Friday, October 28, 2016
For a joyful and beautiful counterpoint to the dreadful news about the Swiss nursing home threatened with loss of public charity status unless its operators allow on-site assisted suicide, see this music video. It features the Little Sisters of the Poor, residents of their homes, and friends young and old singing Janis Clarke's song "Every Human Life Is Sacred."
Wednesday, October 26, 2016
I've long thought--along with many others--that Justice Clarence Thomas is one of the most under-appreciated Justices in the history of the Supreme Court of the United States.
Lately, his twenty-fifth anniversary of joining the Court has brought forth a range of commentaries. Not all are worth reading for insight into Justice Thomas as much as they are for insight into authors, editors, and their imagined audiences.
Typical of the under-appreciative genre is Jeffrey Toobin's short New Yorker column: Clarence Thomas's Twenty-Five Years Without Footprints. It might have been more revealing of the editors' evident lack of perspective if they headlined it Invisible Justice. But as Ann Althouse explains, this headline is bad enough.
USA Today's story is better and more detailed, though the headline seems somewhat negative: After 25 years, Clarence Thomas still dissents. Most people may think Justice Thomas's persistent dissent a bad thing, but I happen to find it encouraging.
When go along to get along is not an option, the alternative is alienation. A peculiar form of alienation that we risk, and that Justice Thomas's persistence bucks us up against, is the sense that legal reasoning just doesn't matter to the Supreme Court in certain cases. It's the kind of alienation I--and many others--experienced in the months surrounding Obergefell v. Hodges.
This kind of alienation, whether experienced on the right, left, top, or bottom, corrodes our constitutionalism. But Justice Thomas's patient persistence provides a constructive counter-example.
If you want to understand Clarence Thomas better, a good way to start is by taking his own words seriously. My Grandfather's Son is a great read. But you don't have to wait to get your hands on the book. Just browse on over to the website for one of my favorite podcasts, Conversations with Bill Kristol.
Kristol's conversation with Justice Thomas is worth listening to or viewing. But that can also take time you may not have, in which case you should read the transcript. Here's an exchange that stood out to me as of potential interest to MOJ readers:
KRISTOL: I talk to young people, as you do, and a lot of ones, especially who are more on my side of the political spectrum are sort of depressed these days – and the last term of the Court and what – the constitutional moment seems to have passed, and are we ever going to get back to real constitutionalism, limited government, and a good understanding of the separation of powers and the Constitution in our country? I don’t know. I’m not sure I do a very good job of reassuring them. I do usually cite the dissents that then get vindicated years or decades later, whether it’s Justice Harlan or Justice Scalia or you.
What do you say? Obviously, you’re doing your job as a Justice, so you’re worrying most about getting it right, but are you encouraged, and how do you encourage young people? What is your sort of general view of the current state of constitutional self-government in America? Not so much the Court, but the broader question, you know? You’ve thought a lot about this and spoken a lot —
THOMAS: You know, I don’t know if I’m the – I don’t know. I’m more concerned about other things – the academy, the culture, the state of education.
KRISTOL: Do you feel sometimes that we’re swimming awfully upstream here against awfully big institutions and forces?
THOMAS: I think we are required to swim upstream no matter what it is; I think it’s a matter of principle no matter – My grandfather was that sort of person, that no matter what others were doing or how bad it looked, we had things we were supposed to do.
I think we are required to do what is right despite how bad things look. I don’t know whether or not, I think it was when I was a kid – I’m Catholic, and one of the great sins was to despair. I think that it’s hard to get up in the morning as a despairing person.
You have to be hopeful. You know, I just look around as I was riding to the studio to do this and coming across Pennsylvania Avenue. When I came here in 1979, the prime interest rate in the country was around 20 percent. We were immersed in the Iranian hostage situation. You had inflation that was double digit. It was the era of malaise – I always say “mayonnaise.” I was riding a bus down Pennsylvania Avenue, commuting to Capitol Hill where I worked. Those days Pennsylvania Avenue was open all the way through, and I couldn’t afford to drive a car or anything in.
And the world changes; things change in your life. Was I in a position to despair then? Absolutely. Things weren’t really looking good. But you are obligated not to despair. Now, about our country? Yeah, things may not look good, but we are obligated not to despair. Do I know what the outcome is going to be? No.
Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people – you do it because it’s right. I think we are obligated to do that. Do I hope that, at some point, it becomes the, sort of the prevailing view? Yes. But I have no guarantee, and I don’t do it on the condition that I win.
Tuesday, October 25, 2016
Tradition is difficult to pin down. The tension between tradition and reason that Michael and Marc have probed a bit in their recent posts is just one of many tensions between tradition and something else. Consider, for example, the tension between tradition and text; or tradition and innovation.
Also, tradition might be thought to be valuable for different purposes. For instance, we might value tradition because it provides access to an original source of revelation, say, or something else that is to be handed down unchanged. Or we might value tradition, instead, because what has survived to be passed along has features that have enabled it to stand the test of time. We might not know just what those features are while still attributing a tradition's endurance to beneficial features iwe don't fully appreciate (like the practice of leaving rocks in fields that Marc mentioned).
During the first meeting of the Tradition Project, one of the contributions to the conversation over these various features of tradition that I found most helpful was the identification of tradition as part of what it means to be human. We are all born into a world we don't and can't fully understand. We are all going to die. And we are all trying to live a meaningful life in between our birth and our death. Tradition helps us to do that. And it does so in ways that reason alone cannot.
This organizing idea of tradition as an aspect of the human condition raises the question of what it means to be human. One of my takeaways from the Tradition Project is that to be human is to be both more and less than we think we are when we reason. Yes, we have reason. But we are also animals, on the one hand, and open to transcendence, on the other. As sensual, rational, and spiritual beings, participation in traditions is part of what it means to live a fully human life.
Wednesday, October 12, 2016
A recent piece by Ruth Graham at Slate identifies several reasons to be hopeful about the future of the pro-life movement. The energy and hopefulness of the newest generation of pro-life leaders brought me back to thinking about my college experience at Dartmouth. I was reminded, in particular, of an early event that we hosted when restarting the Dartmouth Coalition for Life. It was a presentation by Philip Arcidi of the Pro-Life Alliance of Gays and Lesbians (PLAGAL). And it was a successful event. Through the wonders of the Internet, I found an archived PLAGAL newsletter dated December 20, 1995 that describes our event. Here's what it says:
When Philip Arcidi spoke for PLAGAL at Dartmouth on November, 28th, he greeted one of the most diverse audiences we've encountered at a college campus: pro-lifers and self-titled pro-choicers; some straight, some gay, and some lesbian. All were curious about the synergy between the pro-gay and pro-life point of view. An atmosphere of civility and mutual respect prevailed, with many of the best questions coming from our sisters and brothers in the gay community.
The Dartmouth Pro-Life Coalition, which invited PLAGAL, is an energetic campus presence, an impressive alliance of thoughtful men and women. Arcidi joined a couple of them in a long conversation with a lesbian doctor who performs abortions. The dialogue was refreshingly civil, but the doctor's perspective was unsettling -- and inconsistent. Our Dartmouth allies, adept at thinking on their feet, asked her if she'd abort a preborn girl if the parents wanted a boy. No, she couldn't. When the child is no longer an abstraction, abortion advocates find it hard to trivialize his or her right to exist.
Hard to believe that was over 20 years ago, as I still remember in particular the conversation mentioned at the end of the newsletter excerpt. But exciting to imagine the possibilities for improvement that the next 20 years might bring.
Wednesday, September 7, 2016
The title of this post is the headline of a recent LifeNews article. I have not viewed the film, but I have no reason to doubt that HBO is pushing assisted suicide. Perhaps that is because I've come to believe that Madison Avenue matters more than Madison when it comes to the development of constitutional law. And I could be wrong about that.
I write now, though, to note something troubling about the language in the article. Here's the key paragraph:
As in many similar documentaries, the producers had their minds made up on the issue before they began to explore it, and so neglected to portray the arguments against assisted suicide and euthanasia fairly. They played upon public fears of becoming disabled, using the term “dignity” as the opposite of disability, and implying that the only way to retain control in one’s life was to have assisted death.
The content makes sense. It is a criticism of the producers for being one-sided and for playing upon peoples' fears. But notice the last phrase in the last sentence: "assisted death." That is a euphemism for assisted suicide. Its migration to an anti-assisted-suicide article is cause for concern.
Thursday, July 21, 2016
I've been revisiting some of Justice Scalia's predictions recently. This conclusion to his dissent in United States v. Virginia makes for an interesting juxtaposition with other goings on in American public life today.
In an odd sort of way, it is precisely VMI's attachment to such old fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":
"Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.
A Gentleman . . .
Does not discuss his family affairs in public or with acquaintances.
Does not speak more than casually about his girl friend.
Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.
Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.
Does not hail a lady from a club window.
A gentleman never discusses the merits or demerits of a lady.
Does not mention names exactly as he avoids the mention of what things cost.
Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.
Does not display his wealth, money or possessions.
Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.
Does not slap strangers on the back nor so much as lay a finger on a lady.
Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'
Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.
A Gentleman respects the reserves of others, but demands that others respect those which are his.
A Gentleman can become what he wills to be. . ."
I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
Wednesday, July 20, 2016
Sometimes people wonder why I'm so interested in John Marshall. The short answer is that I have learned a lot about American self-government from studying him and think I still have much to learn in that way. Here's Marshall in his Life of Washington, writing on party politics in the 1790s:
In popular governments, the resentments, the suspicions, and the disgusts, produced in the legislature by warm debate, and the chagrin of defeat; by the desire of gaining, or the fear of losing power; and which are created by personal views among the leaders of parties, will infallibly extend to the body of the nation. Not only will those causes of action be urged which really operate on the minds of intelligent men, but every instrument will be seized which can effect the purpose, and the passions will be inflamed by whatever may serve to irritate them. Among the multiplied evils generated by faction, it is perhaps not the least, that it has a tendency to abolish all distinction between virtue and vice, and to prostrate those barriers which the wise and good have erected for the protection of morals, and which are defended solely by opinion. The victory of the party becomes the great object, and, too often, every thing is deemed right or wrong as it tends to promote or impede it. The attainment of the end is considered as the supreme good, and the detestable doctrine is adopted that the end will justify the means. The mind, habituated to the extenuation of acts of moral turpitude, becomes gradually contaminated, and loses much of its horror for vice, and of its respect for virtue.
Friday, July 1, 2016
The Style section of the Washington Post carries an article this morning with the headline "U.S. district judge strikes down Mississippi's 'religious freedom' law" (scare quotes in original). Buzzfeed is on the case also: "Federal Judge Halts Mississippi Anti-LGBT Law From Going Into Effect."
Thanks to Buzzfeed, the opinion is available here. But, really, do you need to read it? Don't the headlines tell you everything you need to know?
Well, I have read it. Portions of the opinion suggest a judge who understands himself to be operating at the center of a national drama of historically epic proportions. But reality is more prosaic. Judge Reeves has just written another chapter in A Political History of the Establishment Clause. And as for Equal Protection, there is an obvious tension between aggressive enactment of social change through constitutional litigation and judicial impartiality. But we've been living with that for a while.
If there is an appeal, I expect the case to be tossed for lack of standing.
Wednesday, June 29, 2016
Patrick's #2 post on his Catholic judging, anti-McLaw paper invites attention to his actual paper itself, beyond the abstract.
Until reading the paper, I had not paid sufficient attention to how it proceeds by weaving together an array of insights from a decade of Scarpa Conferences at Villanova Law. Although mention of this enterprise is at the center of the abstract, it is not until I read the paper that I appreciated how it is also at the center of this particular writing project.
The paper has seven parts, aptly titled Parts I through VI, followed by Part VII, Conclusion. As its title indicates, the paper is both about judging and about law. The two are related, of course, but they are also distinct.
For now, I'd like to focus on a single claim about an evil of textualism made at the end of Part VI, right before the beginning of the end of the paper. To understand this claim in context, though, it is useful to consider the three last paragraphs of Part VI together. Patrick writes:
I do not seek a perfect constitution. It would be a fool’s errand, because among us humans the good always is under construction (or destruction). I seek instead a constitution that optimizes legal and thus cultural conditions for constructing the good. Any constitution worthy of its supporters/subjects should assist those it rules by assisting them to perfect both themselves and the common good. (A point more or less clear already with Aristotle, but lost on modernity). To grasp this is to call for a constitution interpreted according to the common law method, with due modification, and this exactly because that method is isomorphic with the method of human intelligence itself, in that it is methodical and therefore potentially progressive and cumulative. Methodism with a small-c must be recovered and sustained if we are to escape McLaw.
Justice Scalia contended that our Constitution once was, and should again be, “rock solid.” Such would be McLaw: rock solid. Dynamic human intelligence, by contrast, is a rock on which to build exactly because it allows knowledge, both theoretical and practical, to “make [its] slow, if not bloody entrance.”
There are no cosmic guarantees that knowledge will make an entrance (we remain at liberty to elect nescience and evil), and meanwhile McWorld through its agent McLaw does violence to human potential, and specifically to our potency for social obedience to divine law, by attempting to stop history by the currently enacted rules (which fallible humans enacted fallibly). Textualism is an antidote that reduplicates but also radicates the evil: arbitrary fixity. One could do worse than the common law judge ridiculed by Scalia as “Mr. Fix-it.” For example, Judge Ronald McDonald, Mayor McCheese, the Hamburglar, and the rest of McWorld at play.
The "evil" here is "arbitrary fixity." Missing from this assessment is an acknowledgment of how some human positive law, fixed as posited, contributes to the common good of a political community. We have, for example, two houses of Congress, not one or three. We have one President, not two consuls. We have judges with life tenure, not fixed terms. Citizens of one state traveling into another are entitled to the privileges and immunities of citizens of that state, not to be treated as complete foreigners. The Constitution is to be amended in some ways, apparently to the exclusion of others. The Constitution is supreme law, not to be treated as foreign law by state judges. And we could add to this list, generated thus far by picking one (arbitrarily fixed?) feature from each of the first six Articles of the Constitution.
There is a sense in which we can describe these as "arbitrary" fixities. We reasonably could have chosen otherwise. But we needed to choose. And we continue to benefit as a political community by legal technology that treats those choices as fixed in place. Reason did not fully specify the choices to be made. But reason required that choices be made. And once made, the result of those choices need to be fixed in place in order to achieve the full benefits of the kind of constitutive choices made and promulgated through the constitutional text.
All of this is part of the straightforward natural law case for a particular kind of human positive law. It appeals is both Catholic and catholic.
I have not said anything yet in this conversation about judging. But I can at least observe that how to judge in accordance with the Constitution as law depends on what kind of law the Constitution is. This is one of the main points of the recent paper, Enduring Originalism, that Jeff Pojanowski and I have written. (Currently at 99 downloads ... free paper about the classical natural law foundations of positive-law originalism for the 100th downloader!)
As in this post, so in that paper, we do not say much about the activity of constitutional adjudication. But as we think through what we can and should say, we will have to think carefully about Patrick's proposed Methodism.
Thursday, June 16, 2016
There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."
One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)
For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version).
Okay, it's 9:59, so off to SCOTUSBlog I go.
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