Saturday, November 14, 2015
Here's perhaps something of a light distraction from various present horrors. I have written about Anthony Trollope here before, one of the greatest and most unjustly neglected (at least in the United 
States) novelists of the Victorian period. But particularly for those interested in law and religion, may I recommend "The Warden"--the first of Trollope's Barsetshire Novels--as one of the greatest little novels I've read in years. A few notes on the plot:
The story concerns a will by one John Hiram, who establishes in the 15th century a "hospital" (really a kind of sanatorium) for the care of several bedesmen (needy pensioners). An Anglican churchman--the warden--is given the care of this hospital, with an attendant salary. But over the years, as the property increases in value, so does the warden's income, which by the time of the story sits at a very comfortable 800 pounds. The warden at the time of the telling, Septimus Harding, is a kind, gentle, caring, and honorable man who takes exceptional care of his charges. Nevertheless, a question arises about Mr. Harding's entitlement under the will to so generous an income. A reform-minded young man named John Bold (who also happens to be the suitor of Mr. Harding's daughter) begins to make inquiries--with the utmost good faith--about the nature of the original bequest. And this unleashes a bitter contest between the local archdeacon and the reformers (as well as other unscrupulous and nasty types) about the propriety of the income of the wardenship at Hiram's Hospital.
Part of what makes the novel so good is the delicacy with which the characters are drawn. Unlike in Dickens, where the characters are perhaps a bit too often either the purest angels or the rankest devils, Trollope's novel is populated with characters who have doubts about what is right. Mr. Harding himself is a deeply good man, but also one with sincere and real qualms about the justice of the matter. As Trollope puts it, Mr. Harding was far less concerned to be proved right at law than to be right.
Though their lives are entirely comfortable, many of the bedesmen are lured into joining a law suit when the promise of 100 pounds a year is dangled in front of them by an exploitative lawyer who strikes the appealing notes of self-righteousness in combination with legal entitlement. In the end, after his name is repeatedly dragged through the mud by the local press, the warden resigns and the bedesmen don't see a cent. In a touching scene at the end of the novel, as the warden is leaving the hospital, he says goodbye to a bedridden bedesman who is destined to die within the week, "poor old Bell":
"I've come to say goodbye to you, Bell," said Mr. Harding, speaking loud, for the old man was deaf.
"Are you going away, then, really?" asked Bell.
"Indeed I am. And I've brought you a glass of wine; so that we may part friends, as we lived, you know."
The old man took the proffered glass in his shaking hands, and drank it eagerly, "God bless you, Bell!" said Mr. Harding; "good bye, my old friend."
"And so you're really going?" the man again asked.
"Indeed I am, Bell."
The poor old bed-ridden creature still kept Mr. Harding's hand in his own, and the warden thought he had met with something like warmth of feeling in the one of all his subjects from whom it was the least likely to be expected; for poor old Bell had nearly outlived all human feelings. "And your reverence," said he, and then he paused, while his old palsied head shook horribly, and his shriveled cheeks sank lower within his jaws, and his glazy eye gleamed with a momentary light; "and your reverence, shall we get the hundred a year, then?"
How gently did Mr. Harding try to extinguish the false hope of money which had been so wretchedly raised to disturb the quiet of the dying man! One other week and his mortal coil would be shuffled off; in one short week would God resume his soul, and set it apart for its irrevocable doom; seven more tedious days and nights of senseless inactivity, and all would be over for poor Bell in this world; and yet, with his last audible words, he was demanding his moneyed rights, and asserting himself to be the proper heir of John Hiram's bounty! Not on him, poor sinner as he was, be the load of such sin!
There is so much more in this superlative story of law, rights, religion, justice, reform, tradition, personal frailty, and the complicated nature of human motivations and character. One of the very best.
Pope Francis: Here in the Vatican we are following the terrible news from Paris. We are shocked by this new manifestation of maddening, terrorist violence and hatred which we condemn in the most radical way together with the Pope and all those who love peace. We pray for the victims and the wounded, and for all the French people. This is an attack on peace for all humanity, and it requires a decisive, supportive response on the part of all of us as we counter the spread of homicidal hatred in all of its forms.
More here, at SCOTUSBlog. Justice Kennedy will do what Justice Kennedy will do. There's no need to restate here the argument that, under the Constitution correctly understood, states have the power to regulate abortion. Between this grant, and the Court's decision to hear the contraception-mandate cases, I think we can confidently expect (a) that abortion and the Supreme Court will loom large in the presidential campaign and (b) that we will have to endure inaccurate, unfair, opportunistic, and cynical ads, rhetoric, and commentary (again) about a "war on women."
Some commentators have been saying things lately along the lines of "last Term featured big wins for 'liberals'; this Term will likely be good for 'conservatives.'" Putting aside arguments we could have about the premises embedded in the use of those labels . . . I am not so confident that Justice Kennedy -- even though he was willing to rule that the insurance-coverage mandate exceeded Congress's Commerce Clause power -- will uphold the Little Sisters of the Poor's challenge to the contraception-coverage mandate nor am I confident that he will -- even though he has consistently upheld abortion regulations since the Casey decision -- allow the Texas regulations to stand. (He should, in my view; I'm just not confident that he will.)
Friday, November 13, 2015
GOP hopeful Marco Rubio had the opportunity at the fourth Republican debate Tuesday night to share his plan for an increase in the child tax credit (adding $2,500 to the current $1000 per child, refundable from tax liability including, importantly, payroll taxes). As a devotee of both CST and Ross Douthat's Grand New Party, I've long been a proponent of this, as a up-front investment in the sacrifices parents make toward future generations (of citizens/taxpayers). Douthat makes a more recent case for the credit here and here. Both Douthat and EPPC's Pascal-Emmanuel Gobry write that the tax credit--and the critique libertarian Rand Paul had of it at the debate--is emblematic of the broader GOP debate between libertarianism and reform conservatism.
As relational feminists have rightly argued, children are a "public good"; women's disproportionate care of children creates a "collective or societal debt" toward women (or increasingly, both parents). Without this sort of care-oriented restructuring of the tax code to support those raising children, ours is a system of free-riders. Allowing American parents to keep more of their own income is paying it forward, investing in parents' investment in their children. This seems to me a no-brainer for Catholics. And is certainly a more "conservative" [read: freedom-loving] approach than that offered by Democrats who seek rather to increase the child care tax credit, benefitting only those who contract out the care of their children to institutional daycare providers, excluding those who care for their young children themselves (or with the help of noninstitutionalized supports).
The Wall Street Journal's editoral page is strongly opposed to the increase, calling it a new entitlement that merely panders, but doesn't grow the economy: "Mr. Rubio has let himself be swayed by a coterie of non-economist conservatives who view the tax code as an engine of social policy." Seems to this non-economist that the work of parents is an essential piece of that which grows the economy--in the long term, of course, but without their sacrifice of caregiving for future generations, we would be without the human capital on which this knowledge/service economy depends. Further, for fiscal conservatives to simply dismiss the current stress on working parents--and the current market disincentives toward caregiving and anti-family distortions in the tax code--betrays a forgetfulness of the cultural supports upon which the market (and our republic) depends. John Kasich inelegantly attempted to make this point on Tuesday by referencing the work of "Catholic theologian Michael Novak" who, according to Kasich, argues that the market system needs to be "underlaid with values." He's right--and lifting the tax burden for parents is one of them.
By the way, the prolific Novak has a new book out this month, a topic for a future post.
Tuesday, November 10, 2015
At the Notre Dame Law Review's excellent symposium Friday (thanks Rick and others!), I presented these remarks using the idea of "partly acculturated religion" as a way of understanding some of the most controversial current free-exercise cases. I then gave the same talk the next day at a Yale Law/Divinity Schools' joint conference on law, religion and politics (thanks to Prof. Patrick Weil of Yale for the invitation there). A couple of samples from the talk:
Many of today’s most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it’s generally agreed that churches and clergy should be able to refuse to host or perform a marriage, because they fall within the private sphere. But religious activities that reach out to provide services to the broader public provoke much more controversy. Think of religious adoption agencies that decline to place children with same-sex couples—or evangelical anti-trafficking program that refuses to provide abortion referrals—or the religious social services that have sought exemption from the HHS contraception mandate.
To many critics, accommodation is plainly improper in such cases. They say that when a religious organization hires people outside the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has deemed unjust. Once an organization reaches out to others, it must follow all the rules no matter how much they burden religion....
My project is to argue for protection in these cases too, relying on the idea that they involve cases of “partly acculturated religion.” These faiths fall in between two poles.... They are “acculturated” in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds. But they’re “unacculturated” in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These organizations make a claim to be able to continue to provide services and still follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place.
I then present two arguments why the law should make meaningful efforts to accommodate partly acculturated religious activity:
First, equality among religions—a fundamental principle of the First Amendment. Service is an essential component of much religion, of course; but more than that, it is a perfectly legitimate way of being religious for an organization to reach out to serve or employ others will still maintaining adherence to its distinctive religious standards.... [The law] should avoid forcing all organizations into two rigid categories of unacculturated or acculturated.
Second, social capital and civic virtue. Partially acculturated religious organizations tend to create a great deal of social capital and volunteer energy in service of others, and if their works shrinks or ends because of legal conflicts, it will be a loss to society. The sociological and political-science writings of Robert Putnam and David Campbell, John DiIulio, Steven Monsma, and others support this claim.
I'll be developing this into a full-length article. Comments welcome--i.e. wanted!
Tom
An interesting quote, from this longer piece about Scruton's religion:
“Interestingly enough, in my experience, Catholic institutions are the only open-minded ones in terms of higher education. They are the only institutions that would openly offer cover and support to somebody as conservative as me, and without being dogmatic about it or agreeing with me or anything like that. Having some position in Oxford would have been impossible for me without Blackfriars.”
Dominic Selwood is on the case, in The Telegraph:
. . . For centuries, the English have been taught that the late medieval Church was superstitious, corrupt, exploitative, and alien. Above all, we were told that King Henry VIII and the people of England despised its popish flummery and primitive rites. England was fed up to the back teeth with the ignorant mumbo-jumbo magicians of the foreign Church, and up and down the country Tudor people preferred plain-speaking, rational men like Wycliffe, Luther, and Calvin. Henry VIII achieved what all sane English and Welsh people had long desired – an excuse to break away from an anachronistic subjugation to the ridiculous medieval strictures of the Church.
For many in England, the subject of whether or not this was true was not even up for debate. Even now, the historical English disdain for all things Catholic is often regarded as irrefutable and objective fact. Otherwise why would we have been taught it for four and a half centuries? And anyway, the English are quite clearly not an emotional race like some of our continental cousins. We like our churches bright and clean and practical and full of common sense. For this reason, we are brought up to believe that Catholicism is just fundamentally, well … un-English.
But the last 30 years have seen a revolution in Reformation research. Leading scholars have started looking behind the pronouncements of the religious revolution’s leaders – Henry VIII, Thomas Cromwell, Thomas Cranmer, Hugh Latimer, Nicholas Ridley – and beyond the parliamentary pronouncements and the great sermons. Instead, they have begun focusing on the records left by ordinary English people. This “bottom up” approach to history has undoubtedly been the most exciting development in historical research in the last 50 years. It has taken us away from what the rulers want us to know, and steered us closer towards what actually happened.
When this approach is applied to the Reformation, what emerges is a very different picture to the one we were taught in school. . .
As I've said often here at MOJ, it's always a good time to read Eamon Duffy.
