Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, February 27, 2015

Professor Charles E. Rice, RIP

Professor Charles E. Rice, pro-life champion and long-time professor of law at Notre Dame Law School,  died on Wednesday. Here is a link to a book review I did of one of Charlie’s most recent books.  I wrote in that review--

"Charlie Rice is one of a kind. He has had a distinguished academic career, mostly at Notre Dame Law School; he is now Professor Emeritus of Law at Notre Dame. He has been a beloved teacher and mentor to thousands of Notre Dame students since he joined the law faculty there in 1969. He has authored many scholarly books and articles. He was the long-time co-editor of the American Journal of Jurisprudence, perhaps the leading scholarly journal devoted to the natural law. He has been active in the political arena. He co-founded the New York Conservative Party and has served as a consultant to various government agencies. He has also been an activist, particularly on pro-life issues.

This service on behalf of the pro-life cause has taken many forms. Perhaps the most important has been his effort to clearly articulate and defend the teachings of the Catholic Church on pro-life issues. He has done so in scholarly books. But perhaps equally important have been his efforts to defend Church teaching on issues such as contraception, abortion, assisted suicide, and the death penalty in more popular venues. He has written innumerable short essays and delivered countless speeches throughout the country on these topics."  

Charlie was a loyal son of the Church who will be missed terribly by those who knew him. 

Eternal rest grant unto him,  O Lord, and let perpetual light shine upon him. May the souls of the faithful departed, through the mercy of God, rest in peace. Amen.

February 27, 2015 in Myers, Richard | Permalink

Fr. Theodore M. Hesburgh, R.I.P.

Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh.  You can learn a lot more about his work and life here.   And, the Washington Post's obituary is here.

Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts.  I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging.  "I thought L.B.J. and I took care of that back in 1965!", he said.  "There are a few details still being worked out," I assured him.  God bless Fr. Ted.

February 27, 2015 in Garnett, Rick | Permalink

"mailed irregularly"

Readers will recall Cardinal Kasper's rank racism on display at the Synod last fall.  The Cardinal outright denied that he'd engaged in racial stereotyping of the Church in Africa, but the recording of his vicious words gave the lie to His Eminence's denial.  Are we enlightened moderns comfortable with Cardinals who lie in public, especially about matters of great moral magnitude?   

Be that as it may, things just keep getting richer at Rome.  Now, it seems, Cardinal Baldiserri, general secretary of the Synod of Bishops, ordered the theft of books sent to participants in the Synod last fall.  The story is here. The Cardinal actually admits that the books were seized, and he attempts to justify their seizure on the ground that they were "mailed irregularly."  Pleading in the alternative, His Eminence also avers that the books' reaching the hands of their intended recipients would have "interfere[d] with the Synod," which is just what one would fear from a book titled Remaining in the Truth of Christ.  On the issue of truth, keep in mind that Synod's mid-term relatio was apparently drafted in advance of the "open" debates it was alleged to relate.  That's just how Pope Francis's "God of surprises" works.

Who will continue to defend the illusion of a climate of "openness" in the Church bequeathed to us by the Second Vatican Council and the clergy and hierarchy shaped by its "spirit"?

 

February 27, 2015 in Brennan, Patrick | Permalink

Charles Hammond on the Supreme Court's attention to "policy & expediency" (1827)

Lest anyone lamenting the state of affairs that now persists in constitutional adjudication at the Supreme Court think that we just need return to an earlier, purer time (and one also without law clerks given to verbosity), these 1827 reflections by Charles Hammond (occasioned by Ogden v. Saunders) may supply something of a corrective:

I wish to detract nothing from the high reputation of the judges of the Supreme court, either as men or as lawyers. I must, however, be permitted to express my opinion, that they have run into some very mischievous errors. One is the deep admixture of political expediency, which is infused into and pervades many of their decisions, especially in expounding the constitution. It was once a leading axiom, that justice was blind as to every thing, but the case immediately before her. She could neither see parties, nor look to future consequences. In the Supreme Court this axiom is not regarded. Justices there look with eagle eyes to the parties in the cause, and to the connection between the case to be adjudicated, and its most remote, and often improbable bearings upon the same, or other parties in different situations. Thus, in attempting to shape a decision in one case, so as to quadrate with all possible cases, policy & expediency become the principal topics of examination. And a judicial decision is made to bear a strong analogy to legislative enactment.

Another of these errors is the substitution of an elaborate train of reasoning, for brief and explicit decision. This is closely connected with the first error, and in a good degree originates in it. When a proposition is laid down, and either narrowed or extended with a view to remote and merely supposable consequences, all these must be explained. The probability that they may arise, the evils they may bring with them, the indispensable necessity of obviating these anticipated evils, must all be made out. Thus a legal opinion, instead of deciding the case in hand, is made to resemble the thesis of a student, and consists of hypothesis and inference, spreading over an almost interminable surface.

Charles Hammond, "Insolvent Laws," Cincinnati Gazette, March 27, 1827

February 27, 2015 in Walsh, Kevin | Permalink

Thursday, February 26, 2015

A Notre Dame Fumble

A sober and sobering analysis of Notre Dame's decision to grant benefits to same-sex partners, by three of the University's most distinguished scholars, John Finnis, Gerard V. Bradley, and Daniel Philpott.  The bottom line:

"If Catholic institutions extend benefits to same-sex couples, then our era will not only be historic because of the civil power’s endorsement of immoral sex. It will also turn out to be a historic moment in the extensive de-Catholicization of many institutions. It is worth stressing again: structural sin is difficult to contain. This would be a destructive loss made possible by these institutions’ own choice—their unforced, unnecessary, unjustified, and irresponsible choice—to treat same-sex couplings as marital simply because the civil power and the couples in question declared them so."

Read the entire statement:

http://www.thepublicdiscourse.com/2015/02/14522/

February 26, 2015 | Permalink

Winters on theology requirements and Catholic universities

A few days ago, I linked to an excellent presentation by my colleague, Cyril O'Regan, on the place of theology in a Catholic university.   (Like O'Regan, I believe strongly that Notre Dame -- and other Catholic universities -- should not only continue with a meaningful Theology (not "religious studies" or even "Catholic studies") requirement but should, indeed, deepen and enrich such a requirement.)

At Distinctly Catholic, Michael Sean Winters has posted a very thoughtful and wide-ranging three-part series on this matter.  It's well worth a read by anyone interested in universities, Theology, and, well, life.   Among other things, he contends that "removing theology from that core curriculum not only endangers the other sciences, which are then invited to fill its gap with intellectual tools ill suited for the task, but that I fear what happens to a culture in which theology, philosophy and the humanities are driven to the sidelines by our cultural fascination with science and technique. If we do not school our young people in the humanities, theology and philosophy, they will never know how to respond to desire and never lift love beyond the sentimental."

February 26, 2015 in Garnett, Rick | Permalink

"He is Catholic, so there is a moral component to his position on the issue" ... which is, what?

Virginia's Terry McAuliffe is "personally opposed, but ..." And he has recently taken this mainstay of Catholic political life to a new level.

In his push for lethal injection drug secrecy legislation during this year's General Assembly session, Governor McAuliffe simultaneously proclaimed his personal opposition to capital punishment while pushing for new legislation to make sure that other people's moral opposition would not get in the execution team's way through the free choice of third parties not to participate publicy in the execution process. 

After the McAuliffe Administration's lethal injection secrecy bill was defeated in the House of Delegates this week, the administration took steps to try to get the House to reconsider, as reported by Jenna Portnoy of the Washington Post. But the Governor took no public responsibility for these efforts (mirroring his public hands-off approach to Virginia Attorney General Herring's stance on the federal unconstitutionality of Virginia's constitutional definition of man-woman marriage):

Brian Coy, a spokesman for McAuliffe (D), declined to comment on the agency’s efforts to flip lawmakers’ votes and referred to his earlier statements on the issue. Coy has said the governor does not support capital punishment but it is his responsibility to uphold the law.

“He is a Catholic,” Coy has said, “so there is a moral component to his position on the issue, but he’s governor, and he will enforce the law.”
The problem with this is that the new lethal injection secrecy law would have been precisely that ... new law. Governor McAuliffe was not seeking simply to "enforce the law," but to change it--and for the worse. Meanwhile, where was Mr. Coy's proclamation of Governor McAuliffe's commitment to "enforce the law" when it comes to marriage? 

February 26, 2015 in Walsh, Kevin | Permalink

Wednesday, February 25, 2015

Parody -- and (scarily) not-parody -- in San Francisco

So, I gather that this piece, "San Francisco Parents Shocked to Learn that Catholic Schools are Catholic," is a parody.  (Funny reading.)   This one, though -- "Lawmakers want investigation of San Francisco Catholic High Schools Over Teacher Morality Clauses" -- is not.  That it is not would still be funny, though, if it were not so worrisome:

Assemblymembers Phil Ting (D-San Francisco) and Kevin Mullin (D-San Mateo) are urging the Assembly Labor and Employment Committee and Assembly Judiciary Committee to launch an investigation.

“California cannot become a laboratory for discrimination under the guise of religion,” the lawmakers wrote in a letter sent Monday. They said the rules “set a dangerous precedent for workers’ rights through manipulations of law that deprive employees of civil rights guaranteed to all Californians.”

But, the question is precisely whether "all Californians" really do have a "civil right" to -- regardless of what they believe, say, do, or teach -- play a leading role in the formation of Catholic high-school students.  These lawmakers' statements reflect, one could say, a "confusion about discrimination."    

February 25, 2015 in Garnett, Rick | Permalink

Anthony Annett joins dotCommonweal

Anthony Annett ("Morning's Minion," to many Catholic-blog-readers) has joined the crew at dotCommonweal.  Welcome!   Here is an early post of his, "Papal Economics:  Why the Church Rejects Both Collectivism and Individualism."  As MOJ readers know, I think that invocations of a "resurgence of laissez-faire individualism over the past three decades" are less-than-helpful and that "laissez-faire individualism" does not meaningfully exist (except, of course, in the policy program of organizations like NARAL-Pro Choice America).  In any event, I look forward to more interesting conversations with him about where, case-by-case, we should draw the line -- "inspired," both of us, "by Catholic Social Teaching" -- that separates particular market-regulations that serve the common good (as many do) from market-regulations that do not (as many do not).

February 25, 2015 in Garnett, Rick | Permalink

Remembering (and regretting) Blaine and Locke v. Davey

Joe Carter reminded me (sigh) that we are around the 11th anniversary (!) of Locke v. Davey.  And, in the course of reminding his readers about that case, he reminds them also about James Blaine, his proposed amendment, and the ways that similar laws in the states continue to (a) reflect our country's once-very-strong anti-Catholicism and (b) stymie education reform.  

For my own take on the matter, check out "The Theology of the Blaine Amendments" (here).  Abstract:

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom. 

First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism. 

Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person. 

Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.

February 25, 2015 in Garnett, Rick | Permalink

Dr. Seuss in Justice Kagan's Yates dissent

I rarely laugh out loud when reading Supreme Court decisions. One exception occurred a few minutes ago as I read Justice Kagan's dissent in Yates v. United States. As authority for the proposition that a fish is a discrete thing that possesses physical form, Justice Kagan throws a "see generally" to Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). Demonstrating some restraint later in the dissent, Justice Kagan did not provide the obvious Dr. Seuss citation ( "cf. Horton Hatches the Egg") for the assertion that "Congress said what it meant and meant what it said."

February 25, 2015 in Walsh, Kevin | Permalink

Eating crow in today's fish case

Well, I was wrong again.

The Supreme Court decided Yates v. United States today. This is the case about whether undersized fish are "tangible objects" within the meaning of a federal criminal evidence-destruction prohibition. A majority of the Court ruled for the petitioner, a fisherman who argued that the fish he threw overboard were not covered by the statute. The vote was 5-4. Justice Ginsburg wrote for a plurality consisting of herself, Chief Justice Roberts, Justice Breyer, and Justice Sotomayor. Justice Alito wrote separately concurring in the judgment. Justice Kagan authored a dissent that was joined by Justice Scalia, Justice Kennedy, and Justice Thomas. 

In my initial MOJ post on the case, I predicted that the petitioner would lose unanimously. After oral argument, I acknowledged that my initial prediction appeared "unsustainable." Noting the criminal law professors' brief signed by Rick Garnett and endorsed by Greg Sisk, I wrote that if their arguments "end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split." Although there was no opinion for the Court, the outcome resulting from the plurality plus Alito plainly rests on adoption of the arguments advanced by petitioner and underscored by petitioners' amici curiae.

In light of Greg Sisk's post-argument post describing Yates as "a door that led to a large stadium populated by a multitude of controversial legal issues," I look forward to the post-decision commentary and analysis. I don't know that I'll have much to say given the lingering taste of crow in my mouth. I will take consolation, however, in Justice Kagan's dissent and the good company she kept in that opinion. For whatever it's worth, the fisherman petitioner did not get the duck-hunters' vote.

February 25, 2015 | Permalink

Proust, "The Death of Cathedrals"

I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Chartres Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:

Suppose for a moment that Catholicism had been dead for centuries, that the traditions of its worship had been lost. Only the unspeaking and forlorn cathedrals remain; they have become unintelligible yet remain admirable.  
 
Then suppose that one day scholars manage, on the basis of documentary evidence, to reconstitute the ceremonies that used to be celebrated in them, for which men had built them, which were their proper meaning and life, and without which they were now no more than a dead letter; and suppose that for one hour artists, beguiled by the dream of briefly giving back life to those great and now silent vessels, wished to restore the mysterious drama that once took place there amid chants and scents—in a word, that they were undertaking to do what the Félibres have done for ancient tragedies in the theatre of Orange.
 
Is there any government with the slightest concern for France’s artistic past that would not liberally subsidize so magnificent an undertaking? Do you not think that it would do what it did in the case of  Roman ruins for these cathedrals, which are probably the highest, and unquestionably the most original expression of French genius? After all, one may well prefer the literature of other peoples to ours, prefer their music to ours, their painting and sculpture to ours, but it is in France that Gothic architecture created its first and most perfect masterpieces.  All other countries have done is to imitate our religious architecture without ever matching it.
 
And so, to return to my hypothesis, here come scholars who have been able to rediscover the cathedrals’ lost meaning. Sculptures and stained-glass windows recover their significance, a mysterious odor once again wafts in the temple, a sacred drama is performed, and the cathedral starts to sing once more.  When the government underwrites this resurrection, it is more in the right than when it underwrites the performances in the theaters of Orange, of the Opéra-Comique, and of the Opéra, for Catholic ceremonies have an historical, social, artistic, and musical interest whose beauty alone surpasses all that any artist has ever dreamed, and which Wagner alone was ever able to come close to, in Parsifal—and that by imitation.
 
Caravans of swells make their way to the holy city (whether it is Amiens, Chartres, Bourges, Laon, Rheims, Rouen, Paris, or whatever town you please, we have so many sublime cathedrals!), and once a year they experience the feeling they once sought in Bayreuth and in Orange: enjoying a work of art in the very setting that had been built for it. Alas, here as in Orange, they can only ever be curious dilettantes; try as they might, the soul of times past does not dwell within them. The artists who have come to perform the chants, the actors who play the role of priests may be learned, they may have imbued themselves with the spirit of the texts, and the Secretary of Education will lavish medals and compliments upon them. Yet, in spite of it all, one cannot help but think “Alas! How much more beautiful these feasts must have been when priests celebrated the liturgy not in order to give some idea of these ceremonies to an educated audience, but because they set the same faith in their efficacy as did the artists who sculpted the Last Judgment in the west porch tympanum or who painted the stained-glass lives of the saints in the apse. How much more deeply and truly expressive the entire work must have been when a whole people responded to the priest’s voice and fell to its knees as the bell rang at the elevation, not as cold and stylized extras in historical reconstructions, but because they too, like the priest, like the sculptor, believed. But alas, such things are as far from us as the pious enthusiasm of the Greeks at their theater performances, and our ‘reconstitutions’ cannot give a faithful idea of them.”
 
That is what one would say if the Catholic religion no longer existed and if scholars had been able to rediscover its rites, if artists had tried to bring them back for us. But the point is that it still does exist and has not changed, as it were, since the great century when the cathedrals were built. For us to imagine what a living and sublimely functioning thirteenth-century cathedral was like, we need not do with it as we do with the theater of Orange and turn it into a venue for exact yet frozen reconstitutions and retrospectives. All we need to do is to go into it at any hour of the day when a liturgical office is being celebrated. Here mimicry, psalmody, and chant are not entrusted to artists without “conviction.” It is the ministers of worship themselves who celebrate, not with an aesthetic outlook, but by faith—and thus all the more aesthetically. One could not hope for livelier and more sincere extras, since it is the faithful  that take the trouble of unwittingly  playing their role for us. One may say that thanks to the persistence of the same rites in the Catholic Church and also of Catholic belief in French hearts, cathedrals are not only the most beautiful monuments of our art, but also the only ones that still live their life fully and have remained true to the purpose for which they were built.

....

Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”;  “I am the lily of the valley”;  “I am the true vine.”

February 25, 2015 in DeGirolami, Marc | Permalink

Tuesday, February 24, 2015

Death penalty drug secrecy bill defeated in Virginia

I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates.  It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)

Continue reading

February 24, 2015 in Walsh, Kevin | Permalink

Meilaender and Mumford on Ethics at the Beginning of Life

The New Atlantis (which I really enjoy) has a review up, by Prof. Gilbert Meilaender, of James Mumford's new bookEthics at the Beginning of Life, which the reviewer calls "a work of serious philosophical argument, well worth our taking seriously."  Check it out!

February 24, 2015 in Garnett, Rick | Permalink

Sunday, February 22, 2015

Event on Proselytism and Development at the Berkley Center

This event ("Sharing the Message:  Proselytism and Development in Pluralistic Societies") looks great.  Check it out.  (Here is a paper I did, a few years ago, on a similar topic.)

February 22, 2015 in Garnett, Rick | Permalink

Solum on legislation and virtue

Larry Solum has posted his paper, "Virtue as the End of Law:  An Aretaic Theory of Legislation."   Here is the abstract:

This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.

As, well, Larry Solum would say . . . highly recommended!

February 22, 2015 in Garnett, Rick | Permalink

Saletan on the confusion in San Francisco

Will Saletan writes, here ("Judgment Day"), about the weird criticisms being directed at Archbishops Cordileone in San Francisco, having to do with his efforts to protect Catholic institutions' ability to hire for mission.   I agree with Saletan that these criticisms are, well, weird.  But . . . expect a lot more of this.  The logic of congruence is attractive to many and the "worms in the entrails" problem persists.

February 22, 2015 in Garnett, Rick | Permalink

Friday, February 20, 2015

"A mortgage on the Church"

If one were asked to guess who or what in recent history has placed "a mortgage on the Church," one might be expected to answer: the child-raping priests, the chancery staffs that turned a blind eye to raping priests, the bishops who oversaw (sic) such chanceries and thus facilitated such abuse, etc.  Well, one would be wrong, however.  According to Pope Francis, it is the ordaining of traditionalists to the ministerial priesthood that places "a mortgage on the Church."  Who knew?!  The indictment by the Pope is here.  

Pope Benedict's humble successor Francis also indicts as "mistaken" those who in undoubted "good faith" pursue a "reform of the reform."  Readers will no doubt recall that a signal accomplishment of the too-short pontificate of Benedict XVI was a clarification of the concept of the reform of the reform and a resolve to implement one.  I had my doubts at the time that a reform of the reform was sufficient for what was ailing the Church, and history has vindicated my doubt, alas.  A reform of the reform that can be swept away, indeed ridiculed, as "mistaken" even before its tenth birthday offers about as much ecclesial medicine as a so-called Happy Meal offers nutritional value.  

I leave aside for now consideration of Francis's words, in the same address to the Roman clergy, on the Ars Celebrandi.  Those words of the Pope would need to be squared his own practice of starting to glance at his watch when liturgies last longer than, say, forty-five minutes, a task up to which I do not feel on the First Friday of this Lent.  

February 20, 2015 in Brennan, Patrick | Permalink

Thursday, February 19, 2015

DAPA enjoined

As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization.  But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).

26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"

Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.

February 19, 2015 in Scaperlanda, Mike | Permalink

My letter to the Governor and legislative leaders of Kansas

Dear Governor Brownback, Speaker of the House Merrick, and Senate President Wagle:

I am writing to urge you to support repeal of the death penalty in Kansas. Although I do not regard capital punishment to be on a moral par with the deliberate killing of innocent persons—including killing unborn babies by abortion and killing elderly or handicapped persons in euthanasia—I believe that the abolition of killing as a punishment will promote a culture of life.

Although I believe that legitimate moral criticisms of the death penalty can be made even apart from religious arguments and teachings, my views on the subject are primarily informed by the moral teaching of the Catholic Church. An important development in Catholic understanding of the death penalty came with Pope John Paul II’s encyclical Evangelium Vitae (The Gospel of Life). The pope wrote that the state “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent” (56). John Paul II reiterated this point during his visit to the United States in 1999, when he called on Christians to be “unconditionally pro-life” and work to end the death penalty.

The Catechism of the Catholic Church reflects this teaching (2267) and Pope Benedict XVI, Pope Francis, and the United States Conference of Catholic Bishops all have affirmed it. In short, the Catholic Church now firmly teaches that, in modern society, the state should abandon the death penalty and instead opt for nonlethal means to protect society, such as life imprisonment.

I am aware that many liberals object to introducing religious teachings into debates about issues of public policy.  Some even regard it as illegitimate for legislators, executives, and other public officials to act, even in part, on the basis of religious convictions.  They will presumably object to the appeal I am making to you.  Being persons of principle, I expect that they will regard my invocation of Catholic teaching as out of bounds, even if they share my opposition to the death penalty.  (Indeed, if they do not, they will expose themselves as hypocrites.) But I urge you to disregard their objections for the same reasons you should disregard objections to the invocation of religious teaching in opposition to abortion, embryo-destructive biomedical research, assisted suicide, and euthanasia.

It is my understanding that Kansas is considering legislation to forbid certain abortions or abortion procedures, such as those that dismember children in the womb late in gestation. I think it would be salutary if in 2015 Kansas would achieve this highly commendable goal while also replacing the death penalty with the punishment of life in prison for heinous murders. Together, these steps would place Kansas in the vanguard of building a culture of life.

Yours sincerely,

Robert George

McCormick Professor of Jurisprudence

Princeton University 

February 19, 2015 | Permalink

Wednesday, February 18, 2015

(Still) more on "Catholicism v. Libertarianism"

Over at dotCommonweal ("Don't Call us Libertarians!"), Matt Boudway responds to this piece and returns to an issue / debate/ question / distraction that I've tried to address a number of times here at MOJ, namely, the asserted tension between "libertarianism" and Catholic Social Tradition.

I continue to agree entirely with the claim that Catholicism proposes a moral anthropology that is importantly and significantly different from the vision proposed by some writers, thinkers, and politicians who embrace or reasonably deserve the label "libertarian."  (Robby George once called libertarianism a "heresy" and, given the target, I think he was right.)  At the same time, I think that, for too many Catholics, "libertarian" is becoming little more than an epithet that one attaches to particular policy proposals or stances one does not support, whether or not those proposals or stances actually depend on or reflect "libertarian" premises.  As I argued in more detail here, and here, and here,  "laissez-faire libertarianism" is, in my view, usually, a straw man.   A bit: 

 I have no interest in (my understanding of) the "objectivism" of Ayn Rand.  It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints.  But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.

I agree . . . that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms.  But, it's worth remembering that they are, often, very effective means and mechanisms.  To the extent they are, let’s use them!  Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they [again, sometimes] work better (at bringing about human flourishing and common good, properly understood).

Matt writes, "There are those who believe that markets are essentially self-correcting, that the state should not concern itself with distributive justice, and that worries about inequality are reducible to envy.  But Pope Francis isn't among them, and neither were his predecessors."  I certainly agree with the second sentence, but I am still pretty confident that the number of "conservative Catholics" who fit the description in the first sentence is very small.  The questions that tends to divide Catholics-who-all-things-considered-vote-Republican and Catholics-who-all-things-considered-vote-Democratic are, it seems to me, "how much?", "on balance, what should we do?", and "who what extent?" questions.

February 18, 2015 in Garnett, Rick | Permalink

Prof. Cyril O'Regan on a Catholic university's Theology requirement

As this piece in the Washington Post notes, there is a lively conversation going on -- in both the physical and virtual worlds -- about the University of Notre Dame's core-curriculum review and about the possibility that the current "two courses in Theology and Philosophy" requirement could be watered down or scrapped.  (Although I did not attend Notre Dame, and do not teach undergraduates -- though I'd love to! -- I believe strongly that the requirement should be enriched and deepened . . . and retained.)  My friend and colleague Prof. Cyril O'Regan's presentation on the matter -- "The Catholic University, Theology, and the Curriculum" -- is outstanding, and available here.  Here's a bit:

I judge the stakes regarding the current review of Curriculum to be extraordinarily high for the definition and the future of the university. We have not quite reached that pitch of apocalyptic crisis where it is appropriate to recur to the throw-down from Lord of the Rings in which Gandalf stands against the unspeakable Balrog in the mines of Moria and, facing it, says with Moses-like staff in hand: Thou shalt not pass! The jig is far from up for our beloved Notre Dame. But let there be no mistake about it, I do believe there is something seriously wrong with the emerging ethos of Notre Dame, which in my view is very much symptomed in what I regard as run-away enthusiasm for irresponsible invention evinced in the core curriculum review. This is a moment for our common reflection of what and who we are and what and who we are becoming, and possibly gather those forces whereby in a real sense we become who we are.

Read the whole thing!

February 18, 2015 in Garnett, Rick | Permalink

"There's a word for that . . . joy!"

My friend and colleague, Fr. William Dailey, closed his Ash Wednesday homily with a wonderfully succinct restatement of the bedrock anthropological point that many of us here at MOJ have been returning to for eleven years now:  "When we realize who we really are and what we are made for . . . there's a word for that:  Joy."  Amen.

February 18, 2015 in Garnett, Rick | Permalink

Monday, February 16, 2015

Mideast Christians And ISIS

On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate. 

The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.

Please join us if you’re in the neighborhood. Details are here.

UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."

February 16, 2015 in DeGirolami, Marc | Permalink