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.

Monday, April 30, 2012

DeGirolami on Punishment Theory

Marc DeGirolami already alluded to his recent presentation at UST, the latest offering in the Murphy Institute's "Hot Topics:  Cool Talk" program, but I wanted to call your attention to the fact that the video of his wonderful exploration of the question:  "Why Punish?" is now online.  As Marc pointed out, the program was a dialogue with Judge Richard Sullivan, U.S.D.J., S.D. N.Y.  The exchange between these two speakers was a rather ironic display of some of the bridges that actually exist over that oft-described "gap between theory and practice."   Judge Sullivan began his remarks with a witty comment about how he never thought of either Aquinas or any of the litany of punishment theorists Marc had referenced in his talk when he sentenced anyone.  However, a few minutes into the talk, Judge Sullivan casually referenced ideas from a book Marc had pointed out in his talk -- Peter Karl Koritansky's Thomas Aquinas and the Philosophy of Punishment.  

The Murphy Institute's program was part of an excellent day-long UST Law Journal symposium organized by Mark Osler, on "Sentence Commutations and the Executive Pardon Power."  The whole day was fascinating (see this post from participant P.S. Ruckman in his Pardon Power blog), but I personally think the most gripping panel was the final one, consisting of an exchange among Serena Nunn (a recent graduate of Michigan Law School who served about 7 years in federal prison before having her sentence commuted); Judge David Doty, U.S.D.J., D. MN (the judge who had sentenced Ms. Nunn, voicing at the time of sentencing his frustration over the sentencing guidelines, and later drafting a letter in support of the commutation); and Judge Denis D. Reilly, MN Dist. Ct. (who, as former Assistant U.S. Attorney had prosecuted Ms. Nunn). 

Movsesian on the Tanzimat

My colleague, Mark Movsesian, has posted a short, highly readable, and instructive piece about an important episode in nineteenth-century religion-state relations in the Middle East, The Price of Ottoman Failure.  Here's the abstract:

This essay, written for a symposium on secularity in the contemporary Middle East, explores the dangers secularization may pose for non-Muslims, especially Christians. It looks to a historical example, the 19th Century Ottoman reform movement known as the Tanzimat. The Tanzimat aimed to modernize the empire and revise its law to reflect secular European models. One major reform gave legal equality for the first time to non-Muslims. Equality contradicted classical Islamic law and contributed to a violent backlash against Christians that set the stage for genocide in the 20th Century. Of course, the story of the Tanzimat’s failure is complex. Factors other than religious law were also involved, and one cannot draw a direct analogy to events that occurred 150 years ago in a different society. Nonetheless, the story of the Tanzimat and its failure suggests that secularization in the Middle East is a delicate matter that poses risks for Christian communities.

A law student's thoughts on proposals in Ireland to compromise Confession

Here are some thoughts, from a student in my "Catholic Social Thought and the Law" seminar, on proposed legislation in Ireland:

Sending Priests to Jail for… Well, being Priests: A Defense of the Sanctity of the Confessional and of the Church

            According to a news article issued April 27, 2012 (full story available here: http://www.catholicnewsagency.com/news/irish-bishop-reaffirms-seal-of-confession-amid-legal-controversy/), Catholic priests in Ireland will soon potentially face criminal sanctions if they refuse to violate the sanctity of the confessional, due to pending legislation. Specifically, priests will face up to ten years in prison if they fail to report sex crimes. Irish Justice Minister, Alan Shatter, attempted to justify the proposed legislation by indicating that he does not, “know how anyone could live with their conscience” if they did not report a sex offender to the gardai (Irish police). Although the Federal Rules of Evidence in the United States allow members of the clergy to invoke privilege to refuse to testify about communications that take place under the seal of the confessional, this blatant disregard for the teachings of the Catholic Church in Ireland is quite concerning. In fact, should the legislation pass, not only would the Irish prisons become saturated with Catholic priests, but the entire sacrament of confession (not to mention thousands of Catholic souls) would be compromised.

            According to the Catholic Church as indicated in the Council of Trent, the sacrament of confession, “as a means of regaining grace and justice,” is “necessary at all times” in order to safeguard our souls from sin. Importantly, according to the Council of Trent, this sacrament is as necessary to salvation as is Baptism. It is vital to the functioning of the Catholic Church that the sins confessed during this sacrament are kept, at all times, confidential by the priest to whom the sinner has confessed. If the confessor knew that the priest would be compelled to turn him or her into the police, the person would be far less likely to partake in the sacrament. Moreover, many priests would rather abide by the seal of the confessional than adhere to the law of man, thus exposing many priests to criminal sanctions. Thus, numerous devout but human (and therefore sinful) Catholics would be dissuaded from confessing their sins if the proposed Irish legislation were to become commonplace. Consequently, their souls will be jeopardized and priests will be put in the position either to face 10 years in prison or be excommunicated from the Church. This proposed legislation is insulting to the Church, as it disregards the sanctity of Her sacraments and trivializes the role of Her priests.

Brad Gregory, on "The Unintended Reformation," at the Lumen Christi Institute

This event, on May 8, should be great:

Tuesday, May 8, 4:30 PM
The Unintended Reformation
Brad Gregory, University of Notre Dame
Mark Noll, University of Notre Dame
Rachel Fulton Brown, University of Chicago
Classics 110
1010 E. 59th Street

Co-sponsored by the Department of History

In his latest book, The Unintended Reformation, Brad Gregory identifies the unintended consequences of the Protestant Reformation and traces how it has shaped the modern condition. He argues that hyperpluralism, an absence of a shared sense of the common good, and the triumph of consumerism are each the long-term effects of a distinctive religious movement that marked the end of a period of history in which Christianity provided a framework for a shared intellectual, social, and moral life in the West.

Witte on Marriage

Upon publication of a second edition of John Witte's magisterial From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, Liberty Fund has posted a podcast of an interview with Professor Witte about the book and the theological and historical understanding of marriage in the West.

Soccer clubs' logos, religion, and international business

A student of mine, in my "Catholic Social Thought and the Law" class, shared with me this interesting post:

Recently, one of the most established football (soccer) clubs in Europe, Real Madrid, made a very slight change to their official logo.  Here is an old and new version.  Can you see it?  Maybe if you give it a really hard look?  Still not seeing it?  Check out the difference a little more closely.  What’s missing is the cross that adorned the top of the Real Madrid logo.  The cross resided there since 1920, when King Alfonso XIII granted the title Real, or Royal, to the Madrid Football Club.  Granting the royal title to the club transferred the royal coat of arms of the King of Spain to the club, including the globus cruciger at the crest of the crown.  The globus cruciger has long served as a reminder (especially to upstart monarchs of the Middle Ages) of Christ’s dominion over earth.  It also serves as a reminder that the monarchs were supposed to be God’s representative and subordinate on earth.  Thus, symbols such as these were fairly common throughout European Christendom. 

While a symbol like that would likely have been ferociously defended as of twenty years ago, it is suddenly stricken.  Why?  That appears to be the cost of doing business for Real Madrid.  No longer so much a representative of the crown and of Spain, the club is now a business, and a booming one at that.  It is currently the most profitable football club (and sporting team overall) in the world.  But a business must grow and find new markets.  And it just so happens that the hottest new market for football is in the Middle East.  What the Middle East happens to have is a ton of money from oil and natural gas.  A billion dollars, in fact, will go to build the Real Madrid Resort Island in the Emirate of  Ras al-Khaimah in the United Arab Emirates.  There was a stipulation to the financing, however.  The ruler of Ras al-Khaimah, Sheikh Saud Bin Saqr al Qasimi, required the removal of the cross in all materials related to the resort.  Similarly, items related to the club sold in the Middle East will be sans cross. 

What does that say about Real Madrid, Spain, and Europe on the whole?  Religiosity has long been declining in Europe, but Spain has still been seen as a bastion of religious, namely Catholic, influence.  One may come to the conclusion, however, that symbols of a nation’s heritage are ultimately up for sale in an international, multicultural world. Presumably, the current Spanish King, Juan Carlos I signed off on this change, trading a piece of the Catholic history of his nation for increased revenue for the royal club.  And it is the royal club.  Lest anyone forget, the Spanish monarchy has its own premier box seating at Real Madrid’s stadium. 

Is this simply a one-off situation, or indicative of a larger change, particularly one of abandoning all signs relating to Christianity at the first sign of cold, hard cash?  Perhaps a look at Real Madrid’s chief rival, FC Barcelona’s new logo will help answer that question.  You will see that St. George’s cross has been excised of its horizontal beam (making it no longer a functional cross).  What caused this change?  Surprisingly (or not), it involved FC Barcelona signing a $200 million dollar sponsorship deal with the Qatar Foundation and fielding complaints from Saudi Arabia that the St. George’s Cross was painful for Muslims because it evoked images of the crusades.

Sunday, April 29, 2012

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer -- as a moment for loose impromptu brilliance.  And in his exceptional piece, "Constitutional Cadenzas," Dan Farber argued that there are sections of the Constitution which contain cadenzas -- "instructions for the interpreter to improvise on the Constitution's grand themes."  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment's Privileges or Immunities Clause as such sections.  "[B]oth of these constitutional provisions," he wrote, "call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration."  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation -- specifically, "transnational legal sources" and "contemporary social consensus" -- the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers -- he may perhaps take notice of past interpretations -- but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind -- the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, 'un appoggio' is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment -- it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody -- it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

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Saturday, April 28, 2012

Seeing the Church in Red and Blue

If you were asked “How come nuns tend to be Democrats and bishops tend to be Republicans?” how would you respond?

That was the first question posed Thursday night by Chris Matthews to Sister Simone Campbell on Matthews’ MSNBC show Hardball (video available here).  The segment of the program during which Matthews asked the question ostensibly addressed Rep. Paul Ryan’s speech on Thursday at Georgetown University concerning the budget prepared by Ryan and passed by the Republican controlled House.  Ryan has stated that his public service in government is inspired by his Catholic faith and that the budget that he and his Republican colleagues put forth is consistent with Catholic social teaching.

Chris Matthews, however, is having none of that.  The segment was dedicated to showing that Ryan and his budget are at odds with Catholic social teaching.

Now, Matthews did not trouble himself with what Ryan actually said at Georgetown.  The Hardball segment did not feature a fair sampling from Ryan’s speech, just two sound-bites.  And Ryan was not a guest on the program.  (For those interested in what Ryan actually said Rick posted a link to the transcript of Ryan’s address here.  A video of the address can be found here).  Instead, Matthews quoted a letter signed by some Georgetown faculty in opposition to the Ryan budget (here).

The bulk of the segment, however, involved an interview with James Salt, the head of Catholics United, and Sister Simone Campbell, the executive director of Network, a lobbying organization sponsored by women religious.  Given that Mr. Salt and Sr. Campbell had already signed a letter in opposition the Ryan budget (here), it seems clear that Matthews was not reaching for journalistic balance in his selection of commentators.  Nor was he trying to provide a forum for dialogue, unless by “dialogue” we mean “monologue” – sadly, a not implausible suggestion in American journalism today.

One way to respond to Matthews’ question would have been to question the alleged voting habits of vowed women religious and Catholic hierarchs – blue nuns and red bishops.  That is, one could deny the factual predicate upon which the question is based, or deny our ability to have confidence in the soundness of the predicate.

That, in essence, is how Chicago’s archbishop, Francis Cardinal George responded to a similar question he received during a question and answer session – albeit a question that assumed Catholic episcopal support for the Democratic Party.  (See the video here).

George was asked: “How could our bishops vote for Obama when he specifically clarified that he was supportive of Planned Parenthood, late-term abortions, funneling high schools with $300 million worth of condoms, etc.?”

Cardinal George responded:

I don’t know if any bishops voted for Obama, and I don’t know anyone else who does.  I never asked any other bishop ‘How did you vote?’ and I don’t think they would tell me if I did ask.  So, how do you know this?  I don’t know how any of you voted and I’m not going to ask you.  So I can’t go out of here and say ‘Well, half the people here voted for Obama.’  How could I say that responsibly without being a sinner?!  It is a sin to detract and to classify a whole group of people, bishops or anyone else, in that way without anyway of knowing it is simply sinful.  It is worse than gossip.

(Watch the full video of George.  It is just under 7 minutes and is well worth the time.  Among his remarks are thoughts on freedom, violence and American history, and the role of the laity in politics.  George also says that those Catholics who did vote for Obama “have an obligation to tell that administration that we didn’t vote for you because you are pro-abortion.  Don’t do this.”  Query whether this has taken place over the last three years).

Whereas George shows prudence, tact, and a desire to avoid sin, Sister Campbell jumps in with both feet.

Gossip, schmossip.

Rather than deny the factual predicate upon which Matthew’s question is based she assumes its truth and then tries to explain it in a rather self-serving way:

Well that’s a really good question.  I’d like to know the answer to it myself, but I have a hunch that it’s our experience that makes the difference.  We sisters work at the margins of society . . . And when you’re in touch with those sorts of struggles you can’t help but realize that we need to be together as a society and respond to the needs of all around us.  We’re only as good as the strength of our society, and that’s why we think that often Democratic principles are much more in keeping with that sense of solidarity.

No one would question the wonderful work that vowed women religious have performed in the United States on behalf of the poor, the uneducated and the marginalized.  (I am proud to count several Ursuline nuns among my teachers in grade school).  Indeed, the CDF recently praised the Gospel-inspired work of American nuns in its otherwise dim assessment of the LCWR (here).  Certainly, familiarity with the day-to-day struggles of the poor can make one more sensitive to their plight, but such sensitivity is hardly the only qualification for crafting policy to address their needs.

More troubling is the fact that Campbell’s remarks imply that the American episcopacy has no connection – no understanding – of poverty in this country.  Even if only by implication (i.e. “I’m a Democrat because I’m on the frontlines of poverty, and the bishops are Republicans because they’re clueless and out of touch, sitting in their chancery offices”) the charge is plainly absurd given the pastoral ministries and life experiences of many American prelates.  The vocation of a bishop – to teach, to sanctify, and to govern – may be different from that of a vowed religious working in a hospital or social service agency, but that does not mean that bishops are unfamiliar with the plight of the poor or that this explains their alleged (and it nothing more than this) support for Republicans.

Now Campbell could have assumed the truth of the premise underlying Matthews’ question – that “nuns tend to be Democrats and bishops tend to be Republicans” – yet offered a very different explanation than the one she did.  For example, Campbell could have said that many American bishops may well support the policies championed by Democrats in serving the needs of the poor but they find the very premise of human dignity undermined by the Democratic Party’s unfailing support for abortion rights.

She could have said that “[n]o public official, especially one claiming to be a faithful and serious Catholic, can responsibly advocate for or actively support direct attacks on innocent human life” (Living the Gospel of Life ¶ 32).

She might have said that the bishops have many disagreements with the Republican Party on a host of issues, but that they at least recognize the fundamental right to life upon which all other rights depend.  They at least recognize the humanity of unborn children and are willing to see the truth of that humanity reflected in law.

Likewise, she might have noted that “Catholics are not single issue voters” and “[a] candidate’s position on a single issue is not sufficient to guarantee a voter’s support.  Yet a candidate’s position on a single issue that involves an intrinsic evil, such as support for legal abortion or the promotion of racism, may legitimately lead a voter to disqualify a candidate from receiving support” (Forming Consciences for Faithful Citizenship ¶ 42).

She might have said all these things, but she instead stuck to the script provided by Matthews – seeing the Church in blue and red.

Sister Campbell’s failure to mention these points or anything like them – her studied reticence with respect to the right to life and the right to abortion – echoes the CDF’s observation that the LCWR “is silent on the right to life from conception to natural death” (here).

Of course the right to life – the legal protection due to the human child developing in his or her mother’s womb – is neither blue nor red.  It is not a Democratic issue or a Republican issue.  It is a matter of truth that cannot be ignored, least of all under the guise of support for the poor and disadvantaged since the unborn child is in solidarity with all those who are vunerable in our society.

This truth is neither red nor blue.  It is the clear-eyed vision offered by the Gospel.

 

 

A Picture is Worth a Thousand Words Department

It was an honor and a pleasure to host Justice Scalia earlier this month at our school.  During his visit with us, he taught my constitutional law class.  Here he is responding to a question I had about how originalism can accommodate and coexist with what will soon be more than a century of substantive due process precedent (after all, Pierce v. Society of Sisters turns 100 in about a decade).  The Justice was animated and incisive in his response.  In fact, my students quite reasonably suggested to me after class that, if given the choice, they'd probably prefer to finish out the rest of the semester with the Justice as their teacher.

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Friday, April 27, 2012

A (gloomy) observation

Over the course of the last few days and weeks, consuming lots of (and contributing some) commentary in various forms about, e.g., the preventive-services mandate, the Bishops' religious-freedom statement, the Ryan budget and Catholic Social Thought, the Supreme Court arguments in the ACA and SB 1070, the presidential campaign and election, etc., I was struck by what seem to me to be some characteristics of our (and by "our" I'm thinking mainly of "reasonably engaged, informed, and formed Christian citizens) conversations about law, politics, policy, and faith. 

It seems to me that, generally speaking, the following are true:

(1)  People object indignantly to tu quoque, "so's your mother!", and "if only you were consistent . . ." arguments and charges, and to double-standards, and also deploy, and apply, them often.

(2) People assume that those who disagree with them are, at least in part, motivated by something undisclosed, or by ideological precommitments that overdetermine the content of their claims, while they themselves are candid and transparent, and able to transcend ideology in order to identify what the right answer really is.  

(3) People object to pronouncements by religious authorities about "political" matters selectively and strategically / tactically.

(4) People are clear-eyed about the weakness of guilt-by-association arguments, and also entirely happy to press them.

(5) People are sensitive to the important truth that there is (this side of Heaven) almost always room for reasonable disagreement among intelligent, faithful, reasonable people about how best to apply principles, standards, and rules to those facts that are known; and also to the reality that such people will also often disagree about what the "facts" (which include, I suppose, predictions about the effects of particular interventions or omissions) . . . except when they aren't.

(6) People say that we should assume the best of others and their arguments, and avoid a "hermeneutic of suspicion", but don't.

To be clear:  I am, I am sure, among these "people."  I am not claiming innocence.  Sure, the merits matter, and I tend to think (as we all do) that, basically, I'm right about those matters about which I disagree with other people (assuming we are talking about matters about which it's possible to be right).  But still -- I'm not pretending to have entirely clean hands.  (I guess I'm overcompensating, in anticipation of (1)).

So, a serious question:  Given (1)-(6), is there really any hope for productive, charitable, and enlightening conversation and argument (about these matters), among people who don't already (pretty much) agree, outside the context of close personal relationships where trust (and even love) can reduce the incidence of the phenomena described in (1)-(6)?

I very much want the answer to be "yes", but it strikes me that it might be "no."  Hence, the gloominess of my observation.