Our politics is so poisonous and our constitutional law so contentious that one might be surprised to learn that mixing the two deliberately may benefit both. The mixture I have in mind is a constitutional politics aimed at amending the Constitution.
Whether originating in Congress (by two-thirds vote of each house) or in a convention of the states (upon a call by two-thirds of the states), a proposed amendment must be ratified in 3/4 of the states (whether by legislature or convention) in order to become law. Some have argued the process is too difficult. They're probably right. But this difficulty presents an opportunity for a particular kind of politics---one aimed at identifying and advancing changes in the law attractive enough to garner such widespread support.
Changes of such a sort must exist. Surely we don't have a perfect constitution. And some of the imperfections are obvious if we only stop to think about them. Wouldn't it be politically useful if a politician could become identified as a champion of an amendment to fix an obvious imperfection in our constitutional order? Such a politician would get credit not only for substance but also for style. People are yearning for a politics of this kind.
The proposed amendment cannot be too obvious, or else there would be little credit to be had for identifying and championing it. But it cannot be too obscure or trivial, either, or else there would be little expected gain from an investment of one's political capital in advancing it. The proposed amendment must be of a sort that does not have overwhelming support already, but that would and could merit such support if advanced effectively enough.
To satisfy these conditions, it is helpful to have a conception about what is good for our constitutional order that is not reducible to what people presently think is good for our constitutional order. Such a gap between what is really good and what is presently perceived to be good would morally justify the investment of political capital to close the gap.
What does this way of approaching political and moral dimensions of motivating a constitutional amendment have to do with Catholic legal theory? I am here reminded of Adrian Vermeule's contention that "[t]he claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials." When we make welfare economics arguments of a certain kind, we are not doing something different from making natural law arguments but rather making a kind of natural law argument.
Vermeule identifies the Pareto principle as one example of a principle that "natural reason suggests ... is almost necessarily correct" (at least with respect to normal central cases in which it is deployed). This is the principle that identifies a change as an improvement upon the status quo if and only if it makes one or more persons better off and no one worse off. This formulation raises obvious questions about what we mean by "better off" and "worse off," to be sure. But holding the Pareto principle in mind as a guide, might we identify any proposed constitutional amendments that satisfy it? If so, then we might also have a politically popular proposal on our hands, at least if is handled correctly.
I have one candidate that I'm setting up for a future post. But there must be more than one, right? If so, then there are more than one possible constitutional amendments in which good constitutional law holds the promise of promoting good constitutional politics.
In considering Senator Feinstein's revealing TV performance the other day, its openness is the only thing surprising about her open hostility to what a politician who panders to pro-abortionists seems to think of as Professor Amy Coney Barrett's "living dogmatism." The hostility is familiar.
Discerning viewers may have detected an element of unspoken envy as well. ("You have deep convictions. I have to perform for powerful factions. Poor me.")
It is likely to be several months, though, before we may look back to see that the longest lasting and most powerful effect of Senator Feinstein's revealing phrase was to significantly increase the likelihood that the next Associate Justice of the Supreme Court of the United States would be Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit.
President Trump and his advisers are well aware of the power of the "But Gorsuch!" Effect. And Senator Feinstein has inadvertently created a new celebrity federal judge.
In our forthcoming Supreme Court round-up for First Things ("A Less Corrupt Term"), Marc and I discuss some ways in which the "reality-TV-ification" of our governing institutions has reached the Supreme Court. The "dogma lives loudly within you" merchandise that has already appeared (reminiscent of the "Notorious RBG" merchandise that has popped up in recent years) suggests the emergence of a certain celebrity factor from unexpected quarters. And that factor will be unquestionably attractive for an Executive Producer looking to revive a flagging series through the Introduction of a New Character to the Show.
A nomination like this might not be enough to get the Executive Producer invited to speak at Notre Dame's graduation, but it would certainly be good for ratings ... and isn't that what matters these days? So while I agree with Rick that Senator Feinstein's comment was "disgraceful," we might instead consider it "deplorable."
How will this one turn out? We'll have to stay tuned all season to see.
I recently had occasion to revisit God For Us: The Trinity & Christian Life, by Catherine Mowry LaCugna. I thought I'd share a brief excerpt in anticipation of the upcoming Trinity Sunday:
Christian theism has been severely criticized of late because it is said to be projective (Feuerbach, Freud); sexist, patriarchal, and clerical (feminism); bankrupt (atheism; death of God); static (process thought); ideological (liberation theology); nonreferential (analytic philosophy). In effect, these critiques testify to the deleterious outomce of the Christian doctrine of God that is in many respects secular, constructed out of philosophy, not out of the self-revelation of God in Christ. The root of the nonsoteriological doctrine of God is its metaphysics of substance: the pursuit of what God is "in se," not what God is 'in Godself' or 'by Godself.' All of the critiques of classical theism cry out for soteriology: Can we believe in God after Auschwitz? Can a male savior save women? Does God's justice prefer the rich and powerful? Can God respond to petitionary prayer? Does belief in God inhibit the full development of human persons? Does God predetermine the fate of individuals, and is freedom illusory? All these questions are at base questions about the character, the 'who' of God. Theology ought to be able to answer them. Theology cannot answer them by taking refuge in the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity, since these are the very attributes that seem dubious. The only option is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian.
In trying to understand Steve Bannon's outlook recently, I found myself wondering how it cohered with Catholic teaching about nations and peoples. That teaching, I think, is easier to understand than Bannon's outlook, if only because one must rely on reporting about Bannon. In any event, an important Catholic perspective on nationalism can be found in John Paul II's October 5, 1995 Address to the United Nations.
I was a sophomore in college that fall, and I remember one of my college chaplains remarking that Pope John Paul II's observations about the rights of nations were important. So I went and looked it up this evening. It's worth reading.
The typical law student has a tendency to think he or she has performed worse on exams perceived as harder and better on exams perceived as easier. But often the opposite is the case. Thinking that one may have done poorly because the examination seemed so hard is sometimes a sign that one has performed well.
One of my law school professors (I think it was Dan Meltzer, but I'm not sure) gave an explanation of this phenomenon that made sense to me. Exams seem hard when the exam-taker has perceived the hard issues raised by the exam. Exams that seem easy may only seem that way because the exam-taker has missed the hard issues entirely.
I'm reminded of this phenomenon in reading the Fourth Circuit's en banc immigration decision. The decision seems legally wrong for reasons set forth in Judge Niemeyer's dissenting opinion, the government's briefs, and online writings by Josh Blackman, Ilya Shapiro, Marc DeGirolami, and others. Go find and read those if you are interested in the technical legal analysis. But don't forget that good legal analysis often is technical.
Most troubling to me, though, is the seeming confidence of the majority opinion that comes through in the language it uses as it deploys modern Establishment Clause doctrine. The reason that is troubling is traceable to one of the best law review articles I've read.
In *A Political History of the Establishment Clause,* 100 Mich. L. Rev. 279 (2001), John Jeffries and Jim Ryan offer precisely what their title suggests. Go ahead and read it. It will probably make you miserable if you really care about the law part of constitutional law. But it will also make you wiser.
If you're an anti-anti-Catholic, you might also--and appropriately--be more worried about judicial decisions finding Establishment Clause violations.
DL: I think the book will interest a wide range of readers for a wide range of reasons — but did you have a particular reader or group of readers in mind when you were writing it?
JHW: The audience is anyone who loves America. All of us can still help to repair the damage that long-ago decade did to the spirit of tolerance in education, to the stability of family bonds and units, to the rule of law, to our sense of America as our home, to our capacity for national unity even in times of crisis, and to the sustenance we derive from the practice of religious faith. It’s also important to recognize, however, that the 1960s did great good and helped to broaden America’s embrace of all its citizens, not just some. I hope that by the end of the book, each reader will come at least to appreciate the other side of the enduring ‘60s argument.
I believe the generation of the Sixties has been given one last chance to get it right. We can help upcoming generations learn from our experience. And we can devote our later years to bringing together the nation we did so much in our youth to drive apart. We owe our beloved country at least this much, before we leave Shakespeare’s stage and life itself for good.
Marc DeGirolami and I wrote an article a few years ago that explored the relationship between constitutional adjudication and constitutional theory through a study of some judicial and extrajudicial writings by Judge Wilkinson and Judge Posner. We contended that their anti-theory stance, together with their advocacy for judicial restraint and judicial pragmatism, respectively--which functioned in some important ways similar to the theories that they criticized--were best understood as accounts of judicial dispositions in constitutional adjudication. Judge Wilkinson's new book, together with his and Judge Posner's judicial and extra-judicial writings since Marc and I wrote, provide some evidence for the comparative attractiveness of the dispositions advocated by Wilkinson over those advocated by Posner.
With the helpful guidance of Richard Reinsch's Brownson anthology, I have lately begun trying to understand the constitutional thought of Orestes Brownson. I am interested in the nature of our Union, and Brownson promises to be very helpful in arriving at clearer thinking on that topic.
Through something of a roundabout way, I recently found myself reading Brownson's 1843 oration at Dartmouth College, "The Scholar's Mission." This mission, he says, is nothing less than "INSTRUCTING AND INSPIRING MANKIND FOR THE ACCOMPLISHMENT OF THEIR DESTINY."
It seems to remain a matter of some dispute what the precise source of JFK's "ask not" exhortation may have been. Some hear echoes of an Oliver Wendell Holmes Jr. speech, and others of Warren G. Harding. Yet another possibility identified by others is this Brownson oration. It includes the exhortation: "Ask not what your age wants, but what it needs; not what it will reward, but what, without which, it cannot be saved; and that go and do, do it well; do it thoroughly; and find your reward in the consciousness of having done your duty, and above all in the reflection that you have been accounted worthy to suffer somewhat for mankind."
Notice anything odd about this screenshot from a few minutes ago?
Hint: Does MOJ believe you should donate to Planned Parenthood to "Save Roe"? (I guess "Save Casey" or "Save Whole Woman's Health" doesn't have the same cachet?)
I wonder what it was in my browsing history or whatever else Google has learned about me that makes me on MOJ a good target for the "Save Roe" ad. They got the supermarket ad right, after all. Kroger is our supermarket of choice in these parts of suburban Richmond.
We'll have to figure out if there's a way for MOJ to avoid being a billboard for Planned Parenthood. In the meantime, here's a podcast that explains why it might not be so good for you to let the "attention media" services use your Facebook and Twitter and other of your feeds that are really theirs as mobile billboards either. This episode of the Federalist Radio Hour features Cal Newport, author of Deep Work.
The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.
And a bit from the middle:
In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.
The United States Department of Justice filed a lawsuit yesterday against Culpeper County, Virginia. The suit alleges that the County's denial of a "pump-and-haul" permit, which had the effect of preventing the Islamic Center of Culpeper from constructing a small mosque on land it purchased in the county, violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The facts alleged in the complaint add up to what look to be winning claims. If anything, I'm wondering why there hasn't also been a private suit as well (as far as I'm aware anyway).
Also, as a matter of litigation strategy, is there a good reason that the DOJ didn't also include a Free Exercise claim, something like an as-applied version of the Hialeah case? I understand that the RLUIPA claim would be much easier to prevail upon. But including a Free Exercise claim in which intent to discriminate could be in issue would open the door to more extensive discovery, which in turn could have the effect of prompting a quicker resolution. Any thoughts?
