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.

Friday, March 18, 2022

Christian nationalism and the rule of law

By Rob Vischer

I've posted on SSRN my chapter on Christian nationalism from a new book on the January 6 insurrection.  You can read the whole thing here.  The abstract:

Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?

Academic Freedom (?) and Catholic character at Dayton

By Rick Garnett

The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021.  The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”

The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought."  The letter also states:

We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.

I have written before about the issue of Catholic universities, honorees, and outside speakers before.  Among other things, I said:

[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.

That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university.  It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate.  As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research. 

Again:  This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights.  And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one.  But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university.  And again:  I say a bit more about why this suggestion is incorrect, here. 

Monday, March 14, 2022

Announcing the Sixth Biennial Colloquium in Law & Religion at St. John's Law School

By Marc DeGirolami

The Center for Law and Religion, which Mark Movsesian and I co-direct, is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. 

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

Sunday, March 13, 2022

Mirror of Justice's 18th (!) anniversary . . . and the Velveteen Rabbit

By Rick Garnett

Our first post here at Mirror of Justice went live just over 18 years ago.  ("Wait, grandpa . . . they had the Internet 18 years ago?"  "Yes, m'boy, and there was content besides homemade dance videos, too!")  Here's the opening graf:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations.  There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read.  And yet:  Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!

One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise.  I continue to think this is a linch-pin issue.  That is, it matters -- a lot -- for law what human persons are and what they are for.  Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets?  If we have "dignity", what makes it so that we do?

Wednesday, March 2, 2022

Conference: "Beyond 'Defensive Crouch' Religious Freedom"

By Marc DeGirolami

I'm happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I'll present a paper called "Traditionalist Disestablishments," a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.
 
The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.
 
Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email [email protected]. We hope you'll join us!

Thursday, February 24, 2022

True Again Today: There's a Bear in the Woods

By Greg Sisk

 

 

Sunday, February 20, 2022

Lincoln's Humility

By Rob Vischer

This week I read a report about the trend of Americans choosing to relocate in order to live in places that are more closely aligned with their political beliefs. This adds to the “big sort” that has been occurring for years. (From 1992 to 2016, the number of extreme landslide counties — i.e., those decided by margins exceeding 50 percentage points — increased from 93 to 1,196.) A new poll shows that Americans’ trust in the scientific and medical communities varies dramatically based on one’s political affiliation, adding to the partisan gaps we already knew about regarding trust in other social institutions. We’ve always disagreed about particular issues, but those disagreements have intensified, widened, and coalesced around shared identities that shape the ways in which we view the world.
 
The clash in worldviews can be seen in our reactions to the world around us. How do we feel about recent protests that shut down streets and highways in Minneapolis to bring attention to police practices deemed unjust? How do we feel about recent protests that shut down streets and highways in Ottawa to bring attention to COVID mandates deemed unjust? I’m guessing most of us feel differently about one versus the other, and that’s understandable – we will disagree about injustice, just as we disagree about appropriate tactics employed in pursuing justice. The problem is when that disagreement spirals into dehumanization – i.e., that those who hold different worldviews are not just wrong, but “other.”
 
There is a better way, and it was modeled 158 years ago by Abraham Lincoln, whom we celebrate tomorrow on Presidents’ Day. His second inaugural address, delivered near the end of a brutal and bloody war, showed a degree of humility that may not even count as a political virtue in today’s climate. Lincoln observed that both sides in the Civil War “read the same Bible and pray to the same God and each invokes His aid against the other.” This was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the war. Instead, he recognized that those on the other side were just as sincere in their faith as he was.
 
Did Lincoln’s humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict. I encourage us to reflect on ways we can model Lincoln’s humility: not pulling back from our commitment to justice, but not permitting our commitment to justice to obscure the humanity of those on the other side of the struggle.

Friday, February 18, 2022

Syllabus for my course on Civil Liberties at Princeton

By Robert George

Princeton University

Politics 316

CIVIL LIBERTIES

Professor Robert P. George

Spring 2022

This course explores the moral premises of controversial claims of civil rights and liberties in light of moral, religious, and cultural pluralism. We shall consider real and hypothetical cases in which claims to rights and liberties come into conflict, or are alleged to come into conflict, with the rights and liberties of others, or with other important values. We shall consult philosophical, historical, and sociological writings as well as opinions of courts that have adjudicated disputed claims of civil rights and liberties as matters of constitutional law.

Readings. All course readings are available on E-Reserves.

Attendance. Students are required to attend lectures and precepts and to participate in class discussions. Any student who will miss a precept or a lecture must inform his or her preceptor in advance.

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Assignments. There are two written assignments. A mid-term assignment and a final paper.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 4 p.m. but before midnight on the date on which they are due will be penalized one half letter grade. Papers will be penalized another half letter grade if they received by 4 p.m. on the subsequent day and another half letter grade for each day after that.

General Education Requirement:  The Civil Liberties course has been designated to fulfill the General Education Requirement for both Ethical Thought and Moral Values (EM) and Culture and Difference (CD). The course explores the moral premises of controversial claims of civil rights and liberties in light of moral, religious, and cultural pluralism. The focus is on American cultural pluralism and the issues it generates in the areas of constitutional law and political theory—issues often implicating questions of race, religion, sex, socio-economic class, and alienage. Readings are drawn from key judicial opinions in landmark cases (e.g., Brown v. Board of Education, Roe v. Wade, Citizens United v. FEC, Kelo v. City of New London, Obergefell v. Hodges) as well as from scholarship in the fields of constitutional law, moral and political philosophy, political science, history, sociology, and cultural studies. Many different approaches and perspectives are presented, and students are encouraged to examine problems by sympathetically considering the points of view of people who are quite different from themselves.

The course explores questions on which there is profound division in American culture, reflecting the differences in worldview that shape contemporary American cultural pluralism. Students are asked to consider these issues on the merits, of course, in light of the arguments on the competing sides set forth in the readings; but they are also asked to reflect on the question of how and by whom, in a constitutional democracy marked by cultural pluralism, such issues ought to be decided. When is a national resolution required? Under what circumstances are regional or local resolutions to be preferred? What is the proper scope of legislative authority? What is the role of courts? What, if anything, provides institutions of various sorts with legitimacy? If democracy is a legitimating value, what constitutes authentic democracy, especially in circumstances of cultural pluralism? What sort of representation is necessary? What is the place of minority rights in democratic decision-making?

 

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

 

SCHEDULE OF ASSIGNMENTS 

January 25, 2022, Week 1: E PLURIBUS UNUM?  WHOSE IDEA OF LIBERTY?

WHICH CONCEPTION OF JUSTICE?

Precepts will not meet the first week. But do not, for that reason, neglect the readings. They are required and aim to frame the issues presented by this course.

Declaration of Independence

U.S. Constitution (all)

Federalist Papers ## 10, 51, 78

John Rawls, “The Idea of Public Reason Revisited”

Michael Sandel, “Rawls’ Political Liberalism”

February 1, 2022, Week 2: CIVIL LIBERTIES AND THE CONSTITUTIONAL ORDER

Lochner v. New York (1905)

Griswold v. Connecticut (1965)

Lincoln’s First Inaugural Address (1861)

Frederick Douglass, “What to the Slave is the Fourth of July?” (1852)

Hadley Arkes, Beyond the Constitution, ch. 4

Antonin Scalia, “Originalism: The Lesser Evil”

Sonia Sotomayor, “Originalism vs. the Living Constitution”

February 8, 2022, Week 3: POLITICAL EXPRESSION

United States v. O’Brien (1968)

Brandenburg v. Ohio (1969)

Cohen v. California (1971)

Texas v. Johnson (1989)

Snyder v. Phelps (2011)

Citizens United v. Federal Election Commission (2010)

John Stuart Mill, “On Liberty” (chapters 1 and 2)

Herbert Marcuse, “Repressive Tolerance”

David Lowenthal, “The Constitutional Revolution of Holmes and Brandeis”

February 15, 2022, Week 4: OBSCENITY AND PORNOGRAPHY

Miller v. California (1973)

Barnes v. Glen Theatre (1991)

Ashcroft v. Free Speech Coalition (2002)

Ronald Dworkin, “Is There a Right to Pornography?”

Robert P. George, “Private Acts, Public Interests”

Lynn & Goldsmith, “Is Antipornography Legislation …?”

Catherine Mackinnon, “Sexuality, Pornography, and Method: Pleasure Under Patriarchy”

February 22, 2022, Week 5: FREE EXERCISE OF RELIGION

Reynolds v. United States (1878)

West Virginia v. Barnette (1943)

Wisconsin v. Yoder (1972)

Employment Division v. Smith (1990)

Masterpiece Cakeshop, Ltd. v. CO Civil Rights Commission (2018)

Asma Uddin, “The First Amendment: Religious Freedom for All—Including Muslims”

Eisgruber & Sager, “Equal Liberty,” in Religious Freedom and the Constitution

John Finnis, “Does Free Exercise of Religion Deserve Constitutional Protection?”

 

Note: Mid-term exercise posted on Blackboard.

March 1, 2022, Week 6: RELIGION AND PUBLIC LIFE

Everson v. Board of Ed. (1947)

Lee v. Weisman (1992)

Good News Club v. Milford Central School (2001)

American Legion v. American Humanist Assoc. (2019)

“Clergyman John Witherspoon Couples Religion with Politics”

“Abolitionist William Lloyd Garrison Admits of No Compromise…”

“Bishop Fulton Sheen Makes a Wartime Plea”

Martin Luther King, Jr., “Letter from a Birmingham Jail”

Leo Pfeffer, Church, State and Freedom, ch. 5

Stephen Carter, “Reflections on the Separation of Church and State”

Note: Mid-term exercise due at end of this week on Friday March 4, 2022, at 4 p.m

 

SPRING BREAK

 

March 15, 2022, Week 7: EQUAL PROTECTION AND AFFIRMATIVE ACTION

Brown v. Board of Education (1954)

Bolling v. Sharpe (1954)

Regents of the Univ. of CA v. Bakke (1978)

Adarand Constructors v. Pena (1995)

Grutter v. Bollinger (2003)

Gratz v. Bollinger (2003)

“The Compelling Need for Diversity in Higher Education: Introduction,” Reports Prepared for

the [Gratz & Grutter] Lawsuits, University of Michigan

Patricia Williams, “We Need Race-Based Affirmative Action”

Cornel West, “Beyond Affirmative Action: Equality and Identity”

Robert George, “Some Questions about Affirmative Action”

March 22, 2022, Week 8: “… OF LIFE LIBERTY OR PROPERTY ...”

John Locke, “On Property,” 2nd Treatise of Government (1690)

Simmons, “The Lockean Theory of Rights”

Friedrich Engels, “The Principles of Communism” (1847)

John Finnis, "Justice," in Natural Law and Natural Rights (2d ed.)

Penn Central Transportation, Co. v. City of New York (1978)

Hawaii Housing Authority v. Midkiff (1984)

Kelo v. New London (2005)

March 29, 2022, Week 9:  EMBRYONIC RESEARCH, ABORTION AND INFANTICIDE

Roe v. Wade (1973)

Doe v. Bolton (1973)

Planned Parenthood v. Casey (1992)

Gonzales v. Carhart (2007)

Naomi Wolf, “Our Bodies, Our Souls”

Michael Paulsen, “Unbearable Wrongness of Roe”

Peter Singer, “Killing Babies Isn’t Always Wrong”

Michael Sandel, “Epilogue: Embryo Ethics: The Stem Cell Debate,” The Case Against

Perfection

Robert George, “Embryo Ethics”

NB: Find on e-reserve optional reading for students interested in the debate over embryo- destructive research, viz., George & Tollefsen, “The Exchange with Saletan,” in Embryo: A Defense of Human Life

April 5, 2022, Week 10: EUTHANASIA, ASSISTED SUICIDE AND PUBLIC POLICY

Cruzan v. Missouri Dept. of Health (1990)

Washington v. Glucksberg (1997)

Vacco v. Quill (1997)

Ronald Dworkin, “Do We Have a Right to Die?”

John Finnis, “Euthanasia, Morality, and Law”

“Assisted Suicide: The Philosophers’ Brief”

Luke Gormally, et al., Euthanasia, Clinical Practice, and the Law

April 12, 2022, Week 11: SEXUALITY, MARRIAGE AND PULIC POLICY

Griswold v. Conn. (1965) (again)

Loving v. Virginia (1967)

Lawrence v. Texas (2003)

Obergefell v. Hodges (2015)

Andrew Koppelman, “Homosexual Conduct”

Girgis, George & Anderson, What Is Marriage, chs. 3-5

Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law”

Sherif Girgis & John Corvino, “Same-sex Marriage,” in Contemporary Debates in Applied

Ethics (2d ed.)

April 19, 2022, Week 12: CRIME AND PUNISHMENT

Furman v. Georgia (1972)

Gregg v. Georgia (1976)

Coker v. Georgia (1977)

Roper v. Simmons (2005)

Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation”

Immanuel Kant, “On the Right to Punish”

Becky Pettit and Carmen Gutierrez, “Mass Incarceration and Racial Inequality”

Gerard Bradley, “Retribution: The Central Aim of Punishment”

 

NB: Final Paper will be posted after the final lecture. It must be submitted on Dean’s Date, by 4 p.m.

###

Sunday, February 13, 2022

Conference on Catholic Perspectives on Criminal Justice Reform at U. Wisconsin, Sponsored by Lumen Christi and the Center for the Study of Liberal Democracy

By Marc DeGirolami

I'm just back from an excellent conference organized by Professor Cecelia Klingele at the University of Wisconsin on Catholicism and Criminal Law and Justice. The conference was sponsored jointly by the Lumen Christi Institute and Wisconsin's Center for the Study of Liberal Democracy.

Together with fellow MOJ-er Patrick Brennan, we had a day of reflection and presentation of work concerning the theme. John Stinneford and I are having fun co-authoring a paper on "The Common Law, the Catholic Tradition, and the Criminal Law." We discuss the idea of tradition in Catholicism and the common law, the important concept of "culpa" or blameworthiness within both traditions, and its evolution across time. More soon on this paper.

Tuesday, February 8, 2022

Adrian Vermeule's "Common Good Constitutionalism"

By Rick Garnett

Adrian Vermeule's much anticipated book, Common Good Constitutionalism, is coming out soon, and is available for purchase on Amazon, etc.  MOJ readers are likely familiar with the project, not only from Adrian's MOJ contributions in the past, but also from writings at, e.g., Ius et Iustitium (also here) and The Atlantic and, recently, The New York Times.  

I expect that Adrian's book and argument will be of interest to MOJ writers and contributors, and I hope that many of my co-bloggers will read the book, and share their thoughts about it.  Given (inter alia) St. Thomas's well known definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated", there can be no doubt that the idea/aim/end of "the common good" -- which is, of course, not understood in the Catholic tradition as "the greatest good for the greatest number" or in merely utilitarian terms but instead as the network/sum of social conditions which enable human persons and societies to flourish -- is crucial to any Catholic legal theory and, it would seem, to any Catholic account of the enterprise of constitutionalism.

The questions that I have about Adrian's proposal, and about others to which "common good constitutionalism" is attached, have to do not so much with the question whether those who are authorized to make laws should do so with an eye toward promoting and protecting -- to the extent possible and feasible, this side of Heaven -- the common good of the relevant political community.  Instead, my questions have to do more with these proposals' implications for constitutional interpretation by federal judges who, in our context, are authorized to decide cases and controversies only by virtue of the positive-law-fact that the federal judicial power has been vested as it has.  To have such questions is not, of course, to be a "positivist" or "relativist."  But it is not clear to me why (as I gather Adrian argues) that an appropriate appreciation for the fact that a political community's positive laws should promote and protect the common good, correctly understood, means that "originalism" is not the appropriate methodology for identifying the judicially enforceable content of the positive laws that we have.

In any event . . . I look forward to reading and learning more.   

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