Tuesday, April 24, 2012
The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue. There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe. And there's something by me, too.
Folks interested in these issues will, I think and hope, enjoy the pieces.
Monday, April 23, 2012
I wanted to ask a few more questions about methods of adjudicating an Establishment Clause claim related to the issue of symbolism that I posted about yesterday, but I should first make clear that none of this discussion goes at all to the merits of the decision to change the name of the military unit from Werewolves to Crusaders. As Patrick O'Donnell rightly points out in a comment, there are all sorts of reasons to decide that as a matter of policy, this was not a wise decision -- a point that I recognized in the comments and which I recognize here. Others will have much more to say about the policy issues, but the questions I ask now relate to constitutional methodology, not to the wisdom of a military unit calling itself "Crusaders."
Here are the facts as reported in the complaining letter: the Marine unit used the name "Werewolves" from its inception in World War II until 1958. In 1958, it changed its name to "Crusaders," and the letter states that the reason it made this change is that the unit flew "F-8 Crusaders." It continued to use the name "Crusaders" for 50 years. In 2008, a Lieutenant Colonel decided that in advance of a deployment to Iraq, the name "Crusaders" would be abandoned in favor of "Werewolves" because "[t]he notion of being a crusader in that part of the world doesn't float." Most recently, the decision to return to "Crusaders" was made, and one report states that the reason was a return to the traditions of the unit.
I've framed my thoughts as questions; the questions may suggest my skepticism about the capacity of current approaches to the Establishment Clause to pass on this sort of issue. But in light of the push-back to my original post and in the interests of (amply justified, in my case) modesty, I thought to ask questions, rather than offer any definitive opinions. They follow the jump.
Michael Sean Winters blogs, here, about the upcoming Supreme Court arguments in the Arizona-immigration-law case. I probably agree with Winters that, as a policy matter, laws like Arizona's (and Alabama's, which was criticized in the Bishops' recent religious-freedom statement -- you know, the one that is so "partisan"?) are bad policy (though the current regime and its enforcement are a disgrace). Immigration reform is a tough issue, and the left demagogues it with no less vigor than does the right (no, it's not "racist" or "nativist" to worry about the costs of unlawful immigration or to support voter ID laws; no, it's not un-American to note that immigration has many benefits and that our current system makes lawful immigration, in most cases, too difficult). It is not the "Catholic" view that a political community is not entitled to police its boundaries, nor is it the "Catholic" view that a wealthy community can exploit the cheap labor and sales-tax revenues provided by unlawful immigrants while simultaneously demonizing and arbitrarily deporting and / or incarcerating them. For more, see this First Things piece, "Principled Immigration," by Mary Ann Glendon, or this essay by our own Michael Scaperlanda.
Winters is right that immigration is, as a constitutional matter, a "federal issue." However, the question whether a law like Arizona's is inconsistent with immigration's being a federal issue is trickier than Winters's post suggests. It is not the case that all state laws whose operation and enforcement affects unlawful immigrants, or shapes their decision-making, unconstitutionally interfere with the national government's prerogatives in this area. It depends, and the answer to the question whether or not it does is not supplied by Catholic teaching.
In my view, "conservative Catholic commentators" who care (as we all should) about "the importance of human dignity" and religious freedom are not required, on pain of being charged with inconsistency (or worse), to think that the Arizona law and others like it crosses the constitutional line (I have not studied the matter closely enough to have a firm view), even if do they think, as I think I do, that what is urgently needed is not piecemeal, and largely symbolic, state legislation, but meaningful enforcement, fair sharing of the burdens and benefits associated with unlawful immigration, and comprehensive reform.
Sunday, April 22, 2012
It seems that The Military Religious Freedom Foundation has sent a cease and desist letter to the U.S.
Secretary of the Navy demanding that Marine Fighter Attack Squadron 122 stop using the name “Crusaders.” The Squadron had at alternative times in its history used the name “Werewolves” and “Crusaders.” The MRFF claims that ”Crusaders,” as well as the symbol of a red cross on a white shield used by the Squadron, violates the Establishment Clause. “The most logical purpose of the Crusader moniker is to convey a message of approval of religion.”
I disagree; indeed, I find the position obtuse. There may be many reasons to use the epithet “Crusader,” and in a military context “[t]he most logical purpose” may well be to associate oneself with the fearsome, bellicose spirit of the Crusaders — who, after all, were warriors. I don't find anything "most logical" about the interpretation offered by the MRFF. "Crusader" is used commonly -- and it can have both negative and positive non-religious connotations ("He's a crusader for justice."; "Batman is the caped crusader"; "He's taken this misguided cause on as a kind of crusade.").
But set all that aside. Why is MRFF not upset about the name ”Werewolves”? Doesn’t “Werewolves” violate the Establishment Clause too? Lycanthropy (humans turning into wolves), I think, was a form of spiritual, animistic belief held by the Algonquian Native Americans (see the Wendigo), and I also believe that certain varieties of Wicca believe in something like lycanthropy. Animism generally holds that there is a spiritual power in non-human beings, including wolves. An early expression of pagan belief in werewolves may be located in Book 1 of Ovid’s Metamorphoses, where Ovid tells of King Lycaon, who is turned into a wolf by Zeus when he treats Zeus most inhospitably (“His arms descend, his shoulders sink away/ To multiply his legs for chase of prey./ He grows a wolf, his hoariness remains,/ and the same rage in other members reigns./ His eyes still sparkle in a narr’wer space:/ His jaws retain the grin, and violence of his face.”). And, of course, werewolves are an integral part of that most pagan of holidays, Halloween.
At any rate, given these religious origins and the continuing association of werewolves with paganism, why should MRFF have a special problem with cultural symbols with Christian origins? Let’s do this right, and get werewolves declared unconstitutional too.
Saturday, April 21, 2012
I was delighted to participate yesterday in a terrific program run by the Terence J. Murphy Institute at the University of St. Thomas School of law, and organized by the ever gracious and kind Lisa Schiltz. Judge Richard Sullivan and I spoke at around lunch time, and it was a privilege for me to meet and listen to him. We both offered some thoughts about the theory and practice of punishment today. Our talks were integrated into a larger, very interesting symposium dealing with the problems and possibilities of sentence commutation and the executive pardon power, run by the St. Thomas Law Journal with the masterful organizational touch of Mark Osler.
As is always the case when I am lucky enough to visit my friends at St. Thomas, I was extremely impressed by their generosity, hospitality, intellectual depth, and genuine fellowship. I enjoyed being there.
Two items.
(1) George Wright sends along this new course offered at NYU and taught by former law school dean and current president John Sexton: "Baseball as a Road to God." Here's the description:
Baseball As a Road to God aims to link literature about our national pastime with the study of philosophy and theology. This seminar aims to blend ideas contained in classic baseball novels such as Coover's Universal Baseball Association , Kinsella's Iowa Baseball Confederation , and Malamud's The Natural with those found in such philosophical/theological works as Eliade's Sacred and Profane , Heschel's God in Search of Man , and James' Varieties of Religious Experience . It discusses such themes as the metaphysics of sports, baseball as a civil religion, the nature of sacred time and space, and the ineffability of the divine. Not for the faint-hearted, this course requires students to read over two dozen works of varying lengths in addition to supplemental readings as they might arise. The course also requires weekly papers. As with any serious commitment of one's time, the rewards of taking a seminar such as this can be great.
(2) On a personal note, after the yearly parade and an early night (no smokes, no booze, no women -- coach's orders), my son Thomas's 2d grade little league team, 'The Infernos' (I had nothing to do with that outstanding name), came out swinging on a beautiful opening spring day today. There's nothing like early season baseball.
Friday, April 20, 2012
As is reported here, at the Catholic Moral Theology blog, theologian Charlie Camosy's new book on Peter Singer and Christian Ethics is out in the U.K. and will soon be out here. We've talked about Charlie's project at MOJ before -- I expressed, I admit, some doubts -- and, I'm sure, will again. In the meantime, congratulations on the publication!
Thursday, April 19, 2012
At The Weekly Standard, Gertrude Himmelfarb has a very interesting essay called "Civil Society Reconsidered: Little Platoons Are Just the Beginning." Among other things, she observes:
Civil society has been described as an “immune system against cultural disease.” But much of it has been infected by the same virus that produces the disease—a loss of moral integrity and purpose. What is required, then, is not only the revitalization of civil society but its reform and remoralization—the reform of those institutions that parody government agencies, and the remoralization of those that have lost their moral focus.
And:
Today, in our anxiety about the excesses of individualism and statism, we may find ourselves looking upon civil society not merely as a corrective to those excesses but as a be-all and end-all, a sanctuary in itself, a sufficient habitat for the human spirit. What our forefathers impress upon us is a more elevated as well as a more dynamic view of civil society, one that exists in a continuum with “political society”—that is, government—just as “civil associations” do with “political associations,” “private affections” with “public affections,” and, most memorably, the “little platoon” with “a love to our country and to mankind.” This is civil society properly understood (as Tocqueville would say), a civil society rooted in all that is most natural and admirable—family, community, religion—and that is also intimately related to those other natural and admirable aspects of life, country and humanity.
Read the whole thing.
I like and respect Paul Baumann, and it is in part because of this respect that I find the editorial response to the Bishops' religious-freedom statement by our friends at Commonweal to be disappointing. As I noted earlier, I believe that the charge that the statement is or is reasonably be perceived "partisan" misses the mark. (For more on this point, see Rob Vischer's recent post.) I also note -- by way of disclosure, and not as a claim to any authority -- that I serve as a lay consultant to the Committee that produced the statement.
Let's start with common ground: The cause of religious freedom, and the Bishops' efforts to stir Americans generally, and Catholic specifically, to a renewed appreciation for the importance of that cause, are not well-served -- they are undermined -- if the cause or these efforts are perceived as merely partisan, or as election-season ploys to help one "side" in the election. So, those who are committed to this cause, including the Bishops', should take special care to avoid saying or doing things that could, in the minds of reasonable people of good will, feed such a perception. In my view, the Statement does take appropriate and commendable care in this regard. It emphasizes that the cause of religious freedom should not be, and should not be regarded as, a partisan issue; it cites examples of threats to religious freedom coming from both the "right" and the "left; and it insists that -- in accord with the Council's Declaration -- religious freedom is the dignity-based right of all human persons, because they are persons. Suggestions that Muslims or others are omitted from the Statement's concern are not plausible (even though it seems fair to note that the Statement could have been improved by noting the troubling interest, in some jurisdictions, in "anti-Sharia" laws. Rob Vischer's recent First Things essay on these laws is important.)
In Paul's view, my impression that the critical reactions to the Statement seem more "partisan" than the Statement itself reflects a "tiresome rhetorical tactic." While, because of my respect for him, I regret being tiresome to him, I continue to believe that at least some of the accusations that the Bishops' religious-freedom efforts, and the Statement in particular, are "partisan" reflect something of a double-standard, and a selective concern about the Bishops' interventions in public-policy matters. As Rob suggests, it does not seem right or fair to say that the Bishops' responsibility to avoid diluting their witness and voice by engaging, or even appearing to engage, in (low) politics requires them to avoid addressing matters they otherwise would and should address simply because of the timing (i.e., it's an election year) or because the matter in question is associated (at the moment) with one political party. The Bishops are not criticizing the Administration because they oppose President Obama generally (and certainly not because they have any particular loyalty to or affection for Republicans) but beacuse it was this Administration that, for example, filed the extremely troubling brief in Hosanna-Tabor. Paul (and Doug Laycock) are right, of course, that (a) Republicans and other Administrations and actors have sometimes infringed on the freedom of religion and (b) Democrats and this Administration have done some things that respect and support this freedom. But, and again, the Statement did not, in my view, suggest otherwise. The Statement is not rendered partisan, in my view, by the fact that (at present) the policies and proposals of one party pose more of a threat to religious freedom than do the policies and proposals of the other (and to point out this fact is, of course, not to pretend that the other party is immune from criticism on any number of fronts).
The editoral says that "[t]he bishops’ description of the various threats to religious freedom conflates a number of disparate federal, state, and judicial actions into an allegedly unified and urgent peril" and that their "argument is hyperbolic." I don't think it is. As I read the statement, it reasonably used a number of distinct examples -- of distinct "federal, state, and judicial actions" -- to illustrate the point that it is religious freedom of all, and not just the particular interests of a few particular people in an occasional, discrete case, that seems to be increasingly undervalued. It is the case, in my view, that there is a general move toward (a) the view that religious freedom does not extend much beyond the freedom to believe and worship, in the "private" sphere; (b) the view that an expansive understanding of the antidiscrimination norm outweighs the religious-freedom rights of persons and institutions (see my "Confusion About Discrimination", here); and (c) the view that a condition of religious communities' activities in the "public" sphere, or of their cooperation with government on social-welfare projects, should be compliance with the norms that (appropriately) are observed by government actors. This general move is, I believe, a threat to religious freedom, it is manifesting itself in many ways and at many levels, and the bishops are right to be concerned about it.
Now, I agree almost entirely with the Commonweal editorial's concluding paragraph:
For their effort to be effective, the bishops’ campaign must be seen to be nonsectarian and independent of electoral politics. Adding anti-Islamic prejudice to their list of concerns would help in that regard. The “grand campaign” should also begin and end with a frank admission about the complexity of church-state relations. No government can accommodate every conceivable religious practice or belief, nor does the Catholic Church have a strong record of supporting accommodation of other religious communities. In their simplistic rhetoric, the bishops sound more like politicians than pastors. As Campbell and Putnam warn, if religious freedom becomes a partisan issue, its future is sure to grow dimmer.
I say "almost entirely" because I think the Church's record (in modern times) of supporting accommodation of other religious communities is "strong" (consider, for example, the Religious Freedom Restoration Act) and also because I think it is wrong and unfair to say that "[i]n their simplistic rhetoric, the bishops sound more like politicians than pastors." Religious freedom should not be a "partisan issue," but it is a very important one, and it is increasingly vulnerable. The Bishops are right to focus closely on the crucial, very pastoral, task of reminding Catholics (and all of us) of, or perhaps awakening us to, the importance, content, threats to, and yes limits of religious freedom. No one denies -- certainly I don't, and I have worked quite a bit on, and know a fair bit about -- the "complexity" or church-state relations or imagines that all religious objections can always be accommodated.
I hope that Paul and my other friends at Commonweal do not share the view expressed by some of the commenters on the site that my efforts in this area, including my willingness to (in what I know is a very small way) help the Bishops' efforts in this area, are merely political, partisan, or self-interested. I believe strongly in the Declaration on Religious Freedom and in the Catholic moral anthropology that animates it; I think that (for the most part) the American constitutional experiment in religious freedom through law has been a success and should be cherished; and I also think that, at present, this experiment is under stress, threats, and even attack. I do not think these things because I imagine that, by thinking them I might somehow help the Republican Party.
Here is a good article on the Public Discourse website by Teresa Collett (president of University Faculty for Life) defending Pain-Capable Child Protection Acts. http://www.thepublicdiscourse.com/2012/04/5176 Teresa explains: “These laws are premised on the idea that an unborn child’s capacity to feel pain, independent of fetal viability, is sufficient to establish the humanity of the child and to sustain a limited prohibition on abortion. Like partial-birth abortion bans, these laws advance public recognition of the unborn child’s humanity and should be supported.” The article discusses the evidence supporting the view that unborn children can feel pain at about 20 weeks post-fertilization. It also discusses the constitutionality of these bans. On the constitutional issue, Teresa concludes:”
Recognition of a compelling state interest in the protection of pain-capable unborn children does not require the Court to reject a woman’s liberty interest in obtaining an abortion or the balancing framework of Casey. It only asks the Court to recognize the legislature’s ability to use new scientific evidence that supports a strong state interest in regulating abortions at twenty weeks after fertilization. Pain-Capable Unborn Child Protection Acts modestly expand upon the states’ interests in the protection of fetal life and affirm the value of unborn life as recognized in the latest Supreme Court cases addressing abortion.”
Richard M.
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