A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism--three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).
While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.
First, the titular question. The idea here is that "the point"--or at least one point--of originalism is to persuade the public of the court's decisions, and more generally of the court's legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.
Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don't. Opinions are not constitutionally mandated. The Constitution speaks in terms of "the judicial power" and judicial "offices." But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation--devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).
Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. Of course, a counterpoint would be that for much of the Supreme Court's history and in many important cases that are embraced by the public, it has not been originalist. But at any rate, he is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism's value. I think that sort of account of originalism's worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.
Saturday, June 14, 2014
As regular readers of Mirror of Justice might recall, over the past couple of years, I’ve tried my hand at something rather different -– writing a novel. My first novel, Marital Privilege, has just been published by North Star Press.
The lead character is a law professor, and, while I should warn readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy. More information about the novel can be found here.
While I will post up something more about the novel in coming days, I wanted to let Mirror of Justice readers know about the launch party if you just happen to be in the Twin Cities next week. You are all welcome at the publication/launch party on Wednesday, June 18, from 4:30 to 6:00 p.m. at the University of St. Thomas School of Law in downtown Minneapolis (on the fourth floor in the faculty lounge). At the party, the novel will be available through a representative of the University of St. Thomas Bookstore. (The novel is also available at Amazon.)
If you think you might come, it would help to know so that we can be sure to have enough food and beverages –- and copies of the novel –- on hand.
Greg Sisk
Friday, June 13, 2014
I just got an email from the Jérôme LeJeune Foundation reminding me that today would have been the 88th birthday of Servant of God Jérôme LeJeune. In 1958, Dr. LeJeune discovered that Down syndrome is caused by an extra copy of the 21st chromosome; he later established the first specialized clinic for Down syndrome patients in Paris, and discovered the cause of cri-du-chat syndrome, 2 other trisomies, and helped us understand fragile X syndrome.
Dr. LeJeune was also passionately devoted to protecting the lives of the vulnerable subjects of his research. Among other things, he was first president of the Pontifical Academy for Life. His cause for sainthood is being postulated by the Abbey of Saint Wandrille in France.
In celebration of the life of the man some consider the patron saint of people with Down syndrome, I offer links to:
- a lovely "rare" interview with Dr. LeJeune in English (with an interesting account of the cost-benefit analysis of preserving the lives of people with Down Syndrome); and
- the website of what looks like a fantastic new movie featuring a young man with Down Syndrome, Produce . (Too bad it doesn't star Angelina Jolie... but I challenge you to watch the trailer and not try to find a local showing!)
A lot of people today, including those in the relevant therapeutic disciplines and fields of medical practice, who know what Johns Hopkins Medical School psychiatrist Paul McHugh knows and believe what he believes lack the courage to say out loud what he says today in the Wall Street Journal. Dr. McHugh is a man who never shrinks from speaking truth as he knows it to political and cultural power. Having served with him for several years on the President's Council on Bioethics I know him to be a person of impeccable integrity and self-possession as well as exceptional achievement. I'm not in the least surprised to find him exemplifying the kind of bravery on display here. He is fully aware, of course, that he will be defamed and vilified in an effort to bully him into silence and make an example of him. That's how things work these days, alas. But nothing like that will deter him. He is, to borrow a line from Dr. King's "I've Been to the Mountaintop" speech, "not fearing any man."
http://online.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120
Thursday, June 12, 2014
About a year ago, I announced that "The Lord of Heaven and Earth" -- a statement on law written and signed by two dozen Catholic and Evangelical law professors -- had been published in the Journal of Christian Legal Thought. Here's a bit more on the project:
Over the last eight years, many of us met at several meetings to get to know one another, learn about our histories, and draft this document. We had some amazing collaborators. We met for a weekend at Notre Dame with historians John McGreevy and George Marsden. They traced our communities’ history of conflict (mostly) and collaboration (more recently) on the subject of law. Then we met at Pepperdine with philosopher/theologians Bradley Lewis, Dallas Willard, Joan Lockwood O’Donovan, and Oliver O’Donovan. They helped us think through both our overlapping and conflicting ideas about law. Then we met for major drafting sessions at Villanova and New Orleans. The major drafting oars went to (volunteers) Patrick Brennan and Bill Brewbaker. The attached document is the product of their work, with input from the broad range of people who attended our meetings and commented on earlier drafts. And, at law year's Lumen Christi / Christian Law Professors Fellowship meeting at the AALS, we had a really productive panel at which scholars from a variety of faith traditions reacted to, and thoughtfully criticized, the statement.
Our plan was always to publish it also -- ideally, at the same time, but a year seems close enough! -- in Villanova's Journal of Catholic Social Thought. Well, it's out now in that journal, too, and you can download it here: Download ECT in JCST.
I suppose I am a little bit biased, but I agree entirely with Michael Sean Winters that Lost Classroom, Lost Community, by Profs. Nicole Stelle Garnett and Margaret Brinig is an outstanding book. Read his glowing review here, and then go buy the book here.
