Thursday, October 24, 2013
NDCEC Fall Conference: "Fearfully and Wonderfully Made"
As per usual, the Notre Dame Center for Ethics & Culture's annual Fall Conference is -- thanks to my friend Carter Snead and his team -- shaping up to be an outstanding event -- one of the best things to happen at Notre Dame each year. This year, the conference takes up issues relating to "the body and human identity." The line-up of speakers is outstanding -- Charles Taylor, Alasdair MacIntyre, John Finnis, and many others. And, as a special bonus . . . a debate / discussion among Joseph Bottum (the author of, among many other things, that article you know about), Ryan Anderson, Sherif Girgis, and Charles Reid). Sign up, come visit, say "hello", and Go Irish!
Wednesday, October 23, 2013
Realism and Idealism: On Law's Limits (Religious Freedom Edition)
Last week, I attended a very interesting conference about which I’ve written before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.
The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.
- First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
- I was also struck by how prevalent critical methodology seemed to be. Deconstructing narratives and discourses of various kinds (whether of persecution, of power, of freedom, of religion, or otherwise) was a major concern. I have never attended a critical legal studies conference, in part because it is not a methodological inclination I share, and in part because, in law, CLS peaked and declined long before I entered the legal academy. But here critical method seemed to be broadly embraced.
- Following from this point, one theme of the conference was that “religious freedom” is at best a useless conceptual category and at worst a malign instrument of state power that skews or deforms the natural, organic, local interactions of particular communities–a weapon with which the state can control those communities after a fashion that suits it and under the terms that it dictates.
Tuesday, October 22, 2013
The scandal of libertas Ecclesiae
I have an additional, new paper on the liberty of the Church. Here is the abstract:
This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a careful reading of, among other sources, the Second Vatican Council's Declaration on Religious Liberty, Dignitatis Humanae (1965), the article articulates and defends the Church's self-understanding as a divine institution possessed of supernatural authority that has rightful consequences for the ordering of society and polity. Catholic doctrine upholds a rich concept of individual freedom of conscience and defends a regime of broad toleration, but it does so respectful of the demands of the common goods, natural and supernatural, both of which the Church serves in the exercise of her liberty. The Church anticipates that her claims on her own behalf will be a scandal to the world.
This article complements and, to a limited extent, overlaps the analysis in my recent article "Resisting the Grand Coalition in Favor of the Status Quo By Giving Full Scope to the Libertas Ecclesiae."
Monday, October 21, 2013
"The Story of Kedroff v. St. Nicholas Cathedral" continues
I contributed a chapter on the Supreme Court's church-autonomy-related Kedroff decision in the First Amendment Stories volume. (Get your copy here!) That story, it appears, continues. It is reported here that it took more than 100 NYFD officers to put out a fire at the Cathedral, a few weeks ago. It appears -- thank God -- that there were only minor injuries suffered by a few. Here's hoping that the threats to churches' religious freedom are similarly vanquished!
In response to Kevin: A clarification
I hope I have not (but perhaps I have) misunderstood Kevin's comments. My reading of the comments leads me to make this clarifcation:
My position is not that whether a punishment is "unusual" is a criterion (much less the criterion) of whether the punishment is "cruel". It is easy to imagine punishments that are "unusual" but not "cruel".
Rather, my position is that whether a punishment is "unusual" is probative of whether the judgment--the possibly controversial judgment--that a punishment is "cruel"--a judgment reached entirely without regard to whether the punishment is "unusual"--is a sound judgment.
Esolen on Prohibition
I've blogged before about the fact that one of my favorite books in recent years is Daniel Okrent's Last Call: The Rise and Fall of Prohibition (here). Prohibition, as a policy and constitutional experiment, was a huge failure, but not simply because (as Anthony Esolen explains, here, at Public Discourse) it failed to reduce alcohol consumption or because "you can't legislate morality." It did, and we "legislate morality" all the time. Prohibition's lessons are, in turns out -- in Okrent's book and in Esolen's essay -- more interesting. Here's a bit from the latter:
So, then, what does Prohibition teach us?
That amendment inserted into the Constitution a law that neither protected fundamental rights nor adjusted the mechanics of governance. It was a radical break from tradition. It is crucial to understand this. It took a juridical break from tradition to obliterate the customs, the lived traditions, of the American people and their forebears. . . .
"Good government pleases God": Shutdowns, budgets, and the common good
In the October issue of First Things -- which includes the as-one-would-expect-from-Michael-McConnell outstanding 2013 Supreme Court Round-up -- David Mills quotes New York City councilman Fernando Cabrera's observation, during a recent speech, that "good government pleases God."
Mirror of Justice is not a "politics" or "current events" blog, and so I have not imposed on readers my as-a-citizen reactions to the antics in Congress during the few weeks. But Cabrera's statement helps me to see an important connection between our subject here at MOJ and the whole shutdown-debtceiling-defund-budget business, as does Mills's follow-up statement that "complex societies have to be governed, and God and man want them governed well."
Catholics who engage closely and conscientiously with the Church's social teachings are -- despite that engagement -- (in)famous for disagreeing about the policy and political implications of those teachings. So, and just for example, while I am pretty sure that I agree entirely with Michael Sean Winters in disapproving of the recent conduct and decisions of those members of Congress who are identified with the "Tea Party" -- I think it was both foolish and wrong to condition necessary appropriations on the defunding or delaying of "Obamacare" -- I do not think that opposition to the Affordable Care Act, as a particular piece of legislation, puts one "outside traditional Catholic teaching" or reveals bad values. (Opposing school choice does, but that's another matter . . . .)
But, these disagreements notwithstanding, it is important for Catholics to take seriously -- as Catholics -- the importance of the enterprise of governing, that is, of making and executing good laws, in accord with the rule of law, in the service of the common good. (I know, I know -- invocations of "the common good" can be and often are little more than lacy trimmings on whatever policy it is that one, for whatever reason, prefers. The idea and its achievement are more complicated vague assertions about the importance of "community" and the dangers of "individualism." Still, correctly understood, it has to be the touchstone.) And, even if it is true that there is more blame to go around than some commenters suggest -- I'm thinking, for example, of the Senate Democrats' apparent lack of interest in ever actually passing a budget, which contributes to the ridiculous practice of jumping from one continuing resolution to another -- there is no denying that, in recent weeks, we have seen bad government, not good government, and also that the groups and individuals associated with the "Tea Party" have made bad decisions and arguments. (I gather that this observation means, to many in the blogosphere, that I am a squishy-RINO-surrender-monkey and not a real "Republican" or "conservative" but . . . whatever. I'm just trying to be a Catholic.)
Lawmakers have a vocation and they are holders of a trust. Part of that vocation, and one of the things we trust them to do, is to actually make (good) law (and, just as important, not-make bad laws). Not only that, but because the "rule of law" is itself part of the common good -- i.e., it is one of those "conditions" that is conducive to human flourishing -- it is part of lawmakers' vocation, and something they are obligated to do, to make law in accord with the rules-laid-down. "Governing" by brinksmanship, continuing resolutions, debt-ceiling increases, and (I would insist) over-aggressive executive orders does not count as "good government." So, I fear that God is not pleased.
Professor Hobbs of Wellesley and the theological structure of American constitutional law?
Michael Perry's recent post about the possible convergence between magisterial morality and constitutional morality with respect to capital punishment brought me back to thinking about the ways in which the Supreme Court of the United States itself functions as a magisterium of sorts (or, as Steven Smith has explained, an anti-magisterium).
There is little doubt about the Court's magisterial pretensions in at least some areas of constitutional law (equal protection and substantive due process come most quickly to mind, but free speech seems to be another obvious area as well). Yet one difficulty the Court faces is the perception that its magisterial pronouncements are occasionally best understood as registering changes in culture that have already taken place rather than as faithfully transmitting a sacred legal deposit from the past.
As my Richmond colleague Corinna Lain has encapsulated this phenomenon in the title of her recent Georgetown Law Journal article, there are many areas of contemporary constitutional law in which the Supreme Court engages in Upside-Down Judicial Review. As Corinna explains, upside-down judicial review flips the so-called countermajoritarian difficulty on its head: "Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. Here marks the start of a distinctly majoritarian, upside-down understanding of judicial review." [116] Furman v. Georgia is one of Corinna's case studies. She documents how "four of the five Justices in Furman's majority based their decision in whole or in part on the notion that the death penalty was already on its way out the door. The Supreme Court was just turning out the lights." [137] And she shows how these Justices' perceptions matched those of contemporary commentators.
Michael Perry's argument for the present unconstitutionality of capital punishment is not an argument from majoritarianism. But the argument incorporates reference to changing practices by examining whether capital punishment is "(a) excessive and (b) evidenced as such by the fact that it is unusual (i.e., in the Samuel Johnsonian sense of 'not common; not frequent; rare')." Rejecting Professor John Stinneford's explication of "unusual" in the Eighth Amendment to mean "contrary to long usage," Professor Perry contends that the question is not whether capital punishment was unusual in the past, but rather "whether capital punishment has become unusual, whether it is unusual now."
I have not done the sort of investigation and analysis that would warrant confidence in formulating a critique of Professor Perry's argument on its own terms. But putting the aside the question of whether the argument misfires, it is worth asking whether the way in which it takes aim at its target can lead to a "magisterial" justification for killing the death penalty. It seems not. If the Supreme Court were to follow Professor Perry's logic in justifying constitutional abolition of the death penalty (and to be honest and open about doing so in its opinion),its pronouncement would not be magisterial in the sense of exercising a living teaching authority under the Constitution as much as it would be more or less mechanically registering the verdict of the times.
To be clear, providing a "magisterial" justification for the unconstitutionality of the death penalty is not an explicit goal of Professor Perry's analysis. Whether his argument can or cannot accomplish that, however, is simply an interest of mine (and hopefully of others interested in the nature of constitutional pronouncements by the Supreme Court).
Which brings me to Professor Hobbs of Wellesley, to whom I have been introduced by Philip Rieff, and about whom I otherwise know very little personally (though his web bio reveals a very productive and respected scholar of hermeneutics). Hobbs is a professor of religion quoted by Rieff to describe Hobbs's account of the relationship between "religion" and "values." In the quotation that follows, I substitute "constitutional law" for "religion" in Rieff's quotation of Hobbs.
One Professor Hobbs, professor of [constitutional law] at Wellesley, tells us all we need to know about values in a few invaluable sentences: "[Constitutional law] no longer needs God or gods. It has a theological structure that embodies the values of each culture. When the culture changes, then the [constitutional law] changes. Values have to keep up. That's all there is to it." [Rieff, My Life Among the Deathworks, at 11.]
Rieff continues, now in his own voice: "Is that all? Keeping up can be lowering. All depends on who and what the Joneses of value are." To what extent does this modified quotation from Professor Hobbs describe the constitutional values enforced by the Supreme Court of the United States? And "who and what [are] the Joneses of value" in contemporary constitutional law?
[ed. note--post updated with link to Professor Hobbs's web bio]
Friday, October 18, 2013
The Pope's message on World Mission Day
Here is the "Message of Pope Francis for World Mission Day 2013." (Clearly, this is not -- his unremarkable expressions of concern about inappropriate "proselytizing" notwithstanding -- the message of a pope who wants Christians to put aside evangelization!). Here is a bit:
The work of evangelization often finds obstacles, not only externally, but also from within the ecclesial community. Sometimes there is lack of fervour, joy, courage and hope in proclaiming the Message of Christ to all and in helping the people of our time to an encounter with him. Sometimes, it is still thought that proclaiming the truth of the Gospel means an assault on freedom. Paul VI speaks eloquently on this: "It would be... an error to impose something on the consciences of our brethren. But to propose to their consciences the truth of the Gospel and salvation in Jesus Christ, with complete clarity and with total respect for free options which it presents... is a tribute to this freedom" (Evangelii Nuntiandi, 80). We must always have the courage and the joy of proposing, with respect, an encounter with Christ, and being heralds of his Gospel.
In this essay of mine -- now several years old -- I suggested (among other things) that: "the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons."
Cardus: A blog of possible interest
Check out this blog. And also, take a look at the related journal. "Cardus" is a "think tank dedicated to the renewal of North American social architecture. We conduct independent and original research, produce severalpublications, and regularly stage events with Senior Fellows and interested constituents across Canada and the U.S." A lot of interesting stuff . . .
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