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.

Monday, August 11, 2014

Movsesian on American Humanitarianism and Christian Victims

My colleague Mark Movsesian has a good post on the subject. A bit:

But Mideast Christians are often an afterthought for the United States, and it seems they are in this situation again. A Wall Street Journal report, which quotes unnamed members of the Obama administration, indicates the threat of genocide against Yazidis was the primary factor in the American decision to intervene. “This was qualitatively different from even the awful things that we’ve confronted in different parts of the region because of the targeted nature of it, the scale of it, the fact that this is a whole people,” the official said.

That is a rather myopic view of the situation. We’re offering assistance to 40,000 Yazidi refugees whom ISIS has driven from their homes and threatened to slaughter. Great—we should. But in the weeks before ISIS turned on the Yazidis, it had displaced more than 100,000 Christians from their homes and driven them into the desert. ISIS eliminated major Christian communities in Mosul and Qaraqosh, and the US responded only with a concerned statement from its UN ambassador. And this is to say nothing of the hundreds of thousands of Christians who have become refugees since the invasion of Iraq in 2003. If genocide correctly describes what threatens the Yazidis, it also describes what’s happening to Iraqi Christians. Indeed, many of these Christians are the descendents of people who suffered genocide at the beginning of the 20th century.

There are reasons why America tends to treat Mideast Christians as an afterthought. Mideast Christians lack a natural constituency in American public life. They are, as one commentator observed, too foreign for the Right and too Christian for the Left. Most of our foreign policy elites have a blind spot about them. And I don’t mean to single out the Obama administration. Nina Shea of the Hudson Institute has recounted her attempts to get the Bush administration to focus on the plight of Iraq’s Christians, only to be told by Condoleezza Rice that assistance for Christians would make the United States appear sectarian.

To draw attention to the plight of Iraq’s Christians is not special pleading. The US should not concern itself only with Christians; other religious minorities deserve our attention, too. But, in the Middle East and around the world, Christians are often targeted for persecution in particularly severe ways, and the human rights community often seems not to notice.

James Mumford on Paul Ryan and a "New Approach to Poverty"

James Mumford has a very thoughtful piece up at The Hedgehog Review, called "A New Approach to Poverty."  It's a reflection on Rep. Ryan's new set of reform proposals relating to relieving poverty (and enhancing opportunities).  Worth a read.

Sunday, August 10, 2014

Fall 2014 Constitutional Theory Seminar

Perhaps not right down the Catholic Legal Theory fairway (but maybe somewhere in the rough), but I'm teaching a seminar in constitutional theory this fall here at St. John's for the first time, and I thought to ask the good readership and writership at MOJ about suggestions. I'm using the terrific reader by Gehardt, Griffin, Rowe, and Solum as my basic text, though I am supplementing it with a number of other materials. I've organized the course to be a little bit interpretation-heavy, and doutbless there are points of emphasis that are slightly particular to my interests (constitutional theory skepticism and the role of history and tradition may figure somewhat more prominently than they otherwise might). But please write to me with recommendations for changes, additions, deletions, etc. The tentative syllabus is after the break.

Continue reading

Friday, August 8, 2014

Russell Nieli on what the Santa Barbara killer needed and didn't get (hint: it's not "therapy")

In the "Age of Feeling" in which we live, the reality of evil is obscured, and what were once correctly understood as vices are regarded as emotional problems---if they are regarded as problems at all. When the concepts of evil and vice disappear, people lose awareness of the need for repentance and reform; when evil and vice are redescribed as emotional problems, people are deceived into supposing that they can and should be managed by way of therapy. The culture of narcissism and the therapeutic culture are the two sides of one coin. The therapist usurps the role and authority of the priest, and the priest reimagines himself as a therapist.

Today at Public Discourse, my colleague and dear friend Russell Nieli, a Lecturer at Princeton and the author of (among other valuable writings) a superb book on Wittgenstein, offers a deeply thoughtful reflection on the tragic case of Elliot Rodger, the Santa Barbara killer:

"What [Elliot Rodger] needed was not a psychiatrist—he had been seeing therapists and psychiatrists for much of his life—but a preacher or a priest who could explain to him the self-destructive vice lurking within his soul, the importance of gratitude, the necessity of repentance, the evil of covetous envy, and most crucial of all, the importance of charity, humility, loving kindness, and trust in a higher power."

Read the entire essay here:

http://www.thepublicdiscourse.com/2014/08/13555/

Thursday, August 7, 2014

"Religious Identity in a Time of Challenge for Law Schools"

This is the theme of the upcoming annual Religiously Affiliated Law Schools conference, which is being held this year at St. Thomas.  Don't miss it!  

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 UPDATE:  John Inazu's (excellent) response is available here.

Wednesday, August 6, 2014

Protecting your civil right to shut down the other guy's free speech

Back in the 90s, when I was serving on the U.S. Commission on Civil Rights, I heard witnesses before the Commission and even members say some pretty ridiculous things.  But matters seem to have gone from bad to worse. A current Commissioner---former Nancy Pelosi aide Michael Yaki---is pushing the cause of campus "speech codes." This, mind you, from a guy whose job is to defend people's civil rights.  Here's the story from Yahoo News:

http://news.yahoo.com/democrat-u-civil-rights-commission-wants-speech-codes-131814819.html

Monday, August 4, 2014

Catholic Social Teaching and public-employee unions

Prof. Meghan Clark argued recently, in this piece ("Power to the Public Workers"), that the deeply rooted Catholic principles and teachings having to do with the dignity of work and workers mean, in practice, that public-employee unions should not be distinguished from private-sector-employee unions when it comes to collective bargaining and other labor-related policies.

I have contended often here at MOJ and elsewhere  that "it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions."  To quote an earlier post:

(The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minionand Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It isnotgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

Prof. Clark writes:

Our teachers, librarians, police, firefighters, sanitation workers, and all civil servants actively contribute to the common good. They and their jobs are not lesser because their wages are funded by your taxes. They have equal dignity with private employees. In this current wave of hostility toward public workers, Catholic social teaching reminds us that the dignity of all workers—public and private—grounds their basic right to association, including the right to unionize and bargain collectively. 

I agree entirely with the first three of these sentences, but have to respectfully disagree with the suggestion that public employees' "equal dignity" means that the content and limits of their "right to unionize" are or should be the same as that of private-sector employees.  That the employer is not "capital" but is, instead, the political community is, it seems to me, very relevant to questions about the employer-employee relationship.  The employer -- again, the political community -- has obligations not only to its employees, but also to citizens, taxpayers, and -- as the looming crisis in underfunded public-employee pensions reminds us -- future generations.

School vouchers, intolerance, and justice: A response to Michael S.

A few weeks ago, Michael Scaperlanda shared this post, "School Vouchers in a Time of Increasing Intolerance," in which (among other things) he invited my thoughts about and reactions to his suggestion that the Blaine Amendments, "as ugly as they were[, could] be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy[.]"

It is, I am afraid, true (as Michael's post suggests) that we can expect public funds and support -- including not just vouchers, but also tax-exempt status, access to public forums and programs, even accreditation -- to come with heavy-handed regulatory "strings" that will often be in tension with the mission and character of authentically Catholic schools.  But, the anti-Catholic Blaine Amendments (which have, in some states, had the effect of limiting public funds for Catholic schools and the families who support them) will not really be any help, I'm afraid.

Now, in my view (and in Michael's, I know) -- see here and here for more -- it is unjust for communities to limit public funding of education to education that takes place in state-run institutions.  It is unjust -- and Catholic social teaching is clear on this point -- to deny parents the support or assistance necessary for them to send their children -- if they want to send their children -- to Catholic schools.  That said, and as Michael reminds us, the danger has always been real -- and school-choice opponents have often emphasized it -- that public funding would come with mission-compromising regulations.  I do not think this danger is a sufficient reason to stop trying to bring about more just school-funding policies.  It should be kept clearly in view, though, as policies are designed and debated.

I do not believe that Catholics and the Church can -- in this country, given all the on-the-ground givens -- just "walk away" from our institutions and this means -- again, given all the givens, that we cannot just "walk away" altogether from public funding and potentially entangling regulations.  It's not just that we need our institutions, or that they do a lot of good work, or that we have become overly dependant on public support.  It is, in addition, that the political authority is not going to allow us to walk away.  The argument that non-state institutions may and should be not only incentivized, but compelled, to come into ideological congruence with the practices and commitments of state organizations used to be marginal and radical, but it now seems entrenched comfortably in the mainstream.   Blaine Amendments or no, vouchers or no . . . it will be an increasingly difficult political and legal fight to preserve Catholic institutions' ability and freedom to be -- assuming they want to be -- Catholic institutions.

"New Urbs" at The American Conservative

Readers of MOJ are probably very(!) familiar with my love-hate interest in "New Urbanism", about which I've often blogged here.  That interest prompted me to read this, at The American Conservative, about a new project of their called "New Urbs":

. . . Over the course of the next year, The American Conservative will be opening a discussion on how to rebuild America’s communities and sense of place by fostering humane, sustainable, and walkable built environments, made possible by a grant from the Richard H. Driehaus Foundation. For while the breakdown of community and the family is a consistent theme in conservative circles, the conversation very rarely gets beyond some mix of exhortation towards traditional values and demands for rollback or reform of the welfare state. That’s where a school of urban design called “New Urbanism” comes into play.

Just as an individual is embedded in a family, and a family is embedded in a community, so too a community is embedded in its neighborhood. The patterns we live in can bring us into the sort of constant, casual, incidental contact that builds bonds between neighbors, or they can silo each of our families away, leaving civil society to wither as the “place between” is filled with asphalt and strip malls. As Paul Weyrich, William S. Lind, and Andres Duany wrote in “Conservatives and the New Urbanism” in 2006, “Edmund Burke told us more than two hundred years ago that traditional societies are organic wholes. If you (literally) disintegrate a society’s physical setting, as sprawl has done, you tend to disintegrate its culture as well.” New Urbanists aim to reinvigorate those traditional structures, like the classic Main Street with living space above the storefronts, and other homes right around the corner. . . .

Stay tuned . . .