Mirror of Justice

Friday, January 29, 2016

Blanshard's Baker Library revelation at Dartmouth College

In gathering up some library books and removing old post-its from them, I (apparently, again) came across the following passage from Mark Massa's superb book, Anti-Catholicism in America: The Last Acceptable Prejudice. This passage identifies the moment at which the anti-Catholic crusader Paul Blanshard decided to devote his talents to a new kind of muckraking, with the Catholic Church as his target. Apparently this happened at my undergraduate alma mater, Dartmouth College, in a place where I spent a lot of time, the stacks of Baker Library. Curiously enough, the work that triggered Blanchard, Davis's Moral and Pastoral Theology, is the same work cited by Justice Alito in footnote 34 of his opinion for the Court in Hobby Lobby. At least Dartmouth had some good books in its library.

Here's Massa's account:

[T]he event that would reveal the path that brought Blanshard fame (of infamy) for several decades occurred while he was browsing in the Dartmouth College library. He came upon a four-volume work by the English Jesuit Henry Davis entitled Moral and Pastoral Theology. His eyes "bulged with astonishment" at the hypocrisy of sexually repressed celibate priests who "dared to prescribe the most detailed and viciously reactionary formulas" on sexuality, childbirth, and birth control. As Blanshard would later describe this accidental encounter, he stood dumbstruck in the Baker Library:

Did the public really know this amazing stuff? Why should I not take this volume and other documents of the Catholic underworld and do a deliberate muckraking job, using the techniques that Lincoln Steffens and other American muckrakers had used in exposing corporate and public graft in the United States? Why not? This was apparently one field not yet preempted by the muckrakers.

After a "short dip into the lower reaches of Catholic medical dogma," Blanshard went to Washington, D.C., and began "long research into Catholic documents which was to occupy much of my time and energy for several years." Blanshard's course on Catholic "dogma" took him to carrels in the Library of Congress and even into the belly of the Beast itself, the library of the Catholic University of America.

The fruits of this intensive study were the articles in the pages of The Nation. Blanshard never discovered anything in the complex webs of intellectual traditions that comprise Catholic theology, canon law, and philosophy that even nuanced the blinding insight he claimed to have had that fateful afternoon at Dartmouth College. Like the faith delivered to the saints of old, his original sense that the "viciously reactionary formulas" of the old Roman Church represented a looming threat to democratic culture in general and to the political traditions of the United States in particular never wavered.

Source: Mark Massa, S.J., Anti-Catholicism in America: The Last Acceptable Prejudice 65 (2005)

Thursday, January 28, 2016

Pope Leo XIII on Saint Thomas Aquinas

By Michael Moreland

I am teaching a seminar this semester at Notre Dame on Catholic social thought and law, and this week we are discussing the remarkable legacy of Pope Leo XIII (r. 1878-1903) through an examination of his famous social encyclical Rerum Novarum (1891) and other writings. For today's Feast of Saint Thomas Aquinas, here is a bit from Aeterni Patris (1879), the encyclical that rehabilitated the place of philosophy in modern Catholic intellectual life (and may all of us aspire to follow Thomas's example by "wanting neither...soundness of principles or strength of argument").

Among the Scholastic Doctors, the chief and master of all towers Thomas Aquinas, who, as Cajetan observes, because "he most venerated the ancient doctors of the Church, in a certain way seems to have inherited the intellect of all."(34) The doctrines of those illustrious men, like the scattered members of a body, Thomas collected together and cemented, distributed in wonderful order, and so increased with important additions that he is rightly and deservedly esteemed the special bulwark and glory of the Catholic faith. With his spirit at once humble and swift, his memory ready and tenacious, his life spotless throughout, a lover of truth for its own sake, richly endowed with human and divine science, like the sun he heated the world with the warmth of his virtues and filled it with the splendor of his teaching. Philosophy has no part which he did not touch finely at once and thoroughly; on the laws of reasoning, on God and incorporeal substances, on man and other sensible things, on human actions and their principles, he reasoned in such a manner that in him there is wanting neither a full array of questions, nor an apt disposal of the various parts, nor the best method of proceeding, nor soundness of principles or strength of argument, nor clearness and elegance of style, nor a facility for explaining what is abstruse.

Comparing Traditionalism and Originalism

By Marc DeGirolami

I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional interpretation. The first post uses Town of Greece v. Galloway while in the second I'll talk about the NLRB v. Noel Canning. The point of the posts is not to defend these decisions, but merely to distinguish them as traditionalist in interpretive method. Here's a bit from the end:

How is [traditionalism] different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision [in Town of Greece] was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:

It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.

In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.

And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.

Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.

Wednesday, January 27, 2016

Must-read Hittinger on Dignitatis Humanae at 50 in the Journal of Law & Religion

By Rick Garnett

Like the man says . . . download it while it's hot!

Monday, January 25, 2016

Conference on Human Ecology in March at CUA

By Erika Bachiochi

I've been asked to announce the upcoming conference on Human Ecology, co-sponsored by the Napa Institute and CUA School of Business and Economics, March 15-18. Below is the conference summary and you can find more (including speaker bios and conference schedule) here:

Catholic teachings on the common good are comprehensive and universal. They communicate truths and principles which are relevant to every aspect of human flourishing. For the anniversaries of the great documents of Catholic social teaching Rerum Novarum, Centesimus Annus, and our newest addition to Catholic social teaching Laudato Si, CUA and The Napa Institute have convened a conference on Human Ecology that attempts to integrate and convey the wisdom of 125 years of the Catholic Church’ s social encyclicals and eternal teaching.

There is no question that our Catholic faith gives us strong moral motivations to help our neighbor, to help the poor, and to help the many charitable institutions that are run or inspired by the Church. One of the purposes of this conference is to extend our understanding of how our Catholic faith helps to build up a just and flourishing society, and how it may alleviate the material and spiritual poverty facing so many of our neighbors.

Pope Leo XIII in Rerum Novarum wrote that the church’ s desire is that the poor should rise above poverty and they should better their condition in life. He believes that this promotion is most likely to occur through the virtues. Similarly, Pope St. John Paul II in Centesimus Annus notes that the poor are right to ask for a share in the material goods of the society and to make good use for their capacity to work. He notes that in order for this to be the case, certain economic conditions as well as political stability are required for human beings to make good use of their own labor.

Pope Francis in Evangelii Gaudium tells us that business is a vocation and a noble one, it is a vocation provided by God so that each person would be challenged by a greater meaning in life to serve the common good, by striving to increase the goods of this world and making them more accessible to all. InLaudato Si, our Holy Father also examines corporate social responsibility for the common good of an "integral ecology" and the “care for our common home."

What is required for a truly sustainable, widespread, and inclusive prosperity? What is the vocation of business leaders who are committed to their Catholic faith, to the common good, and to the life of virtue?

These are the fundamental questions that our Human Ecology conference will ask in order to spur us all, Church leaders, scholars, and business leaders, to the heights of our own capacities and gifts.

Response to Whole Women's Health amici re women's equality

By Erika Bachiochi

The amicus briefs in support of Whole Women's Health are pouring in. Scotusblog is of course keeping track here, and Center for Reproductive Rights has posted summaries of the many amici in support of their position. MOJ readers have likely already heard the disturbing news that one brief offered by 100+ female attorneys opens with the line, "I am an attorney because I had an abortion."

I respond to this brief and others supporting the view that abortion is necessary for women's full equality in an article in today's new Boston-based online newspaper, the NewBostonPost. (My complete argument against this position can be found here, and I hope to write more as the March arguments approach.)

The NBP is a pro-life, pro-family paper seeks to provide a more becoming alternative to the Boston Herald. "Although neither partisan nor agenda driven, the NewBostonPost aims to provide a home for conservative, libertarian, classical liberal, and moderate voices in an effort to promote constructive and civil debate on issues of concern to New Englanders and all Americans." Please support their important efforts (here in desolate New England) with a point and a click.

Memento Mori: High School Students Bear and Remember Those Who Die Alone

By Marc DeGirolami

This story was both inspiriting and, for me, moving. It tells of a group of high school students who volunteer to serve as pallbearers for those who die alone, unremembered and without family. From the story:

The students, dressed in jackets and ties, carry the plain wooden coffin, and take part in a short memorial. They read together, as a group:

"Dear Lord, thank you for opening our hearts and minds to this corporal work of mercy. We are here to bear witness to the life and passing of Nicholas Miller.

"He died alone with no family to comfort him.

"But today we are his family, we are here as his sons.

"We are honored to stand together before him now, to commemorate his life, and to remember him in death, as we commend his soul to his eternal rest."

The student volunteers come from The Roxbury Latin School, and are shepherded by Assistant Headmaster Michael Pojman. RL happens to be my old high school. Mr. Pojman was my Chemistry teacher. Well done, alma mater.

Saturday, January 23, 2016

Forty-three years after Roe: Hope is alive

By Robert George

I just noticed that the little reflection on the anniversary of the tragedy of Roe v. Wade that I re-posted here and at First Thoughts after posting on my Facebook page has been shared more times than anything else I've ever posted. I am grateful to everyone who shared it. The abortion license is continuing to gnaw at the conscience of our nation, as the Republican Ronald Reagan and the Democrat Robert P. Casey, and the saint Mother Teresa of Calcutta, told us it would. At some level most Americans--including those who do not yet dare to acknowledge, even to themselves, the justice of the pro-life cause--know that killing the unborn is not the answer. We must love mother and child equally, limitlessly, and unconditionally, and never pit the alleged good of one against the other.

In 1973, seven supremely fallible men in black robes purported to settle the abortion question. Supporters of the abortion license cheered. Pro-life citizens were, they insisted, "on the wrong side of history." (Sound familiar?) Legal, publicly funded abortion was, they claimed, "enlightened" policy. It was required for women's equality, reducing the welfare rolls, and "social hygiene." Resistance was futile. All the young people were for it. Only a few elderly priests and some back woods fundamentalists were still against it. The priests would soon die out and the "fundamentalists" were already marginal. The churches would get on board--several already were as members of the "Religious Coalition for Abortion Rights"--and stay on board. Soon abortion would be integrated fully into American life and no one who mattered would question it. In a few short years, it would no longer be an issue in American politics and most people would forget that it ever was.

But the pro-life movement kept faith with abortion's tiny victims. In the great civil rights struggle of the post-segregation era, a grassroots movement kept the flame burning and kept hope alive. We refused to abandon the unborn to the "tender mercies"--or women to the ghoulish "compassion"--of the abortionists at Planned Parenthood and the like. We had little support among the wealthy, powerful, and influential. Wall Street hoped we would go away. The media were solidly playing for the other team. The intellectual elites mostly sneered. But janitors and school teachers, factory workers and stay-at-home moms, insurance salesmen and office workers and cashiers at the grocery store, and retired people from all walks of life refused to leave the field. They prayed and protested and counseled on sidewalks in front of the abortion mills. They pounded the marble floors in the legisaltive chambers. They built pro-life pregnancy centers across the nation to provide material, moral, and spiritual support for our pregnant sisters in need (and so often in fear).

And guess what? Young people came flooding into the movement. Brilliant, courageous, dedicated, determined young men and women. "I survived Roe v. Wade," they declared, "but Roe v. Wade will not survive me." And they meant--and mean--it.

In the meantime, science marched on, confirming and reconfirming and reconfirming yet again the biological fact of the humanity of the child in the womb. The anti-scientific posturing about the impossibility of knowing "when life begins" became more and more implausible, to the point that it now sounds ridiculous. And that is for the simple reason that it *is ridiculous*. Serious, intellectually competent defenders of abortion no longer claim that abortion is not, or cannot be known to be, the violent killing of a human being in utero. And sometimes they reprimand their fellow abortion supporters for continuing to talk such nonsense. Peter Singer, for example, speaks plainly of abortion as the taking of human life and warns those who try to rest the "pro-choice" case on denying that fact that they are placing their (and his) cause in jeopardy. The late Ronald Dworkin candidly (and accurately, if chillingly) described abortions as "choices for death." People like Singer and Dworkin want to build the case for abortion on the idea that no one has dignity or a basic right to life merely on the basis of his or her humanity. Merely to be a human being is not enough. To be a person--a creature with worth and interests that count (Singer) and rights (Dworkin), one must acquire or attain other features or qualities. That is, I believe, bad philosophy--and incompatible with the basic principles of our civilization and polity; but at least it does not rely on denying basic facts known to anyone who has taken the trouble to acquaint himself or herself with modern human embryology and developmental biology.

I believe I know how the story ultimately ends. I've had a peek at the last page of the book. But that's a matter of faith. And I cannot predict where we will go in the short to medium or even medium to long term. Not do I have any idea how long the "long-term" will be. I don't know how long the little corpses will continue to pile up or the hearts of so many other victims of abortion, including (by their own testimony) many women who have sought or submitted to abortions, will continue to be broken. I do not believe that the future is determined or that history has definite trajectories or "sides." Truth and justice, however, do have sides--right and wrong sides. And we should deeply care about being on the right side, even in circumstances in which there is little ground for hope of success or victory anytime soon. But when it comes to protecting unborn babies and their mothers, we are, thank God, not in such circumstances. Evidence is everywhere that our prayers and efforts are availing. Hearts are turning. Young and old are gaining strength, confidence, and courage. They are committing to the cause, deepening their commitment to the cause, finding their voices.

We shall overcome.

Friday, January 22, 2016

March for Life and Evangelical Christians

By Mary G. Leary

On this anniversary of Roe vs. Wade, pro-life advocates are not to be deterred by the prediction of two feet of snow this weekend. This interesting piece in today's Washington Post discusses a new addition to the annual March for Life: pro-life evangelicals. The article provides a history of the division between pro-life Catholics and evangelicals rooted in anti-Catholicism and a resistance to expanding the pro-life message to include other social justice issues. The author describes the division as "theological, cultural, and political." The article posits that evangelicals have changed course - joining in the march - due to the striking public indifference to the Planned Parenthood videos. Here is an excerpt:

"The evangelical community needs to recognize what the Catholic community has been doing for four decades. . . . It's critical for evangelicals to wake up to that commitment," [Focus on the Family President Jim] Daly said…. "It's unfortunate it's taken 40 years for us to do that."

Southern Baptist leader Russell Moore — who also co-sponsored the new effort — said the reaction to the videos was "a sobering moment" for the antiabortion movement.

For myself, I have often thought that the true pro-life position is not limited to the abortion question, but properly fits within the idea of dignity from conception to natural death – necessarily calling on us to care about these lives after birth as well as before. As the USCCB puts it, "The life and dignity of every person must be respected and protected at every stage and in every condition." While connecting a pro-life stance to a greater cause of social justice may in one sense expand the reaches of the pro-life movement, this piece suggests it may contract it. In any event, the piece is worth a read.

"Christianity and the New Spirit of Capitalism"

By Patrick McKinley Brennan

The Eleventh Annual John F. Scarpa Conference on Law, Politics, and Culture will be held on Friday, November 11, 2016, at Villanova University School of Law. Yale's Professor Kathryn Tanner will deliver the keynote address on "Christianity and the New Spirit of Capitalism," the topic of her Spring 2016 Gifford Lectures. Professor Tanner's attention to the Christian moral norms that should govern any economy parallels teachings of Pope Francis that have disconcerted many Catholics.

Other speakers at the Conference will include:

Mary Hirschfeld (Assistant Professor of Theology and Economics, Villanova University)
Robert Hockett (Edward Cornell Professor of Law, Cornell Law School)
Joseph Kaboski (Singer Foundation Professor of Economics, Notre Dame)
Patrick Byrne (Professor of Philosophy, Boston College)
Andrew Yuengert (Professor of Economics, Pepperdine University)
Jesus Fernandez-Villaverde (Professor of Economics, University of Pennsylvania)
Brian McCall (Merrill Professor of Law, University of Oklahoma)

Details about the Conference schedule will be announced in due course. Please mark your calendars for November 11, 2016.