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.

Tuesday, November 10, 2015

Inazu on Falwell, Flynt, and "Confident Pluralism"

MOJ friend John Inazu has an interesting column at The Hedgehog Review concerning his new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I had not known the denouement of the Flynt/Falwell affair. I am very glad that there are people like John about, pressing these kinds of positions so eloquently, though sometimes, perhaps in my more Rousseauian moods, I just don’t think “Plures Ex Uno” (or perhaps just “Plures” in disaggregation, haphazardly occupying the same geographic spaces, to say nothing of "Plures Ex Nihilo") has quite the same civic appeal as “E Pluribus Unum.” I’ll have something longer on this shortly. For now, though, enjoy John’s column. A bit:

“It is impossible,” said the French philosopher Jean-Jacques Rousseau, “to live at peace with those we regard as damned.” Falwell and Flynt certainly seemed to fulfill Rousseau’s dire prediction. Many of the rest of us do, too. From hostility to civil-rights protests in Missouri, to anti-Muslim protests in Oklahoma, to culture wars boycotts, we struggle to live with those whose views we regard as irrational, immoral, or even dangerous….

Even as some of us struggle to coexist, others feign agreement by ignoring or minimizing our stark differences. We hold conferences, attend rallies, and sign statements expressing unity and solidarity. But most of us do not actually think that our differences are so easily overcome. And most of us do not actually want to see a thousand flowers bloom. We can all name things we think the world would be better off without. This is especially true when it comes to questions of morality and ultimate conviction. We might prefer a society in which everyone agreed on what counted as a justifiable homicide, a mean temperament, or a good life, but that is not the kind of society in which we actually live.

There is another possibility that better embraces the reality of our deepest differences: confident pluralism. Confident pluralism insists that Rousseau was wrong: Our shared existence is not only possible, but necessary. Instead of the elusive goal of E pluribus unum (“Out of many, one”), confident pluralism suggests a more modest possibility—that we can live together in our “many-ness.” It does not require Pollyanna-ish illusions that we will resolve our differences and live happily ever after. Instead, it asks us to pursue a common existence in spite of our deeply held differences.

Friday, November 6, 2015

No case is "sacrosanct," not even Brown

Michael Dorf's post on originalism and Brown two weeks ago touched off an interesting series of observations and arguments by Larry Solum, Paul Horwitz, Asher Steinberg, Michael Ramsey, and Richard Re, among others. (See also follow-up posts by Dorf and Solum.) 

Dorf's post was about the need for originalist theory (or any other constitutional theory) not just to accommodate Brown as decided but to explain why Brown was right. In Dorf's words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

Underneath this claim about the relationship between constitutional theory and constitutional doctrine is a claim about our constitutional culture: "A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper."

Now as it happens, there are some who are worried that our legal culture's conception of constitutional interpretation is corrupt, perhaps irredeemably so. And at least one of them is on the Supreme Court. Consider for a moment the penultimate paragraph of Justice Alito's dissent in Obergefell v. Hodges

Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Strong words. But don't let agreement or disagreement with Justice Alito's jurisprudence control your reception of this assessment.

Consider also a quotation from Erwin Chemerinsky's recent book, The Case Against the Supreme Court, that Ronald Collins highlights in his online interview of Chemerinsky: "For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society." 

Just so. 

To use a word like "sacrosanct" to describe a case like Brown is to feed the false conception of the Justices as "high priests of the law." 

Any sober assessment of Brown's contribution to dismantling the deep injustice of racial segregation in public schools cannot begin from the premise that Brown is right. No Supreme Court decision stands on its own bottom.

And it is far from clear that everyone who agrees that Brown is right are agreeing about the same thing, anyway. If people disagree about what they are actually saying is right when they say that "Brown is right," then starting from that premise won't get us too far. At least that's one lesson one might take from the deep judicial disagreement over the meaning of Brown in Parents Involved.

I am not arguing (not here, anyway) that Brown was wrong. I am not even making a claim about what Brown held. I am arguing that it is wrong to approach Brown as "sacrosanct." No Supreme Court decision is. Each decision is a group product of an institution composed of human beings, with all the limitations and promise this recognition carries with it.

How might this perspective help?

For one thing, it can help us see potential flaws in Brown. To pick one whose implications have previously been picked apart by others, Chief Justice Warren's opinion for the Court was unanimous. And that is a problem if the Court itself was not unanimous in its legal judgment.

Projection of false unanimity is a sign of weakness, not strength. It deprives the public on the "losing" side of the knowledge that the best arguments for their view were considered and rejected on the legal merits. It deprives the majority of the opportunity to strengthen its legal case by responding to dissenting legal arguments. And it adds to the perception that Supreme Court decisions are the product of will, not judgment. 

This is not to say that Justices should never acquiesce in opinions with which they do not fully agree. I haven't thought enough about such acquiescence to have a view, and it is common enough in Supreme Court history to avoid out-of-hand dismissal. But identifying potential problems with the projection of false unanimity enables one to better appreciate what is and is not involved in the premise "Brown is right." 

Finally, let us not forget that there were two Supreme Court decisions in Brown. Dorf's posts were about Brown I. The remedial decision a year later in Brown II is far from "sacrosanct." Its use of "all deliberate speed," for example, has been widely criticized. (Interesting aside relevant to Catholic legal theory: The phrase "deliberate speed" apparently originated with Francis Thompson's poem, The Hound of HeavenSee Jim Chen, Poetic Justice, 28 Cardozo L. Rev. 581 (2006), and this earlier MOJ post.)

Even though the Supreme Court decided a Brown I and a Brown II, there was only one Brown. This is the unanimous Brown (in both I and II). And it is the ambiguous Brown.

There is no sacrosanct Brown.

Thursday, November 5, 2015

Remember, remember . . . to read Eamon Duffy

When I was in first grade, my public school celebrated Guy Fawkes Day.  It did not strike me as strange at the time, though it certainly does now.  (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.)  Should it?  Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community?  Certainly, that was long the celebration's purpose.  General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:

As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.

In any event, instead of burning Fawkes, or waxing rhapsodic about how liberty, individualism, and all that is good were saved when the Plot was thwarted, maybe we should read a little Eamon Duffy, and think about what England once was.

St. Thomas More Society of Richmond Red Mass and Dinner featuring Ryan Anderson

The St. Thomas More Society of Richmond hosted our annual Red Mass and dinner yesterday evening.

The homily closed with an invocation of Mary, Mirror of Justice. I would be surprised if our enterprise here at MOJ had anything causal to do with that. But I took the homily as a renewed call for all of us present to imitate Mary, not as our own sources of light, but as better reflections of God's grace illuminating the world. 

Our keynote speaker at the dinner was Ryan Anderson, whom I had the pleasure of meeting for the first time. His speech, together with an earlier presentation at the University of Richmond Law School, enabled me to appreciate just how courageous and effective he is. No wonder so many people don't like him!

It's uncomfortable to be challenged. But as John Cavadini said in connection with Pope Francis's visit, we need to be challenged and made uncomfortable.

Introducing Ryan to a student audience earlier in the day reminded me of a quotation from Martin Luther King, Jr. that my college pro-life group put on our t-shirts when we restarted the group and became more visible: "There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right." We thought we were taking unpopular positions, but positions that needed to be taken. As it turns out, we probably overestimated the unpopularity of our views. But we were at least willing to put ourselves out there in order to tell the truth about the value of unborn human life. 

Researching that quotation yesterday to make sure it was an authentic quotation from Martin Luther King, Jr. (unlike the one that circulated after the death of Osama Bin Laden), I came across another quotation attributed to King that seems particularly apt in the wake of Obergefell v. Hodges: "In the end, we will remember not the words of our enemies, but the silence of our friends."

I have not nailed down the source for this one and cannot vouch its authenticity. But the basic idea definitely fits with King's letter from a Birmingham jail, in which he criticized too many in the white church who were "more cautious than courageous" and "remained silent behind the anesthetizing security of stained glass windows."

There is no one right way to choose what to blog about, write about, share on social media, say or not say in casual conversation with co-workers, friends, neighbors, and so on. But there are certain ways of going wrong. Indulging a spirit of self-censoring timidity is one such way.

So ... I am thankful for the thoughtful, forthright, and friendly witness of Ryan Anderson to the truth about marriage as the union of man and woman as husband and wife. And I hope not to remain silent behind online stained glass windows ... even if that means doing something that leads to a professional dead end, like taking Justice Kennedy's pronouncements about substantive due process seriously on their own terms. There's no there there, and yet here we are. It's not too late to stop where we are going.

Monday, November 2, 2015

New Center for Law and Religion at Villanova Law

Great news out of Villanova today--thanks to a generous $2 million gift from Joseph and Eleanor McCullen, Villanova Law is launching a new Center for Law and Religion. The Villanova press release with details is here.

Arthur Brooks on "who?", "what?", and "why?" . . . and universities

Arthur Brooks is the President of the American Enterprise Institute and is the author of a new book called "The Conservative Heart:  How to Build a Fairer, Happier, and More Prosperous America."  (I've heard good things about the book, and am looking forward to listening to it.)  

Recently, I listened to the podcast of "Conversations" (with Bill Kristol) which featured Brooks, and I really enjoyed it.  One particular observation really jumped out at me (it's a long quote, but well worth reading) (emphasis mine):

. . . universities have a tendency to ask two wrong questions. The big – the first wrong question they tend to ask is, “What are you?” As if they impose this question on students. So students who are watching us today, particularly people who are getting ready to go to college, you’re going to get asked, “What are you?” And that is basically, “What are you? I’m a physicist, I’m an economist, I’m a business major.” And you know, that is an incredibly materialistic view of people that’s imposed from this intellectual force.

That’s hugely problematic because once you answer that question, once you define yourself in terms of that question, the world will follow with another a question, which is, “How much money?” And that’s a tyranny. That’s a manmade prison that people get in. Materialism notwithstanding, but we often hear from the conservative movement as if abundance were an end it itself, these things truly are a kind of human tyranny. They hold human welfare back. We need to rebel against it. We need to become detached from it. This is very important in every spiritual tradition but it’s just in a humanistic tradition – we all understand that to be true. So that’s the first wrong question that we tend to have.

The second is, and this is much newer and this is more troubling still. The question that students are asked is “Who are you?” And that’s what gets into the awful identify politics that dominate university campuses today. Where we go from everything to esoteric departments to identity all the way through to the climate of micro-aggression, so called micro-aggression. People who are watching us today who are at universities suffering through this weird culture. It’s because of that question, “Who are you?” You have to answer the question, “Who are you?” No you don’t! The world has a follow-up question to that too which is, “Who cares?” The world doesn’t care who you are. You shouldn’t care who you are.

KRISTOL: People in college really care who they are?

BROOKS: Because they’re being asked that. And indeed this is a period, from 18 to 22, where you’re trying to figure out your identity and when that’s dignified, when that’s put under the microscope, when you’re told that truly is an important question that can wreak your life. What are you and who are you are the wrong questions, the real question is – that we have to answer and this comes from the virtue of intellect and high education, the virtue of education per se of improving oneself of the purpose of – in my own personal view glorifying God and serving fellow man – is, “Why are you? Why are you who you are and what you are?”

The “why” question is the interrogative that’s meaningful in people’s lives. In higher ed, when you’re in this ecosystem of learning or supposed to be in an ecosystem of learning, you should be able to come to that question. Why am I on Earth? The happiest, the most fulfilled people who’ve done the most for humanity are the ones who have a very strong understanding of why they’re on the Earth. Why they’re alive. And by the way, many of them also have an understanding of why they will die. So soldiers who’ve confronted that have an understanding of what they’ve been willing to die for. Why would I die?

And, in a materialistic world we don’t have good questions for why am I alive and why should I not be alive? And those are the question that should come from an environment of learning and set us on a trajectory of learning about ourselves and learning about the world that’s neither identify politics nor materialism. The two tyrannies are what’s ruining higher ed and getting away from the fundamental question is probably the most troubling thing about universities today. . . .

Saturday, October 31, 2015

Reviewing Pollitt's Pro at Claremont Review of Books

Claremont Review of Books has recently launched a website and currently features my review of Katha Pollitt's Pro and two other books--among them, Robin West's collection of pro-choice and pro-life voices. MoJers Lisa Schiltz and Susan Stabile write in West's collection, and I remain convinced that West takes so well to pro-life argument because of knowing pro-life women like Lisa and Susan!

“See You on the Other Side!”: A Farewell from Rev. Robert John Araujo, S.J.

Pope Francis blesses Fr. Araujo

As Rick and Richard earlier noted, last week witnessed the passing of fellow MOJ contributor Rev. Robert John Araujo, S.J.  I was fortunate to know Bob as a friend and colleague during the time that he served on the faculty here at Loyola University Chicago School of Law as the inaugural John Courtney Murray, S.J. University Chair.

Bob (as he preferred to be called by those who knew him) was an incredibly learned man, holding degrees from Georgetown, Columbia, the Weston School of Theology, and Oxford.  He put this immense learning to good use as a prolific scholar, writing especially well about the natural law and its meaning for positive law, and the juridical standing of the Holy See and the history of papal diplomacy (here and here).

For Bob this latter subject was not merely theoretical.  He was a frequent contributor to the work of the Church in the United States, both through the nuncio’s office in Washington, D.C., and the Holy See’s Permanent Observer Mission to the United Nations.

During Pope Francis’s visit to the U.S. a few weeks ago, Bob was able to make one last trip to the nunciature.  His friend, Archbishop Vigano, the current papal nuncio to the U.S., arranged for Bob to have a private audience with the Pope.  Bob had hoped to talk with Francis (his fellow Jesuit) about the state of Jesuit higher education in the United States, a subject that was dear to his heart.  But when the Pope was told of Bob’s illness, the conversation took a different course.  The Holy Father blessed him and kissed him.

Bob courageously battled the non-Hodgkin’s lymphoma that racked his body and ultimately took his life.  He was in an enormous amount of pain from the cancer, literally for years, but especially as the disease progressed in the last several months.   Having said that, I think the most painful thing in his life was the lack of faith and courage that he witnessed among some of the members of his beloved Society of Jesus.  Some of this affected Bob directly.  He was, for example, prohibited by a fellow Jesuit from celebrating Mass at Loyola’s Madonna della Strada Chapel because he once preached on the meaning of human sexuality according to the mind of the Church. 

Bob had many good friends within the Society, but the treatment he received from some was a source of bitterness in his life.  Although through prayer he tried to put this bitterness aside, it continued to gnaw at him.  And on a certain level, this reaction was entirely understandable.  How bizarre that one should be punished by an institution within the Church for being faithful to the Church!

Bob was a good friend.  I very much miss our morning conversations over coffee in his office before class, discussing news in the School, in the Church, and in the world.  He loved to serve as a host.  Even in the midst of his illness, he loved having people visit him at Ignatius House, the main Jesuit residence at Loyola, and share a meal together (although the cancer greatly restricted the foods he was able to enjoy).  My family and I were fortunate to take advantage of his hospitality in this regard, and I joined him for working lunches there on a number of occasions.

Unfortunately these working lunches too often centered around new challenges to Loyola’s identity as an authentically Jesuit and Catholic institution, often in the form of potential faculty hires.  Bob was a stalwart champion of the robust sense of Catholic identity that Catholic universities should have – engaged in the contemporary world but grounded in the Christian intellectual tradition and confident in the capacity of that tradition to say something fresh, unsettling, and true.

He was not a fan of the insipid brand of Jesuit identity pandered in the slogans popularized today knowing that without a definite content of how one can be a “man or woman for others” one might actually work against the genuine good of those one had thought to serve.

Bob was a faithful priest.  Although he didn’t insist on the formality of being called “Father” by anyone, he had a great respect for the priesthood to which he was called.  Many MOJ contributors can attest to his devotion to his priestly ministry, celebrating Mass at various conferences we would attend.  He welcomed students at Loyola with the same hospitality that he shared with peers.  Much has been made of the “theology of encounter” and of the need for “accompaniment” that Pope Francis has emphasized.  Bob Araujo had been a practitioner of this method of connecting with students intellectually and caring for them pastorally long before the current moment.

Before Bob left Loyola to move to the Campion Center in Weston, Massachusetts, he began to give away some of his possessions – books, a complete set of Theological Studies, clothes, art work, etc.  My family and I received a framed copy of the study of Thomas More that Holbein did in preparation for his famous portrait – something he acquired during his student days at Oxford.

Thomas More -- Holbein Study

Bob was a great admirer of Thomas More – as a lawyer and public servant, as a devoted family man and loyal son of the Church.  He saw in More’s life the struggle of our times – the temptation to give in, to get along, to pursue popularity and material prosperity over fidelity, to sacrifice the truth for a more comfortable life – a struggle witnessed not only in, for example, the controversy over the HHS contraception mandate and religious opposition to same-sex marriage, but in the temptation of Jesuit universities to lose their charism in the process whereby following Jesus and living the Gospel is neutered and transformed into pursuing a secular kind of “social justice.”

In his last e-mail to me a few days before he died, aware of his impending death, he said “I’m sure I’ll see you on the other side one day.”  May everyone involved in MOJ join me in praying that Father Bob Araujo, now free from the pain and bitterness of this life, experiences the joy of “the other side” in the company of St. Thomas More and all the saints, praying for the members of St. Ignatius’ “little company” and all the world Ad Majorem Dei Gloriam.

Seamus and Mary Hasson honored with JPII Evangelization Award

The Catholic Information Center in DC honored this inspiring duo this past week:  Seamus, for his leadership protecting religious freedom as founder of the Becket Fund, and Mary, for her lifelong dedication to Catholic teaching on life and the family, now as founder/director of the Catholic Women's Forum at EPPC where she is a fellow. Watch the moving video dedicated to their work here. And Mary's beautiful acceptance speech is well worth a full read. Here's a taste: 

It’s time for men and women within the Church to bring the efforts and witness of women to the foreground of the Church’s work evangelize the culture—not just for the strategic reason that women are half the population—and we must reach them and speak to them through shared experiences and in language that resonates. But because as a Church, we must live the truth that we preach: That men and women are complementary—that we need each other, and we need to collaborate, that the Church needs our witness to the world, a sign of the great bond between Christ and the Church. The Church needs us—men and women—to witness to the love of God in a powerful way, together.

Finally, if you missed Seamus' commencement speech at Ave Maria University in 2013, it's deeply inspiring.  

Friday, October 30, 2015

"Diversity in the Christian University"

Here is a thoughtful piece, by Elizabeth Corey, on "Diversity in the Christian University."   Here's a taste:

. . . Perhaps the greatest benefit of actual diversity across a university, for both faculty and students, would be the modeling of a certain kind of political relationship. If a faculty is diverse—not just demographically, but also politically and intellectually—and can nevertheless work together without characterizing opponents as enemies, then it might offer something that contemporary politics does not. This would consist in a kind of civil discourse that acknowledges profound disagreement but also seeks compromises where they may be found and respects all participants as equals.

It’s easy enough to talk about this ideal, but much harder to put into practice. It requires, at minimum, candid conversations with people you’re not inclined to agree with. . . .

. . . Moreover, within a Christian university, the legitimate goods of diversity must be balanced against a notion of unity, an idea of the particular “constitution” of a place—its heritage, its tradition, and the constituency it serves. Even while we embrace aspects of diversity, Christian schools must be bold enough to say that we prioritize a certain kind of particularity and difference from our many secular competitors. Perhaps the most effective contribution that a self-consciously Christian university can make to the sum total good of diversity is merely to be what we are. Thus, the confessional requirements of Christian schools are not a hindrance but an asset. Not everyone will feel perfectly comfortable working for, or attending, such a university, but that has traditionally been why distinct kinds of schools exist: historically black colleges, women’s and men’s colleges, large state universities, community colleges, small liberal arts colleges and many varieties of Christian institutions. . . .

Read the whole thing.