Monday, August 12, 2013
Jean Bethke Elshtain, R.I.P.
I learned today that Jean Bethke Elshtain died yesterday. This short remembrance, by Rusty Reno at First Things, is -- I am sure -- just the first of many that will be worth reading and sharing. Jean was an outstanding scholar, mentor, teacher, example, and friend. R.I.P.
Saturday, August 10, 2013
Picking Blueberries
Yesterday morning Dave and I drove to a farm a bit north of the Twin Cities to pick blueberries. Mind you, Dave had no enthusiasm for this venture, but I had gotten it in my head that it would be a fun outing and this is the perfect time to be picking blueberries, so off we went.
It was a fun morning and I'm glad we went, but: Picking blueberries is not all that easy. The sun was hot and the bushes are low to the ground, requiring kneeling or squatting, except when you have to stand and bend to get at them. We picked for a little over an hour, with me frequently shifting positions to relieve a cramp in my leg or a strain in my back. And, as I discovered, it takes a lot of picking to get a tray full of blueberries. (It takes a lot less time to fill a bag with apples when you are apple picking.)
"U-pick-em" farms are a fun outing for people like me who sit at a computer for large chunks of the day. Couple of hours outside and come home with a big load of delicious berries.
But as I was picking I started thinking of people who have to do work like this day after day all day long. When I was in my early teens, I used to think it would be fun to be a migrant farm worker. Traveling around picking fruit and vegetables seemed like it would be a cool thing to do. Of course I had no idea of the labor involved and what it would mean to have to work hard enough day after day to barely have enough money to scrape by.
Yesterday was a good reminder of the difficult lives of those in the farming industry. Migrant and seasonal farmworkers are some of the most economically disadvantaged people in this country, almost a quarter having a family income below the national poverty guidelines. In addition to low wages, thay generally lack access to worker’s compensation, or other benefits.
Something to think about as we eat the wonderful produce of this season.
Update: See the comment posted by Ellen Wertheimer that points out that I have understated the plight of these workers.
[Cross-posted from Creo en Dios.]
Friday, August 9, 2013
Why I'm Not Bothered by Strong Student Free Speech Rights
The Third Circuit has been on a tear recently in student free speech cases: Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) (en banc) (First Amendment prohibits high school's discipline of student for off-campus speech), J.S. v. Blue Mountain School District, 650 F. 3d 915 (3d Cir. 2011) (en banc) (same for middle school student), and, this past week, B.H. v. Easton Area School District, ___ F.3d ___ (3d Cir. 2013) (en banc) (First Amendment prohibits middle school from banning “I ♥ boobies! (KEEP A BREAST)” breast cancer awareness bracelets). Judge D. Brooks Smith has been especially forceful and articulate in these cases, concurring in J.S. with the conclusion:
J.S. said vulgar, offensive things about her principal on Myspace. And she went beyond that. She wrote cutting, mean-spirited things about members of his family. If we could suppress her speech without silencing other, more deserving speakers, public discourse would suffer no harm. But courts have long disclaimed the ability to draw a principled distinction between “worthless” and “valuable” speech. We must tolerate thoughtless speech like J.S.'s in order to provide adequate breathing room for valuable, robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination. Without condoning her disrespectful and mean-spirited tone, I support J.S.'s right to say the things she said free from government punishment. 650 F.3d at 941.
And writing for the court in B.H.:
School administrators “have a difficult job,” and we are well-aware that the job is not getting any easier. Besides the teaching function, school administrators must deal with students distracted by cell phones in class and poverty at home, parental under- and over-involvement, bullying and sexting, preparing students for standardized testing, and ever-diminishing funding. When they are not focused on those issues, school administrators must inculcate students with “the shared values of a civilized social order.”
We do not envy those challenges, which require school administrators “to make numerous difficult decisions about when to place restrictions on speech in our public schools.” And the School District in this case was not unreasonably concerned that permitting “I ♥ boobies! (KEEP A BREAST)” bracelets in this case might require it to permit other messages that were sexually oriented in nature. But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value. ___ F.3d at ___ (internal citations omitted).
I've been puzzling over these cases--I tend toward libertarian views on the First Amendment, so I'm sympathetic to the results. I also acknowledge, though, that many of us here at MOJ are concerned with the "moral ecology" of the culture and the virtuous formation of children, and we might be properly worried that hampering the ability of school officials to discipline students for their off-campus vulgar and offensive speech (as in Layschock and J.S.) or to prevent students from wearing (moderately) sexually suggestive clothing items takes the liberty of free speech too far, most especially because we are dealing with minors. (Though a reference to "boobies" among middle schoolers is surely tamer than most anything else they encounter.)
That said, I'm still on the side of the students in these cases, and for at least a couple of reasons based on a version of the public/private distinction--a distinction that can sometimes be overdrawn but does some valuable work here. First, parents, families, and networks of friends are, like schools, spheres in which children learn good manners, the virtues of reasonable discourse, and appropriate modes of expression. But families can do so in ways that are particular to each child and to the norms that parents seek to enforce in raising their children. Public school administrators, however, have to create broad policies and might not be good judges of what speech to punish (or not) under such policies, so there is good reason for courts to get them out of the business of doing so (subject to the Fraser and Tinker exceptions for plainly lewd or disruptive speech). That seems especially true in cases such as B.H., where the speech touches--however remotely and in the form of wearing a bracelet--on a matter of political or social commentary, and we don't want public school administrators enforcing an orthodoxy on either side. (Or, as in Layschock or J.S., reaching into the student's life away from school.)
Second, private schools--and a vibrant market in private and homeschooling options for families is important to civil society--are an available option for those whose sensibilities are more restrictive than the First Amendment requires in public schools. Parents have strong voice in private schools (smaller scale and tailoring to parents' and children's moral particularity) and strong exit options (leave and go somewhere else or homeschool). Both are weaker in public schools--districts can be, especially in urban or large suburban areas, bureaucratic and difficult to navigate and are the only option for many families (for financial or other reasons). If so, we might want the protection for speech to be quite broad in public schools, knowing that families can exercise opt-outs or persuasion and correction at home if they disagree with the robust--and properly so--freedom of speech children encounter at a public school.
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The Feast of St. Edith Stein
Today is the feast of Edith Stein -- St. Theresa Benedicta of the Cross. A summary of her life is available here. She was a remarkable woman -- a philosopher and student of Edmund Husserl who served as a nurse during the Great War. Although she no longer practiced the Jewish faith in which she was raised, she converted to Catholicism in 1921 after reading a biography of St. Theresa of Avila. She eventually became a Carmelite nun and died in the gas chambers at Auschwitz in 1942. As someone who thirsted for the truth, who pursued her scholarship as a service to the Lord, whose life and death makes vivid the price of discipleship, Edith Stein should be an inspiration to all the participants and readers at MOJ.
Another Welcoming Address (hypothetical) at Law School Orientation
Thanks to Michael M. for his posting, with his substantive commentary, of Rick Garnett’s address on the mission of a law school at a Catholic university. I hope to offer a few other considerations to my friends who contribute to the Mirror of Justice and to our readers who are interested in the same topics addressed by Rick and Michael as we enter the Vigil of another academic year in which fresh faces and minds begin legal studies at a time when many folks properly raise and attempt to answer questions about lawyers, the law, and legal education. I hasten to add that this draft address will never be given by me. Perhaps one day it will be delivered, with many needed improvements I am certain, by someone else who shares my interests and concerns about the law and legal education which opts for the modifier “Catholic”. I further preface this draft address by giving it a slightly narrower twist from Rick’s in that my target is the fourteen law schools that have some affiliation with universities that rely on the duals monikers “Catholic” and “Jesuit”. In this context, I rely on the point made by then Father Avery Dulles, who studied the law for a year at Harvard before he was called to military service at the beginning of World War II. The argument he made in 1999 was that the second modifier, “Jesuit”, must mean an intensification of the first, “Catholic.” After all, as a Jesuit and lawyer and law teacher, I am confident that I have something to say about legal education in an institution which in some fashion relies on “the Jesuit tradition” (or something like this) that is rarely, if ever, defined. So, here goes:
In the name of the Father, and of the Son, and of the Holy Spirit, Amen!
Welcome ladies and gentlemen; welcome friends. Welcome to ________ School of Law. For many of you, the formulaic words I just uttered will be strange to you; for others, you have heard them before; and, for still others, you use them in the prayer that you have been offering to God for a long time. They are words that were used often by Saint Ignatius of Loyola the founder of the Society of Jesus, the Catholic religious order commonly referred to as the Jesuits. Moreover, they are words frequently used by the men of the Society of Jesus who founded schools, colleges, and universities across the globe over the past five centuries. But the Catholic Church is no stranger to education, including higher education. After all, the roots of the oldest, major European universities were in some fashion or other founded by people of the Church and for the Church.
I am sure that most of you might recall that somewhere in the promotion literature of this law school, you read and may even recall some reference to the Jesuits and their tradition in tertiary education. Moreover, I am confident that you were told that this education would be substantively different from that which you would have obtained had you matriculated at some other law school. I am also certain that in your time here, you will on occasion run into the term Jesuit again. But what does it mean? In particular, does it mean anything to you and to your education? Furthermore, what is really different about the education that you will receive here? Skeptics, including some of your professors and classmates, may suggest that reliance on the word “Jesuit” is a best an artifact of or, at worst, an impediment to the reason why you are here. And without any real clarity, you’ll be told that the distinction of the education to be had at this institution is different, but the reasons for the difference will often be ambiguous.
So, please allow me to explain what is or should be the distinction of this school, and let me offer an explanation why I think the skeptics are wrong. The reason for this school needing to take a different tack is that I think and believe that this institution is much more—or should be much more—than the Ivy League, big state university, or other famous private or public law school to which you may have gone or wanted to go but were not invited to attend. So, where do I begin in offering the distinction and the explanation proving that the skeptics shouldn’t be dubious?
Let’s start with history, something with which most of you are familiar. I am a student of history, but as you will soon discover, all lawyers who wish to be good at the craft of the profession need to be good historians in order to understand fully their clients, the specific cases on which they will be working, and the law itself. Research into the background of all of these items I just mentioned requires rigorous historical investigation. When it comes to the law, you may be surprised to find out that it, too, started a long time ago. Let’s begin with the ancient civilizations of the Near East. The Decalogue of the Old Testament has provided major contributions to our civil law of the present day in spite of the protests of some civil libertarians that there can be no connection between the things of God and those of Caesar. If you doubt me, just look at Commandments IV through X and then consider where, not if, they appear in the law that you will be studying. I realize that Commandment VI is disregarded by many in our society today, but it still is and should remain good law for people of good will. There are other major elements of the civil law of today that are rooted in the religious beliefs of our ancestors that many of us accept and follow today.
Since many of you are probably interested in rights—human rights—you may be surprised to discover that they, too, are rooted in the work of people of faith such as the sixteenth century Dominican priest, Francis de Vitoria, and the Jesuit who continued in his footsteps, Francis Suárez. These two fellows understood well that the human person is a citizen of two cities, to borrow from Saint Augustine of Hippo, viz., the City of God and the City of Man. Moreover, they also realized that what each and every human being can rightfully and objectively claim as his or her fundamental right is not a creation or gift of the state but of God. Rights inhere in the dignity of the human person. They are not something which the civil law gives; for whatever it gives, it can take away without any real question or doubt. Authentic rights are ingrained in the nature of the human person. As the person preexists the state, so, too, do the rights of the human person.
But with rights that are authentic come responsibility. This is something that many “experts” of the law fail to grasp today, but if they do, they are reluctant to admit this.
Everyone likes freedom or liberty, but not everyone thinks about the duties that tether the rights we claim to their responsible exercise. Sooner or later you will encounter in your legal studies the 1992 U.S. Supreme Court decision of Planned Parenthood v. Casey. The plurality of justices who drafted the interesting definition of liberty contained in this decision offered an exaggerated and subjective understanding of human freedom when they asserted that each person can determine without any outside influence what his or her freedoms are.
But this recent definition excludes something critical, i.e., the fact that the exercise of freedom must be objective if it is to mean anything that is durable. Objectivity, not subjectivity, makes us realize that we share a world with all of God’s creation that includes our fellow human beings. So, if you or I claim something as “my rights”, should we not consider that it is something that the other person should also be able to claim? But if my claim and your claim are directed in a head-on collision, what can prevent the clash? The answer is: responsibility. What I seek for myself is something that my neighbor should also be able to pursue if it is genuine to the dignity of all members of the human family.
This brings me to a second important item that should be a part of any aspiring lawyer’s education at this school which claims to be “Jesuit”: what is the law about? Does it have a nature? My answers to these two inextricably related questions is that the law is a mechanism of the societies in which we live—local, regional, national, and global—that must ensure the preservation of right relations between and amongst all the members of these societies. But how do we know what is needed to constitute what is right in our human enterprise of relationships, those planned and those that are not? You will hear an occasional reference in your legal careers, which begin today, to the natural law. Many will dismiss it as a relic of the past that is responsible for all sorts of problems such as the justification for slavery and the oppression of certain peoples based on sex, religion, race, ethnicity, etcetera. This dismissal is nonsense. Without the natural law, we would not have the means of objective reasoning that is essential to the law; moreover, we would not have the republican democracy that we have, but not seem to ignore, in the United States. The natural law is the use of objective reason by the intelligent mind to comprehend the intelligible reality that surrounds us so that our law-making will lead to norms that are just and proper because they are our tools of civil society to ensure the restoration and preservation of right relations amongst all peoples—local, regional, national, and global.
Thirdly, you will hear much about justice and its derivative “social justice” in your time in law school and your legal career thereafter. Moreover, you will often hear that this institution of social justice is what makes this school different from others because social justice is at the core of our school’s existence. Well, that’s all well and good, but let me ask you if you have ever heard any university and its law school proclaim that it is for injustice or, more particularly, social injustice? Of course not! But rarely, if ever, will you hear a coherent explanation of what justice and social justice mean and are all about. It is assumed that we all know what we are talking about when we employ these important and powerful concepts. But it is hard to imagine that political parties, nongovernmental organizations, lobbies, citizens’ groups, and individuals whose views on the law and the meaning of life are so dramatically opposed can use these terms to mean the same thing. Let me offer an explanation of what justice and social justice are and should be about.
I have already tipped my hand on the issue of justice: right relationship between and amongst people. What does this mean? It does not mean that I get or you get what we want as individuals. It does mean that we receive what is our due that is objectively determined by the reasoning process essential to the law, it administration, and its adjudication. In the search for justice we use the intelligence God has given to us so that it can be employed by virtuous people to assess and decide what is right and what is wrong; what is good and what is evil; what is worthy and what is vice. This is the path to determining what is due the person and his or her neighbor.
The matter of social justice concerns the recognition and practice of virtues by citizens and their societies that are essential to good governance and good law. What are virtues in case some of you don’t know? Well, the theological ones are faith, hope, and charity. These virtues are something that the Framers of our legal institutions in this country understood well. But they also understood that the cardinal virtues are also vital to the project we call the human or civil law. These cardinal virtues are: courage (the ability to stand up to pressure by doing what we ought to do and to avoid doing what we ought not do); prudence (the wisdom, the sagacity to comprehend what is at stake and what is needed to resolve problems we face with equity); forbearance (the ability to avoid the temptation to seek the self-satisfaction of revenge and retribution when mercy is needed to temper our judgment); and, finally, justice (the ability to comprehend what is due to each person as an individual and as a member of societies).
There are many other things that should be presented, discussed, and, yes, even debated by reasonable people of good will in their law school years, but the topics I have identified today are essential as you begin your career in the law at this school that likes to call itself Catholic and Jesuit. Questions will be a major part of your life here at ________ School of Law, so you are quite right to ask why should my proposals offered today be a part of your formation?
My answer is preliminary but, I think, also promising. If you consider what I have said here today, you will be a better lawyer because you will be a better person who understands more fully what you, society, and the law are about. It takes a better human being who comprehends the dual citizenships of which I spoke earlier to pursue this enterprise we call the law. When this comprehension seeps into your daily routine, you will have an increasingly better grasp of who you are, what life is all about, where you and your fellow human beings are going, and why we need a legal system that serves, not dictates the lives of God’s greatest creation—the noble human person and the societies of human persons.
Father Ignatius understood these matters well. And with God’s help, may you comprehend them, too!
May God abundantly bless each of you not only during your course of studies here at _______ School of Law but also during the rest of your lives in the law, this great gift of human society that our loving Creator has given us and for which we have a measure of considerable responsibility as lawyers through our ability to comprehend what He asks of us!
Amen!
RJA sj
The Milwaukee Cemetery-Fund Bankruptcy Ruling: RFRA and Recusal Claims
The National Catholic Reporter has a story analyzing Judge Randa's ruling in Milwaukee that including cemetery trust funds in the archdiocesan bankruptcy estate violates the Religious Freedom Restoration Act. I'm quoted among other commentators. It's a difficult case. Is this a matter that should be determined by RFRA, as opposed to whether cemetery funds were properly segregated in trust funds before the potential claims appeared?
The creditors' committee, represented by Marci Hamilton among others, indicates they not only will appeal Judge Randa's ruling to the 7th CIrcuit but are also considering a recusal motion against Judge Randa on the ground that, as Marci states it, "many of his family members are buried in the very cemeteries that were the subject of the opinion." The bankruptcy judge has ordered, and the Archdiocese has agreed, to turn over cemetery records to the creditors' committee to provide facts relevant to such a motion. I'm not an expert on recusal. My gut is that the theory of recusal would be too broad here, perhaps disqualifying most Catholic judges in the archdiocese (judges who might, like other Catholics, have quite a variety of personal views about which of the Church's moral obligations, including to possible victims, should take priority). But is there a sufficiently specific financial interest that might provide a basis for recusal (like the prospect of increased fees for a judge for maintaining family members' graves)?
Reading Recommendation: Christian Wiman, My Bright Abyss
One of the best books I've read this summer is Christian Wiman's My Bright Abyss (Farrar, Straus & Giroux), an extraordinary meditation on the possibility of religious belief in the modern world (Kathleen Norris's review in the New York Times is here). Wiman is a poet who rediscovered his Christian faith amid a diagnosis of cancer, and almost every page in this short and beautiful book is brimming with insight and theological sophistication. A bit:
Just as some of Jesus' first-century followers could not credit the presence of the risen Christ, so our own blindness, habit, and fear form a kind of constant fog that keeps us from seeing, and thereby believing in, the forms that grace takes in our everyday lives. We may think that it would be a great deal easier to believe if the world erupted around us, if some savior came down and offered as evidence the bloody scars in his side, but what the Gospels suggest is that this is not only wishful thinking but willful blindness, for in fact the world is erupting around us, Christ is very often offering us the scars in his side. What we call doubt is often simply dullness of mind and spirit, not the absence of faith at all, but faith latent in the lives we are not quite living, God dormant in the world to which we are not quite giving our best selves. (p. 74)
Thursday, August 8, 2013
Following the lead of Rick and Michael in announcing their Twitter contacts: I'm @SusanStabile on Twitter.
Another Twitter Conversion
Like Rick below, I'm a latecomer to Twitter but have come around the past few months to seeing that old-fashioned blogging is giving way to it. So I'm at @MorelandMP.
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