Villanova Law hosted its annual Scarpa Conference (under the direction of our own Patrick Brennan) last Friday, which was an exploration and celebration of the work of John Finnis on the occasion of the publication by Oxford University Press of five volumes of The Collected Essays of John Finnis and a second edition of Natural Law and Natural Rights. In addition to my Villanova colleague Michelle Madden Dempsey, papers were also presented by George Christie (Duke), Father Martin Rhonheimer (Sancta Croce), Fred Lawrence (Boston College), Mark Murphy (Georgetown), Candace Vogler (Chicago), Michael White (Arizona State), and John Keown (Georgetown). John Finnis concluded the day with a keynote address that responded to each of the papers by way of a chapter-by-chapter recital of the topics in Natural Law and Natural Rights. As John Keown noted in his presentation, Finnis's widespread contributions to the field of bioethics and law would alone suffice to secure his reputation. But Finnis also single-handedly rehabilitated natural law in contemporary jurisprudence in Natural Law and Natural Rights and has made important contributions to fundamental moral theology, moral philosophy, political theory, and the interpretation of Thomas Aquinas, and he's now working on a project that will significantly change our understanding of the historical setting of Shakespeare. This is how I concluded my response to Candace Vogler's interesting paper on absolute moral norms:
Writing in 2009 about Elizabeth Anscombe in the context of a review of two books of Anscombe’s collected essays and relevant here to the topic of Professor Vogler’s paper on the relation of theology to moral philosophy, Professor Finnis wrote:
Since the faith has realities, not myth, for its object, and since everything that can be inquired into is what it is by virtue of God’s actuality, one’s inquiries and every other element in one’s intellectual life – whether elements on which faith bears or elements remote from the faith – can be pursued with confidence that they will not contradict faith and if successful will have brought one a little closer to understanding what is really so. That is the free and diligent way in which Anscombe carried out the work that is widely and reasonably judged the twentieth century’s outstanding English Catholic philosophical achievement. (Collected Essays of John Finnis, Volume II: Intention and Identity, "Anscombe on Spirit and Intention")
So also that is the free and diligent way in which John Finnis has carried out his work, which we rightly gather to celebrate today.
Today at Public Discourse, I offer some reflections on the South Carolina Republican presidential forum where I had the privilege of being one of the questioners. I asked each of the candidates a question about the authority of Congress, pursuant to the power delegated to it by Section Five of the Fourteenth Amendment, to protect the unborn by enacting legislation enforcing the Section One due process and equal protection rights of persons. Of course, such legislation would represent a direct challenge to the ruling of the Supreme Court in Roe v. Wade. So my question invited candidates to state a position on the issue of judicial supremacy. In my Public Discourse essay, I note that
[n]othing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.
Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.
In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.
It's clear enough that Maureen Dowd disagrees with several of Justice Scalia's views: abortion, co-ed college dorms, capital punishment, and attendance of the Justices at the Red Mass are among them (though I don't think that Justice Scalia has expressed any public view on the last of these, though I may be wrong). It's not exactly clear to me whether she disagrees with Catholics expressing their views as such, or disagrees with the subjects about which they choose to express themselves, or disagrees with the positions that they stake out, or all three.
Just a quick note on the complex doctrine of cooperation in evil, which I am sure many have discussed here at MOJ over the years, and about which many here will know much more than I.
On Wednesday, September 28, 2011, Prof. Teresa Collett (St. Thomas) visited Raleigh for a debate with NC State Rep. Deborah Ross on the topic: "Pre-Abortion Ultrasound: Informed Consent or Unconstitutional Coercion?" The debate was hosted by Campbell Law School's Federalist Society. Collett pointed initially to the fact that 90% of medical providers already perform pre-abortion ultrasounds, and went on to argue that under relevant law, including Planned Parenthood v. Casey, 505 U.S. 833 (1992), the North Carolina Woman's Right to Know Act, which requires a 24 hour waiting period and an ultrasound procedure four hours prior to any abortion performed in the State, does not place an undue burden on those seeking abortions. In response, Rep. Ross maintained that the law penalizes abortion providers with an inflexible checklist regardless of patient circumstances, along with creating a potential legal action against providers on the part of patients, parents of patients, or even fathers, regardless of any potential incest, rape or other abusive relationship. Only hours later, the ACLU and others filed a lawsuit to prevent the act from taking effect.
On the Catholic Moral Theology blog, Thomas Bushlack (St. Thomas) made a useful post about the debt ceiling debates. It was useful both for what Thomas wrote and the comments that he provoked. He argues that there is a need (a great need) to bring the common good back into political discourse, particularly in the context of debating the federal budget.
Please forgive this not-quite-Catholic-legal-theory post, but as a dyed-in-the-wool Red Sox fan since childhood (and especially since the 1986 series), I can't help but feeling a certain sense of peace descending on me in the last few days. That might sound perverse: the team collapsed in epic fashion, its closer blew it...huge, the manager is on his way out (of his own volition, it seems), the despised Yankees are off chasing their 36,000th title, the underfinanced Rays somehow snuck in, our overfinanced outfielder was a bust , and a general sense of hopeless depression has set in.
But my 8 year-old son, who was alive for the 2004 and 2007 seasons but insensible of them, was wearing his bright-red Carl Crawford t-shirt yesterday here in Yankee territory -- not proudly...just wearing it. And he has now been properly initiated into Red Sox fan-dom.
To be a Red Sox fan is to expect pain, to be waiting for misery, to exist in a perpetual state of pessimism. It is to be sure that your team will lose when others are sure it will win -- just because you didn't like the way somebody swung the bat or because of a twitch in the short reliever's throwing motion -- so sure that you turn off the set with your team well ahead. And sure enough, they do lose, and the sweet satisfaction of sports misery resets itself again and again. It never felt right to be winning, prepossessing, cheerful, hopeful. It was awkward, unnaturally prideful, and swollenly optimistic. It reflected the sense that we could improve on our past, escape our true nature, progress.
Many thanks to Rick for highlighting the Sullivan book, The Impossibility of Religious Freedom. With all that is going on in the world, including the United States, the subject of religious freedom is highlighted by the persecution of and assaults on religious believers.
As Rick points out, the Sullivan thesis points to the role of the state in the protection of religious freedom through the notion of equality. But as Rick points out, there is more to religious freedom than equality.
Of course, religious freedom is protected by the Universal Declaration of Human Rights and international juridical instruments. Moreover, by some of these important agreements, religious freedom is a right which the state cannot derogate, even though many states, including our own do infringe do infringe upon it in various contexts.
In the context of Catholic legal theory, the right of religious freedom is important. But it is more than that. This right prompts the question in CLT regarding the role and authority of the state. In the context of the Mirror of Justice project, religious freedom is a right—like the human person, the family, and the non-derogable rights—that precedes the state. For the state to construct a theory of the right as one based on equality is an ultra vires exercise of its proper and limited authority. At most, the state is its protector by obligation, not its definer by right.
I will attempt to tackle some aspects of this issue at the February Nootbaar conference at Pepperdine on the competing claims of law and religion when I present my paper entitled “Render Unto Mao the Things that Are Mao’s...” which addresses the subject of religious freedom (or not) in China.
The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu. One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women. I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption. For example, I think Justice Kagan's dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices' views of the FEC is largely a mystery. But I had not considered the particular reason that Chip offers. But if this is a reason to vote against the ME, I don't think it's one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply. Do others disagree with me? [x-posted CLR Forum]
At the Immanent Frame blog, Amanda Kaplan links to Douglas Remy's review and discussion of Winnie Sullivan's (2005) book, The Impossibility of Religious Freedom, and how it relates to the discussions and debates about international religious freedom. The basic challenge, in Sullivan's view -- that is, the reason why "religious freedom" is "impossible" -- comes from the proposed fact that the would-be guarantor of religious freedom, i.e., the secular state, "cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from 'making laws respecting an establishment of religion.' In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion." As many MOJ readers will know, this diagnosis leads Sullivan to conclude that "religious freedom" is best protected simply by protecting equality.
Like my fellow-blogger Tom Berg, I don't think this (i.e., just protecting equality) is enough, and I'm do not agree that the difficulties which certainly attend the necessary task of "defining" (for legal purposes) religion make it "impossible" for the state to meaningfully, even if imperfectly, protect religious freedom. (FWIW, I reviewed Sullivan's book, and some others, in Commonweal a few years ago.)
Over at Larry Solum's invaluable "Legal Theory Lexicon," he has an entry on "well-being and happiness," which should be of interest to folks working on and thinking about Catholic legal theory, given the aretaic dimension of the Catholic tradition.
