Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, July 1, 2016

Another chapter in the political history of the Establishment Clause

The Style section of the Washington Post carries an article this morning with the headline "U.S. district judge strikes down Mississippi's 'religious freedom' law" (scare quotes in original). Buzzfeed is on the case also: "Federal Judge Halts Mississippi Anti-LGBT Law From Going Into Effect."

Thanks to Buzzfeed, the opinion is available here. But, really, do you need to read it? Don't the headlines tell you everything you need to know?

Well, I have read it. Portions of the opinion suggest a judge who understands himself to be operating at the center of a national drama of historically epic proportions. But reality is more prosaic. Judge Reeves has just written another chapter in A Political History of the Establishment Clause. And as for Equal Protection, there is an obvious tension between aggressive enactment of social change through constitutional litigation and judicial impartiality. But we've been living with that for a while.

If there is an appeal, I expect the case to be tossed for lack of standing. 

July 1, 2016 in Walsh, Kevin | Permalink

How the Constitution *in fact* gets rewritten, thank God

    A final, at least for now (as we disperse to celebrate "Independence Day"), contribution to Kevin's and my conversation (for which I am terribly grateful) about why, in my view, textualism gets it wrong, gets it wrong all the way down, like *all* the way down.   Here is an excerpt from some of my unpublished remarks on the occasion of honoring Henry Monaghan; my topic was the thesis of Henry's landmark article, "Stare Decisis and Constitutional Adjudication":         


   Answers cannot be any better than the questions to which they reply, and Immanuel Kant famously contended that all questions of human reason and speculation can be reduced to the following three: “What can I know? What ought I to do? What may I hope?” I would like to bring these three questions to bear on just a few of Henry Monaghan’s conclusions or suggestions about what I would encapsulate as legality, used here as an umbrella term for considerations bearing on legitimacy, constitutionality, precedent, stare decisis, judicial review, and more.

            “What can I know?”   I will begin by simply asserting what philosopher Bernard Lonergan, among others, has demonstrated: Much of Western theory, practice, and common sense has been riddled by roughly the same mistake, specifically, that knowing is like taking a good look with the eye of the mind. The mind has no eye, and knowing is not much like taking a good look. Knowing is a compound of potentially cumulative acts, and knowing what I ought to do – Kant’s second question – is not exempt from this fact about how we humans know, if we are to know at all.  The fact that knowing is not a simple act but a compound act applies, as it were, even when the knowing is done in service or in the name of law. Legal knowings are compound acts, each of which needs to be performed properly.

            To make these general points particular, recall Holmes’s influential contention on the first page of The Common Law: “The life of the law has not been logic: it has been experience.” Holmes was parodying Lord Coke, of course, who had taught instead that “reason is the life of the law; nay, the common law itselfe is nothing else but reason.” Holmes’s trick with his logic-versus-experience false dilemma was to block a third possibility, the one Coke and the larger tradition, including Edmund Burke, for example, meant by reason: not mere experience, not mere logic – but, instead, reason or intelligence rooted in experience, yes, but also unfolding itself through acts of understanding and acts of judgment, including acts of potential self-correction, in the crucible of a living tradition. Experience, in other words, is only a starting point in the life of the law, as in any rational, non-random life; experience takes or makes its place in law, as in the rest of life, based on reasonable judgments about whether our understandings of what we ought to do or not do are correct.

What I would suggest, still more concretely, is that the common law method as it actually functioned in the main – but certainly not as it was caricatured as a closed collection of axioms, syllogisms, and conclusions – is an exemplification writ large of the method of human practical reason writ small: it is potentially progressive, cumulative, and self-corrective, proceeding by acts of experience, through acts of understanding, to acts of judgment, and finally to acts of choice of value.   In other words, what above all recommends the common law is the fact that its method is more or less isomorphic with the method of human intelligence. The common law was methodical in the way any true human knowing is methodical. Generalizing, then, I would suggest that any system of law should be evaluated in large part by its success in embodying the method of human intelligence. Human intelligence not only discovers what is; it also discovers what is valuable or good, and these it proposes to the will to be pursued, including in the name of law.

            It is in this context, then, that I propose to take the measure of Monaghan on constitutional stare decisis. With respect to stare decisis in general, I would begin by suggesting that, when understood and applied in an appropriately flexible way, it gives effect to the human potential for progressive and cumulative judgments and then instantiations of value. I put to one side for the now the question of what I mean by the malleable term “appropriately flexible,” and turn directly to the question Monaghan confronted in his article “Stare Decisis and Constitutional Adjudication.” I am broadly sympathetic to Monaghan’s approval of constitutional stare decisis, first of all for the reasons I have given based on human cognition, though also, and relatedly, for the justificatory reasons identified by Monaghan himself, system legitimacy and the legitimating of judicial review, among others. In addition, however, I would also underscore and even bolster Monaghan’s thesis that “in the end, the written Constitution cannot sustain the absolute primacy of text over gloss” (770) and, further, that “originalism must confront a constitutional adjudicatory process in which, after two centuries, the original understanding of text is simply a factor in the process of decisionmaking, a factor to be considered and balanced against other factors. Indeed, frequently the text acts operates as little more than a boundary marker restraining judicial lawmaking. In each instance, the case law overwhelms the text and historical understanding.” (772) This it does because the questions raised by human intelligence and answered methodically outstrip the ability of the text to provide an answer.

            Monaghan’s admirable candor about how methodical human intelligence sometimes subordinates even portions of written text denominated “Constitution” leads him to acknowledge that “[t]he central problem is this: to accord status to stare decisis requires an acknowledgment that originalism plays a purely instrumental role by contributing to the establishment of legitimate government, which in turn promotes stability and continuity.” (772) He continues: “Neither originalism nor the constitutional text has mystical qualities that compel a return to the fold in the face of transforming departures from the original understanding.” (772) This further candor leads Monaghan to offer tentative affirmative answers to these hard questions: “[I]f the Court legitimately may prevent inquiry into original understanding in order to maintain transformative change, does this concession also license prospective disregard of original understanding when the Court is satisfied that change is necessary to maintain systemic equilibrium? Moreover, should the Court reject the precedent itself in favor of still further change when to do so will achieve the important values?” (772) Monaghan might make his own a favorite metaphor of Lonergan’s: the wheel of method not only turns, it also rolls along.  

            These remarkable concessions by Monaghan, at the expense of originalism in favor of stare decisis and what I have referred to as the methodical unfolding of human intelligence, are followed quickly by a caution that “in the end any temptation to dismiss the Constitution of 1789 from our view seems to be a mistake. Paul Brest is surely right in stating that ‘the written Constitution lies at the core of the American ‘civil religion.’” (773)

            This leads me back to Kant’s third question: “What can I hope?” Well, here I’m not going to pull any punches, and I’ll be brief: What I hope is for "us" to do collective justice of the sort deliberately BLOCKED by “our Constitution” and the embarrassing panoply of "religions" with which it systematically saddles and stymies our ability to live together how Christ teaches us to live together, or, more pointedly, to expose as idolatry what Michael Novak, a great, great, great enthusiast of the Constitution, boasted was an “empty shrine” at the Constitution's core.  The much-praised Godlessness of the Constitution sets our collective sights literally hopelessly low. So, while I agree that we should keep the Constitution in view, above all in constitutional adjudication, the first place where "gloss" should overtake "text" is by adding God (assuming arguendo that Omnipotence can take the form of "gloss," an assumption for which there is support in the defenseless baby in the manger in Bethlehem of Judea) and the possibility of God’s social recognition by the state both in public worship and by prudent conformity of human law with higher law.

            To move toward my conclusion.  I’m not delusional, so, yes, I recognize that nothing like what I've just described is about to happen, perhaps not before the great eschatological rectification of it all.  Meanwhile, I agree with Jeff Powell that fidelity to the Constitution is generally worthwhile because of its capacity to instantiate in us what Powell has referred to as the “constitutional virtues,” but I do so with my stated preference for methodism (with a lower-case m) over the virtue of acquiescence, as Powell calls it following Madison. As theologian David Tracy has observed, “when literate cultures are in crisis, the crisis is most evident in the question of what they do with their exemplary written texts.” Textualism would be Exhibit A. It proposes, as Justice Scalia says, that the text of the Constitution (and of other enacted law) be treated as “objectified intent” to be unlocked with the help of dictionaries, those schedules of probable meanings that are no one's meaning.   “There is always the temptation in law,” as Joseph Vining has observed, “ to approach a statute [or the Constitution] as if its words had meanings in themselves and by themselves,” but, as Tracy notes, “texts are not dictionaries. In texts, words do not have meaning on their own . . . .   We converse with one another. We can also converse with texts. If we read well, then we are conversing with the text. No human being is simply a passive recipient of texts. We inquire. We question. We converse. Just as there is no purely autonomous text, there is no purely passive reader. There is only that interaction named conversation.” The alternative known as textualism evinces, as Vining also observes, an “authoritarianism” justified by “maintaining the supremacy of democratic politics and legislative authority.” But there are values higher than democracy and fidelity to a given manmade text, and it is action in conformity with correct practical understanding.    

            On the last page of “Constitutional Adjudication and Stare Decisis,” Monaghan asks whether, if what he has argued is correct, “the political order [is] the ground of the constitutional order rather than vice versa,” and then, in a footnote, asks even more pointedly, “have we in effect reformulated our notion of what a constitution is, returning to the pre-Revolutionary War idea that . . . a constitution is essentially a description of the fundamental political arrangements?” My own answer to these questions that Monaghan leaves unanswered is “I hope so.” What can I hope: To quote Bernard Lonergan: “The state can be changed by rewriting the constitution. More subtly but no less effectively it can be changed by reinterpreting the constitution or, again, by working on men’s minds and hearts to change the objects that command their respect, hold their allegiance, fire their loyalty.” (212)

        "What can I hope?"  It's a question I wouldn't bury by the legal but lawless authoritarianism of another "ism" called textualism.  And not just for my sake, but for the common good God intends.    

July 1, 2016 in Brennan, Patrick | Permalink

Thursday, June 30, 2016

Catholic legal education and "no place to use" a law degree

Most readers of MoJ are aware, I trust, that law schools have encountered a bit of rough sledding over the past several years.  The New York Times recently published (yet another) feature on law school troubles, this time focusing on Valparaiso.  The story included -- along with some questionable assertions -- profiles of struggling law grads that warrant serious reflection.

One other aspect of the story that cannot go unexplored is the headline -- "An expensive law degree and no place to use it."  The suggestion that law degrees are "expensive" relative to the earning power they bring is a different story that I'll leave for the economists to sort out, though I agree that law schools need to be -- and are being -- more cognizant of cost than they were in the past.  I'm more interested in the charge that many law grads have "no place to use" their degrees.

If, as the article asserts, the market for new lawyers is "saturated" -- a proposition that is highly contingent on geography, even when it comes to traditional JD jobs -- we need to think about the assumptions we make as to who can best utilize a legal education and how.  What value do we bring, and to whom? For Catholic law schools, this is not just a matter of responding to market pressure, but of living out our mission.  As John Paul II reminded Catholic intellectuals (and as Cardinal George later reminded Catholic university professors):

You too are solidly involved in a prophetical task of forming sensitive consciences capable of saying no to death, to hatred, to violence, to terror, to error, to evil, to degradation, but saying yes to the good, to the beautiful, to truth, to justice, to responsibility, to life, to peace, to love. You must take on your responsibility consciously. Your contribution in this field is a conspicuous and precious one. The young who have contact with you . . . let all these be aided by you to enter sagely and rationally into a vision of life in human society which promotes the common good of all.

Or as John Paul II explained in Ex Corde Ecclesiae, the Catholic university “assists each of its members in achieving wholeness as human persons.”

This warrants a much larger conversation, but for purposes of a blog post, I'll emphasize three implications:

1) The mission of Catholic legal education, and the strength of the particular law school communities that can be formed by that mission, position Catholic law schools to prepare students to thrive in the relationships that will distinguish the lawyers who achieve professional success in an increasingly commodified and routinized market for legal services.  

2) Catholic law schools that integrate the analytical rigor of common law training with insights from Catholic social teaching can equip students -- especially international students -- for positions of influence that require more nuance than a categorical embrace of unfettered capitalism or socialism; and

3) Access to justice should be a rallying cry that finds fertile ground among the stakeholders of Catholic law schools, drawing support for scholarships and post-graduate fellowships aimed at addressing the need for lawyers among the poor and middle class, especially in small towns and rural areas across the country.  To the extent that the market for lawyers has been "saturated" in some areas of the country, that's because the business model does not function in a way that permits legal needs to be met.  Catholic law schools should be part of the solution.

In an increasingly regulated world that cries out for creative problem solving, there should always be a "place to use" a law degree in a way that provides a livelihood and advances the common good, and Catholic law schools should be leading the way forward.

June 30, 2016 in Vischer, Rob | Permalink

Why Storman's is "cause for concern"

In his opinion dissenting from denial of cert in Storman's, Justice Alito wrote that "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern."  To which Michael Sean Winters responds, "Bosh."  I'm afraid, though, that Alito is right, and Winters gets it wrong, on this one.  Winters frames the issue in terms of his underlying view that it is a mistake to see for-profit corporations as having religious freedom.  He writes, "The claim [in Storman's] rests not only upon a certain valuation of religious freedom but as well on a certain understanding of a corporation."

I understand Winters's argument that we should "draw a clear line between the religious rights of our religious organizations and the rights of secular corporations."  I've made a similar argument myself.  Here, though, nothing about Storman's and the claim presented in that case actually turn on this point.  The issues on which review was sought have to do with (a) whether the government should be able to target religiously motivated conduct for regulation and, relatedly, (b) whether the government's willingness to accommodate or exempt some claimants from generally applicable laws creates a presumptive obligation to extend similar solicitude to religious claimants.  As it happens, that issue was presented in this case by a corporate entity -- a drugstore and grocery -- but that fact was not relevant to the arguments made by the claimants, and the dissenting justices, for review.  (We don't know if it was relevant to the decision by the other justices not to vote for cert.)

That the Court allowed to stand the lower-court ruling could mean -- we'll see how other courts read it -- that that ruling stands as authority for the proposition that governments may treat religious claims for exemptions worse than others or may selectively single out religiously motivated conduct for regulation.  This is why, given the current political controversies, the case is -- as Justice Alito said -- "cause for great concern" and, indeed, "ominous."  

Again -- there's room for reasonable arguments about whether our religious-exemptions regime should treat non-profit and religious corporations differently than for-profit ones.  (Currently, given Hobby Lobby, that distinction should not matter very much for RFRA purposes, though.)  I'm nervous about any suggestion that religious-freedom, or "religion", is something to be excluded from the business, commercial, and economic worlds but, again, there's room for discussion on this. That said, Justice Alito's concerns about the implications of Storman's are well founded, not "bosh."

June 30, 2016 in Garnett, Rick | Permalink

Philpott responds to some religious-freedom critics

Here's Dan, at the "Lawfare" blog, with "Culture War or Common Heritage?  On Recent Critics of Global Religious Freedom".  Dan is reviewing two new books that have been getting a fair bit of notice, Elizabeth Shakman Hurd's Beyond Religious Freedom: The New Global Politics of Religion (Princeton, 2015) and Saba Mahmood's Religious Difference in a Secular Age: A Minority Report (Princeton, 2016). Here's a bit:

Hurd’s and Mahmood’s commitments and criticisms ring strikingly similar.  Both books bear the footprints of the late French philosopher Michel Foucault on every page.  Both authors also draw heavily upon the analysis of the contemporary anthropologist, Talal Asad, whom Foucault influenced in turn.  From these fonts flow four tenets shared by Hurd and Mahmood.

The first is a characteristically postmodern rejection of universals.  Both authors actively doubt what the human rights conventions assert: that religious freedom is a universal right, belonging to every human being and every religious community.  There cannot be religious freedom because there is no such thing as religion. . . .

The second tenet, also exuding Foucault, is that the promotion of religious freedom (or religious minority rights) is a projection of power. . . .

Their third shared tenet is that modern religious freedom and the notion of religion on which it is based are products of developments in Western history, especially the Protestant Reformation and the Enlightenment. . . .

Fourth and finally, each makes the normative judgment that the West ought not to export religious freedom (or religious minority rights). . . .

If Hurd and Mahmood are right, then the rise of religion policy in the West – the promotion of religious freedom, religious minority rights, and religious forces that favor democracy, tolerance, peace, reconciliation, humanitarian aid, women’s rights and the like are misbegotten and ought to be abandoned.  Are they right?

Well . . . read Dan's essay and find out!

June 30, 2016 in Garnett, Rick | Permalink

My McStake, and the challenge of listening for law

A return trip to Patrick's first two posts on his new paper (McLaw & McRestroom), as prompted by his third (McFixity), reminds me of something people who deal with me regularly know: Sometimes you have to say something to me three times before it begins to sink in! To the extent we have had a failure of communication, I acknowledge my McStake.

This reminds me of a challenge we all need to be reminded of in the life of the law, which is the challenge of listening for law. Were it not for Patrick (and Steve Smith), I would have given up long ago on trying to understand Joseph Vining, whom Steve (in a passage quoted by Patrick) has described as "one of the most provocative but elusive legal thinkers of our time." I haven't yet ... haven't fully understood Vining, that is, but also haven't yet given up on trying, perhaps because I partially understand him.

Other readers of MOJ will surely have more success, more quickly, than I have. So here's an extended quotation from Vining (as quoted by Patrick in his Locating Authority paper):

There is always an enormous difficulty, an enormous struggle in law particularly, to recall and keep in mind that language is evidence of meaning, not meaning itself. The struggle comes from the thirst to know, for closure, that can always be slaked for the moment by illusion, but at a cost and often a terrible cost. The difficulty, the struggle, is the difficulty of listening, and it is a person one listens to--only a person, whom one approaches in good faith, which includes faith that there is a person to be heard. Axiomatic elimination of the person, at least from conscious presence in the reasoning mind, is a way of cutting short the struggle, stopping the work of listening. It is precisely the elimination of the person that permits one to think of rules not as linguistic evidence but as having a real existence of their own. . . . So there is always the temptation in law to approach a statute as if its words had meaning in themselves and by themselves -- the authoritarianism sometimes shown by those devoted to maintaining the supremacy of democratic politics and legislative authority. . . .

Okay. But as my jurisprudent co-author, Jeff Pojanowski, suggested in a series of tweets responding to McFixity (yes, this the world we live in, I just wrote that), there may be room in an intentionalist metaphysics for a practical ethic of presumptive textualism. This is but one reason why it is important to distinguish theories of adjudication from theories of law, even while recognizing that how one interprets a law depends on what kind of law it is. 

I worry more about the likes of a pseudo-Lonerganian like William Brennan than an actual Lonerganian like Patrick Brennan. One reason to worry about the latter at all, though, is that one can easily misread P to underwrite a constitutional jurisprudence of W. (Believe this because you've seen it done!) And so I'll conclude with a point I should have reminded myself of earlier: When Patrick writes of "common law method," and uses words like "potentially progressive and cumulative," today's readers should not assume these words mean what today's readers probably think those words mean, but should instead read more of Patrick's work to determine what those words actually mean.

June 30, 2016 | Permalink

Islamic Constitutionalism

I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?

Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:

This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .

Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.

The whole paper is worth reading.

June 30, 2016 in Vischer, Rob | Permalink

Movsesian, "The Smartphone and the Virgin"

My colleague, Mark Movsesian, has a very interesting essay updating the Henry Adams original. The essay connects in important ways to our Center's Tradition Project at St. John's, the first leg of which will occur this fall. A bit:

Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the Virigin and Smartphone dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”

The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.

The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?

June 30, 2016 in DeGirolami, Marc | Permalink

Wednesday, June 29, 2016

McFixity (ONE Form of Authoritarianism by Quiet Colonization)

Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny.  Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know.  Two versus three or thirteen senators -- not a matter of natural  (let alone divine positive) law!  Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.

My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio.  My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is,  by substituting schedules of probable meanings  for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker.  I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.  

To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally --  decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power"  be a function of recorded (or speculative?) probabilities.  The compressed argument against textualism in my present paper presupposed (with benefit of citations)  earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)

My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can  deliver in aid of making what the lawmaker promulgated effective.  Textualism is a remote second best, if that, but certainly not the higher road.

June 29, 2016 in Brennan, Patrick | Permalink

What is the anthropological vision of work in a world in which work is unnecessary?

I have always suspected that the movie "Wall-E" was a more accurate glimpse of the future than I care to admit -- how do we get our minds around a world in which technology has made systemic underemployment a permanent and growing reality?  An experiment in Oakland is hoping to begin providing some answers from a public policy standpoint.  For MoJ purposes, how does and should the Church engage this (apparent) social trajectory?  The Church has taught the "value of work not only because it is always something that belongs to the person but also because of its nature as something necessary." (Compendium of the Social Doctrine of the Church para. 287)  But how do we honor its necessity to human identity and meaning when it is no longer necessary to the economic functioning of society?  Our political leaders are unlikely to provide much guidance in the near term -- bringing jobs back to the U.S. by negotiating "great deals" -- is not a long-term answer.  In addition to the other grounds on which the Church has resisted certain technological innovations, should we also resist innovation that defies the commitment to work as a necessary expression of the human person's dignity?  I think the answer to that is no (or we should have been protesting long before now), but here's the unavoidable question that follows: what is the role of work in an authentic anthropology of the human person when work is no longer economically necessary for a large portion of the population?  If these questions have already been explored through the lens of Catholic intellectual tradition, I'd welcome pointers on where to find those conversations.

June 29, 2016 in Vischer, Rob | Permalink

What is the contribution of human positive law, fixed as posited, to the common good of a political community?

Patrick's #2 post on his Catholic judging, anti-McLaw paper invites attention to his actual paper itself, beyond the abstract. 

Until reading the paper, I had not paid sufficient attention to how it proceeds by weaving together an array of insights from a decade of Scarpa Conferences at Villanova Law. Although mention of this enterprise is at the center of the abstract, it is not until I read the paper that I appreciated how it is also at the center of this particular writing project.

The paper has seven parts, aptly titled Parts I through VI, followed by Part VII, Conclusion. As its title indicates, the paper is both about judging and about law. The two are related, of course, but they are also distinct.

For now, I'd like to focus on a single claim about an evil of textualism made at the end of Part VI, right before the beginning of the end of the paper. To understand this claim in context, though, it is useful to consider the three last paragraphs of Part VI together. Patrick writes:

I do not seek a perfect constitution. It would be a fool’s errand, because among us humans the good always is under construction (or destruction). I seek instead a constitution that optimizes legal and thus cultural conditions for constructing the good. Any constitution worthy of its supporters/subjects should assist those it rules by assisting them to perfect both themselves and the common good. (A point more or less clear already with Aristotle, but lost on modernity). To grasp this is to call for a constitution interpreted according to the common law method, with due modification, and this exactly because that method is isomorphic with the method of human intelligence itself, in that it is methodical and therefore potentially progressive and cumulative. Methodism with a small-c must be recovered and sustained if we are to escape McLaw.

Justice Scalia contended that our Constitution once was, and should again be, “rock solid.” Such would be McLaw: rock solid. Dynamic human intelligence, by contrast, is a rock on which to build exactly because it allows knowledge, both theoretical and practical, to “make [its] slow, if not bloody entrance.”

There are no cosmic guarantees that knowledge will make an entrance (we remain at liberty to elect nescience and evil), and meanwhile McWorld through its agent McLaw does violence to human potential, and specifically to our potency for social obedience to divine law, by attempting to stop history by the currently enacted rules (which fallible humans enacted fallibly). Textualism is an antidote that reduplicates but also radicates the evil: arbitrary fixity. One could do worse than the common law judge ridiculed by Scalia as “Mr. Fix-it.” For example, Judge Ronald McDonald, Mayor McCheese, the Hamburglar, and the rest of McWorld at play.

The "evil" here is "arbitrary fixity." Missing from this assessment is an acknowledgment of how some human positive law, fixed as posited, contributes to the common good of a political community. We have, for example, two houses of Congress, not one or three. We have one President, not two consuls. We have judges with life tenure, not fixed terms. Citizens of one state traveling into another are entitled to the privileges and immunities of citizens of that state, not to be treated as complete foreigners. The Constitution is to be amended in some ways, apparently to the exclusion of others. The Constitution is supreme law, not to be treated as foreign law by state judges. And we could add to this list, generated thus far by picking one (arbitrarily fixed?) feature from each of the first six Articles of the Constitution.

There is a sense in which we can describe these as "arbitrary" fixities. We reasonably could have chosen otherwise. But we needed to choose. And we continue to benefit as a political community by legal technology that treats those choices as fixed in place. Reason did not fully specify the choices to be made. But reason required that choices be made. And once made, the result of those choices need to be fixed in place in order to achieve the full benefits of the kind of constitutive choices made and promulgated through the constitutional text.

All of this is part of the straightforward natural law case for a particular kind of human positive law. It appeals is both Catholic and catholic.

I have not said anything yet in this conversation about judging. But I can at least observe that how to judge in accordance with the Constitution as law depends on what kind of law the Constitution is. This is one of the main points of the recent paper, Enduring Originalism, that Jeff Pojanowski and I have written. (Currently at 99 downloads ... free paper about the classical natural law foundations of positive-law originalism for the 100th downloader!)

As in this post, so in that paper, we do not say much about the activity of constitutional adjudication. But as we think through what we can and should say, we will have to think carefully about Patrick's proposed Methodism.

June 29, 2016 in Walsh, Kevin | Permalink

Tuesday, June 28, 2016

Walsh and Bachiochi on the abortion decision

Here are our own Kevin Walsh and Erika Bachiochi on yesterday's deeply disappointing decision in Hellerstedt.  Must-reading (thanks to SCOTUSBlog).  

I've read commentary by some on the pro-life side who contend that the decision represents only a minor set-back.  Charlie Camosy, for example, says it's not the "decisive setback . . . it seems to be."  I hope he's right, but I fear he's too optimistic.  It's not simply that Justice Breyer and his colleagues decided that the regulations in question didn't do enough to protect women's health to justify the burden they thought the regulations imposed on the abortion right.  More troubling is what seems to me the fact that the so-called "undue burden" standard has been racheted up (just as, in my view, "strict scrutiny" was racheted down in the college-admissions case last week).  And, even though Justice Kennedy had said for a majority in the partial-birth-abortion case, a decade ago, that the state has an interest in protecting fetal life and respecting the dignity of the unborn child throughout pregnancy, he joined Justice Breyer's opinion which I predict will be read by many as holding that, before viability, the state's only legitimate regulatory interest is protecting the health of women obtaining abortions.  We'll see.

June 28, 2016 in Garnett, Rick | Permalink

"This case is an ominous sign"

Here is Justice Alito's opinion, dissenting from the Court's denial of cert in the Storman's case.   It's a sobering read, especially for those who are tempted to think that it's "culture warrioring" to be worried about, and to attempt to resist, the contemporary challenges and threats to religious freedom.

June 28, 2016 in Garnett, Rick | Permalink

Thursday, June 23, 2016


Kevin's characteristically good-natured response to the abstract of my paper, "A Catholic Way to Cook a Hamburger? The Catholic Case Against McLaw," not yet to the paper itself, in which I argue that there is a Catholic way to do law, evoked memories of a wonderful trip I took long, long ago.  

The trip was memorable for many reasons, but the relevant one concerns toilets. A good friend and I took an overnight train from Budapest (where he was living) to Brasov, Romania, in  Transylvania, for several days of backpacking and camping.  The train ride, on that hot summer night, was long, especially so because the air-conditioning wasn't working in our car on the train and the windows in our cabin were stuck shut.  We were traveling "First Class," but in immediately post-Communist countries and the decimated infrastructure bad government had produced.  More to the point, the toilets on the train were not working.  I don't know why, but they weren't.  Naturally, this made things dicy for all concerned, and there were many concerned on that long train on that long trip on that long night.  I'll never forget it.  By the time we reached Brasov soon after dawn, my friend and I were each desperate to use the restroom.  Our first hope, to use the facilities at the Brasov train depot, was dashed by our not having the Romanian coins that would allow entry.  The adjacent fields were a possibility, we feared, but we started the walk from the depot to downtown Brasov hoping that there would be a more dignified alternative.  Shops and the like were not yet open.  Not ten minutes later, we saw a billboard for a McDonald's that was advertised to lie a kilometer or so ahead, at the heart of historic Brasov.  We were elated at the prospect of relief that would not occur in the wild.  Sure enough, McDonald's was open earlier than every other commercial establishment, the bathroom facilities at that McDonald's were *remarkably* similar to those of every other McDonald's I've visited.  We were grateful, indeed, not to be disappointed by what McDonald's had promised and then, in fact, allowed.  My friend said at the time, and I recall it distinctly, that this was part of the genius of McDonald's, its uniformity and, therefore, reliability.  

Kevin's desire for uniformity in the workings and products of federal courts, even, as I see it, at the price to be paid, inevitably, by doing things in a way that contradicts the way human intelligence is intransigently structured to deliver, if it is to deliver, progressive and cumulative instantiations of the good, doesn't cause me to doubt the good that the reliably working restroom at the McDonald's in Brasov delivered in the relevant respect.  On the other hand, (1) the McDonald's in Brasov, just as all others, did not serve food in the focal sense of the term "food"; (2) that McDonald's was a blight on the organic integration of the city; and (3) doing actual justice in law is not at all like the successful flushing of a toilet, even in a federal court.     

June 23, 2016 in Brennan, Patrick | Permalink

The California Abortion-Mandate Case

California (by order of an administrative agency, not the legislature) has required all insurance companies in the state to include abortion in all health-insurance plans. In particular, it ordered seven commercial insurers (Blue Cross of CA, etc.) to add abortion coverage to their policies that did not already have it. The mandate covers what everyone agrees are abortions; the dispute over whether drugs like Ella or Plan B cause abortions of new embryos is irrelevant here.

There are questions whether the order violated the state administrative procedure act (the agency did not go through notice and comment). But on the substantive questions whether this violates conscience protections, two things happened this week: (1) The US Department of Health and Human Services (HHS) rejected a complaint that that the California order violates the federal Hyde-Weldon Amendment, which prohibits any recipient of federal funds (including a state) from discriminating against a "health care entity," including a "health insurance plan," on the ground that it does not cover abortion. (2) In a federal lawsuit against the state, the district court denied the state's motion to dismiss claims brought by religious organizations alleging that the mandate violates their state and federal constitutional rights of religious freedom. The denial of the motion, of course, simply means that the challenge survives on the pleadings and enters the discovery phase.

Here are some initial thoughts on the case. The California mandate could have a serious effect on the conscience of those opposed to abortion. But there are some complexities in the case that require exploring.

It appears that California has allowed at least one exemption for a plan offered to religious employers. More about that issue in a minute. But first, the main ground for HHS's decision to reject the Hyde-Weldon complaint--a ground that seems incorrect to me.

A. "Plan" versus "Employer"?

In its letter rejecting the Hyde-Weldon complaint and closing its investigation, HHS  says that the "health insurance plan" protected by Hyde-Weldon includes only the insurer who issues the plan, not the employer who maintains it and pays for it. Because the insurers in California did not object to adding abortion coverage, HHS says, Hyde-Weldon is not violated. That reading makes Hyde-Weldon silly and keeps it from accomplishing its goal of protecting conscience on abortion. HHS's position creates a simple end-around by which California and other states can impose on the conscience of thousands of employers simply by ordering that no abortion-excluding plans be available. It is more natural, and more consistent with the Amendment's purpose, to read "health insurance plan" to cover the employer's plan. (For similar reasons, objecting employers should have legal standing to challenge the California mandate; it clearly causes them concrete harm by making plans without abortion coverage unavailable.)
(HHS and the state say that the employer can avoid the imposition on conscience by self-insuring: but that is difficult and complex for many small employers. Just how difficult will probably be an issue emerging in discovery in the litigation. But although self-funding is increasing among small businesses, it still involves taking on risks that many such employers (including, presumably, smaller religious organizations) cannot handle--and reportedly several states, including California, are considering restricting small businesses' capacity to self-insure.)
But even on the premise that Hyde-Weldon only applies to insurers, HHS's reasoning seems wrong. The HHS letter says that Hyde-Weldon protects only those entities that object to abortion coverage, and these insurers didn't object to adding it. But Hyde-Weldon doesn't require a conscientious objection in order to apply: by its terms, it prohibits a federally-funded state from "subject[ing] any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide for, pay for, provide coverage of, or refer for abortions" (emphases added). The trigger for protection is simply that the plan doesn't cover abortion, not that the insurer objects to covering it. Hyde-Weldon seems literally to prohibit California's order to insurers. Following the plain meaning would also protect the moral objections of employers and employees.
B. A Religious-Employer Exemption that Apparently Has Been Granted


The HHS letter (p. 2) says that Blue Cross of CA received authorization from the state to offer a plan to religious employers that excluded elective abortion. But that does not dispose of the case, for at least three reasons:

First, it sounds like the approval may have been a one-off--its availability not made clear to anyone else. 
Second, according to the federal court complaint (paras. 66-67), California authorized a religious-employer plan,  but it covered abortions for rape and incest as well as the mother's life. The plaintiff church, Skyline Wesleyan, objects to paying for abortions in those first two categories.
     The district court opinion (at p. 8) notes this partial exemption, saying: "Plaintiff alleges that Defendants have granted partial exemptions to the coverage requirement to religious employers that request such exemptions but that Defendants have been unwilling to grant any employer the complete exemption that Plaintiff seeks." And the court adds that "In light of Defendants’ system for granting exemptions, the parties may wish to investigate whether they can come to an arrangement that will meet the needs of all stakeholders." Id. n.2 (citing Zubik v. Burwell). Given these facts, California arguably has a practice of "individualized exemptions" that triggers strict Free Exercise Clause scrutiny even under Employment Division v. Smith. (The complaint also mentions some categorical secular exemptions in the underlying state statute, which likewise might be enough to trigger strict scrutiny.) The existence of these exemptions  may also undercut an asserted compelling interest in mandating that every plan cover abortion. (The compelling interest test cannot apply by virtue of a state RFRA, since California does not have one; and the level of scrutiny under California's free exercise clause is uncertain.)


Third and finally, abortion is a serious enough matter for the objector's conscience--the taking of a distinct human life--that even for-profit businesses (at the very least, some) ought to be protected from being forced to cover it. As the Supreme Court said in Burwell v. Hobby Lobby, if the government mandated employers to cover unquestioned abortions (and here, again, there is no dispute they are abortions), "[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation." (Again, the self-insurance option can be difficult for smaller businesses.)

June 23, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, June 22, 2016

Trump and the Idolatry of Safety

Yesterday Christian leaders gathered in New York at Donald Trump's behest. Aside from bizarre elements (e.g., Trump wondering whether he could bring us back to the day when attending Sunday School was "automatic"), the attraction of many Christian leaders and laity to Trump based on their understandable longing for safety in a dangerous world, particularly when the price of that safety is the abandonment of certain Christian values and principles, stands as a stark reminder that golden calves come in many forms. 

Shortly after the Orlando massacre, I noted that Trump retweeted someone's undoubtedly heartfelt message imploring the candidate to "please make us safe."  This simple retweet, to me, captures one (of many) disturbing element(s) of Trump's candidacy.  He is inhabiting the biblical role of Aaron, playing on the people's fears and anxieties and offering a golden calf for their worship -- in this case, the idol is our own safety.

Though the dangers take new forms, we have lived in a dangerous world since the Fall.  Political candidates can and should offer new ideas to address those dangers, but unrealistic promises that safety is achievable should be met with skepticism.  A candidate's promise of safety rises to the idolatrous level, in my view, when the prescribed means of guaranteeing safety require us to reject the God-inspired lens through which we are called to view the world.  Trump's statements and policy proposals regarding Muslims and Mexican immigrants, for example, are in significant tension with the Gospel's demand for solidarity and recognition of human dignity. 

I do not mean to suggest that debates about stricter immigration policies or the consideration of religion's role in terrorism are categorically beyond the pale.  The more obvious problem comes from stigmatizing groups -- as Trump frequently does -- instead of engaging ideas -- as Trump appears to avoid whenever possible.

On this front, John Inazu's important book, "Confident Pluralism," is instructive, especially chapter six.  Building on insights from Erving Goffman and Lee Bollinger, John explains why confident pluralism "rejects stigmatizing others through our speech," but does require us "to distinguish between stigmatizing and causing offense."

Trump suggests that safety is achievable if we reject "political correctness" and demonstrate the courage to do what needs to be done to root out the dangerous "others" in our midst.  It is an illusory promise of safety through a quite real imposition of stigma, and we should reject both the means and the ends.  God calls us to faithfulness, not to safety.

June 22, 2016 in Vischer, Rob | Permalink

A response to Michael P. and "Religious Liberty in the Culture Wars"

Michael Perry linked here to John Gehring's recent post at Commonweal, "False Choices & Religious Liberty."   Michael says the piece is "terrific" and "balanced."  I'm afraid I cannot agree, notwithstanding my appreciation for Mr. Gehring's past work with the USCCB.

Now, I tend to prefer center-right policies on most issues, and Mr. Gehring works for a progressive public-policy agency, and so it's not remarkable that he and I evaluate differently some of the current policy debates in which the right to religious-freedom is implicated.  (Certainly, we both agree that there is a place for -- as his agency's title puts it -- "Faith in Public Life.")  Still, my disappointment with the piece is not, I think, a result of this difference.  In my view, the piece to which Michael linked does not accurately describe -- indeed, it tendentiously describes -- those debates.  As I see it, Mr. Gehring labels certain very real choices as "false" as a kind of short-hand way of contending that one choice rather than another should be made.

For starters, after saying that the debate over religious liberty is "unhinged" -- though his criticism is clearly directed only at the USCCB's "side" of that debate -- he writes:

At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

It's hard to see this sentence as an invitation to dialogue, balance, or re-hinging.  This sentence simply repeats activists' talking points -- it is, in fact, not the case that, generally speaking (there are always exceptions), religious liberty has been "perver[ted]" into a "bludgeon" for any such purpose.  It is, instead, being employed, defensively, against activists and powerful interests who are invoking "women's health, workers' rights, and LGBT equality" in order to marginalize, and often demonize, traditional religious believers and to interfere with the religious missions of religious institutions.  It is all well and good to bemoan the "culture wars" -- I regret them, too, and wish they would cease -- but, despite what some commentators say, the fact is that these "wars" are being waged more by Apple and Planned Parenthood than by the USCCB.

Next, Mr. Gehring's piece's claim that the "choice" between a meaningful right to religious freedom and equality, health care, etc., relies heavily on an implicit assumption that religious institutions -- like Catholic schools and hospitals -- are simply wrong in their religious commitments.  So, he lists among the perversions of religious freedom those schools that have fired teachers who have entered into legal same-sex marriages, but doesn't seem to acknowledge these schools' argument that, as Catholic schools, they have as part of their mission forming students in the Church's moral anthropology and understanding of marriage and that -- no doubt with great regret -- they don't have many options in these situations.

Then, Mr. Gehring pivots and observes that "progressives also need a better approach that fosters dialogue and common ground instead of division."  And, indeed they do.  I've been a part of a number of legislative and other efforts -- in partnership with scholars who identify as progressives -- to find such common ground, but I'm afraid it's been very challenging.  The reality is that even reasonable accommodations, let alone genuine appreciation for what my friend John Inazu calls "confident pluralism," doesn't hold much appeal for progressive activists and politicians at the moment.  For many, it's easier, it seems, to call people "bigots" or to insist that religious-freedom must yield to the demands of the current understanding of the antidiscrimination norm.  (More on this point, from me, in this paper.)

Unfortunately, it is quickly back to unhelpful and incomplete accounts of the issues at stake.  Particularly unfortunate is his embrace of the partisan and inaccurate descriptions of the various state-level RFRA proposals that have become so controversial.  He repeats the false claim that these laws would allow public-accommodations discrimination against gays and lesbians and so are like odious Jim Crow laws.  (For a more accurate account of the Indiana proposal, in particular, see this . . . by me.)   He concludes with this:

It’s wrong to pit religion against equality for all Americans. False choices box us into suffocating corners. Saving religious liberty from the quicksand of reckless rhetoric and political posturing won’t be easy. Progressives and conservatives squaring off in public debates have a choice. We can continue to exchange dueling press releases and self-righteous tweets—or sit down, humble ourselves, and search for common ground. “Come now, let us reason together, says the Lord,” the prophet Isaiah tells us. The comfortable and convenient path is well worn. Taking a harder road is worth the struggle if it leads to principled conversations and respect for the complexity of conscience.

There are some good ideas here but, again:  The fact is that religious-freedom claimants are seeking accommodation, not a complete win.  Respecting the "complexity of conscience" doesn't mean fining bakers and photographers, or pulling religious colleges' accreditation, or denying federal funds and contracts to religious social-service agencies that adhere to orthodox Christian teachings on sexuality and family, or requiring Catholic hospitals to provide abortions, or mandating that religious universities change their student-life and housing policies to match the current Administration's views on gender.  Lord knows I'm sick of smug, snarky, and self-righteous tweets.  But, to "humble" oneself means to not dismiss efforts to resist religious-freedom-burdening mandates and penalties as "perversions" and "bludgeons."

For my own part, I'm entirely open to working and talking with Mr. Gehring, or anyone else, about the "search for common ground."  But the search won't get far if one characterizes one's interlocutors' positions and aims in the language of "dueling press releases."

June 22, 2016 in Garnett, Rick | Permalink

Tuesday, June 21, 2016

Religious Liberty in the Culture Wars

Commonweal has just published a terrific article titled False Choices & Religious Liberty:  Is There a Better Way Forward?  Terrific in part because balanced.  It begins with this:

The U.S. Conference of Catholic Bishops launches its annual Fortnight for Freedom campaign this week. A recent video from the conference illustrates how unhinged the debates over religious liberty have become. Pairing images of Islamic State militants ready to behead Christian prisoners with ominous warnings of the Obama administration’s harassment of religious ministries epitomizes how the hierarchy risks making itself its own worst enemy on the issue. (For more, see the recent Commonweal editorial, “Lights, Camera, Contraception?”) Even many faithful Catholics who should be most sympathetic to the church’s arguments have grown weary of the divisiveness and worry that the all-consuming quality of the religious-liberty battle now seems to define American Catholicism. At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

Read the rest, here.

June 21, 2016 in Perry, Michael | Permalink

Is there a Catholic way of making hamburgers ... at your local McDonald's?

I look forward with some trepidation but with greater hope to reading Patrick's Catholic case against McLaw. Truth can be uncomfortable, but I must seek it out, like it or not. And because I happen to agree with much of what Justice Scalia has said about the law and judging, I am sure to be challenged by Patrick's paper. 

One thought prompted by reading the abstract: Is there some version of Justice Scalia's comparison of hamburger making and judging that might be true when we focus on who is making which hamburgers and why? Suppose federal courts were like your local McDonald's. Would there be a Catholic way of judging analogous to a Catholic way of cooking hamburgers? 

Hopefully this comes as a surprise to nobody, but the hamburger maker at your local McDonald's doesn't exist. That's because no hamburgers are made there. The chef cooks/heats up frozen hamburger patties processed at a hamburger plant. Is there a Catholic way of doing that? I doubt it, at least in any way that matters to how the hamburger tastes. 

And if not, then maybe there is no Catholic way of deciding questions of federal law, at least insofar as judges themselves don't make lawburgers, but just prepare and serve up what was made at the national law plant.

I realize this is an implausible way, for many, of understanding the relationship between the judicial power and federal law. But I do know of at least one Supreme Court Justice who avowed a claim of this sort. Here's Chief Justice John Marshall in Osborn v. Bank of the United States:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law. 

To push our comparison (perhaps past the breaking point). Suppose the judge is the hamburger "maker" at your local McDonald's. His skill is never to be exercised for the purpose of making the best hamburger as he conceives it, but for the purpose of making the best hamburger as the McDonald's corporation (or whatever the controlling entity that decides the ideal hamburger) conceives it. Something may be lost by the subordination of his idea of the best hamburger to the corporation's. But if he's doing his job and the hamburger plant has done its job, then that hamburger should taste the same in San Francisco as in South Bend (assuming that's one of the qualities of the McDonald's hamburger dictated by corporate).

It might not be the best burger in town, but you know what you are getting. And that's not so unattractive, after all, when it comes to federal courts, at least if you subscribe to the idea "The Federal Courts as a Franchise."

June 21, 2016 | Permalink

Monday, June 20, 2016


Here , below, is the abstract of a paper  I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw."   It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course.  It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.  


Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.

This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.

To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."


June 20, 2016 in Brennan, Patrick | Permalink

Saturday, June 18, 2016

First Anniversary of Laudato Si'

Laudato Si' was published on June 18, 2015.  For a wonderfully informative account of what has followed, in the past year, read this account.  An excerpt:

For those long engaged in environmental issues, the encyclical proved a valuable rallying tool, one that opened doors, spurred mobilization and generated not-seen-before excitement within Catholic circles.

"I cannot wish for anything better," said Cardinal Peter Turkson, president of the Pontifical Council for Peace and Justice, which oversaw the first draft of the encyclical. Since its publication last June 18, Turkson has served as its chief promoter, traveling across the globe to deliver countless talks on Laudato Si'.

"I think it has proven to be really transformative," said Tomás Insua, co-founder of the Global Catholic Climate Movement. "But there's definitely a long way to go to really get this encyclical to really sync in our Catholic identity and really drive transformational change." ...

As far as the long-term impact, Turkson placed Laudato Si' into the larger compendium of social encyclicals, describing them together "like a big river," with new tributaries forming as it flows forward. Like past encyclicals, such as Rerum Novarum, it too will stimulate future teachings and ideas, he said.

"But it is forever going to inspire the church's teaching on ecology and integral ecology."

June 18, 2016 in Perry, Michael | Permalink

Percy on "estrangement" and transcendence

"The Coming Crisis in Psychiatry" (1957):

What has gone wrong?  A clue is perhaps to be found in Fromm's ambiguous treatment of transcendence.  If there is any one feature which all existentialists agree upon as an inveterate trait of human existence, it is transcendence.  . . .  In Friedrich Nietzsche's words, man is he who must transcend himself. . . . [E]ven the atheistic existentialists would be candid enough to admit man's incurable God-directedness[.]

God is absent, said Johann Christian Holderlin; God is dead, said Nietzsche.  This means one of two things.  Either we have outgrown monotheism, and good riddance; or modern man is estranged from being, from his own being, from the being of other creatures in the world, from transcendent being.  he has lost something--what, he does not know; he knows only that he is sick unto death with the loss of it.

June 18, 2016 in Garnett, Rick | Permalink

Friday, June 17, 2016

Percy on "Man as a wayfarer", "A Canticle for Leibowitz", anthropology . . . and Justice Kennedy?

From "Diagnosing the Modern Malaise" (1985):

Christendom began to crumble, perhaps most noticeably under the onslaught of a Christian, Soren Kierkegaard, in the last century.  Again I am not telling you anything new when I suggest that the Christian notion of man as a wayfarer in search of his salvation no longer informs Western culture.  In its place, what most of us seem to be seeking are such familiar goals as maturity, creativity, autonomy, rewarding interpersonal relations, and so forth.

It's all anthropology . . . Or, as Percy says in "Rediscovering 'A Canticle for Leibowitz'" (1971):

[T]he mystery has to do with conflicting anthropologies, that is, views of man, the way man is.  Everyone has an anthropology.  There is no not having one.  If a man says that he does not, all he is saying is that his anthropology is implicit, a set of assumptions which he has not thought to call into question. . . .  One still hears, and no one makes much objection to it, that "man is made in the image of God."  Even more often, one hears such expressions as "the freedom and sacredness of the individual."  This anthropology is familiar enough.  It is in fact the standard intellectual baggage of most of us.  Most of the time it doesn't matter that this anthropology is a mishmash, disjecta membra. . . .

June 17, 2016 in Garnett, Rick | Permalink

Thursday, June 16, 2016

Hand-down days and constitutional law in the cave

There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation." 

One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)

For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version). 

Okay, it's 9:59, so off to SCOTUSBlog I go. 

June 16, 2016 in Walsh, Kevin | Permalink

Wednesday, June 15, 2016

Will OT 2015 be remembered as The Term of No 5-4s?

In updating some slides for a Rotary Club presentation, I didn't see any 5-4 opinions for the Court this entire Term. For obvious reasons, the Term will end that way as well.

(Note: My source is the Supreme Court's "slip opinions" page. I just went through and scanned quickly for the vote spread in the slip opinions released before Justice Scalia's death on February 13. If I missed anything that should count as a 5-4 opinion for the Court, please let me know. The closest I saw was Campbell-Ewald v. Gomez, which was 6-3 on the judgment, but Justice Thomas concurred only in the judgment. Also, is anyone aware what 5-4 action there has been this term on the "shadow docket"?)

The 4-4 and 5-3 cases are the most obvious candidates for cases that took shape originally as 5-4 cases. But you can't estimate just from the resulting vote split, as it is most likely that the 8-0 decision in Zubik v. Burwell took shape before oral argument as a 5-4 case. We may see other examples of this going forward, as well.

June 15, 2016 in Walsh, Kevin | Permalink