Friday, May 24, 2013
Another great speech at Notre Dame
At Notre Dame Law School's diploma ceremony last weekend, my friend and colleague Jeff Pojanowski -- who had been selected by the graduating class as "Distinguished Professor of the Year" and invited to address the ceremony -- gave an outstanding speech on Saint Felix of Cantalice, the Desert Fathers, the value of stillness, David Schindler, and being a "different kind of lawyer." Highly recommended (
Download Pojanowski speech).
Morality and Economic Freedom
Be sure to check out the conversation, at Public Discourse and First Things, among Robert Miller, Rusty Reno, Samuel Gregg, and others, about morality and economic freedom. Here's a bit, from one of Miller's interventions:
In my view, capitalism is consistent with Aristotelian-Thomistic moral premises, but it is not obligatory given those premises. Indeed, Aristotelian-Thomistic moral theory does not, by itself, tell us much at all about how society should be organized, either politically or economically. In principle, monarchy, aristocracy, and democracy are all morally permissible political systems (which is not to say that every exercise of governmental power in such systems is morally permissible), and capitalism, corporatism, and socialism are all morally permissible economic systems. Aristotelian-Thomistic moral philosophy does not, by itself, imply much about political or economic arrangements.
There is an important reason for this. Aristotelian-Thomistic morality is based on the idea that there is an objective human nature, which implies an objective final end for human beings, so that actions are morally right or wrong depending on whether they are ordered as means to that end. Being based on objective human nature, Aristotelian-Thomistic morals apply to all human beings, wherever and whenever they may be found.
This great generality comes, however, at a cost. For, leaving aside a very few actions that by their nature are incapable of being ordered to the final end of this life—human flourishing—and so are always and everywhere wrong (such as intentionally killing the innocent), all other actions are right or wrong depending on whether, in the actual circumstances in which they are to be performed, they are in fact ordered to the final end.
"When Place Is Not Enough"
I have a complicated friendship with the whole "Front Porch Republic / New Urbanism / Crunchy-Con / critique of the suburbs" thing. Maybe it's "critical sympathy," maybe it's "sympathetic exasperation", maybe it's nodding-while-sighing . . . I'm not sure. The "porchers" can be smug and precious, and some of what they present as provocations seems pretty obvious (why yes, it would be good for communities if more of were involved in neighborhood organizations, etc.). Still, I agree that dense, walkable, mixed-use settlements are good things for human flourishing, I also was really influenced by Lasch, Rieff, and Schindler, and, yes, I think that Little Leagues are much preferable to "travel teams." (The proliferation of "travel teams" in youth baseball, at the expense of the traditional parks, is something that I think self-styled "true conservatives" need to complain about more, when they are complaining about Five Guys and rootlessness.)
Anyway . . . I thought Ross Douthat's recent piece, "When Place Is Not Enough", was well worth a read. Among other things, he develops the point that Americans' "rootlessness" is not simply a function of our mobility.
Cardinal Dolan at Notre Dame
Cardinal Dolan was the commencement speaker at the University of Notre Dame last weekend. His speech was, I think, amazing -- both in its content and in its delivery and construction. Highly recommended.
"The Unitary Papacy"
Michael Fragoso has an interesting essay up, at the site of the Claremont Center for Constitutional Jurisprudence, called "The Unitary Papacy: What the Pope Can Learn from the American Constitution." A teaser:
The Pope has an agency problem. One clear solution to it would be for him and his study group to learn from the unitary executive model from American constitutional and administrative law. The paramount goal of curial reform must be the establishment of a bureaucracy that is responsive to the policy directives of the supreme executive, the Pope, and the unitary executive provides that. . . .
NYC Council Passes Equal Access Resolution
Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). Over at CLR Forum, I have on various occasions discussed the "serpentine path" of litigation in the Bronx Household of Faith case, and it appears from Mead's report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be "appearing to endorse religion." The Council's resolution may have been spurred by the events in the Southern District of New York, though it will be interesting to see what the Second Circuit does with the case (again).
I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the "appearance" of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually violates the Establishment Clause. Here, though, I only want to note that Mead's view that "the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties" is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one's views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.
Tuesday, May 21, 2013
Christians Must Confront Scientific Illiteracy
That's the title of an interesting post by University of St. Thomas law prof Chuck Reid, at ReligiousLeftLaw. I live in Georgia. I'm proud to say that John Lewis is my congressional representative. But a nearby Georgia congressman "declared during last fall's election cycle that 'evolution and the big bang theory are lies straight from the pit of hell.'" Chuck's post is here.
Monday, May 20, 2013
More on the legislative-prayer case
Following up on Marc's post, and also on the posts by Eugene Volokh and Paul Horwitz to which he linked, a few quick thoughts: First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force. Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
Teresa Forcades, the radical Catalan nun on a mission ...
"Sister Teresa Forcades is one of Catalonia's foremost political figures, but uniquely for a faith-led figure in Spain, her ideology is feminist and left-wing. Against a backdrop of continued economic contraction and austerity, she spoke to the Guardian about the need for an alternative to capitalism and criticised the misogyny of the Catholic church."
You can watch the six-minute video about Sister Forcades here.
Certiorari Granted in Legislative Prayer Case
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town's practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit's very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court's radar. But one never knows exactly why the Court decides to take up an issue.
For some discussion of the Second Circuit decision, see this post.
UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.
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