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, December 16, 2014

New Edition of Dawson's "The Gods of Revolution"

Here is a new edition of a work by the brilliant historian, Christopher Dawson--The Gods of Revolution--first published in 1972. The book was Dawson’s last monograph, published posthumously The Gods of Revolution with an introduction by Arnold Toynbee, with whom Dawson shared both a wonderfully sweeping methodological style and an interest in certain overarching religious themes--a style and a set of interests that quite went out of fashion in the work of many subsequent historians. The volume has been reissued by CUA Press with a new introduction by Joseph Stuart. In a college course in the intellectual history of western civilization many years ago, one of the required readings was the final part of Dawson’s book. I went back and looked at it, and have the following line highlighted: “And a free society requires a higher degree of spiritual unity than a totalitarian one, hence the spiritual integration of western culture is essential to its temporal survival.” Here is the publisher's description.

In The Gods of Revolution, Christopher Dawson brought to bear, as Glanmor Williams said, “his brilliantly perceptive powers of analysis on the French Revolution. . . . In so doing he reversed the trends of recent historiography which has concentrated primarily on examining the social and economic context of that great upheaval.”

Dawson underlines the fact that the Revolution was not animated by democratic ideals but rather reflected an authoritarian liberalism often marked by a fundamental contempt for the populace, described by Voltaire as “the ‘canaille’ that is not worthy of enlightenment and which deserves its yoke.” The old Christian order had stressed a common faith and common service shared by nobles and peasants alike but Rousseau “pleads the cause of the individual against society, the poor against the rich, and the people against the privileged classes.” It is Rousseau whom Dawson describes as the spiritual father of the new age in disclosing a new spirit of revolutionary idealism expressed in liberalism, socialism and anarchism. But the old unity was not replaced by a new form. Dawson insists the whole period following the Revolution is “characterized by a continual struggle between conflicting ideologies,” and the periods of relative stabilization such as the Napoleonic restoration, Victorian liberalism in England, and capitalist imperialism in the second German empire “have been compromises or temporary truces between two periods of conquest.” This leads to his assertion that “the survival of western culture demands unity as well as freedom, and the great problem of our time is how these two essentials are to be reconciled.”

This reconciliation will require more than technological efficiency for “a free society requires a higher degree of spiritual unity than a totalitarian one. Hence the spiritual integration of western culture is essential to its temporal survival.” It is to Christianity alone that western culture “must look for leadership and help in restoring the moral and spiritual unity of our civilization,” for it alone has the influence, “in ethics, in education, in literature, and in social action” sufficiently strong to achieve this end.

President Obama's Immigration Action Unconstitutional According to U.S. District judge

A United States District judge has concluded that President Obama's Executive Action on Immigration is unconstitutional as beyond the president's prosecutorial discretion. The opinion is here.

Monday, December 15, 2014

An important case in Colorado

Once again, the Blaine Amendments threaten to play Grinch and undermine creative education reform, this time in Colorado.  More here.

Program Director sought for LMU's "Academy of Catholic Thought and Imagination"

More info is here.  Spread the word:

The Academy of Catholic Thought and Imagination (ACTI) is a community of scholars who work in dialogue with the Catholic intellectual tradition by developing, critically examining, communicating, or otherwise engaging the rich resources of Catholic thought and imagination, especially as it is informed by Jesuit thought tradition and Ignatian spirituality. The director will oversee all aspects of the Academy which serves as a hub for scholarship, interdisciplinary research, innovative pedagogy, and creative outreach across LMU’s campus, in the greater Los Angeles community, and beyond. The Academy is a strategic priority at Loyola Marymount University and the director reports directly to the provost. 

Saturday, December 13, 2014

Upcoming conference (AALS overlap!): "The Vocation of a Christian Law Prof"

For everyone planning on attending the AALS Annual Meeting in DC -- and for any law professors or law students who'll be in the area in early January! -- here's information about the upcoming Lumen Christi / Law Professors Christian Fellowship event, featuring our own Rob Vischer and Prof. Barbara Armacost (U. Virginia).  Sign up now!

 

"Public Schools and the Wall of Separation"

Over at First Things, Mark Bauerline has a helpful report about a recent lecture by Philip Hamburger -- author of (among other things) the crucially important book, Separation of Church and State -- on the "wall of separation" metaphor, public schools, religious freedom, and anti-Catholicism.

Friday, December 12, 2014

Great job opening: Direct of Center for Catholic Studies, UST

The University of St. Thomas is searching for a Director for its Center for Catholic Studies, which, among many other wonderful things, is the co-sponsor (along with UST Law School) of the Murphy Institute for Catholic Thought, Law, and Public Policy (which I co-direct).  Here's the description of the enterprise of the Department & Center for Catholic Studies, from the job posting:

The Department and the Center for Catholic Studies comprise an integrated project at St. Thomas. While the Department focuses principally on degree-granting activities, the Center oversees the work of three major institutes and a quarterly journal. It also sponsors multiple lectures and faculty development programs. The director of the Center will be responsible for coordinating the work of these institutes as well as other forms of outreach within the university and the broader community. This will include work with benefactors and other development activities.

 

The Department offers an undergraduate major and minor as well as a graduate degree (M.A.) in Catholic Studies.  In our teaching and scholarship, we are committed to the complementarity of faith and reason across all academic disciplines, to sustaining and developing the richness and breadth of the Catholic intellectual tradition, and to the general principles articulated in Ex corde ecclesiae.  We seek candidates who share these commitments. 

 

More details here.

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here's the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

Thursday, December 11, 2014

"The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History." (Lord Acton)

Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances. 

The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:

No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.

Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.

Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.

Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.

If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.

The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.

Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.

Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.

Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.

A Swing and a Miss (Times Three)

Stevens_Cubs1_Small

It’s that time of year again . . . when Major League Baseball hosts its Winter Meetings.  At the same time that many people are shopping for Christmas presents for their loved ones, professional baseball clubs are shopping for players to improve their rosters.

Here in the Second City, the Chicago White Sox are looking to improve from a dismal season in 2014, whereas the Chicago Cubs are looking to recover from a dismal century.

One of the Cubs most famous fans is retired Supreme Court Justice and Chicago native John Paul Stevens.  It would be wrong to criticize Justice Stevens’ judgment for being a Cub fan – a burden and a joy that he inherited from an early age.  But he can most definitely be faulted for his errors in judgment as a member of the Court.

Three of Stevens’ most flawed opinions concern abortion: Thornburgh, Webster, and Casey.  In each of these opinions Stevens embraced a mantra repeated again and again by pro-choice advocates, viz., that the pro-life position on abortion is “inherently religious” such that legal efforts to protect the developing human embryo or fetus constitute an establishment of religion in violation of the First Amendment.  The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one. 

The claim that the pro-life position is religious has a long pedigree going back to Glanville Williams’ The Sanctity of Life and the Criminal Law (1957) and Lawrence Lader’s “Catholic strategy” at the founding of NARAL, but Stevens is its most prominent spokesperson.  Surprisingly, however, a close, critical reading of Stevens’ opinions in Thornburgh, Webster, and Casey is almost entirely absent from the scholarly literature.

In a recently published article entitled “Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens Opinions in Thornburgh, Webster, and Casey, I seek to remedy that absence. 

The article demonstrates that Stevens simply takes for granted the central claim upon which the conclusion of establishment turns – the religious character of pro-life legislation.  He then employs this assumption rhetorically in order to dismiss a point of view he never squarely confronts.

In this regard, Stevens’ approach is exemplary of the vast majority of academic commentators who have put forth the same claim.  (Two commentators on abortion, Peter Wenz and Ronald Dworkin, at least recognize that an argument needs to be made to show that a particular proposition possesses some quality that renders it “religious” and so unsuitable as a basis for law.  Their arguments also fail, as I intend to show in a subsequent article, but at least they recognize the issue).

The article also shows that Stevens’ characterization of religious establishment is so broad that it would render any attempt to define who is a human being worthy of legal protection (including Stevens' own) unconstitutional.  Although Justice White made this very point in Thornburgh, Stevens never responds to it in any of his opinions, echoing the silence in the academic literature to the same argument that John T. Noonan, Jr. put forth years earlier in his book, A Private Choice (1979).

The article also argues that Stevens’ cryptic invocation of the “endorsement” test in Webster fails, and that he covertly repudiates the principle of McGowan v. Maryland.

Although Stevens has many admirers, the naked assertions and inconsistencies that he offers in these opinions must constitute the intellectual low-point of his tenure on the bench.  As a Cubs fan, Stevens knows all about low points, but unlike the Cubs record, these are of his own making.

Swing-and-a-miss