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, June 20, 2014

2014 Trafficking in Persons Report

Yesterday was an important day in the anti-trafficking world; the State Department released its 2014 Trafficking in Persons (TIP) Report. This annual report card on international efforts to combat human trafficking is a product of the Trafficking Victims Protection Act of 2000 (TVPA). The Report has been a significant resource as well as diplomatic tool to confront both trafficking and failed or weak efforts to address it.

The theme of this year's report is "The Journey from Victim to Survivor." This reflects the recent focus of anti-trafficking movements of victim services and the importance of governments working with NGO's to help victims. I was especially pleased to see this. As I have previously blogged, many Catholic women religious orders have been at the forefront of working with victims. This was recently recognized more publicly by the law enforcement community in an international meeting of law enforcement and religious organizations. Indeed, one chief of police noted that the women religious with whom he partnered were indispensable to their efforts to interface with victims.

Of particular interest to MOJ readers is a discussion within the first 10 pages of the report regarding the dignity of the human person – a bedrock of the Church's position on this issue. This is followed by a rather candid statement about the reality of victim services:

These individuals have often endured horrific physical, psychological, and/or sexual abuse at the hands of their traffickers and others. But victim services that focus on providing support only until individuals are physically well enough to be sent on their way—or put in line for deportation—are insufficient. Those who have been enslaved have endured more than physical harm. They have been robbed of their freedom, including the freedom to make choices about their own lives. Medical care and a few nights in a shelter do not make a victim whole again. Even as the physical wounds are salved and begin healing, a major element of the recovery process is helping victims regain their agency, their dignity, and the confidence to make choices about how to move forward with their lives.

As if to underscore the point, MOJ readers may be pleased to see that on that same page in the TIP report is a photograph of Pope Francis meeting with the President and the following quote from the Holy Father himself: "I exhort the International community to adopt an even more unanimous and effective strategy against human trafficking, so that in every part of the world, men and women may no longer be used as a means to an end."

    I continue to work my way through the Report (all 432 pages of it), but encourage all MOJ readers to review its findings. It is encouraging to see it publicly endorse some of the important work the Holy See is doing in this area. It also provides a challenge to all of us as educators of young lawyers to consider how we can respond to Francis' invitation.

Christian Faith and the Crisis of the Universities

I very much enjoyed this essay, by Miroslav Volf (Yale), called "Life Worth Living:  Christian Faith and the Crisis of the Universities."  Among other things, it engages my friend and teacher Tony Kronman's important book, Education's End:  Why Our Colleges and Universities Have Given Up on the Meaning of Life.  Here's just a bit:

What is lost when the exploration of life worth living gets squeezed out of the university? For one, the university's character changes. In terms of the main thrust of what universities are about, they become a combination of research institutes and vocational schools. As research institutes, universities seek to explain how the world and various swaths of it function and to apply the knowledge gained to mastery over the world. As vocational schools, universities prepare students for jobs, which are increasingly knowledge based.

As sites of research, application of knowledge, and training, universities are immensely important. But if this were all there was to them, they would be seriously deficient. In research and vocational training, the most basic question is "How?" - how things (from galaxies to subatomic particles, and everything in between) work, and how to make things work for our benefit. Reason is employed for explanatory and instrumental purposes. Answering "How?" as we seek to achieve our goals is important. So is answering "What?" as we stand in wonder before the world. But perhaps the most characteristic question for humans is neither "How?" nor "What?" but "To what end?" To what end do we seek to advance knowledge and invent new technologies? To what end do we work from dusk to dawn, whatever our jobs are?

Centred on research and vocational training, universities are about cognition and instrumental rationality only, not about moral norms and meanings. They teach students how to achieve whatever ends they themselves or others set for them, but not how to evaluate and chose wisely among possible ends. Experts in means, they then remain amateurs in ends. With cognitive and instrumental prowess, they blindly follow their "preferences" bereft of reflexive standards or norms with which to evaluate them; they seek to satisfy their desires without having explored what is genuinely desirable and why. . . .

. . . The Christian faith can help universities build robust humanities programs in which the question of life worth living figures prominently. This may in fact be the most important contribution that the Christian faith has to make to the flourishing of universities, just as participating vigorously in the public debate on life worth living might be the most important contribution to public life more broadly. . . .

Mathewes on Dworkin and Wiman

Anything by UVA's Charles Mathewes is presumptively worth reading, but Chuck's review at the American Interest combining his reflections on Ronald Dworkin's posthumous Religion Without God and Christian Wiman's My Bright Abyss (which I praised last summer here) is especially thoughtful on the place of religious discourse in contemporary public life. (Though I must resist Chuck's characterization of law and philosophy as "deeply unreflective academic fields.") A bit from the first section that frames his essay:

If any of these religion[s] try to “appear” in public (the metaphor itself is telling), they must politely cram themselves into the whalebone corset that is the etiquette of the modern Western public sphere. Religion in the contemporary West has become socially and politically denominationalized and existentially privatized. Many religions can accept such terms only at the cost of self-mutilation. Pretty obviously, this is a situation that doesn’t encourage coherent conversation about belief—more the opposite.

This is a special problem in a liberal society. If the genius of political liberalism is to recognize an inviolable wall around the privacy of the individual, the problem that liberalism faces is that that wall, once established, blocks passage in both directions. If we deem it abhorrent to violate another’s conscience, and so construct the public sphere in such a way as to forbid the public from invading the conscience, it is hard to see how so private a conscience can break out, to interact at all with public affairs. This risks turning the individual’s fortress into a prison; we have secured ourselves from violation only by forbidding ourselves real encounter. Liberalism’s admirable recognition of the unique value of each individual has had the effect of creating a society composed of gilded birds trapped in iron cages.

Levine (2009) on omnisignificance in the Torah and the Constitution

Having recently posted Thomas Mann Randolph's critical comment about the Supreme Court treating the Constitution as a "mystical writing," I thought it would be fitting to post something in a related vein, but more constructive than critical. In 2009, Professor Samuel Levine published in the Michigan State Law Review an interesting essay that suggests that the Ninth Amendment may serve a similar function in constitutional law to that served by close analysis of legal scenarios that some Talmudic authorities believe will never occur. Here is the abstract for Levine's essay, Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework:

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the Torah and the United States Constitution contain sections that, notwithstanding a textual appearance of actual implementation, have been interpreted by at least some legal authorities as not susceptible to practical application. Specifically, in the case of the United States Constitution, the Ninth Amendment appears on its face to serve as a basis for the identification of constitutional rights not enumerated elsewhere in the Constitution. In practice though, the Ninth Amendment has not served such a function; its harshest critics have characterized the amendment as the functional equivalent of an inkblot, while the United States Supreme Court, though not as dismissive in tone, has resisted arguments that would rely on the Ninth Amendment as a source for the derivation of unenumerated, individual constitutional rights. In an effort to reconceptualize the function of the Ninth Amendment in American constitutional interpretation, Levine looks to the analogue of the Biblical account of the “stubborn and rebellious son,” one of three legal scenarios in the Torah that, in the views of some Talmudic authorities, will never occur. According to a number of Jewish legal scholars and philosophers, the Talmud ascribes to these sections of the Torah considerable legal significance, albeit of secondary or symbolic legal value. Although these legal scenarios may never occur, the lessons derived from the text have both pedagogical and practical implications for understanding and interpreting the laws of the Torah. Likewise, perhaps the Ninth Amendment functions neither as a primary source for the derivation of unenumerated constitutional rights nor as an inkblot. Instead, the Ninth Amendment may serve a secondary role, providing both practical and symbolic lessons for understanding and interpreting the United States Constitution.

 

Thursday, June 19, 2014

Randolph (1821) and Smith (2005) on constitutional interpretation as scriptural interpretation and the Constitution as "mystic writing"

I've mentioned before Steven Smith's description of the Supreme Court as a kind of (anti-)magisterium. Part of Smith's argument is a comparison between "what the Court does with the Constitution" and scriptural interpretation:

[M]uch of what the Court does with the Constitution simply does not make sense except on assumptions similar to those that inform the interpretation of scripture– such as the assumption that the text is ultimately not the product of merely finite and mortal authors but rather the expression of some more transcendent mind whose meanings exceed the grasp of either the flesh-and-blood enactor-scribes or the judicial interpreters

Earlier today I came across another quotation that reminded me that the idea that the Supreme Court has taken up magisterial authority is no recent development. The Marshall Court garnered comparisons to papal authority, and the language of constitutional heresy and constitutional orthodoxy was not uncommon. Consider, for example, how Virginia governor Thomas Randolph in December 1821 discusses the Supreme Court's decision earlier that year in Cohens v. Virginia. He contends that the Constitution is a monument to the wisdom and harmony of the past; its imperfections are a testimony to the need for good faith in the present and future. And he criticizes the Court for mystically pretending the Constitution is something better than what it is:

The constitution of the United States is a durable monument of the wisdom and harmony of times past. Its very imperfections constitute an impressive memorial of the necessity for good faith in the passing and in future times. It is not a mystic writing given in charge to the federal judiciary as to a priesthood to be enveloped in a studied obscurity, consulted through mazes, and made to give such responses as may suit the peculiar views of political expediency, of incumbents of any political sect, at any period.

Thomas Mann Randolph, Richmond Enquirer, December 4, 1821, p. 3. 

 

 

An important church-autonomy case from the ECHR

The Becket Fund reports that "the Grand Chamber of the European Court of Human Rights (ECHR), Europe’s final arbiter of human rights disputes, decided 9-8 today that the autonomy rights of religious institutions—here, the Catholic Church—trump the rights of religion teachers to mount a public attack on church teachings."  What is amazing, and unsettling, to me, is that the decision was so close.  Apparently, at least one judge wrote an . . . interesting dissent:   "In a remarkable dissent from the Court’s decision today, the ECHR judge appointed by the government of Russia, Dmitry Dedov, directly attacked the Catholic Church and its practice of priestly celibacy, calling the practice “totalitarianism” and adding his opinion that “the celibacy rule contradicts the idea of fundamental human rights and freedoms.”"

Unaccompanied Minors Crossing the Border by the Thousands

First Things published my essay Tragic Compassion on the origins of our current crisis at the border.

Here is the beginning of the essay: "The Department of Homeland Security estimates that 90,000 unaccompanied minors will be apprehended attempting to enter the United States this year, up from 40,000 last year. DHS expects the number to grow to more than 140,000 next year. Ranging in age from six to 17, many of these minors travel more than 1,700 treacherous miles from Honduras across Guatemala and Mexico.

Overwhelming immigration authorities, many unauthorized entrants are released into the United States on the promise to report to immigration authorities, although federal authorities lack the will and the resources to ensure follow through. Others are being or will be housed on military bases in California, Oklahoma, and Texas. At least in the short term, there are concerns about adequate housing, health care, education, sanitation, food, and supervision as detention facilities attempt to cope with the influx. 

Misguided compassion led directly to this tragedy. How did we get here?"

Tuesday, June 17, 2014

Heritage's Problem with Muslims (UPDATED: and Pushback)

The Washington Post's Dana Milbank reports on a Heritage Foundation panel this weekend on the Benghazi issue, where a group of speakers weighed in on the Muslim threat to America:

Then Saba Ahmed, an American University law student, stood in the back of the room and asked a question in a soft voice. “We portray Islam and all Muslims as bad, but there’s 1.8 billion followers of Islam,” she told them. “We have 8 million-plus Muslim Americans in this country and I don’t see them represented here.” ...

If the report is accurate, the speakers then contempuously dismissed Ms. Ahmed's point, to the cheers of the crowd. One speaker, Brigitte Gabriel of a group called ACT! for America,

dismissed as “irrelevant” the “2.3 million Arab Muslims living in the United States [when] it took 19 hijackers — 19 radicals — to bring America down.” She mocked Ahmed’s “point about peaceful, moderate Muslims” by making quotation marks with her fingers when she said the word peaceful.

Heritage's attitude seems to be unchanged from, or worse than, a few years ago, when they invited me to speak with a couple of other panelists about "Islam and Religious Liberty." I said yes and described my thesis: that it was vital for religious traditionalists to enlist American Muslims, most whom are both devout and peaceful, as partners in the defense of full religious liberty, i.e. the freedom of all Americans to live out religious values in society, not just in private/insular settings. The staff member who had conveyed the invitation called back the next day and said that wasn't what her supervisors had in mind: they really wanted only talks about how Islam threatened religious liberty.

That attitude is both unfair and short-sighted. It's important, of course, to talk and act concerning radical Islam's threats of violence; but it's simply wrong to ignore how much most Muslim practice, especially in America, differs from that, and how much Muslim citizens can contribute to our society.

There are important voices challenging religious conservatives (and all Americans, because this problem crosses ideological lines) to reject anti-Muslim prejudice. They include our own Robbie George, and the Becket Fund for Religious Liberty. Keep up that crucial work!

UPDATE: As several people pointed out to me, Milbank's characterization has been sharply criticized,  here and here. You can look at the video here. I think it does complicate the simple story Milbank tells. For one thing, Frank Gaffney gives a respectful response to the woman's question while still making his point: clearly not all the speakers dismiss her. For another thing, it's unclear whether, as the speaker Ms. Gabriel charged, the questioner introduced the issue about Islam without any provocation from anything any of the speakers had said. But I do think the video still supports a couple of points:

(1) Ms. Gabriel adopts a hostile and accusatory tone to the questioner (who only asked whether it's possible to win the war against radical Islam without undercutting the appeal of the ideology), and Ms. Gabriel dismisses moderate Muslims as "irrelevant" the fight against radical Islam. I don't think wholesale dismissals of peaceful Muslims as "irrelevant" are likely to increase conservatism's appeal to those folks, who as I said might otherwise be allies on some important social and cultural issues. The fact that she acknowledged most Muslims are peaceful does not undo the counterproductive results of dismissing them as irrelevant.

(2) Although I wasn't in the room, the ovation from the crowd (with quite a few people standing) in response to Ms. Gabriel's comeback had a level of emotion that I don't think reflects a hospitable attitude toward  Muslim citizens, or would reasonably be taken by Muslims as hospitable.

No doubt I'm reading my own experience with Heritage into a judgment about the balance in the programs it does on this subject. (There's no audio of the phone conversation I had with Heritage about their invitation, so you'll have to take my word for it.) And Heritage's approach isn't really the issue. But there is an undeniable problem here, folks. I also read attitudes about Muslims in light of evidence like the empirical work of Greg and his co-authors, which shows that Muslims have a markedly lower success rate than other groups in their religious-liberty claims in federal court. The authors conclude, after investigating other possible causes for this pattern, that "the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges."

Philpott: "No Human Rights Without God"

My friend and colleague Dan Philpott has a nice, short piece up at the Open Democracy 
site, making the case that there are "no human rights without God."  (MOJ readers will remember that Michael Perry has pressed this argument in several works (here, for example)). 

Monday, June 16, 2014

"The Good of Government"

This essay, by Roger Scruton (follow him on Twitter!), "The Good of Government:  American Conservatives Need a Positive View of Government" seems an important intervention not only in the conversation about "radical" v. "liberal" "conservative" Catholics, but also in the one about Catholicism and "libertarianism."  Check it out.