No one could have had any doubt, of course, that an op-ed -- to which Michael P. linked recently -- enthusiastically validating President Obama's call for judges with "empathy" was in the offing from (the post-Romney-exit) Prof. Kmiec. The pre-Spring-of-2008 Prof. Kmiec, though, would have been quite skeptical of many of the assertions in the piece.
Put aside the doubts one might have regarding the suggestion that "empathy" yields particular results in cases like Ledbetter and Heller (the latter decision, of course, Pres. Obama claims to agree with). It continues to disappoint many of us, who regarded Prof. Kmiec as a thoughtful and conscientious lawyer, that he seems entirely unburdened by a felt obligation to admit that, and explain why, he has changed his mind on so many matters having to do with law and policy. Changing one's mind, of course, is fine; a scholar, though, owes it to himself, and to those who once took the time to read him, to explain the change. This is particularly true when the change-of-mind is accompanied by an unattractive tendency to mock the very positions (e.g., "originalism") the-one-mocking once held.
For example, with respect to abortion, Kmiec complains that "[c]onservative law professors helping GOP presidential candidates [that is, "conservative law professors" like Kmiec, before Gov. Romney quit the race] would insist that this choice be made criminal." It has long been Kmiec's (at least, it long was Kmiec's) view that the Constitution requires the outlawing of abortion. (It does not.) Most "conservative law professors", though, hold simply that the Constitution permits (but does not require) abortion to be closely regulated. (It does.)
With respect to same-sex marriage, Kmiec says, "[i]f the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test." To say that Doug Kmiec, until very recently, would have had his doubts about the claim that limiting "marriage" to unions between a man and woman constitutes the "selective oppression of one class of citizens" is to understate things considerably.
I should say that I get no pleasure pointing out, again and again, that Kmiec -- putting aside the question whether or not his current views are right on the merits -- has failed to explain himself, and that he should. It is uncharitable to those he now sniffs at for him to act as though no one notices that he is cheerily carrying water now that he would, until quite recently, have regarded as skunky.
Michael, what is your view? You, like Kmiec, have been a constitutional-law scholar for decades. On several important matters, you have changed your mind, and candidly, powerfully (I think) explained why. Shouldn't Kmiec do the same?
As you know, Thursday I found myself on a beach 10 miles from our hotel with my wife and youngest child. We had no shoes (imagine me shoeless at the police station), no money, phone, doucmentation. We were in a state of great dependence. And as I mentioned, a young couple - engineering students - helped us, spending the better part of the afternoon with us rather than on the beach.
Yesterday morning I prayed: "I am grateful, forgive my ingratitude." We were truly grateful, there is no doubt about it. But, as I lay half awake yesterday morning my mind seemingly involuntarily played over and over a hundred "what ifs" games - if only we had done this or that we could have avoided the whole mess. My mind did not go to the "what ifs" concerning what if the couple hadn't been there, hadn't been willing to help, didn't speak English. This suggests to me that although I am far along on the journey of faith to laugh at our misfortune and express gratitude for the help given, I am not so far along on the journey to have this attitude of gratitude embedded in my very fiber. Gratitude is still a conscious act of will rather than a deeply ingrained habit - a complete openess tothe gifts given.
"I am grateful, forgive my ingratitude."
Friday, May 8, 2009
[MOJ-friend and Trinity College Dublin law prof (and former dean) Gerry Whyte thought that some MOJ-readers might be interested in this:]
"L'Osservatore Romano" praises him. Two prominent scholars of the pontifical
academy of social sciences rail against him. The complete text of the
accusation, signed by Michel Schooyans in conjunction with the archbishop of
Dijon, Roland Minnerath.
To read the Bill of Particulars, click here.
Today, most of us operate with the illusion that we are self-sufficient autonomous human beings. But life has a way of crashing in on us, sending us back again to the school of dependency. Sickness, financial difficulty, tornadoes, hurricanes, earthquakes, ice storms, war, bombings such as OKC and NYC, etc. ought to teach us lessons from experience about our dependency and interrelatedness. But, just like school children who empty the contents of their brains as soon as midterms end, we quickly forget the lessons learned in this school.
As I blogged yesterday, my latest school of dependency occurred on a beach in the Bay of Salerno. Barefoot, with no ID, phone, or money, I was completely dependent on the charity of others. What a gift to be brought again to this point.
Although MOJ is not a travel blog, I burden you with this because from the beginning of the blog five years ago, I have continued to think that the most important contribution that we can make to legal thought is asking (and offering an answer to) the anthropological questions. Often our discussions of left/right, conservative/liberal serve only to divert our attention from the sickness that pervades our culture, including our political/legal culture. Let's face it, both left and right suffer in different ways from the sickness we might call radical autonomy. And, we can offer a cure. We can ask (and offer an answer to) what are our origins, purpose, and ends.
My latest school of dependency reminds me of how much I have breathed the noxious fumes of radical autonomy that are poisoning western civilization. Only the law of the gift - the law of charity - can provide a cure. And, what gives us hope that such a culture can be created? Christ, the supreme gift!
Today, most of us operate with the illusion that we are self-sufficient autonomous human beings. But life has a way of crashing in on us, sending us back again to the school of dependency. Sickness, financial difficulty, tornadoes, hurricanes, earthquakes, ice storms, war, bombings such as OKC and NYC, etc. ought to teach us lessons from experience about our dependency and interrelatedness. But, just like school children who empty the contents of their brains as soon as midterms end, we quickly forget the lessons learned in this school.
As I blogged yesterday, my latest school of dependency occurred on a beach in the Bay of Salerno. Barefoot, with no ID, phone, or money, I was completely dependent on the charity of others. What a gift to be brought again to this point.
Although MOJ is not a travel blog, I burden you with this because from the beginning of the blog five years ago, I have continued to think that the most important contribution that we can make to legal thought is asking (and offering an answer to) the anthropological questions. Often our discussions of left/right, conservative/liberal serve only to divert our attention from the sickness that pervades our culture, including our political/legal culture. Let's face it, both left and right suffer in different ways from the sickness we might call radical autonomy. And, we can offer a cure. We can ask (and offer an answer to) what are our origins, purpose, and ends.
My latest school of dependency reminds me of how much I have breathed the noxious fumes of radical autonomy that are poisoning western civilization. Only the law of the gift - the law of charity - can provide a cure. And, what gives us hope that such a culture can be created? Christ, the supreme gift!
