Friday, February 12, 2016
My colleague Teresa Collett asked that I post this:
On March 2 the U.S. Supreme Court will hear oral arguments in Whole Woman's Health v. Hellerstedt, a challenge to a Texas statute requiring abortion clinics meet the standards of ambulatory surgical centers and doctors providing abortions have admitting privileges at a hospital within 30 miles of the clinic. Plaintiffs claim that enforcement of these requirements will cause the closing of 75% of all abortion clinics in the state, which should be considered an undue burden per se. They also argue that the requirements do little or nothing to advance the health and safety of women, given the comparative safety of abortion over carrying a child to term. Texas responds that two to three Texas women end up in emergency rooms every week due to complications from abortion. The requirements advance women's safety by assuring that abortions occur in facilities that are equiped to respond to complications that arise during an abortion, and the admitting privileges provide a second check of a doctor's competency as well as promoting continuity of care should a woman need hospitalization,
The United States Conference of Catholic Bishops, several legal scholars, a variety of medical associations, University Faculty for Life, and the Prolife Center at the University of St. Thomas lined up on the side of Texas in their amicus briefs. These briefs are available on scotusblog, ABA Supreme Court preview, and the Texas Attorney General website at https://www.texasattorneygeneral.gov/hb2/texas-women.
February 12, 2016 | Permalink
Thursday, February 11, 2016
One of the topics we've discussed often, over the years, at MOJ is the challenge (and importance) of building and maintaining meaningfully (and therefore interestingly) Catholic institutions, including universities. The recent news out of Mt. St. Mary's University provides (among other things) an occasion for thinking not only about what it means for a university to be meaningfully, pervasively "Catholic." Does a university's "Catholic" character constrain -- and, if so, how? -- the strategies and tactics that administrators may employ in responding to what they regard as the challenges facing higher-education institution's generally? (Here's another news story, thanks to Crux.)
Wednesday, February 10, 2016
In this editorial, Commonweal asks whether the "Supreme Court will fatally weaken labor" in the Friedrichs case. In my view, the Court's Abood case was wrong the day it was decided and it should be overruled.
Let me start with agreement. The Editors open with this:
Labor unions can be corrupt, obstructionist, and maddeningly bureaucratic. They are also important mediating institutions—John Paul II called them “indispensable”—that serve as a counterweight and check on government as well as corporate power. In that role, unions are essential to the health of democracy, and crucial to promoting participation in the political process.
I agree. (I might insert a caveat, though: It is not clear that public-sector unions consistently or effectively serve as a "counterweight and check on government . . . power." They sometimes support and contribute to government power . . . when that power is being exercised in ways that align with those unions' interests.)
As the editors note, the power and membership of private-sector unions has declined in recent decades, while "[p]ublic-employee unions have remained relatively strong, thanks to the acceptance by government and unions alike of collective bargaining and binding arbitration." As I see it, though, some governments have "accepted" these -- and they have done so when doing so was in the political interests of the parties in power in those governments -- while others have not. One of the criticisms of public-sector unionism, as it is practiced today, is that it too often does not involve negotiation or checking, but instead mutual-benefit arrangements between some politicians, on the one hand, and public-sector unions, on the other.
The editors acknowledge that public-sector unions contribute consistently and generously to the Democratic Party. They write, next, that "[t]he Friedrichs case has been steered through the lower courts by a right-wing libertarian group that is not coy about its hope that in overturning Abood the Court will deal a devastating blow not just to the union movement, but to the Democratic Party." I don't see why this group should be "coy" about wanting to undermine the power of the Democratic Party, especially if -- in that group's views -- the power of the Democratic Party is being unfairly (and, they think, unconstitutionally) augmented through funds obtained not through contributions but through exactions on objecting public employees.
In any event, though, the First Amendment question should be asked and answered without regard to the ideological leanings either of the group challenging the agency-shop deal or the party that benefits from that deal. And, I think that question has a clear answer. The editors suggest, in one sentence, that the First Amendment theory the challengers are relying on is tainted by association with Citizens United (another case that is widely misunderstood and that was correctly decided) and with the "money is speech" theory. But, as many have pointed out, the Court did not say that "money is speech"; it said that "forbidding spending money on speech burdens the right to speak," which it clearly does. Here, the claim is that requiring someone to spend money on speech burdens the right not to speak. (That the freedom of speech includes the right not to speak is well established. See, for example, the classic flag-salute case.) I am sure the editors would agree that it would be unconstitutional for a government to require public employees to contribute, as a condition of employment, to the production, printing, and mailing of political literature for the Republican Party. So, it seems to me, the editors' objection is not really to the claim that mandatory dues implicates the First Amendment, but to the conclusion that the challengers' First Amendment rights outweigh the benefits that agency-shop arrangements provide to public-sector unions. As they conclude:
Free speech has not, and should not, trump every other right or social good. The right of association and the dignity that follows from having an effective voice in the workplace are equally important.
The Constitution does protect the freedoms of association and assembly and I agree that the associational rights of unions "weigh" just as much as the speech rights of employees. However, this case does not implicate the right of public-sector workers to associate; it does implicate the current ability of public-sector unions to require workers to engage in expressive association. Whatever public or moral interest there might be in maintaining that ability is outweighed -- given our First Amendment -- by the objecting employees' rights.
I've written many, many times here at Mirror of Justice that criticisms of some aspects of public-sector unionism, and defenses of public-employees' constitutional right to opt-out of agency-shop arrangements, are not inconsistent -- at all -- with the emphasis in the Church's social teachings on the dignity of work and the important mediating functions of labor unions. Those teachings do not prevent us either from (i) noting the implications and demands of our First Amendment or (ii) pointing out the many ways in which American public-sector unions undermine the common good (e.g., their opposition to school choice and their strong support for abortion rights).
I completed my law and tradition cycle of posts today at Liberty Law with this one, Gratitude for Legal Traditions. Here is the rest of the cycle in one place:
- Tradition and the Constitutional Curator
- Locating Traditionalism in Jurisprudence
- Tradition and the Judicial Talent
- Magna Carta’s Votaries, Skeptics, and Traditionalists
- Comparing Traditionalism and Originalism
- Comparing Traditionalism and Originalism II
And here’s a little bit from the beginning of the most recent post:
The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.
Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”
Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.
Tuesday, February 9, 2016
Some important new stories have been lost in the midst of the media frenzy of the Presidential primary. One of interest to MOJ readers involves an important step toward justice regarding the 1989 massacre of 6 Jesuit priests, their housekeeper, and her daughter
It has been over 25 years since Salvadoran soldiers brutally murdered Ignacio Ellacuría, S.J., Ignacio Martín-Baró, S.J., Segundo Montes, S.J., Juan Ramón Moreno, S.J., Joaquín López y López, S.J., Amando López, S.J., Elba Ramos and her 16 year old daughter, Celina Ramos. In the intervening years, we have seen cover ups, trials, amnesties, complaints, arrests, extraditions, and numerous other events. To this day, however, complete justice for these victims has never been achieved.
However, as the National Catholic Reporter states, "[t]he impunity enjoyed for 25 years by the killers of six Jesuit priests in El Salvador began splintering Feb. 5 after a U.S. judge ordered one of the suspects who'd fled to the United States to be extradited to Spain to stand trial for one of the most notorious crimes of the country's civil war."
The main recent litigation in this case has been occurring in Spain through a criminal complaint filed by the Center for Justice and Accountability against former Salvadoran President Alfredo Cristiani Burkard and several former military members (five of the victims were Spanish citizens). This legal proceeding has resulted in indictments for 20 individuals and triggered many legal disputes. (A complete summary of the case may be found here). But on February 5, 2016 U.S. Magistrate Judge Kimberly Swank issued what has been called a historic ruling when she ordered United States Marshals to take custody of Col. Inocente Orlando Montano for extradition to Spain.
This is remarkable for many reasons, but two important aspects of this immediately emerge. First, she issued a lengthy 23 page ruling in which she made detailed factual findings regarding Montano's role and the events surrounding November 16, 1989. Secondly, this seemingly minor procedural event in the magistrate court of the Eastern District of North Carolina seems to have triggered further arrests of suspects in El Salvador. Hours later, Salvadoran authorities arrested four former members of the military and the President called for the others to turn themselves into authorities.
Again, in the words of the National Catholic Reporter,
Sources familiar with the case said that the historic ruling by U.S. Magistrate Kimberly Swank in the Montano case likely provided Salvadoran authorities the cover they needed to begin arresting former high-ranking officers in a country where the military still holds enormous power.
Montano is the highest-ranking official in recent history to be ordered extradited from the United States for human rights violations. At the time of the massacre, Montano served as the Vice Minister of Defense for Public Safety, in command of the National Police, the Treasury Police, and the National Guard.
While there are no doubt many more legal battles to be fought, accountability is essential in this case and all cases. This is indeed a step forward by a magistrate judge which has implications throughout the world.
Monday, February 8, 2016
Here is a piece by moral theologian Prof. Charles Camosy (Fordham) - author of (among other things) Beyond the Abortion Wars (which I blurbed) -- called "Yes, Catholics May Vote for Bernie Sanders." Charlie reminds readers that Catholics indeed may vote for political candidates, notwithstanding those candidates' unsound views in support of serious moral wrongs, in some cases. And, I think he's right: A conscientious Catholic "may" vote for Sen. Sanders, notwithstanding the Senator's deeply misguided views on (inter alia) abortion.
I believe there are more than a few things to like and respect about Sen. Sanders (and more than a few things -- e.g., his past sympathies for the Soviet Union -- that are highly objectionable). I would hope that not just Catholics, but thoughtful people generally, would see that many of Sen. Sanders's views and proposals are unsound and impractical, wholly and apart from their consonance or not with Catholic moral teaching. That said, as Rusty Reno and others have pointed out, Sen. Sanders (and Donald Trump, for that matter) are, notwithstanding their failures on other fronts, calling attention to the alienation many middle- and working-class Americans feel and to some of the often-overlooked costs of technological innovation, globalization, urbanization, and mobility. This alienation needs to be addressed.
In his post, Charlie asks us to assume a voter who honestly believes that (a) "Republican lawmakers rarely sacrifice other concerns in defense of prenatal children"; (b) "women are structurally pushed toward abortion"; and (c) "Catholics must favor the poor first." He thinks that such a person could have "proportionate reasons" for voting for Sen. Sanders.
There is no denying that Republican politicians have often disappointed when it comes to abortion. That said, I believe that Charlie here (and he's not alone on this) is probably not weighing heavily enough (to be fair, though, he's simply constructing a hypothetical) the reality -- a reality that has to be confronted and cannot reasonably be disputed -- that (i) the Supreme Court's caselaw constrains what can be done on the pro-life front; (ii) within those constraints, non-trivial progress has been made in terms of reasonable regulations of abortion; and (iii) this progress is due nearly-entirely to the efforts of Republican politicians (and the permission of GOP-appointed judges and justices). The argument that "the GOP talks about abortion but never actually does anything" does not square with facts (even if many of us wish more had been accomplished and are frustrated by those occasions when "other concerns" have unnecessarily trumped).
I want to put that matter aside, though, and not "fight the hypo." I'm wondering: more generally, with respect to the "proportionate reason" inquiry: Can "Candidate A supports Good Policy X (for example, "comprehensive immigration reform") be a "proportionate reason" for supporting Candidate A, notwithstanding Candidate A's support for Immoral Policy Y, if (i) Candidate A's election will almost certainly not result in the enacting of Policy X and (ii) Candidate A's election will almost certainly result in the enactment of Policy Y? Given what I take to be the givens in current American politics, the more ambitious social-welfare policies that Sen. Sanders and Charlie's hypothetical voter support are not particularly likely to emerge from a Republican Congress (or, for that matter, an American Congress). If (as I imagine) the arguments about social-welfare and economic policy are likely to stay "between the 40 yard lines" in American politics, but arguments about (say) school choice, religious freedom, and the equal dignity of unborn and elderly persons could turn out dramatically differently, depending on who is in the White House, staffing the administrative state, and picking judges . . . then it seems to me that any prudential judgments about "proportionate reasons" would need to take these likelihoods into account.
Thursday, February 4, 2016
More on mercy . . . Following up on yesterday's post, here is a paper from 2006 by my good friend Prof. Sam Levine called "Looking Beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition." Abstract:
In one of his earliest encyclicals, Dives in Misericordia, Pope John Paul II explored the concepts of mercy and kindness, with a focus on notions of divine love and compassion. Building upon these observations, and drawing extensively on the work of Rabbi Joseph Soloveitchik and other scholars of Jewish law and philosophy, Levine considers the complementary roles of justice and mercy in Jewish tradition. Toward that end, Levine places these concepts in a broader perspective, viewing mercy as representative of attributes such as kindness, compassion, love, and peacefulness, while understanding justice in terms of more exacting principles, such as strict adherence to truth and objective logic. Levine begins with a look at the figure of Abraham, the father and founder of the Jewish nation, who embodied the characteristic of kindness, but exercised it within the context of the pursuit of justice. He then examines the role and character of communal leaders, who sometimes must resort to elements of strict justice, but at other times may also require the capacity to temper justice with mercy. Finally, Levine turns to the juridical setting, considering the possibility that an ideal form of justice might incorporate a meaningful and appropriate measure of mercy
February 4, 2016 | Permalink
Here's the second of my two posts on traditionalism and originalism in constitutional interpretation. This post discusses the Noel Canning decision, and one of its main points concerns the institutional pluralism (legal, political, social, and cultural) of the traditionalist method. A bit:
First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.
Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.
Like originalist interpretation, traditionalism is historically rather than normatively oriented, but it does not focus single-mindedly on the moment of ratification. Institutional practices before, during, and after ratification are significant. Continuity is the crucial feature. The longer those practices have endured, the less likely the Court will be, in the ordinary case, to upset them—indeed, the less likely that the practices may be to be brought before the Court at all.
Noel Canning concerned the meaning of the Recess Appointments Clause in Article II, Section 2, Clause 3, and in specific whether the phrase “during the recess” authorized the President to make appointments within congressional sessions or only between the formal sessions of Congress. The originalist arguments for the latter interpretation were powerful, but in a 5-4 majority opinion authored by Justice Breyer, the Court concluded that the President may make recess appointments while Congress is in session.
The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached"....
But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism?
The Court did not answer any of these questions directly. But it did say that “three quarters of a century of settled practice” in which Presidents had overwhelmingly favored the broader construction and the Senate had largely acquiesced in that construction “is long enough to entitle a practice” to “great” interpretive weight. In truth, three quarters of a century does not seem a particularly long period as the traditionalist measures time, particularly when compared, for example, with the duration of the practice of legislative prayer in Town of Greece v. Galloway. Yet what seems to matter is not only temporal duration but also the preponderance or uniformity of the interpretive preference within that span.
It was also critical to the majority’s approach that though the founding-era view was not directly probative of the Court’s broader interpretation of the clause, the Court found it to be consistent with that interpretation. That finding permitted the incorporation of founding-era understandings to support the longstanding practice on which the majority relied (again, this was a point vigorously and acutely disputed by Justice Scalia). Finally, institutional dynamics and historical patterns also figure prominently in the majority opinion. It was the enduring practices of the coordinate political and more directly democratically accountable branches, not those of the Court, that demanded acknowledgment and deference.
As for the differences between traditionalism and living constitutionalism, one of the most significant is that for the former, long-standing and continuous practice fixes meaning. And it fixes it with a durable presumption, refusing to deviate from it unless there are overwhelmingly good reasons for doing so. Living constitutionalism is committed to no such thing. It prizes the evolution of meaning. A practice’s endurance or traditionalism is never a reason to perpetuate it. To the contrary: it is if anything a reason to change it.
I should add that the DC Circuit's opinion draws a much sharper divide between founding-era practice and subsequent practice. In some ways, this makes the Supreme Court's opinion even more interesting from a traditionalist perspective: Justice Breyer's opinion did not acknowledge this division. It worked the difference into a continuity. I suppose one could be cynical about this and say that traditionalist methods are manipulable. But Breyer could not have incorporated the founding period into the tradition if there had been a more marked divergence from later practice (thanks to Adam White for help in thinking through some of this).
Wednesday, February 3, 2016
I think that Perry Dane is one of the most thoughtful law-and-religion scholars out there today. Check out this new piece. Here's the abstract:
This article was originally presented during a conference on “Hosanna-Tabor and/or Employment Division v. Smith” at the Institute for Law and Religion of the University of San Diego School of Law. At its most practical, the article tries to make sense of the puzzle that that motivated the San Diego conference: the dramatic divergence in our law between doctrines of individual religion-based exemptions from otherwise-applicable rules, which are increasingly under conceptual and doctrinal attack, and religious institutional autonomy, which was resoundingly reaffirmed in Hosanna-Tabor as a principle of self-conscious recognition of the authority and juridical dignity of religious institutions.
More fundamentally, though, the article builds on two main themes. First, it argues that the three strands of the jurisprudence of law and religion -- free exercise, non-establishment, and religious institutional autonomy -- are rooted in a common theme or master metaphor: the existential encounter between the state and religion and the vision of religious communities and normative systems as distinct sovereigns. Second, it also emphasizes, the importance to the legal imagination of what I call “double-coding” -- the simultaneous, stereoscopic, and mutually transposing, affirmation of both radical principle and staid doctrine. Double-coding can appear in many places in the law, but it is particularly important in contexts such as the relation of religion and state in which the legal culture is most likely to retreat into a simple-minded solipsism about its own monopoly on authority and juridical dignity. But double-coding can only work successfully if legal doctrine, whether by conscious design or not, is open at least to pointing to something beyond itself.
The article calls on both these conceptual tools -- the master metaphor of sovereignty and the possibility of double-coding -- to try to understand the divergence between the fate of religion-based exemptions and religious institutional autonomy. The article suggests various explanations for that divergence, but focuses on the essentially contingent fact that, even during their heyday, judicial defenses of free exercise exemptions never adequately responded to some fundamental theoretical challenges and (unlike doctrines of institutional autonomy) rarely allowed for the power of double-coding to shape the legal imagination.
Justice requires discretion as well as rules, and it can coexist with mercy.
When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.
Both the review, and the book, are recommended!
Monday, February 1, 2016
As National Slavery and Human Trafficking Prevention Month comes to an end, it seems apt to comment here at MOJ on this growing form of human degradation and the role we play in its existence. But what does this pressing social and moral issue have to do with Catholic Legal Thought? The relevance is more than the obvious fact that that it "strips victims of their freedom and violates the dignity of the human person created in the image of God." Given the intersection this form of exploitation has with criminal law, international law, labor law, government corruption, and other legal institutions; modern day slavery implicates the obligations of the Church and legal community to respond in a unique way. Failure to do so destines both the American Church and society to repeat a complicated and at times troubling history regarding slavery.
Today, things seem to be progressing at a different pace than the past. Just a few days ago, in an address to the Italian Committee on Bioethics, Pope Francis reminded us that "the ecclesial community and civil society meet and are called to cooperate, in accordance to their distinct skills." As I have written elsewhere, the Church has a unique role to play in combatting human trafficking. This crime knows no geographical boundaries. Therefore, where some governmental organizations are limited by geo-political realities, the Church has the ability to transcend these borders. Moreover, the Church is so often found working with the most marginalized people throughout the world. It is here that human trafficking flourishes. Consequently, the Church and its many affiliated organizations can be essential in both learning information about the manifestations of this most adaptable form of human exploitation, as well as responding to its victims most authentically. This work is exponentially more effective when done in partnership with other aspects of civil and government society.
It is no wonder, then, that the Church and others working in this area have recently highlighted a particular aspect of human trafficking. In a year in which there has been much discussion of refugees and conflict, the Church and other authorities have independently verified the human trafficking that is flourishing in areas of conflict. In November 2015, the Network of Christian Organizations Against Trafficking in Human Beings (COATNET) met in Paris to discuss the fight against human trafficking. Relying on research from Secours Catholic Caritas France, COATNET members recognized the many manifestations of human trafficking that arise out of conflict. As Caritas noted,
[w]hile some of the forms of exploitation…are specific to countries involved in direct conflict – child soldiering and organ trafficking to treat wounded fighters – the remaining types of trafficking in human beings have many points in common in conflict and post conflict periods."
Among the forms of exploitation beyond child soldiering, Caritas' research discussed collateral instances of trafficking. These include early and forced marriages for the purpose of sexual slavery – sometimes facilitated by kidnapping, but other times by families incorrectly believing that a child marriage may be a way for the child to escape exploitation of conflict. Caritas also shared in this research the reality of economic exploitation in a grey labor market by refugees fleeing conflict but unable to secure positions in the legal labor market. Not only do these regional Catholic organizations observe these phenomena throughout the world and inform our understanding of the forms of exploitation occurring on the ground, but they also confirm what they have labelled a "protection gap." That is to say, they note that identification and protection of victims is not considered and implemented during an emergency response to a conflict or refugee crisis.
This research was echoed by the State Department's recent release of its fact sheet entitled "Modern Slavery as a Tactic in Armed Conflict." Here, the State Department focuses on armed groups in Syria and Iraq utilizing modern slavery not as a consequence of conflict but, rather, as an actual tactic. Interestingly, each report analyzes how human trafficking in areas of conflict exceeds child soldiering. Both the State Department and Caritas discuss that the slavery of women and children as a particularly devastating technique to effectuate domination of vulnerable civilians.
Women and children in armed conflicts are particularly vulnerable to multiple abuses, including those involving human trafficking and sexual and gender-based violence.
The use of modern slavery as a tactic in the armed conflicts in Iraq and Syria is particularly alarming. The Islamic State of Iraq and the Levant (ISIL), as well as other armed groups and militias, continue to intimidate populations and devastate communities through unconscionable violence, fear, and oppression. ISIL has made the targeting of women and children, particularly from Yezidi and other minority groups, a hallmark of its campaign of atrocities. In the past year, ISIL has abducted, systematically raped, and abused thousands of women and children, some as young as 8 years of age. Many of the horrific human rights abuses that ISIL has engaged in also amount to human trafficking. Women and children are sold and enslaved, distributed to ISIL fighters as spoils of war, forced into marriage and domestic servitude, or subjected to horrific physical and sexual abuse. ISIL has established "markets" where women and children are sold with price tags attached and has published a list of rules on how to treat female slaves once captured.
The observations of the State Department are in sync with and informed by those religious organizations working with these populations throughout the world. Much like in the 19th Century, the faithful are called upon to respond to modern slavery. The battles against this injustice and indignity are challenging ones. However, opposition is one made all the stronger when religious institutions and actors embrace their opportunity to combat it and work with civil society to eradicate it.
Sunday, January 31, 2016
A friend forwarded an article that has appeared in a once noble Catholic publication that no longer deserves to be named, impugning the late Fr. Richard John Neuhaus. Upon reading it, a passage from Boswell's Life of Samuel Johnson came rushing to mind. Writing of the aftermath of Johnson's death, Boswell said:
Many who trembled at his presence were forward in assault when they no longer apprehended danger. When one of his little pragmatical foes was invidiously snarling at his fame, at Sir Joshua's Reynolds' table, the Revd. Dr. Parr exclaimed with his usual bold animation, "Aye, now that the old lion is dead every ass thinks that he may kick at him."
January 31, 2016 | Permalink
Today the Church celebrates the feast of St. John Bosco, a great saint and role model for educators.
Don Bosco distilled his "preventive method" of education to three elements: reason, religion, and kindness. Here is a recent description of that method.
Today's Saint of the Day feature at AmericanCatholic.org concludes with this apt quotation from G.K. Chesterton: "“Every education teaches a philosophy; if not by dogma then by suggestion, by implication, by atmosphere. Every part of that education has a connection with every other part. If it does not all combine to convey some general view of life, it is not education at all.”
Mary, Help of Christians, Pray for Us.
January 31, 2016 | Permalink
Saturday, January 30, 2016
This book review by Louis Markos at The Federalist piqued my interest in getting my hands on a copy of Michael Walsh, The Devil's Pleasure Palace: The Cult of Critical Theory and the Subversion of the West. Here's a quotation from the book in the review:
Chief among the weaknesses of Western man today are his fundamental lack of cultural self-confidence, his willingness to open his ears to the siren song of nihilism, a juvenile eagerness to believe the worst about himself and his society and to relish, on some level, his own prospective destruction.
The review's mention of the First Amendment and repressive tolerance reminded me more than a little bit of some of the themes explored in Marc O. DeGirolami, Virtue, Freedom, and the First Amendment. I don't know what Marc would say, though, about the call for renewed emphasis on heroism.
January 30, 2016 | Permalink
Friday, January 29, 2016
In gathering up some library books and removing old post-its from them, I (apparently, again) came across the following passage from Mark Massa's superb book, Anti-Catholicism in America: The Last Acceptable Prejudice. This passage identifies the moment at which the anti-Catholic crusader Paul Blanshard decided to devote his talents to a new kind of muckraking, with the Catholic Church as his target. Apparently this happened at my undergraduate alma mater, Dartmouth College, in a place where I spent a lot of time, the stacks of Baker Library. Curiously enough, the work that triggered Blanchard, Davis's Moral and Pastoral Theology, is the same work cited by Justice Alito in footnote 34 of his opinion for the Court in Hobby Lobby. At least Dartmouth had some good books in its library.
Here's Massa's account:
[T]he event that would reveal the path that brought Blanshard fame (of infamy) for several decades occurred while he was browsing in the Dartmouth College library. He came upon a four-volume work by the English Jesuit Henry Davis entitled Moral and Pastoral Theology. His eyes "bulged with astonishment" at the hypocrisy of sexually repressed celibate priests who "dared to prescribe the most detailed and viciously reactionary formulas" on sexuality, childbirth, and birth control. As Blanshard would later describe this accidental encounter, he stood dumbstruck in the Baker Library:
Did the public really know this amazing stuff? Why should I not take this volume and other documents of the Catholic underworld and do a deliberate muckraking job, using the techniques that Lincoln Steffens and other American muckrakers had used in exposing corporate and public graft in the United States? Why not? This was apparently one field not yet preempted by the muckrakers.
After a "short dip into the lower reaches of Catholic medical dogma," Blanshard went to Washington, D.C., and began "long research into Catholic documents which was to occupy much of my time and energy for several years." Blanshard's course on Catholic "dogma" took him to carrels in the Library of Congress and even into the belly of the Beast itself, the library of the Catholic University of America.
The fruits of this intensive study were the articles in the pages of The Nation. Blanshard never discovered anything in the complex webs of intellectual traditions that comprise Catholic theology, canon law, and philosophy that even nuanced the blinding insight he claimed to have had that fateful afternoon at Dartmouth College. Like the faith delivered to the saints of old, his original sense that the "viciously reactionary formulas" of the old Roman Church represented a looming threat to democratic culture in general and to the political traditions of the United States in particular never wavered.
Source: Mark Massa, S.J., Anti-Catholicism in America: The Last Acceptable Prejudice 65 (2005)
Thursday, January 28, 2016
I am teaching a seminar this semester at Notre Dame on Catholic social thought and law, and this week we are discussing the remarkable legacy of Pope Leo XIII (r. 1878-1903) through an examination of his famous social encyclical Rerum Novarum (1891) and other writings. For today's Feast of Saint Thomas Aquinas, here is a bit from Aeterni Patris (1879), the encyclical that rehabilitated the place of philosophy in modern Catholic intellectual life (and may all of us aspire to follow Thomas's example by "wanting neither...soundness of principles or strength of argument").
Among the Scholastic Doctors, the chief and master of all towers Thomas Aquinas, who, as Cajetan observes, because "he most venerated the ancient doctors of the Church, in a certain way seems to have inherited the intellect of all."(34) The doctrines of those illustrious men, like the scattered members of a body, Thomas collected together and cemented, distributed in wonderful order, and so increased with important additions that he is rightly and deservedly esteemed the special bulwark and glory of the Catholic faith. With his spirit at once humble and swift, his memory ready and tenacious, his life spotless throughout, a lover of truth for its own sake, richly endowed with human and divine science, like the sun he heated the world with the warmth of his virtues and filled it with the splendor of his teaching. Philosophy has no part which he did not touch finely at once and thoroughly; on the laws of reasoning, on God and incorporeal substances, on man and other sensible things, on human actions and their principles, he reasoned in such a manner that in him there is wanting neither a full array of questions, nor an apt disposal of the various parts, nor the best method of proceeding, nor soundness of principles or strength of argument, nor clearness and elegance of style, nor a facility for explaining what is abstruse.
I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional interpretation. The first post uses Town of Greece v. Galloway while in the second I'll talk about the NLRB v. Noel Canning. The point of the posts is not to defend these decisions, but merely to distinguish them as traditionalist in interpretive method. Here's a bit from the end:
How is [traditionalism] different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision [in Town of Greece] was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:
It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.
In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.
And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.
Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.
Wednesday, January 27, 2016
Monday, January 25, 2016
I've been asked to announce the upcoming conference on Human Ecology, co-sponsored by the Napa Institute and CUA School of Business and Economics, March 15-18. Below is the conference summary and you can find more (including speaker bios and conference schedule) here:
Catholic teachings on the common good are comprehensive and universal. They communicate truths and principles which are relevant to every aspect of human flourishing. For the anniversaries of the great documents of Catholic social teaching Rerum Novarum, Centesimus Annus, and our newest addition to Catholic social teaching Laudato Si, CUA and The Napa Institute have convened a conference on Human Ecology that attempts to integrate and convey the wisdom of 125 years of the Catholic Church’ s social encyclicals and eternal teaching.
There is no question that our Catholic faith gives us strong moral motivations to help our neighbor, to help the poor, and to help the many charitable institutions that are run or inspired by the Church. One of the purposes of this conference is to extend our understanding of how our Catholic faith helps to build up a just and flourishing society, and how it may alleviate the material and spiritual poverty facing so many of our neighbors.
Pope Leo XIII in Rerum Novarum wrote that the church’ s desire is that the poor should rise above poverty and they should better their condition in life. He believes that this promotion is most likely to occur through the virtues. Similarly, Pope St. John Paul II in Centesimus Annus notes that the poor are right to ask for a share in the material goods of the society and to make good use for their capacity to work. He notes that in order for this to be the case, certain economic conditions as well as political stability are required for human beings to make good use of their own labor.
Pope Francis in Evangelii Gaudium tells us that business is a vocation and a noble one, it is a vocation provided by God so that each person would be challenged by a greater meaning in life to serve the common good, by striving to increase the goods of this world and making them more accessible to all. InLaudato Si, our Holy Father also examines corporate social responsibility for the common good of an "integral ecology" and the “care for our common home."
What is required for a truly sustainable, widespread, and inclusive prosperity? What is the vocation of business leaders who are committed to their Catholic faith, to the common good, and to the life of virtue?
These are the fundamental questions that our Human Ecology conference will ask in order to spur us all, Church leaders, scholars, and business leaders, to the heights of our own capacities and gifts.
The amicus briefs in support of Whole Women's Health are pouring in. Scotusblog is of course keeping track here, and Center for Reproductive Rights has posted summaries of the many amici in support of their position. MOJ readers have likely already heard the disturbing news that one brief offered by 100+ female attorneys opens with the line, "I am an attorney because I had an abortion."
I respond to this brief and others supporting the view that abortion is necessary for women's full equality in an article in today's new Boston-based online newspaper, the NewBostonPost. (My complete argument against this position can be found here, and I hope to write more as the March arguments approach.)
The NBP is a pro-life, pro-family paper seeks to provide a more becoming alternative to the Boston Herald. "Although neither partisan nor agenda driven, the NewBostonPost aims to provide a home for conservative, libertarian, classical liberal, and moderate voices in an effort to promote constructive and civil debate on issues of concern to New Englanders and all Americans." Please support their important efforts (here in desolate New England) with a point and a click.
This story was both inspiriting and, for me, moving. It tells of a group of high school students who volunteer to serve as pallbearers for those who die alone, unremembered and without family. From the story:
The students, dressed in jackets and ties, carry the plain wooden coffin, and take part in a short memorial. They read together, as a group:
"Dear Lord, thank you for opening our hearts and minds to this corporal work of mercy. We are here to bear witness to the life and passing of Nicholas Miller.
"He died alone with no family to comfort him.
"But today we are his family, we are here as his sons.
"We are honored to stand together before him now, to commemorate his life, and to remember him in death, as we commend his soul to his eternal rest."
The student volunteers come from The Roxbury Latin School, and are shepherded by Assistant Headmaster Michael Pojman. RL happens to be my old high school. Mr. Pojman was my Chemistry teacher. Well done, alma mater.
Saturday, January 23, 2016
I just noticed that the little reflection on the anniversary of the tragedy of Roe v. Wade that I re-posted here and at First Thoughts after posting on my Facebook page has been shared more times than anything else I've ever posted. I am grateful to everyone who shared it. The abortion license is continuing to gnaw at the conscience of our nation, as the Republican Ronald Reagan and the Democrat Robert P. Casey, and the saint Mother Teresa of Calcutta, told us it would. At some level most Americans--including those who do not yet dare to acknowledge, even to themselves, the justice of the pro-life cause--know that killing the unborn is not the answer. We must love mother and child equally, limitlessly, and unconditionally, and never pit the alleged good of one against the other.
In 1973, seven supremely fallible men in black robes purported to settle the abortion question. Supporters of the abortion license cheered. Pro-life citizens were, they insisted, "on the wrong side of history." (Sound familiar?) Legal, publicly funded abortion was, they claimed, "enlightened" policy. It was required for women's equality, reducing the welfare rolls, and "social hygiene." Resistance was futile. All the young people were for it. Only a few elderly priests and some back woods fundamentalists were still against it. The priests would soon die out and the "fundamentalists" were already marginal. The churches would get on board--several already were as members of the "Religious Coalition for Abortion Rights"--and stay on board. Soon abortion would be integrated fully into American life and no one who mattered would question it. In a few short years, it would no longer be an issue in American politics and most people would forget that it ever was.
But the pro-life movement kept faith with abortion's tiny victims. In the great civil rights struggle of the post-segregation era, a grassroots movement kept the flame burning and kept hope alive. We refused to abandon the unborn to the "tender mercies"--or women to the ghoulish "compassion"--of the abortionists at Planned Parenthood and the like. We had little support among the wealthy, powerful, and influential. Wall Street hoped we would go away. The media were solidly playing for the other team. The intellectual elites mostly sneered. But janitors and school teachers, factory workers and stay-at-home moms, insurance salesmen and office workers and cashiers at the grocery store, and retired people from all walks of life refused to leave the field. They prayed and protested and counseled on sidewalks in front of the abortion mills. They pounded the marble floors in the legisaltive chambers. They built pro-life pregnancy centers across the nation to provide material, moral, and spiritual support for our pregnant sisters in need (and so often in fear).
And guess what? Young people came flooding into the movement. Brilliant, courageous, dedicated, determined young men and women. "I survived Roe v. Wade," they declared, "but Roe v. Wade will not survive me." And they meant--and mean--it.
In the meantime, science marched on, confirming and reconfirming and reconfirming yet again the biological fact of the humanity of the child in the womb. The anti-scientific posturing about the impossibility of knowing "when life begins" became more and more implausible, to the point that it now sounds ridiculous. And that is for the simple reason that it *is ridiculous*. Serious, intellectually competent defenders of abortion no longer claim that abortion is not, or cannot be known to be, the violent killing of a human being in utero. And sometimes they reprimand their fellow abortion supporters for continuing to talk such nonsense. Peter Singer, for example, speaks plainly of abortion as the taking of human life and warns those who try to rest the "pro-choice" case on denying that fact that they are placing their (and his) cause in jeopardy. The late Ronald Dworkin candidly (and accurately, if chillingly) described abortions as "choices for death." People like Singer and Dworkin want to build the case for abortion on the idea that no one has dignity or a basic right to life merely on the basis of his or her humanity. Merely to be a human being is not enough. To be a person--a creature with worth and interests that count (Singer) and rights (Dworkin), one must acquire or attain other features or qualities. That is, I believe, bad philosophy--and incompatible with the basic principles of our civilization and polity; but at least it does not rely on denying basic facts known to anyone who has taken the trouble to acquaint himself or herself with modern human embryology and developmental biology.
I believe I know how the story ultimately ends. I've had a peek at the last page of the book. But that's a matter of faith. And I cannot predict where we will go in the short to medium or even medium to long term. Not do I have any idea how long the "long-term" will be. I don't know how long the little corpses will continue to pile up or the hearts of so many other victims of abortion, including (by their own testimony) many women who have sought or submitted to abortions, will continue to be broken. I do not believe that the future is determined or that history has definite trajectories or "sides." Truth and justice, however, do have sides--right and wrong sides. And we should deeply care about being on the right side, even in circumstances in which there is little ground for hope of success or victory anytime soon. But when it comes to protecting unborn babies and their mothers, we are, thank God, not in such circumstances. Evidence is everywhere that our prayers and efforts are availing. Hearts are turning. Young and old are gaining strength, confidence, and courage. They are committing to the cause, deepening their commitment to the cause, finding their voices.
We shall overcome.
January 23, 2016 | Permalink
Friday, January 22, 2016
On this anniversary of Roe vs. Wade, pro-life advocates are not to be deterred by the prediction of two feet of snow this weekend. This interesting piece in today's Washington Post discusses a new addition to the annual March for Life: pro-life evangelicals. The article provides a history of the division between pro-life Catholics and evangelicals rooted in anti-Catholicism and a resistance to expanding the pro-life message to include other social justice issues. The author describes the division as "theological, cultural, and political." The article posits that evangelicals have changed course - joining in the march - due to the striking public indifference to the Planned Parenthood videos. Here is an excerpt:
"The evangelical community needs to recognize what the Catholic community has been doing for four decades. . . . It's critical for evangelicals to wake up to that commitment," [Focus on the Family President Jim] Daly said…. "It's unfortunate it's taken 40 years for us to do that."
Southern Baptist leader Russell Moore — who also co-sponsored the new effort — said the reaction to the videos was "a sobering moment" for the antiabortion movement.
For myself, I have often thought that the true pro-life position is not limited to the abortion question, but properly fits within the idea of dignity from conception to natural death – necessarily calling on us to care about these lives after birth as well as before. As the USCCB puts it, "The life and dignity of every person must be respected and protected at every stage and in every condition." While connecting a pro-life stance to a greater cause of social justice may in one sense expand the reaches of the pro-life movement, this piece suggests it may contract it. In any event, the piece is worth a read.
January 22, 2016 | Permalink
The Eleventh Annual John F. Scarpa Conference on Law, Politics, and Culture will be held on Friday, November 11, 2016, at Villanova University School of Law. Yale's Professor Kathryn Tanner will deliver the keynote address on "Christianity and the New Spirit of Capitalism," the topic of her Spring 2016 Gifford Lectures. Professor Tanner's attention to the Christian moral norms that should govern any economy parallels teachings of Pope Francis that have disconcerted many Catholics.
Other speakers at the Conference will include:
Mary Hirschfeld (Assistant Professor of Theology and Economics, Villanova University)
Robert Hockett (Edward Cornell Professor of Law, Cornell Law School)
Joseph Kaboski (Singer Foundation Professor of Economics, Notre Dame)
Patrick Byrne (Professor of Philosophy, Boston College)
Andrew Yuengert (Professor of Economics, Pepperdine University)
Jesus Fernandez-Villaverde (Professor of Economics, University of Pennsylvania)
Brian McCall (Merrill Professor of Law, University of Oklahoma)
Details about the Conference schedule will be announced in due course. Please mark your calendars for November 11, 2016.