In a recent post, Robert
George maintains that: “If, indeed, Kagan believes it is legitimate for judges
to read into the Constitution liberal (or, for that matter, conservative) views
about abortion, sexuality and marriage, religion, speech, or anything else,
then she should be opposed for that reason. In my judgment, a
constitutionalist is someone who believes that the legitimate sources of
constitutional meaning are the text of the Constitution, the logical
presuppositions and implications of its provisions, its structure, and its
publicly understood historical (or "original") meaning. A
jurist who is willing to look beyond these sources of meaning in order to reach
outcomes in line with his or her moral and political preferences undermines the
Constitution by usurping authority it allocates to other actors in the system.”
I have a number of clarifying questions about this passage.
First, I wonder if Robby counts precedent as a constitutional source of
meaning. It is not obvious from the quoted passage that he does. Second, I
wonder which justices serving from the Warren Court to the present meet this
standard. Does anyone put forward by a Democratic President serving anytime
from the Warren Court to the present meet this standard (perhaps Justice Black?)?
If I were to faithfully apply Robby’s standard (given my
current understanding of it), I would conclude that the overwhelming majority
of these justices are not constitutionalists in Robby’s sense. This would mean
that Robby’s understanding of proper constitutional interpretation differs from
that of the overwhelming majority of the justices over an extended period.
Robby’s perspective appears to me to be a critical perspective, not a
descriptive perspective. If one were describing what the Court does, I would
think that the Court looks to language, history, structure, precedent, policy,
and occasionally its power (or limits thereof) as constitutional sources in
arriving at constitutional interpretations.
Should those who approve of the Court’s methodology oppose
every “constitutionalist”? Robby apparently sees opposition to
non-constitutionalists as defending the Constitution, or, as I see it,
defending his subjective understanding of constitutional interpretation. There
are many who think that a President should be given some deference in picking a
nominee for the Court. That is, for example, no Democrat can reasonably expect
a Republican President to pick a liberal. But I assume that apart from his
personal theory of constitutional interpretation, Robby has no grounds to
criticize Democrats if they oppose “constitutionalists.”
cross-posted at religiousleftlaw.com
Wednesday, May 12, 2010
From page 834 of The Dying of the Light: "It became a commonplace to classify both church and state as outside forces whose inclination to meddle in the academy must be fearlessly resisted. The church has compliantly withdrawn to an important distance, while civil authorities at every level now make no apology for imposing their laws and regulations on zoning, gender and ethnic imperatives for enrollment, occupational safety, hiring and faculty appointments, the positioning of chapels, the array of varsity sports, et cetera. Colleges that for fifty years have refused to disclose to their patronal presbyteries how many Presbyterians they enroll are faithfully reporting to the federal government how many students of Samoan extraction they enroll. . . . The critical turn . . . often involved forcing those who spoke for the church out of college governance."
I'll stipulate here that the Marquette matter was botched; I don't know the facts; for all I know, damages may be owed. I do, though, want to resist the strain that suggests that "Jesuit and Catholic" universities (or similarly self-describing institutions) should be in any meaningful sense "independent" of Church governance. There are degrees and kinds of such governance, to be sure, and universities and colleges are (and should be) subject to ecclesial (and non-ecclesial) norms that will militate in favor of a different sort of dependence (as opposed to independence) than properly pertains to other manifestations of the ecclesia.
Not to be coy, I'll just say again: If the governing offices of the Catholic Church have (or should have!) no decisive role in the life of "Jesuit and Catholic" (or even "Augustinian and Catholic") institutions, then the quoted adjectives should be removed from those institutions' self-descriptions.
I recommend Francis George's "Being through Others in Christ: 'esse per' and Ecclesial Communion," which I happened to read before tuning in to MOJ this evening. The recommened essay concludes the Cardinal's book The Difference God Makes.
I offer one answer to Michael's question, "Does a Bishop stand as an outsider to a Catholic University within his diocese?" While I am aware that the Church internally attempts to maintain standards according to Ex Corde Ecclesiae, primarily through the mandatum, I believe that it is extremely important that bishops remain outsiders as a matter of governance. If bishops or religious orders exercise control over universities, they potentially open themselves up to enterprise liability or reverse piercing claims that would allow seizure of university assets to settle debts. These sorts of claims are being brought against institutions in order to satisfy tort claims that have led to diocese and religious province bankruptcy. The strongest argument to defend against such claims is that the university is operated as a truly independent entity.
