's Feast is "a joyous, hopeful celebration as every saint has a past and every sinner a future. Alleluia!"

 

One more week . . .

Next week, Americans will conduct the fourth presidential election of Mirror of Justice's tenure.  My sense is that, during previous election-seasons, this blog was home to more posts, by more bloggers, that directly addressed the election-choice that it has seen this year.

This -- assuming my sense is accurate -- is probably not a bad thing.  My hope has always been that Mirror of Justice would be a platform and a vehicle not simply for "thoughts about political matters from Catholic law professors" but instead, or at least also, "thoughts, informed by the Church's moral and social teachings, about the legal enterprise, legal education, the legal profession, and  the nature, aims, and limits of law."  The latter, it has always seemed to me, presents a better opportunity to "add value" to the public conversations.

Whatever happens next Tuesday -- as I wrote a few months ago, I thought and still think that Mrs. Clinton will be elected President, even though she would deservedly have lost to a normal Republican nominee, and I hoped and still hope that candidates who are committed to school choice, limits on abortion, religious freedom, and judicial conservatism on the courts will win in Congress and in the states -- it seems clear that we in the United States are very badly divided, that many are alienated, isolated, and angry and feel (correctly or not) patronized, left behind, and uninvolved.  The hostility between our political camps is boiling and it is tainting friendships, working relationships, campuses, journalism, social media, the parties themselves, and relations within the Church.  The fact that there are two major-party nominees is, for now, papering over the reality that the two parties themselves are sharply divided and these divides will, I imagine, re-emerge very quickly after the election.

I know a reasonable amount of history, and I'm not naive, so I don't believe that divisive and angry politics or nasty rhetoric or broken friendships are anything new.  Still, the current situation seems depressingly bad.  So . . . what can we do, if anything, to help?  What, if anything, can we say, or write, or teach, that might help to make things just a little bit better?