Mirror of Justice

Another question re the Palmer piece

Amy raises some excellent questions in her post.  I want to raise a question about a different part of Palmer's piece.  In the last paragraph, he says:

"My second negative rule is that I never give any indication of my own religious views.  To do so would be distracting and overreaching, and would cause concern for even those students who hold the same beliefs as I....My beliefs will inevitably shape my classroom conduct, so why hide them?...My goal as a law teacher is to convey the material in any given course, including policy, philosophy, black-letter rules, background facts, and all else that is reasonably relevent.  Expressing my beliefs would only get in the way of that goal."

I'm curious to hear people's reaction to this.  I understand the concern about overreaching.  It is obviously important for students to understand that they are not required to approve or agree with a professor's religious beliefs. 

On the other hand, my religious views are not divorced from who I am and, as Palmer observes, one's religious views inevitably shape what one says and does in the classroom as it affects all aspects of one's life.  In my own case, my students know I am Catholic - some of them see me at mass on campus and I wear a crucifix around my neck. 

Given that reality, is it possible to, for example, conduct a seminar that raises religious issues as part of the discussion without the discussion in some way revealing the professor's religious views?  And, whether it is or is not possible, is it really so clear that revelation of the professor's views always gets in the way of the goal of the classroom?  Might it not, at least in a seminar context, make it easier for students to evaluate what a professor if saying and doing if they understand the context out of which the professor is operating.  (Again, the atmosphere has to be such that the student does not feel compelled to mouth agreement with the professor's views....but that is also something I think is important in all cases, not just in matters of religion.)       

Questions for Robert Palmer

Thanks, Michael S., for pointing out Robert Palmer's essay in "The Law Teacher" - it's a great piece for our discussion.  I have a few questions, too.  For example, while we're at it, let's throw gender into the mix.  It seems, for Prof. Palmer, that the quintessential law school experience is where "arguments are laid bare under the cool, white light of legal analysis."  Yes, the world of experience and emotions exist - but they should be carefully controlled and cabined in by the neat lines between logic and belief.  For Prof. Palmer, reasoning in this way is "comfortable, fun." 

My question is, comfortable and fun for whom?  I find this way of reasoning grounded primarily in the "cool white light of legal analysis" to be strange, alienating, incomplete, and artificial.  What might women's perspectives have to say about this description of law school or law teaching?  Prof. Palmer's response to the reaction, "that's just the way I feel," or to statements of "belief", is to shrug and move on.  But how often, under those "feelings" and statements of belief can one find a world of "experience" which in a law school course can and should be explored and discussed in a "rational" way. 

Perhaps one of the unexplored beauties of our project to develop Catholic legal theory is its potential to draw not only from what seems to be the "cool, white light" of legal analysis," but from the deepest resources of all human experiences - and from the persepctives of both men and women.

When Prof. Palmer posits that "religious concepts are not readily applicable to much of the law school curriculum" - I think what's at work is an extremely limited notion of "religious concepts" and persepctives.  I'd like to ask him what is his definition of a "religious concept," and if he could give us a few examples.   A large part of our project, I think, consists of identifying what definition of "religious concept" is at work in the legal academy, and exploring how to re-frame that in a more complete and coherent way.  Much of our scholarship indicates that "religious concepts" have everything to do with the cultural fabric that shapes all areas of the law - including business law and contracts and property, tax and civil procedure - because questions of justice are at the heart of all of these courses.

Amy

Religious Beliefs in the Law School Class

An article titled "Is God on Your Seating Chart?:  Discussing Religious Beliefs in Class" appears in the Fall 2005 issue of "The Law Teacher."  In the article, GW law professor, Robert Palmer, says that he allows students to express religious beliefs in class because "student beliefs, particularly religious beliefs, can be informative and bring us to a deeper level of understanding."  But how is it informative and how does it lead to a deeper level of understanding?   If I understand Palmer, he suggests that it allows the students a deeper awareness of the subjective motivations at play in our polity.  He doesn't think, however, that expressions of religious belief add anything of reasonable relevance to the teaching and learning of the material in a course.

Palmer views the classroom and its discussion as exercises in logic with an underpinning of experience.  He hopes that "experience and logic will align, and the students will leave class with a beginner's level of understanding of the area of law covered."

In contrast, religion is about belief.  And, although "religious belief usually isn't a knee-jerk, 'that's just the way I feel' belief," it is still just belief and as such "cannot be challenged with logic" because "to do so would be illogical.  All we can do with belief is know it for what it is and add it to our repository of experience."  For Palmer, "logic is a cool white light" while "belief, especially religious belief, can be red hot.  Emotions run high.  Voices rise and quake.  Tempers flare."

The development of Catholic Legal Theory (our stated purpose at MOJ) is premised on a rejection of Palmer's view that religious belief cannot be scrutinized for its logic or reasonableness.  Prudence might indicate that we scrutinize delicately and Jesus commands that we do it in love.  Nevertheless, if a student (or professor, for that matter) makes an argument from religion (or religious belief) in the classroom, it seems to me that student (or professor) opens himself up to being probed and tested as to the reasonableness of their assertion.

Any thoughts?  I will invite Professor Palmer to comment.

Michael S.

Last Word (from me, that is) on Federalism and Moral Conflict

I appreciate the most recent comments from Eric Claeys and from Rick on the "Can enforcing federalism create a moral conflict?" question.  Since RIck and I have gone back and forth already on this, let me focus on Eric's arguments.  Most of them rest on the negative consequences that would follow if judges purposely disregarded proper principles of constitutional interpretation in order to avoid a moral conflicts (e.g.: "If the judge turns a blind eye to the original meaning of 'interstate commerce' here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases").  I want to make clear that I would not advocate a justice/judge misinterpreting the Constitution as the means of avoiding a serious moral conflict.  The proper course in a case of such conflict would be to recuse oneself or, if that option is not available (though I think it should be), resign.

I still wonder:  if a justice who blocked any effective attack on widespread, oppressive discrimination by striking down the Civil Rights Act would not be impermissibly cooperating with great injustices, then I wonder whether the same defense couldn't be offered for the justice who votes to uphold abortion rights and thereby let abortions go forward?  After all, if applying judicial review to block a law in the one situation is cooperation with evil only "to some remote degree" (as Eric puts it), then it seems the cooperation logically would be remote in the abortion case as well.  And while, as Eric notes, there are valid and important arguments for federalism and subsidiarity in general (even if the application of federalism in a particular case lets a terrible evil go forward), there are also valid and important arguments for rights of personal privacy in general (even if their application in the abortion case lets a terrible evil go forward).

This takes us back full circle to Rick's original post on the subject, which argued (if I characterize it correctly) that the problem with the justice who upholds abortion rights under the federal Constitution is not that s/he is conflicting with Catholic moral theory but rather that s/he is misinterpreting the Constitution because abortion rights cannot be derived from the text, history, and structure.  And that led to my comment that while I agreed about the merits of the constitutional issue, a justice might with somewhat more plausibility adhere to Roe and Casey because of stare decisis concerns than because of their correctness on the merits.

And since we've already gone through the ensuing progression of posts, I think I'll leave it there; RIck and Eric are welcome to the last word if they wish.

Just to sum up my main point:  People need to be consistent in the standards they apply to justices.  If, as RIck has consistently argued, Kennedy is wrong in Casey simply because he's misinterpreting the Constitution, fair enough (and I certainly agree about the misinterpretation).  But if, as I've heard argued by others, Kennedy was wrong (independent of the correctness of the constitutional interpretation) because he was cooperating with evil in upholding abortion rights, then the same moral stricture would apply against Roberts upholding Roe and Casey because of precedent, or against the conservative justice who struck down the Civil Rights Act.

Tom B.

"Both/And" Anti-Poverty Strategies?

Left-side evangelical Jim Wallis of the Sojourners ministry is circulating a "Katrina Pledge" (readable here) in which signers commit to do what they can to combat the kind of poverty that the Katrina aftermath dramatized, both in their own contributions of time and money and in urging their representatives to act.  The pledge itself is extremely short; but Wallis has also sent a letter to members of Congress that speaks a bit more (though still in general terms) about policy approaches and the longstanding liberal-conservative fight over what anti-poverty strategy to pursue.  The central quote:

Second, each "side" of our political landscape ignores too many valid concerns of the other side. Poor families don't need us to take sides - they need us to stand in the gap with them. Much could be accomplished with a merging of personal and social responsibility, a commitment to reverse family breakdown, a more honest assessment of both the personal decisions and social systems that trap people in poverty. That involves being more creative than looking solely to charity or only to government for hope. We need to acknowledge that budgets are moral documents and budget priorities can help or hurt the poor - and acknowledge that negative family and cultural values deeply impact low-income people. We must all confront realities of our national, community, and personal priorities, recognizing that there are multiple breakdowns of culture, family, community, and government that are undermining poor families and the very fabric of our nation. Doing so requires that leaders who care about results start to look at the current situation and the future differently.

Indeed we must be disciplined by results when it comes to poverty reduction. It's time to move from the politics of blame to a politics of solutions. Liberals must start talking about the problems of out-of-wedlock births and strengthening both marriage and parenting. Conservatives must start talking about strategic public investments in education, health care, affordable housing, and living family incomes. We must focus on making work really work for low-income families. Those who work hard and full time in America should not have to raise their children in poverty - but many still do. Together, we must end the debate between large and small government and forge a common commitment to good and effective government. I hope you agree that now is the time to do so.

In this week's Time, Joe Klein writes in a similar vein:

The most effective thing the Congressional Black Caucus could do to fight poverty would probably be to invite white and Hispanic legislators who have significant numbers of poor people in their districts to join its ranks and rename itself the Congressional Antipoverty Caucus. One could also argue that the only way to build a coalition to fight poverty—and preserve affirmative action—in this conservative era would be to base preferences on economic need rather than race.

People like [Rep. Charles] Rangel and [Harry] Belafonte might do well to listen more closely to the next generation of black leaders—people like [Barack] Obama and Congressmen Harold Ford of Tennessee, Artur Davis of Alabama and Sanford Bishop of Georgia—who emphasize both the need for more money to fight poverty and the need to change the behavior patterns of the poor.

I also remember reading recently in either Time or Newsweek (can't find it online, though) the assertion that the vast majority of serious academic students of poverty issues have a consensus that both addressing family breakdown and providing smart public investments are necessary.  Does that kind of "both/and" approach offer any hope -- in terms of both policy success and political viability?

Tom B.

   

Call for Papers: Public Policy, Prudential Judgment, and the Catholic Social Tradition

Call for Papers

2006 Annual Conference

“Public Policy, Prudential Judgment and the Catholic Social Tradition”
April 6-8, 2006

Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy
University of St. Thomas, Minneapolis-St. Paul, Minnesota

In the Catholic moral tradition, prudence is understood to be a moral virtue that enables a person to reason well about things to be done. Prudence concerns reasoning both about goals to be pursued and means to be employed to accomplish them. The tradition acknowledges the importance of moral principles, which shape practical reasoning in very fundamental ways, but it also insists that concrete actions are also determined by prudential judgment, which wisely takes account of particular conditions.

In recent years a number of public policy questions, such as the permissibility of the death penalty, the morality of the war in Iraq, and the justice of welfare reforms, have provoked controversy among Catholics. Advocates of very different policies have claimed that their positions follow from the Catholic social tradition and, at times, some have even insisted that their positions alone are faithful to this tradition. These controversies highlight enduring questions about the proper relationship between moral principles and prudential judgment.

In much the same way, controversies have also accompanied some of the formal positions adopted by the American bishops and even the Vatican on questions of public policy. Here again there has been an indistinct line between direct inference from moral principles and sound prudential judgment, where the former invites commitment and the latter tolerates disagreement.

Because of the importance of prudential judgment in public policy matters, we believe that the time is ripe for a careful and comprehensive discussion of the topic. We therefore welcome proposals for papers in the following categories:

Prudential Judgments in General: What different functions are played by fundamental moral principles and prudential judgments in choosing and acting? Which sorts of questions or challenges are best resolved by direct appeal to general moral principles and which require prudential judgment? What should be the scope of prudential judgments in the application of the Catholic social tradition to concrete situations? To what extent should the principles of the Catholic social tradition be shaped over time by the experience (and prudence) of Catholic laity active in public life?

The Bishops and the Laity: With their experience of political and economic life, should the voice of the laity play a special role in the development of the Catholic social tradition? Do the bishops teach with different authority on matters of principle and matters of prudence? What difference in response is appropriate for the laity when the bishops teach about principles and when they teach about prudential application? Should the bishops, as bishops, publicly address matters of prudential judgment? What are the implications of the character and influence of professional staff on the teaching of the bishops?

Specific Applications and Case Studies: Insight into the role and scope of prudential judgments is likely to be limited if it is based only on abstract considerations. The line between fundamental moral principles and prudential judgments is likely to vary from subject to subject and among concrete issues within various subjects. Proposals are welcome that assess specific cases such as: (1) the role of prudential judgments in a particular area of law or legislation, such as economic policy, foreign affairs, or sex and the family; (2) particular historical examples of the role of prudential judgments, or the historical development of prudential judgments on particular subjects.

Submission Information:

Please submit a 1-2 page proposal no later than 15 November 2005. Authors should indicate in the proposal how they intend to treat their topic and, if necessary, provide a rationale for inclusion of this topic in the conference agenda. It would also be helpful if authors would include brief biographical information and an e-mail address. Acceptance decisions should be made by 15 December 2005.

For further information or to submit proposals, please contact us at the address below:

Prof Thomas C Berg (tcberg@stthomas.edu; 651 962 4918)
Prof Robert G Kennedy (rgkennedy@stthomas.edu; 651 962 4823)
Terrence J Murphy Institute for Catholic Thought, Law, and Public Policy
University of St Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015

Recent Survey on Views of American Catholics

According to a survey conducted by National Catholic Reporter shortly after the election of Pope Benedict XVI, the most important issues to American Catholics are helping the poor and belief in the resurrection (84%).  Dean Hoge, one of the resarchers who conducted the study observed that the findings "are similar to the findings of earlier studies except that in the past the sacraments were usually in first place ahead of helping the poor...We consider it noteworthy that helping the poor is held in such central importance by American Catholics." In contrast, Hage observes that most American Catholics appear to view teachings on, e.g., celibacy and issues such as death penalty, abortion and same-sex marriage as "more optional than essential." The Reuters report of the survey is here.  (The report notes that the survey is at ncronline.org, but I couldn't easily locate it.)

Volokh on Federalism, Localism [and Subsidiarity]

One often hears the charge that "conservatives" are "inconsistent" for. say, supporting federal-level tort reform, given their professed devotion to "states' rights" and "federalism."  But, of course, "federalism" is about more than "states' rights".  (In my view, "states' rights" talk is quite unappealing; I am not interested in the "dignity" or "sovereignty" of states, but in the constitutional principle that ours is a national government of limited, enumerated powers.). 

In any event, Eugene Volokh has this helpful post, "Federalism and Consistency", over at the Volokh Conspiracy.  (Thanks to Professor Bainbridge for the link).  I expect it will be of interest to CST-minded MOJ readers.  Here is a taste, but check out the whole thing:

People sometimes argue that others -- usually conservatives who have expressed some support for federalism -- are being inconsistent: How can you argue for leaving topic X to state-level decision, but favor federal authority over topic Y? Such arguments can of course sometimes be apt. But often they seem to me overstated, (1) because they conflate different kinds of criticism of state action, and (2) because they mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level).

1. Let me begin by laying out several different kinds of questions that people can ask about whether something -- and especially some matter of ostensible individual right -- should be decided at the national level as opposed to the local level. (By local I'll usually mean "state," but similar questions can sometimes arise as to city/county-state relations.)

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? The answer here will often turn on how one reads the Constitutional text. Most federalists acknowledge that there are at least some such rights that are constitutionally protected, but they may legitimately disagree among themselves (and with those who don't much care about constitutional federalism) about which are protected, and how much.

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? The answer here will turn on how one reads the grants of federal power in the Constitution, both the Enforcement Clause of the Fourteenth Amendment, and the provisions (especially broader ones, such as the Commerce Clause) of article I, section 8 of the Constitution. (A related question: Should the Commerce Clause be interpreted as presumptively prohibiting states from doing certain things that have an effect on interstate or foreign commerce, absent specific Congressional authorization?)

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? The answer here may turn on whether you think the claimed right really is morally proper (e.g., Congress shouldn't enact a statute giving parents the right to beat their children, even if it's within Congress's power to do this). It may also turn on whether you think there are practical or democratic theory reasons for resolving certain matters at the state level (e.g., the right solution may be different depending on different local conditions, the right solution will only be reached through state-level experiments, or there are special dangers in federal authority in this area) or at the national level (e.g., the actions of one state will substantially affect behavior in another state, or the claimed right is so morally imperative that we must protect it as broadly as possible).

d. Even if the federal government shouldn't step in, should people nonetheless urge all states to protect a certain ostensible right? One might, for instance, think that states have the constitutional power to restrict guns, punish various sexual practices, engage in religious speech, regulate economic activity in certain ways, and the like -- but one might think that such actions improperly interfere with people's moral rights (even if not their federal constitutional rights), or yield various inefficiencies. As to other matters, one might think that states really should do their own thing, especially when one thinks there aren't really genuine claims of moral right involved, or if one thinks that diversity among states is helpful.

It's therefore important, when analyzing someone's arguments for consistency, to understand which argument they're making. There might be inconsistency in arguing for federal constitutional protection for sexual autonomy but arguing that gun rights questions should be left at the state level (though even there one can of course explain why one thinks that the Constitution should be understood as protecting one sort of individual right and not the other). But it's hard to see the inconsistency in arguing that there should be no federal constitutional protection for sexual autonomy (a level (a) argument), but that it's wrong for states to ban handguns (a level (d) argument) and that such handgun ban proposals should therefore be defeated in state legislatures.

2. More broadly, it's important to remember that few people are complete localists in the sense of believing that everything should be done at the local level, or even complete nationalists in the sense of believing that everything should be done at the national level. . . .

So again one can't just say "If you're such a federalist on the Violence Against Women Act, why are you in favor of national rules governing gun manufacturer liability?" Federalist theory does support national rules in some areas (for instance, regulations of commerce that substantially affect the national economy) and local rules in other areas (for instance, punishment of noncommercial criminal activity).. . .

3. All this may be obvious -- but it's the sort of obvious that people miss. . . .

Rick

Religion Bad for Society? Read Weigel

Rick quoted and posted a link to a report that argues, among other things, that  "[t]he widely held fear that a Godless citizenry must experience societal disaster is therefore refuted."  Not so fast...  Are these societies really thriving?  George Weigel provides several examples of the failure to thrive in Europe in his book, "The Cube and the Cathedral."  Weigel offers keen insight into how Europe arrived at the present and asks whether the people of the Cube (metaphor for those who would banish God from the public square) or the people of the Cathedral are better positioned to defend human rights, democratic government, etc.  It is well worth the read.

Michael S.   

God-Talk in the Ivy League

What happens when the Dartmouth student body president decides to talk about Jesus in a speech at the convocation for entering students?  Read about the fallout here.  (HT: Volokh)

Rob

Horwitz on Test Oaths

Paul Horwitz, over at Prawfsblawg, has a good post up about the Religious Tests clause, and about the Becket Fund for Religious Liberty's letter expressing its opposition to "the misuse of religion some are urging on the United States Senate."  The letter argues that "a decision to disqualify a nominee based on his or her religion . . . violates Article VI [the Religious Test Clause, specifically], and thus the Senator's oath of office" and threatens to bring an ethics complaint against any Senator "who uses religion as a disqualification for federal office."  Horwitz (like me) admires the Becket Fund, but disagrees with the letter.  Check it out.

Rick

Jenkins address: "Bigger and Better Than Ever"

I very much enjoyed reading Fr. Jenkins' inaugural address until I arrived at the final paragraph:

With respect and gratitude for all who embraced Notre Dame's mission in earlier times, let us rise up and embrace the mission for our time: to build a Notre Dame that is bigger and better than ever -- a great Catholic university for the 21st century, one of the pre-eminent research institutions in the world, a center for learning whose intellectual and religious traditions converge to make it a healing, unifying, enlightening force for a world deeply in need.  This is our goal.  Let no one ever again say that we dreamed too small.

I guess this is what any college president is supposed to say at the beginning of his tenure, but it still jolted me.  Boasts of becoming "bigger and better than ever" are what I expect to hear from Harvard, but not from Notre Dame.  It's a mistake, in my view, to assume that being "bigger and better than ever" will inexorably lead to a "bigger and better than ever" platform for shining Christ's light into the world.  Maybe it will, but it seems just as likely that as the platform becomes bigger, Christ's light becomes more difficult to discern.  And what exactly do our own big dreams have to do with following Christ?  If Fr. Jenkins says "let no one ever again say that we dreamed too small," I say "let no one ever again say that I placed my own dreams above God's call."  I firmly believe that God can give us a vision to pursue, but I find that usually has little connection to my own dreams, even when they are "bigger and better than ever."

Rob

Religion bad for society?

This paper, "Cross-National Correlations of Quantifiable Social Health with Popular Religiosity and Secularity in the Prosperous Democracies," published in the Journal of Religion and Society -- and discussed, somewhat gleefully [RG:  A correction - - it was not fair for me to suggest that Leiter was "gleeful[]" about the paper; he linked to another person's discussion, and that other person, I think it is reasonable to say, was happy about the results], over at Professor Leiter's blog -- explores the thesis that "popular belief in a creator is instrumental towards providing the moral, ethical and other foundations necessary for a healthy, cohesive society."  The results?

In general, higher rates of belief in and worship of a creator correlate with higher rates of homicide, juvenile and early adult mortality, STD infection rates, teen pregnancy, and abortion in the prosperous democracies . . . .  The most theistic prosperous democracy, the U.S., is exceptional, but not in the manner Franklin predicted. The United States is almost always the most dysfunctional of the developing democracies, sometimes spectacularly so, and almost always scores poorly. The view of the U.S. as a “shining city on the hill” to the rest of the world is falsified when it comes to basic measures of societal health. Youth suicide is an exception to the general trend because there is not a significant relationship between it and religious or secular factors. No democracy is known to have combined strong religiosity and popular denial of evolution with high rates of societal health. Higher rates of non-theism and acceptance of human evolution usually correlate with lower rates of dysfunction, and the least theistic nations are usually the least dysfunctional. None of the strongly secularized, pro-evolution democracies is experiencing high levels of measurable dysfunction. In some cases the highly religious U.S. is an outlier in terms of societal dysfunction from less theistic but otherwise socially comparable secular developing democracies. In other cases, the correlations are strongly graded, sometimes outstandingly so.

If the data showed that the U.S. enjoyed higher rates of societal health than the more secular, pro-evolution democracies, then the opinion that popular belief in a creator is strongly beneficial to national cultures would be supported. Although they are by no means utopias, the populations of secular democracies are clearly able to govern themselves and maintain societal cohesion. Indeed, the data examined in this study demonstrates that only the more secular, pro-evolution democracies have, for the first time in history, come closest to achieving practical “cultures of life” that feature low rates of lethal crime, juvenile-adult mortality, sex related dysfunction, and even abortion. The least theistic secular developing democracies such as Japan, France, and Scandinavia have been most successful in these regards. The non-religious, pro-evolution democracies contradict the dictum that a society cannot enjoy good conditions unless most citizens ardently believe in a moral creator. The widely held fear that a Godless citizenry must experience societal disaster is therefore refuted. Contradicting these conclusions requires demonstrating a positive link between theism and societal conditions in the first world with a similarly large body of data - a doubtful possibility in view of the observable trends.

Thoughts?

Rick

Catholic Public Officials, again

In doing some recent research on the "Papal Diplomacy and International Organizations" series that I am co-authoring, I came across an interesting statement credited to President John F. Kennedy when he participated in the Centennial Celebration at Boston College on April 20, 1963. It places his Houston/Baptist pre-election speech that has been previously addressed by other MOJ participants in context. The President was an astute politician who likely chose to address audiences on friendly terms. Having said this, his remarks made as President at Boston College stand in contrast to his remarks to the Protestant ministers as candidate for President. In commenting on the recently released Papal Encyclical Pacem in Terris, the President said at Boston College: "As a Catholic, I am proud of it, and as an American I have learned from it." In his further remarks on the encyclical's "penetrating analysis," the President continued by saying "that document surely shows that on the basis of one great faith and its tradition there can be developed counsel on public affairs that is of value to all men and women of good will." Maybe the wall of separation is porous after all...    RJA sj

A comment on the Jenkins address

I would like to accept Rick’s kind invitation to respond to Fr. Jenkins’ inaugural address at Notre Dame. At the outset, I concur with Fr. Jenkins that his responsibilities as president are “awesome.” But then again, one could say the same thing about those faced by any disciple. He points to the need to be humble, and this is an important step forward for him and those who will be monitoring his progress as President. For with humility, any person will likely seek the counsel of others, including God, in the execution of the duties that will be encountered. Humility also carries any of us to the pursuit of a higher wisdom to address responsibly the challenges of today and tomorrow. These attributes are also a part of any scholar’s pursuit of knowledge and the research undertaken in this objective. Perhaps Fr. Jenkins intended to say that all of this background is a way of using the mind to prepare the soul for the union with the communion of saints and God—the inevitable human destiny each person has but of which the individual may not be aware. Cultivating this awareness is also a part of the responsibility of the Catholic university.

Fr. Jenkins’ reference to that which is “distinctively Catholic” is an important and relevant assertion. And he prudently refers to the writings of John Paul II including his Apostolic Constitution Ex Corde Ecclesiae. He also properly notes that the pursuit of knowledge must be twinned with reflection on the ethical implications of what is right and what is wrong with that discovered in research, teaching, and discussion. This does not always happen in the work of research and teaching universities these days. I think that this is implicit in his alarm about the dangers of technical knowledge outpacing moral wisdom. Without the latter, the former can lead many down a problematic path. And this union he identifies is a part of the intellectual tradition which the Catholic university is charged to pass on.

I would like to fortify his brief discussion and warning about how the great western universities of the world were generated by the activities of the Church but today have little connection with their religious foundation. It comes as no surprise to me that several well-researched books on this very topic have emerged from the pens (and computers) of scholars at Notre Dame! The manner in which the three principles Fr. Jenkins identifies that define the Catholic university become the common charge of all who come to Notre Dame or any other educational institution that calls itself Catholic. One of the most serious contemporary challenges to this charge is found in the hiring process of faculty and administrators. If this hiring process does not adequately take account of these three principles and others related to them, no single human being, including the president of the institution, will be able to stem the tide of the secularism or the indifference to Catholic identity and soul that has claimed other institutions. If we expect truth in advertising about the products we purchase and the health care we receive, for example, we should also demand the same from those institutions which claim they are Catholic. Catholics and other people of faith have been the victims of hiring committees who did not see the institution’s Catholic identity and the principles defined by Fr. Jenkins as essential to their charge. This is not only a pity; it is a tragedy that must be confronted by Fr. Jenkins and those who share his perspective.

My final comment at this stage is to offer a brief reflection on his statement that the Catholic university’s research, indeed all its activities I would hasten to add, must not be separated from the Catholic mission. The Catholic educational enterprise must draw its strength from the mission and continue to enhance it as he correctly asserts. Perhaps one way of reminding ourselves that this is the common charge of those who are in some way members of the Catholic university is to take to heart Saint Matthew’s Gospel and the charge given by Jesus to his earliest disciples: “Go therefore and make disciples of all nations…” The ways in which the Catholic university executes this charge are diverse, but the command for us all is the same.    RJA sj

Thoughts on Fr. Jenkins' speech?

As I mentioned a few days ago, Fr. John Jenkins was recently inaugurated as the new President of the University of Notre Dame.  Here, again, is a link to his (very bracing, and inspiring) address.

I've received a lot of e-mails from friends, or just ND observers, who were struck by the speech, and who are suddenly quite curious and intrigued by what is, perhaps, going on at the University.  And, I'd welcome hearing from MOJ readers and bloggers what their reactions to the speech are.  As I said in my earlier post, I suspect that all MOJ readers are interested in what is happening with "the Catholic university".  (On that note, remember the upcoming "Joy in the Truth" conference, this week at Notre Dame). 

So, let's hear from you!  What did you think?

Rick

Murray and same-sex marriage

Rob asks:  "What would Murray have said about today's debate over same-sex marriage?"  I should say, first, that I do not know the answer.  Still, pressing on . . .

Rob writes:  "One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path.  But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?" 

I've been thinking a bit, and talking with others a bit, about this, and I don't think the religious-freedom analogy really works.  Murray's understanding of religious freedom was tied, after all, to what he regarded as truth-claims about human persons, i.e., that they have "dignity" and that coercion in religious matters is inconsistent with that dignity.  Murray's "no coercion" rule certainly does not -- in his view, anyway -- make religious truth any less "uniquely authentic", even if it does mean, in all likelihood, that not all will seek, find, or accept it.  And, I'm not sure Murray would think -- to the extent we care what he would think -- that his no-coercion / human dignity argument for religious freedom translates so smoothly to an argument for (what arguably would be a striking) redefinition of marriage, even "civil" or state-recognized marriage.

Rob continues:  "In both contexts, [i.e., religious-freedom and marriage,] the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well.  If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?"  I could be wrong, but I would be surprised if Murray meant by "public morality" "those moral standards that happen, at present, to be accepted by a majority of the people," rather than [true?] morality as it relates to public, and not purely private, matters.  And, I doubt Murray would have regarded marriage as a private matter.

Now, it does seem to me that there could be strong, Murray-type arguments (as opposed, perhaps, to constitutional arguments) against criminal statutes of the kind invalidated in the Lawrence case.

Rick

Religion and Division in the U.K.

Reflecting the modern multiculturalist's tendency to equate religious difference with divisiveness, church leaders in England have created a stir by suggesting that Muslim schools might be inappropriate for Christian children.  (HT: Open Book)

Rob

The Confirmation Process

Over the past several days, a number of Senators have publicly released their respective positions on Judge Roberts’ nomination to be the next Chief Justice of the United States. A number of those indicating that they will vote against the nomination have stated that while the Judge is qualified, even well qualified, they do not know enough about his views or positions on vital issues. Several of these Senators who have concluded that they will vote against the nomination, including three on the Senate Judiciary Committee, are Catholic. Since MOJ is a forum for developing Catholic legal theory, I would like to offer a brief comment on the possible contribution Catholic legal theory can make to the present debate in the Senate on Judge Roberts’ nomination.

It appears that most Senators who have spoken so far have concluded that the Judge is qualified to sit on the Supreme Court and to be the Chief Justice. However, their “concerns” (a word that has crept up in various discussions about Senators’ positions) really seem to be that they do know a good deal about the Judge and his positions, but they disagree with them. I believe that any judicial candidate, including Judge Roberts, must be cautious in giving too much detail about one’s views on matters that are likely to come before the Court in the future. Being a judicial officer requires the person holding the office to have an “open mind” so that he or she can fairly hear and understand the positions of the parties and their views of the applicable law. The judge must then consider these views objectively to search for the truth about the case. This has a parallel with the Catholic notion of the search for truth as the quest for the “transcendent and objective” and the moral order that follows. In short, this means considering the case beyond personal knowledge and prejudices. The judge has to consider what each party has presented and argued. Judge Roberts appears to have demonstrated that he will pursue this approach, and, in fact, that is what he has done as a Circuit Court of Appeals Judge.

Interestingly, much of this Catholic contribution to the judicial process can apply to the work of the Senator. For example, let’s take the case of a Senator who is known to be a strong supporter of civil rights legislation. A colleague in the Senate intends to submit a bill addressing civil rights issues. Will the first Senator automatically be a co-sponsor of the colleague’s proposal? In short, can this Senator and the Senator’s constituents immediately say they know what the Senator’s position is? Most likely not. For prudential, political, and other considerations including objectivity, the Senator would likely have to say that the bill merits serious study. The Senator would probably want to know what other colleagues think after they have studied the text. Moreover, there would inevitably be some discussion about whether friendly amendments could be made to the bill to reflect other views or would a completely different bill have to be submitted to get those views into the discussion. This, too, is an exercise in objectivity and looking beyond one’s personal knowledge and prejudices.

If it works for Senators, might it also work for judges?    RJA sj

Christian secession?

This opinion piece in the online version of the Wall Street Journal describes the plans of a group called "Christian Exodus," which seeks to move to South Carolina and "establish a theocratic government there.  Only five families have gone so far, though leaders say that their 950 members plan to move to upstate regions of South Carolina, where they would take over county and state offices and ultimately force a constitutional crisis."  The author, Philip Jenkins, writes:

However quixotic the Exodus movement sounds, it does remind us of some powerful strands within the Christian and the American traditions. Far from being a product of the contemporary "Religious Right," the idea that believers should cut all ties with an irrevocably corrupt secular world does have excellent credentials. Arguably such separatism is far closer to the spirit of ancient Christianity than are the widespread contemporary assumptions that religion consists chiefly in being good to each other and that God wants nothing more than for us to achieve individual happiness. . . .

Often, of course, such ventures ended in failure or ruin or, at worst, in authoritarianism and violence. The precedents for a contemporary exodus are anything but promising. But looking at these movements pushes us to ask: Which is the greater error, the worse misunderstanding of a religion--to believe that it teaches radical separation from a failed world or that it calls for immersion in that world and a thorough acceptance of its ways.

A more pedestrian point:  What, exactly, would be the laws of the "theocratic" state envisioned by the "Christian Exodus" movement?  How would they differ, specifically, from the laws that exist in South Carolina right now?  (I am not suggesting, by the way, that South Carolina is a "theocracy", or anything like that.  I just wonder what exactly it is that the CE folks are after).

Rick

Deferring to religious courts

Apparently, "[t]he city of New York last week withdrew its lawsuit against a fervently Orthodox mohel suspected of transmitting herpes to three baby boys — one of whom died — and after nearly a year of investigation turned the matter over to a chasidic rabbinical court in Williamsburg, Brooklyn."  Professor Friedman notes that "[t]his appears to be the first time that New York City has turned a public health matter over to a religious court."

I'm reminded of my own earlier post, about the debate in Canada over allowing religious tribunals to decide some questions of family law.

Rick

Debating "Intelligent Design"

Over at Legal Affairs magazine's "Debate Club" site, Francis Beckwith (Baylor) and Doug Laycock (Texas) are hashing out the question, "is teaching Intelligent Design Illegal?"  In his first post, Professor Beckwith says "no, but . . . "

Rick

Civil Society and Smoking in Public

Over at the Volokh Conspiracy, Todd Zywicki has some interesting anecdotal evidence connecting smoking bans and liquor regulations with the (purported) demise of voluntary associations.

Rob

UPDATE: St. Thomas law grad Matthew Donovan points me to this apt First Things essay, "Tobacco and the Soul."

John Courtney Murray and Same-Sex Marriage

I was not able to make it to Villanova's John Courtney Murray conference, but I have a question to pose to conference participants (and anyone else interested): What would Murray have said about today's debate over same-sex marriage? 

One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path.  But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?  In both contexts, the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well.  If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?

Is there another basis for concluding that Murray would oppose same-sex marriage?

Rob

CIT (Catholic Intellectual Tradition) reading list

As part of a project while in law school at

St. Thomas

, Matt Donovan (’04 grad) and his compatriots “surveyed a number of experts from various institutions on what they believe to be the most important texts in the tradition, especially in the context of a legal curriculum.  Again, it is important to keep in mind that sufficiently answering the question regarding, say, the top five most important texts in the tradition is difficult at best.  In any event, here’s what they said:

Scripture (OT/NT)—Virtually everyone took for granted that the Bible is most important.

            

St. Thomas Aquinas, Summa Theologiae—Virtually everyone listed the Summa, specifically on the Commandments, Justice, Law, Sacred Doctrine, God, Virtue, Man, Happiness, and Kingship (though I believe On Kingship is its own treatise).          

                                                            

Augustine, City of God—Most everyone agreed that the City of God, specifically books XIV and IXX, is essential.

Augustine, Confessions—Many listed the Confessions as indispensable.

            

Pascal, Pensées—Many listed Pensées as an absolute must.

            

Athanasius, On the Incarnation—Some suggested De Incarnatione.

            

Bernard Lonergan, Insight—Some suggested Lonergan’s enormous work on human understanding.

            

St. Thomas More, Utopia—Some thought this to be an obvious choice for a legal curriculum.

            

St. Benedict, The Rule of St. Benedict—A few mentioned Benedict’s Rule, a rigorous guide to living a disciplined life, as essential.

Thomas á Kempis, Imitation of Christ—A few mentioned the importance of Imitatio Christi, the second-most widely published work in         the tradition (after the Bible, of course).

Peter Lombard, Sentences—A few mention the Sentences for sheer influence in the tradition.

Catechism of the Catholic Church—A few mentioned the Catechism.

St. Bonaventure, Itinerarium—A few mentioned Bonaventure as essential.

Aristotle, Nicomachean Ethics and Metaphysics—A few suggested that     one cannot properly understand Aquinas without understanding his master, “the Philosopher.”

At least one person listed the following texts as one of their top five:

                        

C.S. Lewis, The Great Divorce

Bernard Lonergan, Verbum: Word and Idea in Aquinas

St.

Thomas More, Dialogue on Conscience

John Henry Newman, A Grammar of Assent

St. Anselm, Monologion

Plato, Republic

St. Augustine

, On Christian Doctrine

Dante, Divine Comedy

Jacques Maritain, Degrees of Knowledge and Man and the State

Heinrich Rommen, The Natural Law

Yves Simon, The Philosophy of Democratic Government

John Courtney Murray, We Hold These Truths

G.K. Chesterton, Orthodoxy

T.S. Eliot, The Four Quartets

Peter Abelard, Yes and No (Sic et Non)

Joseph Pieper, Leisure as the Basis of Culture

John Paul II, Laborem Exercens, Centesimus Annus, Ex Corde Ecclesiae, and Theology of the Body”

The Rashomon Phenomenon

On the Vatican review of Cathoilic seminaries in the United States:  It's hard to believe that Amy Welborn, in this mornings's NYTimes, and Peter Steinfels, in yesterday's, were reading the same document.  Compare Steinfels with Welborn.  --mp

Reading list continued

Bruce Frohnen has provided a thoughtful list of recommended readings for CST at Kevin Lee's Christian Legal Theory blog.