This review by David Archard at the Notre Dame Philosophical Reviews of a new book by Harry Brighouse and Adam Swift raises a number of interesting questions about liberal political theory and the family. I look forward to reading the book, which Archard reviews quite favorably. I do think it would be important to think through carefully what the reviewer says in these passages I've quoted below about the framing of the initial question tackled by the book--there is an implication (or an outright assertion) that we have a sphere of justice (coterminous with/determined by the state or the Rawlsian "basic structure of society") into which we have to figure out where to fit the family, and that's a problem. This sits in considerable tension, I think, with a view of the family as a "society in its own right" (see Dignitatis Humanae, para. 5) or with the importance of the principle of subsidiarity in understanding the relation between the state and the family (see Familiaris Consortio, para. 45). But, as I say, the initial framing of the question makes such views all but impossible to entertain.
The problem for justice was, early on, neatly summarized by James Fishkin in the form of a ‘trilemma’: liberals are committed to three principles that cannot all simultaneously be realized. These are the rights of parents to choose for their children; a principle of equal opportunity; and a meritocratic principle governing the distribution of offices and jobs on merit. Fishkin thought the trilemma irresoluble, and others have tried to find a way out of the problem by the abandonment or trimming of one or more of the principles. It is nearly always the family that seems most in danger on these approaches.
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After all, one response to a conflict of values is just to accept that the conflict is irresoluble and acknowledge that the best feasible state of affairs is one in which there will be some moral loss. On this account it is better to have the family than not to, but any society that does have families is not going fully to realize justice (and not merely realize justice as understood given the existence of the valued family).
The Supreme Court's haughty disregard of states as lawmaking governments was on full display this past fall when the Court green-lighted the judicial redefinition of marriage in several states without so much as the courtesy of letting the states argue their case to the Justices in person. Although surprising (and weak), the Justices' refusal to let themselves be bothered is consistent with the course steered by shifting majorities in the marriage redefinition litigation over the past few years.
One would be foolish to ignore the likelihood that various Justices, for their own reasons and mostly independently rather than pursuant to a conspiracy or some sort of grand plan, have been rationally pursuing an agenda for constitutional change in which these denials of certiorari were instrumentally useful. If that assessment is accurate, these denials of certiorari illustrate one aspect of judicial supremacy as examined by Jeremy Waldron in his Francisco Lucas Pires Distinguished Lecture at the Catholic University of Portugal (noted on MOJ by Rick on All Hallows' Eve and posted to SSRN as complete as of the same day (9/29) that the Supreme Court decided at Conference to deny certiorari).
Waldron argues in this Lecture that "judicial review tilts towards judicial supremacy when the courts begin to think of themselves and present themselves as pursuing a coherent program or policy, rather than just responding to particular abuses identified as such by a Bill of Rights as they crop up." That seems to be exactly what the Supreme Court (admittedly a "they" rather than an "it") has been doing with respect to the definition of marriage.
What can be done about this? It's worth asking. For while the problem of judicial supremacy is evident now in connection with marriage redefinition, the problem is much more widespread and it does not necessarily have a particular ideological valence.
The more I've thought about the problem of judicial supremacy recently, the more I've come to think that one typical way of responding to it is sometimes exactly the wrong response (even though probably constitutional). That way is jurisdiction-stripping legislation.
When the Supreme Court or some other federal court issues or threatens to issue a decision that legislators believe further separates or would further separate constitutional law (created by the courts) from the Constitution (under which the federal courts are created), legislators sometimes propose legislation that would remove certain categories of cases from federal court jurisdiction (and sometimes state court jurisdiction as well). This legislation virtually never succeeds (in part for reasonsexplained by Tara Grove), but practical futility doesn't prevent these proposals from being proposed (which may be just as well for proponents when the proposals represent mere posturing). And even when such legislation succeeds, it does not eliminate bad precedent and does not entirely prevent the creation of new bad precedent.
A potentially more promising response to judicial supremacy may be "jurisdiction stuffing." (I thought I made this phrase up, but it turns out that the phrase has already been coined and (probably planted deep in the part of my brain that lights up on federal jurisdiction matters) by Jim Pfander.) Instead of running from the Supreme Court, as in jurisdiction stripping, the idea of jurisdiction stuffing is to rush it. (The Super Bowl was just the other day; think of this defensive strategy as a blitz.) The mechanism would be mandatory appellate jurisdiction over a set of cases. This would deprive the Supreme Court of discretion to decline to decide that set of cases. It would thereby would curtail the Justices' exercise of one their most potent powers for pursuing a particular program of constitutional change, namely their agenda-setting authority.
Such legislation seems as constitutionally unproblematic as it is counter-intuitive. But the effects on substantive constitutional law could be significant. In particular, jurisdiction stuffing would likely moderate the Court's willingness to introduce major changes into constitutional doctrine in areas where they have mandatory appellate jurisdiction. This just makes more work for them. And knowing that will force them to confront directly the unsettling effects of their interventions. More broadly, jurisdiction stuffing could have a beneficial effect of making the Supreme Court more like a court. Most courts don't enjoy the freedom to set their own agenda the way that the Supreme Court does. In a world of judicial supremacy in which supremacy is not going away, the best strategy may be to try to make it more judicial in nature.
All of the Justices, to varying degrees and in varying ways, are too much "big-picture-only" people in too many ways to be good judges in their big-picture-only world. One way of counteracting this is to force more immediate confrontation with the nitty gritty of how their big-picture pronouncements are supposed to be implemented doctrinally. Want to hold mandatory state sentencing guidelines unconstitutional? Well, the federal guidelines cases will be coming fast and furious. Want to insist on federal judicial supervision of detention at Guantanamo? Every single appeal of the denial of habeas relief is coming your way soon. Want to revive the Second Amendment and recognize a right to gun possession in the home? The gun possession in public cases are right around the bend. Want to redefine marriage? The cases that ripple out from that intervention will be on your desk later this year. And so on.
There is no guarantee that jurisdiction stuffing would have the effect of putting the brakes on doctrinal change in constitutional law. Depending on how it is drawn up, mandatory jurisdiction over certain cases could end up replicating in practice the virtually unfettered discretion that exists under current certiorari practice. Before the elimination of mandatory appellate jurisdiction in a certain set of cases in 1988, for instance, the Court summarily disposed of many many cases without engaging in plenary review. And even if the Court were to grant plenary review in all the stuffed cases (perhaps because Congress figures out a constitutional mechanism to make that happen), there is also the risk that the Justices will use these opportunities to make even worse constitutional law. At some point, though, one needs to count on the fact that reason-giving practices and public scrutiny and the loss of legitimacy that would come from more blatantly smudging the law-politics boundary would bring the Justices back to operating in more of a judicial mode.
Even if jurisdiction stuffing were to have the desired effect of putting the brakes on change in constitutional law, that effect is not always desirable. When and where constitutional doctrine is in truly bad shape, the Supreme Court should be willing to overrule it and should not be unduly deterred by transition costs. But this consideration can be addressed, among other possible ways, through the criteria for identifying cases where jurisdiction should be stuffed. Consider, for instance, the difference between mandatory appellate jurisdiction in the Supreme Court for all cases in which a government, government agency, or government official appeals to the Court from any adverse constitutional ruling or, instead, just from any adverse constitutional ruling about, say, the Establishment Clause.
Insofar as history provides a guide, the lesson seems pretty clear that agenda-setting authority at the Supreme Court has contributed to the expansion of the domain of federal constitutional law. As Edward Hartnetthas powerfully argued, the Supreme Court may not have constitutionalized state criminal procedure (among other areas) if the result of doing so would have been a massive increase in the Court's workload. While the transformation of the Supreme Court and its role in American government that took place last century had many causes, one undeniably important change was the expansion of the Court's discretion to decide or decline to decide that took place with the Judiciary Act of 1925. (Reading Hartnett's article on that legislation crystallized for me the worth of considering the potential effects of jurisdiction stuffing.)
There is no going all the way back, of course, nor should one want to. The Supreme Court unquestionably needs some measure of discretion in case selection. But they probably have too much discretion right now. And one way to stop the Justices from going where they ought not to go as a matter of substantive constitutional law is to force them to move faster if they are to move at all. In at least some doctrinal areas, the Court can run at the same pace their decisions set for other courts. And they should have to; they are supreme, but they are also still a court.
I've posted on SSRN a paper of mine that is not new, but is (finally) coming out in print (in Nomos, the series published by the American Society for Political and Legal Philosophy). It covers a lot of (to MOJ readers) familiar ground . . . but I really like the title!
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[] … all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Prof. Nicole Stelle Garnett, co-author of "Lost Schools, Lost Community," gives an excellent interview here ("Why We Need to Save the Catholic Schools") about, well, the title of the interview. Here's a bit:
To our elected officials and the education-policy establishment, we offer the following challenge: Our education policy has, at least until quite recently, come to settle on the assumption that “charters are enough choice.” It is time to reconsider that assumption, to embrace true educational pluralism, and to support policies focused on increasing high-quality educational options across all educational sectors — public, private, and charter.
To our fellow Catholics (especially bishops and school superintendents) and all those who wish to ensure a vibrant future for Catholic schools, we offer three challenges: First, focus on leadership. Our research suggests that the support of school pastors is a major factor predicting whether a school will close, and we believe that strong principals are just as critical. We must find and form the next generation of Catholic-school leaders. Second, recruit Latinos. In the United States, nearly 70 percent of practicing Catholics under the age of 35 are Latino, but only 3 percent of Latino families send their kids to Catholic schools. Third, to echo Saint John Paul II: “Be not afraid.” The game is not up. The future of Catholic schools won’t look like the past, but it can be a hopeful future. Our kids, our communities, and our Church need Catholic schools. So let’s steel our resolve, roll up our sleeves, and get to work.
The following is a post by my friend Don Drakeman, on a portion of the debate among Orin Kerr, Ilya Somin, and Larry Solum concerning the public's understanding of originalism and the originalist positions with respect to same-sex marriage.
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As part of a lively debate about originalism and same-sex marriage (at the Volokh Conspiracy site between Orin Kerr and Ilya Somin), Larry Solum has suggested that there is “no good empirical data on public beliefs about originalism.” I can’t add to the substantive debate, but I have some empirical data about what the public believes about originalism. Readers can decide whether it is good or not.
In 2012, I commissioned a YOUGOV survey of 1000 Americans specifically on the topic of originalism. Most surveys have simply asked voters to choose between the Constitution’s original meaning and a more modern, living Constitution approach. Over time, the public has generally split about 50-50 on that point, with a majority periodically flipping from one side to the other. In my Originalism 2012 Survey, 60% chose the understanding of the Constitution at the time it was originally written, with 40% picking “what the Constitution means in current times.”
But here’s the interesting part. I asked the “current times” respondents what the Supreme Court should do with evidence of the original meaning.” I expected that most would say that it should be either irrelevant or, or merely historical background. Yet, only 3% said that the Court should ignore it, 18% opted for it to be used only as historical background, and an impressive 79% said that the Supreme Court should “consider it as one of the various factors that should be considered in making the decision.” So, all in, over 90% of Americans think that the original meaning is at least relevant to the Supreme Court’s decision, with half or more considering it determinative.
That strikes me is as a pretty powerful reason for us to think hard about what the original meaning really is. Many of the debates among originalists center on exactly where we should be looking for that meaning. I asked the public that question. Offered a series of possible sources, a majority of the public said “yes” or “maybe” to all of these four possibilities: Dictionary definitions; how average voters at the time of ratification understood it; how hypothetical, well-informed ratifiers would have understood it; and the understanding of the framers. When asked which of these is the most important in the event of a conflict, 66% picked “what the Constitution’s framers intended it to mean.”
Whether the public’s views are important is an interesting question for debate. (For what it’s worth, I believe that they are.) For today, however, I simply wanted to point out that we do have some empirical data, and it speaks pretty clearly.
In response to a deluge of requests by people from all over the world who wish to join us in asking to take a portion of the punishment of Raif Badawi, my dear friend Katrina Lantos Swett, President of the Lantos Foundation for Human Rights, has created a website where people can sign up to offer to take some of Raif's lashes. By sharing this website, I do not mean in any way to pressure anyone to sign up. This is a purely personal and vocational decision. No one is deficient in respect for human rights--and no one is a coward--for not joining us. In my opinion, God calls all of us to bear moral witness, but He does not call all of us to bear it in the same way. For example, not everyone was called to join Dr. King in going to jail in Albany, Georgia or Birmingham, Alabama. For those who feel called in this case, however, Katrina and her Foundation are making this website available. The one thing I would call everyone to do is pray for Raif and his family, and for the softening of the hearts of the Saudi officials responsible for the horrific injustice being committed against him. (For those who are reading this note who are not believers, may I suggest that you nevertheless join us in prayer, praying in the mode of Charles Ryder in Waugh's novel *Brideshead Revisited*: Oh, God (if there is a God), I ask you to . . . .")
A few weeks ago, I posted about the death (and life, and work) of my friend, colleague, and teacher, Robert Rodes. In response, a regular MOJ reader sent in the following. I really appreciated this reader's thoughts and, with permission, I share them below:
1) On November 20, I attended (at my undergraduate alma mater Loyola-Chicago) first a memorial Mass in honor of the "Salvadoran Martyrs" (six Jesuits at the University of Central America and two lay women executed by the Salvadorn military in 1989) wherein Jesuit Fr. Jon Sobrino was a concelebrant and later in the evening an address by Fr. Sobrino after the conferral of an honorary degree by the University. Both the homily at Mass (by another Jesuit of my acquaintance who accomplished great things in Peru) and the address by Father Sobrino invoked, as one might expect, principles of liberation theology which exerted a not insignificant influence upon me in my youth. The day inevitably led to some wistful reflection - very lightly tinged with mild regret(?) - about how my professional life as a lawyer has measured up to youthful ideals, boxed away sometime during my first year of law school with my
dog-eared copy of Fr. Gutiérrez' A Theology of Liberation.
2) On November 28, I saw your post on MOJ concerning the death of your colleague at Notre Dame, Professor Robert Rodes, Jr. The linked article by Professor Shaffer "The Christian Jurisprudence of Robert E. Rodes, Jr." led me to read all the articles by Professor Rodes available at SSRN or otherwise on the Internet (as well as your article about Rodes' notion of Church-State nexus and Professor Uelman's piece). In particular, "On Professors and Poor People - A Jurisprudential Memoir" (2007) led me to acquire Pilgrim Law - I was hooked as he acknowledged the impact of William Stringfellow, Jacques Ellul and Father Gutiérrez on his work in "On Professors and Poor People," each of whom gobsmacked me in my youth. The notion of "liberation jurisprudence" I found bracing and concluded/hoped that, often without intent or understanding, I had occasionally stumbled into applying his reading of the "preferential option for the poor" at least during the last 12 years of my legal career. Eschatology from a "radical Catholic" lawyer is by now for me easier to digest than taking it straight from radical theologians like Fr. Sobrino. So, thank you for the introduction to Professor Rodes.
3) My Internet search also led me to a remarkable "non-legal" article by Professor Rodes from 2002 in the now defunct American Benedictine Review "On the Vocation ofa Benedictine Oblate" available at:
Since 2000, I have sporadically attended Mass at the Benedictine Monastery of the Holy Cross in the Bridgeport neighborhood on the South Side of Chicago and have participated in a sort of book club sponsored by the monks since about 2001-2002. Originally, I was exploring the notion of becoming a Benedictine oblate, but quickly decided it was not really for me - in part because my wife finds the monastic "thing" quite alien. If my math is accurate, Professor Rodes and his wife had been oblates at Portsmouth Abbey in Rhode Island for 50 years before he wrote the article. I don't know how one spouse could properly be an oblate without the other, and certainly I could not. As someone hovering occasionally around the edges of Benedictine community, his insights here were at least as impressive (for me) as his eschatological, liberation jurisprudence.
4) While I had already read the excellent exchange in the February 2015 First Things when I saw your post on "Hanby, Weigel, and Dreher on 'The Civic Project of American Christianity'," further discussion there concerning the "Benedict option" led me back to Professor Rodes reflection on the vocation of the Benedictine oblate. Hanby, Weigel and Dreher differ on several points but share a basically pessimistic view about the general prospects for Christians in America, let alone the "Civic Project of American Christianity." Hanby and Dreher again discuss the "Benedict option." I tend to share a pessimistic view of most things, whether as a matter of personality or experience.
However, for some reason I have been particularly taken by the last paragraph of Professor Rodes' article, mentioning the picture of the "old" St. Benedict beside a tree stump with a small leaf growing out of the side. "Underneath was the motto SUCCISA VIRESCIT, when cut down, it grows green." Some translations of the motto substitute "pruned" for "cut down" and "flourishes" for "grows green." Professor Rodes' translation was spot on and very Benedictine. Succisa virescit is originally the motto of St. Benedict's own Abbey of Montecassino and developed at some time after the abbey was destroyed by the Lombards around 585 and by the Saracens in 884, but before the subsequent destruction by Normans in 1046, by earthquake in 1349, and by the American Army Air Corps in 1944.
Ultimately, it seems the "Benedict option" is now what it always has been - pray and work wherever you find yourself, trusting always in the Lord. If it gets cut down, it will grow green.
Over at the Law and Liberty site, Joseph Knippenberg has a post looking at the decision by the NLRB in the Pacific Lutheran case I mentioned here. A bit from his analysis:
First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.
This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.
Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.
Today is the observance of International Holocaust Memorial Day. It falls on the 70th anniversary of the liberation of the Auschwitz-Birkenau extermination camp, known as "the death factory." It is a day to remember, prayerfully, the victims, and to reflect, soberly, on the depth of human depravity. How, we ask ourselves, could human beings have tortured and brutally murdered millions of their fellow human beings? How could such inhumanity, such barbarism, have occurred in the modern world, and in Germany—a nation of unparalleled cultural and intellectual attainments? It is also a day to consider, humbly, that had we been there, few of us would have been among the heroes who, at great risk to themselves, sheltered Jews and other victims or joined the forces opposing Hitler and the Nazis. Very few of us indeed.
But above all, it is a day to say, from our hearts and with conviction: "Never again."
The Holocaust—the Shoah—did not begin with the mass killing of Jews or other ethnic or religious minorities, or even Hitler's political opponents. It began with the killing of the handicapped and infirm. They were, according to Nazi ideology, "useless eaters," "parasites," lebensunwertes leben ("lives unworthy of life"). It is important to remember that this eugenic doctrine did not originate with the Nazis. It began with polite, urbane, well-educated, sophisticated people who saw "social hygiene" via, among other methods, euthanasia, as representing progress and modernity. They wanted to ditch the old Judaeo-Christian belief in the sanctity of all human life and replace it with what they regarded as a more advanced and rational philosophy.
This was the view articulated by, for example, noted legal scholar Karl Binding and psychiatrist Alfred Hoche in their treatise *Permitting the Destruction of Life Unworthy of Life*, published in 1920. Binding and Hoche were not Nazis, and when they were writing their book the Nazi party didn't even exist. In a few years, however, Hitler and the Nazis would adopt their ideas about "social hygiene" (mixing in racialist ideology and nostalgia for a mythical golden age of Teutonic paganism) and carry out the euthanasia program with a remorseless, pitiless fervor. Thus, began what became the Shoah—the murder of six million Jews, two to three million Russians, two million ethnic Poles, and nearly countless other so-called “undesirables.”
Yes, let us truly say, from our hearts and with conviction: "Never again."
The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicusbriefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose. (See the Institute for Justice description of the cases.) The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.
The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.
The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic. The previous briefs we have filed are collected here. 3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief. And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.
