Boston College's Professor Jim Repetti has posted an article on SSRN that will likely be of interest to many Mirror of Justice readers and bloggers. The article is called "Democracy, Taxes, and Wealth." Here is the abstract:
"This article demonstrates why wealth concentration matters and why the tax system should be used to help control wealth concentration. It shows that wealth concentration appears to be related to slow economic growth because of the lack of opportunities. It also shows that wealth concentration adversely affects the democratic process. It argues that because inheritances represent approximately fifty percent of wealth, wealth transfers should be taxed so long as the tax provides benefits that outweigh any assoiated harms. Using the current estate tax as a case study, the article concludes that a wealth transfer tax raises significant revenues and helps curb upward spiralling wealth concentration. Moreover, contrary to what has commonly been asserted, empirical studies generally show that the tax does not discourage savings."
Over at SCOTUSBlog, Marty Lederman has a typically thorough discussion of the petition for certiorari filed in the Catholic Charities case. Professors Tuttle and Lupu have also posted an excellent primer on the case over at the Roundtable on Religion and Social Welfare Policy. Finally, here is a link to the petition itself.
Rick
UPDATE: I sent the following note to Marty Lederman, regarding his discussion of the Catholic Charities case:
"I appreciated your post on the CC case, and agree with much of what you had to say. Although I suspect that I regard the California court's decision as being more ominous for religious freedom than do many of our colleagues, I'm inclined to agree (with regret) that the petition for cert -- despite being very well done -- faces an uphill battle.
I'd offer a few, quick thoughts, in response to your analysis:
First, I think it would be interesting and worthwhile for all of us to think more about Justice Brown's suggestion that perhaps Smith should apply differently -- or that, perhaps, the rule should be different -- in cases where the burden on religious exercise falls on the autonomy or integrity of a religious *group* or institution, as opposed to the religiously motivated conduct of an individual. What do you think?
Second, although I agree with you that all accommodations of religion require careful line-drawing at the boundaries (and that those of us who support accommodation shouldn't want the necessary line-drawing to be too difficult!), I think that Justice Kennard was on to something in suggesting that the first and third requirements for the religious-employer exemption to the California law raise serious "entanglement"-type problems (and, maybe, "Hull Church"-type, interpretation-of-doctrine problems, too). As you point out, though, Catholic Charities failed to meet *any* of the requirements. Still, perhaps even the inclusion of the suspect requirements raises entanglement-type concerns?
Third, I think (as Justice Brown suggested) there are non-trivial concerns about Lukumi-type hostility and sect-specific gerrymandering here. As I understand the record -- but I could be wrong -- the religious-employer exemption was crafted *specifically* (not just knowingly) to make sure that Catholic social-service agencies, schools, and universities would *not* be covered. As I understand it, the legislature was aware that (a) most employers in the State were already providing contraception coverage and that (b) a sizeable portion of the not-already-providing employers were Catholic affiliated organizations. Obviously -- given all the Catholic universities and schools in the State -- an exemption that included these employers would make the mandate itself much less useful in achieving full (as opposed to 90-ish percent) coverage.
It also appears that several legislators -- including some Catholic legislators -- said things on the floor like, "we need to get the Church to do the right thing," or otherwise emphasized the need to nudge the Church away from its stand on contraception. While I agree with Steve Smith's recent (and wonderful) essay in First Things, where he argues that the focus of our constitutional doctrine on the bad motives of public actors is unfortunate, I *also* think that these floor statements are troubling.
Finally -- and this is, I realize, probably not a cert-worthy issue -- I was struck by the California court's conclusion (which might not be holding, I guess) that, even if "strict scrutiny" applies, the burden imposed by the contraception mandate satisfies that standard. It's not at all clear to me that moving from (as I understand it) 90 percent coverage to, say, 98 percent coverage, in large part at the expense of Catholic employers, either serves a compelling interest or is narrowly tailored.
All that said, since I think that the Smith decision is (basically) right, I'm left with the hope that California will revisit this matter, and that other States will prove more generous in crafting their own conscience exemptions."
My friend Stuart Buck has put up a characteristically helpful post responding to the "those who are willing to say that the non-establishment clause was a structural, jurisdictional provision are lunatics" claim. He quotes, for example, Professor Amar's observation that "to apply the [Establishment] clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right explicitly confirmed by the establishment clause itself! . . . The Fourteenth Amendment might best be read as incorporating free exercise, but not establishment, principles against state governments." Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991). Also quoted is Professor Carter:
"Let us be realistic. Surely the clause means what it says, and no more than that. At the moment of the founding, the majority of the states had official, state-supported, established churches, and all but two required religious tests for public office. The states were not giving these powers away. On the contrary, they wanted to protect their own established churches from interference by the new national government, and also wanted to prevent that national government from establishing a church of its own. My Yale colleague Akhil Reed Amar has argued persuasively that we should therefore read the "Establishment Clause" as a states'-rights provision, as an allocation between the national and local sovereignties of the authority to create or to endorse an official church.
If Professor Amar is right, then the Supreme Court's subsequent proclamation that the clause is "incorporated" against the states through the agency of the Fourteenth Amendment begins to lose its luster, to say nothing of its coherence. If the purpose of the "Establishment Clause" was to keep the national government from interfering in what was properly a local responsibility, the only sensible meaning of incorporation would be that it now prevents the state government from interfering with local communities as they decide whether to establish their own churches. In other words, if the clause is truly to be applied against the states, then the state of Arizona would not be able to prevent Tucson from establishing an official church, and the state of Connecticut would not be able to prevent New Haven from reviving the old established Congregational Church as its formal public faith.
I am not suggesting that this is a desirable result. I mention it only because I think it quite wrong historically, and quite unpersuasive textually, to look to the "Establishment Clause" as the source of a prohibition on creation of these things called "establishments," which leads in turn to the long line of unfathomable federal court cases telling us which government programs amount to forbidden "establishments" and which do not. Without that line of cases, however, we have no wall of separation; or none, at least, located in the first half of the first clause of the First Amendment."
Stephen L. Carter, Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 299-300 (2002).
Thanks to my friend Robert McLauchlin for passing along Archbishop Burke's statement yesterday on Catholic politicians and the bishops, including further elaboration on the centrality of the Eucharist in the life of the Catholic and exclusion from holy communion for Catholic politicians who promote the right to abortion.
Appropos of Rob's posting today about religiously affiliated law schools, I thought I should point out that, contrary to what is suggested in the posting, Emory is not a religiously affiliated university, any more than, say, Northwestern is. (Hope no one's disappointed.) Of course, Emory, Northwestern, Princeton, etc., etc., etc. (as the King of Siam used to say), were all once religiously affiliated universities. But no more. Even Wake Forest University is no longer a Baptist-affiliated institution. Alas, I have never been on the faculty of a religiously-affiliated law school--even one, like Georgetown, whose religious affiliation is more nominal than substantial. None of them will have me.
Over the past few days, my friends at "Punishment Theory" have put up some interesting and detailed posts concerning the "torture memo." The posts might be of interest to Mirror of Justice readers, given that the discussions of intent, etc., seem to connect nicely with the conversation we've been having about the double-effect doctrine and capital punishment
Justice Thomas's opinion in Newdow (the Pledge case) is, in my view, the most interesting -- and, probably, the most candid -- of the bunch. In that opinion, he observed (among other things) that the Religion Clause's no-establishment provision seems to have been designed to (a) prevent the establishment of a national church; (b) prevent the federal government from interfering with the then-existing establishments in the States; and, more generally, (c) to leave questions of church-state relations to the States. He then went on to consider whether, even assuming that the no-establishment norm applies against the States, the state action at issue in Newdow constitutes an "establishment" of religion, as that term was originally (and is best) understood.
I've been surprised, frankly, by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example, "[n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court." Brian Leiter concludes that Justice Thomas has "solidif[ied[ his status on the lunatic fringe." And Doug Laycock states that Thomas's "is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter." (Full disclosure: I'm quoted in the same article, offering a different reaction).
Larry Solum has also weighed in, commenting on Marci Hamilton's take.
It strikes me, though, that Thomas's observations are not particularly astonishing, and certainly do nothing to put him on "the lunatic fringe." With respect to the "Establishment Clause as a federalism provision" point, I do not think he says anything that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said. And, with all due respect to Professor Laycock, I'm not sure it is fair to conclude that, because Justice Thomas agrees with those who believe that the Establishment Clause is particularly, and perhaps uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes that the post-Civil War Amendments worked in the constitutional law of individual rights. (Recall, for example, his passionate concurrence in Zelman, the school-voucher case!).
Now, I'm inclined to think that, merits aside, the matter is water under the bridge, and that Justice Thomas's views on this question -- like his views on the scope of the Commerce Clause -- are not likely to become governing constitutional law. As our colleague Michael Perry likes to put it, the incorporation of the Establishment Clause has become "bedrock." Still, is there a reason why eminent constitutional law scholars should not concede that, with respect to the "incorporation" of the Establishment Clause, he is -- or, at least, MAY be -- correct?
Rick
UPDATE: Professor Brian Leiter has responded to this post, and to others on the same topic, here.
“[Denver] Archbishop Chaput wrote. ‘[A]bortion is the central social issue of this moment in our national history -- not the only issue, but the foundational issue; the pivotal issue. For Catholics to ignore it or downplay it or 'contextualize' it would be an act of cowardice.’”
Do you agree with Archbishop Chaput?
And, here I am NOT talking about electoral politics or this election cycle but more broadly about building a culture of life consistent with Revelation and natural law.
My own conclusion is yes, it is the foundational issue at this moment in our national history, just as slavery was a century and a half ago. If we fail to protect the weakest and most defenseless members of the human family, isn’t our house built on sand?
Co-bloggers and readers may take interest in an article in the current issue of the Journal of Legal Education by Monte Stewart (formerly with BYU's law school) and Dennis Tolley (a statistics prof at BYU) entitled "Investigating Possible Bias: The American Legal Academy's View of Religiously Affiliated Law Schools." The authors were struck by the fact that practitioners tend to give religiously affiliated law schools a higher rating than fellow academics do in the annual U.S. News rankings, and the divergence between the two sets of scores is greater for religious schools than for secular schools. (For those not familiar with the all-important law school rankings, they are based in part on the school's reputation among academics and its reputation among judges and lawyers.) To try and isolate the possible bias, the authors conducted their own limited survey to rank the religiously affiliated law schools in order of their "conservatism" -- i.e., "the extent to which the American legal academy viewed each school as affiliated with and reflective of a religious tradition generally perceived to be conservative on contemporary cultural or moral issues such as abortion and homosexuality." Of the 44 religiously affiliated law schools (St. Thomas and Ave Maria were not included), the highest "conservatism" ratings went to (in order) Regent, BYU, Campbell, Mississippi College, Pepperdine, Notre Dame, and Catholic; the least "conservative" were Emory, Georgetown, and American.
The authors drew three primary conclusions from their analysis of the data:
The divergence between the respective assessments of academics and practitioners of religiously affiliated law schools is sufficiently greater than their divergence relative to secular law schools to be statistically significant.
The more conservative a religiously affiliated law school is generally perceived to be relative to contemporary cultural/moral issues, the lower the academics' assessment is, compared to that of the practitioners.
The divergence noted in each of the first two conclusions is not due to any differential in scholarly activity as measured by the number of articles published annually either per school or per faculty member.
This may simply be confirming what has been widely known, but it is worth a read, in any event.
I fear I am beginning to sound like a broken record: Brugger, in his book, answers Michael S.'s question.
Here's my answer.
Assuming, for the sake of discussion, that it is morally forbidden in principle to kill a human being, innocent or not, intentionally, the doctrine of double effect cannot be used to justify capital punishment. This is because, whereas to commit a lethal act of self-defense, or a lethal act of combat, is not necessarily to kill intentionally, to carry out a sentence of death under a system of capital punishment *is* necessarily to kill intentionally. This is true even if one also has other intentions in carrying out the sentence of death.
Consider this: If an act (my act) of self-defense, which I foresee will in all probability be lethal, does not in the end kill the aggressor (who may not be morally culpable; he may be psychotic) but merely disables him, then I can rejoice that he did not die, because my intention was to disable him, not to kill him. Similarly, if an act of combat , which I foresee will in all probability be lethal, does not in the end kill the enemy combatant but merely disables him, then I can rejoice, because my intention was to disable him, not to kill him.
HOWEVER: If an act of carrying out a death sentence (which, of course, I foresee will in all probability be lethal) does not in the end kill the criminal, then I do not rejoice that he did not die; rather, I try again (unless the law forbids it), because my intention, or one of my intentions, was to kill him, and not merely to disable him.
