Friday, March 4, 2005
It was only a matter of time. In case your conference calendar has a gaping void, consider it now filled: the first Christian Blogosphere Convention a/k/a GodBlogCon 2005. Panels include "Blogging Christian Philosophy" and "Christian Homeschool Blogging," but alas, no place at the table yet for Catholic legal theory.
Rob
The New Republic's Supreme Court writer, law professor Jeffrey Rosen, has a nice essay in the upcoming issue on the Ten Commandments case. Though I don't think it quite right to say, as Rosen does, that "conservatives like Justices Antonin Scalia, Clarence Thomas, and William Rehnquist . . . yearn to resurrect open state support for religion, including school prayer"; and though I am not as sure as Rosen is that the Religion Clause's touchstone is "neutrality" (or, I don't understand "neutrality" in the same way); I think Rosen's discussion is very helpful. Here's the conclusion:
As Europe confronts the growing threat of Islamic extremism, countries like France are attempting to denude the public square of all religious displays--for example, forbidding young Muslim girls from wearing headscarves as a threat to the secular state. But the French effort to crack down on even private religious speech is an expression of the same overzealous secularism that led the French revolutionaries of earlier times to smash the faces of carved saints in the cathedrals. There is a similar zealotry in the air in the United States, as radical separationists are attempting to cleanse the public square of even ceremonial acknowledgments of our religious history while radical supremacists yearn for open state support of religion. The Supreme Court should reject both extremist positions. By ruling that the Ten Commandments can be displayed as long as the state isn't attempting to endorse a particular view about the centrality of religion in American life, the Court may not satisfy secular liberals or social conservatives. But it could provide a model of a healthy relationship between church and state.
Rick
[I know that many MOJ readers will be interested in this posting, by philosopher Elizabeth Anderson over at Left2Right. I assume that in the days to come, there will be some interesting comments on the posting at the Left2Right blog. One can access the blog by clicking here. mp]
Thursday, March 3, 2005
This paper, by the eminent scholar Harold Berman, "World Law: An Ecumenical Jurisprudence of the Holy Spirit," looks fascinating:
By "world law" is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia are world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, universal criminal law administered by the International Criminal Court, much of intellectual property law, and much of human rights law. The article proposes a theory of jurisprudence that is appropriate to the development of such a common law of mankind. Such a jurisprudence would integrate the traditional schools of positivism, natural-law theory, and the historical school - positivism stressing will (the policies of the lawmaker), natural law stressing reason (moral values inherent in human nature), and the historical school stressing group memory (community traditions). According to St. Augustine, these three interlocking qualities of the human mind - will, reason, and memory - reflect the image of the tri-une God and were implanted by Him in man. In the West, the three schools of legal thought split apart from each other in the nineteenth and early twentieth centuries. In the new world economy and the emerging world society of the late twentieth and twenty-first centuries, the Holy Spirit challenges us to re-integrate them in the gradual creation of the body of world law.
Rick
Stuart Buck writes, commenting on the Supreme Court's decision in Roper -- which I mentioned the other day -- invalidating the execution of those who commit capital crimes as juveniles:
So the Court has taken into account the European distaste for using the death penalty on convicted brutal murderers. But, after all, Europeans are not uniformly opposed to all forms of killing. I wonder what the Court might someday make of the fact that the Netherlands sometimes allows terminally ill children to be killed, potentially up to the age of 12? (Perhaps these beliefs can be reconciled: If a terminally ill child manages to commit a brutal murder at age 11, then his or her life must be preserved as long as possible.)
Rick
The always-engaging and delightfully snarky Dahlia Lithwick has an essay up at Slate about the oral arguments in the Supreme Court's current Ten Commandments case. She opens with this:
Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that "secular" angels—candy stripers or maybe Hell's Angels) able to dance on the head of a pin. You'd have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.
I've always thought it was too bad that (a) "medieval" often functions in contemporary discourse as an epithet, and (b) that modern-day memory of the contributions and achievements of the medieval scholastics seems limited to their discussions (which, if I remember correctly, were much more intriguing and evocative than the "head of a pin" line suggests) about angels. But I digress . . .
Lithwick is right, in my view, to observe that the Court's doctrine dealing with public religious displays is a "mess." "As a result," Lithwick notes, "the court spen[t] the morning sorting among the rubble of discarded tests—all smashed up like Moses' tablets—and deconstructing hopelessly narrow, fact-specific old case law." What I find particularly interesting about her account is the extent to which the various players try to avoid (or, in Justice Scalia's case, embrace) the question whether we really want to say that "the Ten Commandments may be displayed on public property because they aren't really religious." Of course they are. It does not necessarily follow, though, that they may not be displayed in public or on public property. And, whether or not religious Christians and Jews should want them displayed is another matter entirely.
Rick
As we've noted previously (see here and here), public policy on stem cell research increasingly appears to consist of a frantic money grab by states. Now New York is jumping into the action:
State lawmakers from both parties yesterday proposed spending at least $100 million a year for stem cell research, joining a growing number of states moving to fill the void left by President George W. Bush's ban on federal funding to expand the studies.
Advocates believe stem cell research holds promise for treating diseases such as Alzheimer's, Parkinson's and diabetes. They fear New York is in danger of losing top scientists to states willing to fund it.
"We know they are actively being recruited," said Maria Mitchell, president of the Academic Medicine Development Company, which represents medical schools and research institutes.
Any role for ethical considerations? If we change some words around, we could be reading an argument to justify the construction of a new convention center. Bioethics may give the "race to the bottom" among states a whole new slant.
Rob
[Gerry Whyte, a constitutional scholar who teaches at, and was recently dean of, the Trinity College, Dublin, Law School, thought that readers of this blog might be interested in the item below. mp]
'I could scream with happiness. I've given hope and strength to Muslim women' Schoolgirl tells Guardian of her battle to wear Islamic dress Guardian
Thursday March 3, 2005
In an exclusive interview with the Guardian, Shabina Begum, 16, described the court of appeal verdict against Denbigh high school in Luton as a victory for all Muslims "who wish to preserve their identity and values despite prejudice and bigotry".
After a two-year campaign by Shabina, Lord Justice Brooke found her former school had acted against her right to express her religion by excluding her because she insisted on wearing the jilbab. The ruling, overturning a high court decision which dismissed her application for a judicial review last year, will affect every school in the country.
Almost a year after the French government banned "conspicuous" religious symbols, including the hijab, in schools, the judge called on the Department for Education to give British schools more guidance on how to comply with their obligations under the Human Rights Act. "I really feel like screaming out of happiness," said Shabina, who was represented at the court of appeal by Cherie Booth QC.
"I don't regret wearing the jilbab at all. I'm happy that I did this. I feel that I have given hope and strength to other Muslim women.
"I also feel a bit sad when I think why couldn't this judgment have been made two years ago? In the end it's my loss. No one else has lost anything."
Shabina had worn the shalwar kameez [trousers and tunic] from when she entered the school at the age of 12 until September 2002, when she decided it was against the tenets of her religion. When Denbigh refused her request to wear the jilbab, she was excluded, becoming the reluctant poster girl of a campaign that has been reported in 137 countries.
"I thought it would be acceptable to wear because most people at the school are Muslim," she said. "Then when I was refused I thought a month maximum. Then it just carried on. I get recognised when I go out and other people point to me. They say, 'Are you that girl?'"
Denbigh high school, which has a 79% Muslim intake, said it had lost on a technicality and the school was proud of its multi-faith policy. It said in a statement that it takes into account the cultural and religious sensitivities of pupils.
Girls at the school were permitted to wear skirt, trousers or a shalwar kameez and headscarves, which complied with school uniform requirements. The statement said: "The policy was agreed by the governing body following wide consultation with the DfES, pupils, parents, schools and leading Muslim organisations."
The local education authority, Luton borough council, said all schools would now be advised to take pupils' religion into account when imposing dress rules.
Shabina, who was forced to switch to a school that did not prevent Muslim girls from wearing the jilbab, said her campaign had taken its toll.
"I can't be normal with friends if I do not go to school with them. I feel like my social skills have really been lacking. I do not really have many friends at my new school."
At times, even some of her peers cast doubt on her case. "Some of my friends said to me, 'It's not an obligation, why are you going to get yourself excluded because of it?' I said that it is - look at verse number 3.59," she said referring to the Qur'anic passage which she believes obliges Muslim women to cover their bodies bar their hands and face.
In April last year Shabina's mother died, a month before she lost her case at the high court. Excluded from school and fighting a daunting legal battle, she said the 12 months leading up to her mother's death were the worst of her life.
Her initial defeat did not come as a complete surprise. "Our solicitors told us we only had a 5% chance of winning the case because it's a radical judgment. They would prefer the court of appeal to do that. After I heard that I felt like I had nothing else to lose."
In a statement after the judgment, Shabina added: "Today's decision is a victory for all Muslims who wish to preserve their identity and values despite prejudice and bigotry."
She said the school's decision has been "a consequence of an atmosphere that has been created in western societies post-9/11, an atmosphere in which Islam has been made a target for vilification in the name of the 'war on terror'."
She told the Guardian: "I hope in years to come policy-makers will take note of a growing number of young Muslims who, like me, have turned back to our faith after years of being taught that we needed to be liberated from it.
"Our belief in our faith is the one thing that makes sense of a world gone mad, a world where Muslim women, from Uzbekistan to Turkey, are feeling the brunt of policies guided by western governments. I feel I've made people question the jilbab issue again.
"Both France and Britain are calling for freedom and democracy, but something as simple as the jilbab still takes two years to get okayed."
Wednesday, March 2, 2005
It's not "Catholic legal theory," but MOJ readers might be interested in a conversation I am having with Professor Kermit Roosevelt, over at the Legal Affairs website's "Debate Club", about Chief Justice Rehnquist's constitutional vision and legacy.
Rick
Tuesday, March 1, 2005
Like Susan, I oppose -- although, I admit, with some mixed feelings -- capital punishment. And so, like Susan, I am pleased by the fact that, as a result of the Court's decision today in Roper v. Simmons, no jurisdiction in the United States may impose the death penalty for crimes committed by persons under 18. Still, I am unable to avoid feeling some disappointment over the ruling. In my judgment, the reasons offered by the five-Justice majority for overruling the Court's earlier decision (Stanford v. Kentucky) permitting States to execute 17-year-olds who commit capital crimes are both weak and troubling.
To be clear: the result of today's ruling accords with my policy preferences and, I believe, with morality. Still, it is not plausible to me that the 8th Amendment to the United States Constitution prohibits the people of a particular State to decide, through their elected representatives, that some 17-year olds are capable of committing and intending acts that warrant capital punishment. That is, it is not clear to me that the five-Justice majority was constitutionally authorized to deliver this result -- even this happy result -- to me and those who agree with me about the death penalty. Nor am I persuaded that the practices of, and changes in, other countries -- invoked admiringly by the majority -- are relevant to the meaning and application of the 8th Amendment's ban on "cruel and unusual" punishment.
A few years ago, I voiced similar reservations about the Court's decision in Atkins, which prohibited, on constitutional grounds, the execution of developmentally disabled persons:
I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution. And I am quite convinced that my likes and dislikes are irrelevant to the question of whether the Eighth Amendment to the United States Constitutions forbids those who disagree with me from enacting and enforcing laws that reflect their likes and dislikes. . . .
None of this is to deny that, in many respects, our constitutional regime is "counter-majoritarian" with respect to fundamental individual rights. And I see no reason to disagree with [the] statement that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Still, our Constitution quite clearly reflects the judgment — one with which good and reasonable people can disagree — that capital punishment is, or at least can be, consistent with that dignity. The death penalty, then, is a problem whose resolution is left to the public square, not the courtroom.
Rick
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