Sunday, May 31, 2009
Last Thursday, the Catholic University of America sponsored an event which involved a discussion, moderated by Mary Ann Glendon, between Robert George and Doug Kmiec, on "life issues" and the Obama Administration. A version of Professor George's statement is available at Public Discourse, here. You can watch video of the event, here.
I have heard reports from several people who were present, and it sounds to me like it was an outstanding event. And, I watched the entire video. My own impression -- and this will not, I expect, come as a surprise to MOJ readers -- is that Prof. George's remarks were powerful and convincing, and that Prof. Kmiec was not able to provide a plausible counter-account.
Michael Sean Winters, at America, in this account (and also here), reports his very different impressions. As much as I usually appreciate his reporting, though, I think his suggestions that Prof. George had "ranted" and that he "provided a series of assertions, unsupported by argument" were deeply disappointing and are entirely without foundation. Watch the video, and decide for yourselves. (Also read this (yet another) correction of the still-often-repeated-and-still-not-right claim that abortions increased under President Bush. And then also remember that, even if the claim were true, that would not make just our current unjust legal regime regarding abortion.)
Here, for good measure, is another report, which includes this summary of the disagreement: "Kmiec treats the personhood of the unborn as a matter of faith rather than a matter of natural law therefore feels it cannot be imposed on those with whom we disagree. Professor George claims that it is a matter of justice to recognize the personhood of the unborn from the moment of conception."
Mr. Winters also reported, by the way, in the same post, on a presentation by our own Patrick Brennan on the freedom of the Church. According to Mr. Winters, Patrick "gave a somewhat bizarre presentation on how the Church as Church should have certain constitutional protections different from that enumerated in the First Amendment." But there is nothing remotely "bizarre" about the idea that the Church-as-Church does and should enjoy constitutional protection, or about the claim that the protection currently provided by the Court's doctrine. Patrick's work on church-autonomy, subsidiarity, sovereignty, and religious freedom is some of the best stuff out there, and I hope that Mr. Winters will revisit and revise his report.
Saturday, May 30, 2009
I have been reading Heather King's book Redeemed, which the Boston Globe says (accurately, I think) that "this memoir deserves to be as popular as Elizabeth Gilbert's Eat Pray, Love. It is a wonderful book of finding Christ and His Church in the midst of brokenness - in her case alcoholism.
Although Redeemed is not a book about politics - secular or church, King does have some wisdom for approaching the Church in its brokenness. In light of Michael P.'s recent postings on the Ryan Commission and the tragic situation in Ireland, I thought her words might resonate with some readers:
As for the Church, and all the other myriad complaints leveled against it: as much as I'd like to make it over a bit, I bascially understand that the one who really needs to be made over is me. ...
[I]f I'm really concerned about women or gays or any other minority being treated with love and respect, then I get to treat those people with love and respect myself, by doing all the hard,long inner work that treating any human being with love and respect inevitably entails. And in general that is exactly what the Church, more than any institution I know, urges and teaches: treat all human life with love and respect, from the moment of conception to the dying gasp of the most diminished old age. ...
Christ works in the individual human heart, and no institutional Church, whatever its strengths and defects, can ever change that. At the same time, he did establish a Church: proof positive that he was inviting his followers to participate in it. It's possibly the most thrilling moment in Scripture, the moment when Christ turns to Peter and says: ;On this rock I will build my church, and the gates of Hades will not prevail against it.' (Matthew 16:18) Part of the thrill lies in the sheer poetic audacity of the statement. Part is the assurance that, all evidence to the contrary, in the end the underdog - the weak, the fallen, the feeble, the poor in spirit - will truimph. And part of the thrill is that - unbelievably - he built it on one of us. Christ ... entrusted his life's work to a simple fisherman who would betray him the night before he died, like we constantly do; raise himself up, just as we are capable of doing, and go on to be martyred himself, which people just like us have been called and risen to, day after imperfect day, ever since.
Friday, May 29, 2009
The annual conference of University Faculty for Life (UFL) will be held next week (June 5-6, 2009) at the University of St. Thomas Law School in Minneapolis. Gilbert Meilaender will be speaking at the banquet on Saturday evening. Rob Vischer will be speaking on conscience issues on Friday evening. UFL had a very successful conference at St. Thomas in 2004 and we are looking forward to our return there.
Frank Beckwith and Teresa Collett have put together an excellent program, which includes speakers from a variety of disciplines (e.g., law, philosophy, history, theology). If anyone would like more information, please contact Teresa at St. Thomas or me.
After the truth
Published 29 May 2009
The Ryan Commission has revealed decades of child abuse within institutions run by the Irish Catholic Church. An Irish journalist explores where Catholicism in Ireland goes from here
There are about 150 religious orders based in Ireland. Many of them are very small. All are declining very fast.
Of the 150 or so orders, 18 ran the country’s system of industrial schools and reformatories from the late 19th century until the 1970s, when the last of these institutions was closed.
The system was established during the years of British rule in Ireland. Britain itself had imported the system from Germany, Switzerland and Sweden where it originated in the 19th century. Industrial schools were a response to the problem of the thousands upon thousands of street children, like those Charles Dickens depicted in his novels.
Ten years ago, the Irish Government set up a commission to investigate what happened in our industrial schools; the conditions the children lived in, and how they were treated by those entrusted with their care.
The investigation was prompted by documentaries that told the harrowing stories of many of the former residents of these places, stories of sexual abuse, physical abuse, emotional abuse, and neglect. Last week this commission, headed by Justice Sean Ryan, issued its report, a report that runs to five volumes and 2600 pages.
I am a journalist. In fact, I attended all of the Ryan Commission's public hearings, as religious affairs correspondent of The Irish Independent through 2004 and 2005. Therefore its findings were terrible to me but not surprising; they were sadly familiar.
But I am also a practising Catholic. To have it confirmed that senior members of the Church to which I belong were guilty of crimes that can only be described as anti-Christ (I think that description is exactly right), is extremely painful.
What Catholics are trying to square is this; Christians are supposed to draw their inspiration from Jesus Christ. His two great commandments were to love God and to love our neighbours. If these two commandments had been at the heart of the work of the religious orders, the institutions they ran would have been far more humane than they were. It is clear, therefore, that they lost sight of the great commandments.
The question is, why?
I think there are a number of reasons. One is that many people who entered the priesthood and religious life in Ireland had no real vocation. They did so for social, family and economic reasons. Another is that the Church was both fed by, and itself fed, the ultra-authoritarian temper of the times.
Furthermore, the Church often became more concerned with moralism than with love, which was a terrible betrayal of the Gospel. Another factor, which is not unique to the Church, is that when one group of people is given great power over another, there will always, always, always be abuses unless necessary precautions are taken. Subsequently, when institutions are confronted with evidence of their own malfeasance, they will cover it up so as to protect their reputations.
This is a terrible time to be a Catholic. We search for explanations for what happened but in the explanations there is no comfort at all. How can there be?
What does this do to my own faith, and to that of other Catholics? One thing it certainly does is to erode trust in the leadership of the Church, the bishops and the heads of religious congregations alike. On the other hand, the scandals, which have been in the public realm since the early 1990s, don’t appear to have accelerated the decline in weekly Mass attendance, which now stands at roughly 40 per cent.
Why is this? I think it’s because people can distinguish between the Church and those who run it. Catholicism is either true or it isn’t irrespective of the behaviour of many of its members.
Many Catholics are hanging on in there despite the scandals because they still believe Catholicism is true.
[From The Tablet, May 30, 2009. By Paul Keenan.]
One priest's reaction sums up Ireland's increasing fury over the sexual and physical abuse suffered by so many of its children, and the cover-ups and paltry compensation offered by the religious orders guilty of such appalling crimes against those in their care
"They raped me on a Saturday, gave me an unmerciful beating afterwards, and then gave me Communion on Sunday. My God."
Among the myriad harrowing stories coming daily from victims of institutional abuse, Michael O'Brien's words, prompted by last week's Ryan report into abuse by Irish Religious, stood out starkly as the country struggled to cope with the scale of what had occurred in its institutions over five decades.
A former child resident at the Rosminian order's Ferryhouse institution in rural Ireland, it is not that the awful details of Michael's tale stand out from the thousands of horror stories related in the five-volume report, but rather his unscripted and unscheduled relating of the story in an explosion of fury and frustration on national broadcaster RTE's Questions and Answers programme on Tuesday night.
As a panel of suited commentators quietly surrendered the airwaves to a real-time testimony, and the nation sat in rapt attention, the trembling pensioner vented his years of helpless and fearful silence, his traumatic enduring of attacks on his "lies" from the legal arm of the order and the nightmares that still today bring him sweating from sleep.
Faced with this personification of victims whose childhoods are forever marked by torture, rape and the depraved whims of Ireland's "most respected", the nation hung its head in collective shame and - finally - let Michael speak. More importantly, however, a full week on from the findings of the Ryan investigation, Michael's interjection served to enunciate precisely a growing mood in Ireland in the face of an unexpected new chapter in the sordid mess that is the involvement of Ireland's religious orders in institutional "care".
[Read the rest, here.]
Thursday, May 28, 2009
Rick asked (here), and, so, I answer.
I don't like the term judicial "activism" (or judicial "activist"), because the term can and does mean different things to different people.
As Rick, who has kindly read my new book, knows, I distinguish between (a) the *interpretation* of a constitutional *text*--which process yields a constitutional *norm*-- and (b) the *specification* of a constitutional *norm* (if the norm is, as constitutional norms often are, underdeterminate in the context of the case at hand, the case that implicates the norm.) The process of "specifying" a contextually underdeterminate constitutional norm is the process of making the norm concrete--determinate--in the context at hand, the context in which it the norm is, before it is "specified", underdeterminate. It is the process of deciding what the norm should be understood to require in the context at hand.
Then, against the background of that distinction--between interpreting a text and specifying a norm--I make a further distinction: between (a) judges who take up a stance of judicial *deference* (or, as I like to call it, Thayerian deference) in specifying a constitutional norm and (b) judges who do not take up--who reject--reject that stance.
For a judge who takes up the stance of Thayerian deference in specifiying a rights norm, the question is: "Is the lawmakers' judgment that the challenged law does *not* violate the right a *reasonable* judgment? If so, I will not strike down the law as unconstitutional."
For a judge who rejects that stance, the question is: "Does the law violate the right? [That is, in my judgment, does the law violate the right?] If I conlude that it does, I will strike down the law as unconstitutional."
By the way, Rick, it is not my view that Thayerian deference is always the appropriate judicial stance. For example, and as I explain in work I am currently doing, it is not the appropriate stance if the rights norm at issue is the right to freedom of speech.
In any event, I think the distinction between judges who embrace Thayerian deference (what judges *do* embrace it?!) and judges who do not is an important distinction for constitutional theory.
UPDATE. One more thing: "Originalism" addresses the matter of constitutional *interpretation*--that is, the matter of interpreting a constitutional *text*; it does not address the matter of constitutional *specification*--that is, the matter of specifying a constitutional *norm*.
Gather round! Steve Shiffrin writes, here, that "activism" is "just an ideological term employed by conservatives, and it should be understood as such." (In recent years, actually, liberals have taken to the term, too.) Michael Perry's new book, though, Constitutional Rights, Moral Controversy, and the Supreme Court, defends a Thayerian (i.e., highly deferential) approach to judicial review, an approach that, presumably, contrasts (and conflicts) with other, less deferential ("activist"?) approaches. Michael, what say you? Is "activism" (for all its misuse) and entirely unhelpful term in constitutional-intepretation debates?
On the question of Judge Sotomayor's views regarding abortion, which several of us have raised: I cannot imagine that anyone really doubts -- more particularly, does anyone think that President Obama has any doubts? -- that Justice Sotomayor would vote to retain the Roe / Casey regime, and would apply that regime's doctrine in such a way as to invalidate many restrictions on abortion that (i) popular opinion would support and that (ii) the "conservative" Justices would probably uphold. Elections have consequences, obviously. That said, she does not appear, based on the evidence so far, to be a zealot on the matter (I have noted elsewhere that aspects of her religious-freedom work is encouraging to me), and one could see her selection as confirming, yet again, President Obama's political skills (because the recent polls we have been discussing might indicate that a full-on, center-stage Judiciary-Committee-and-beyond fight about abortion might not, at this moment, be in the President's best interest).
Eduardo's post (come home, Eduardo), to which Michael linked, is helpful and it reminded me, among other things, of how loathesome the attacks were (and continue to be) on Justice Thomas's (J.D. Yale) intelligence. As Eduardo put it, the "racism" charge is "not a charge that [one should] throw around lightly, but in [that] case it may have some merit."
And, for what it's worth, I agree that among the worst possible things -- for those of us who would prefer more "conservative" policies and administrations -- about this nomination so far is the fact that people like Pat Buchanan are playing completely to type (and, of course, enjoying much press attention for doing so) by indulging their ugly and stupid anti-Latino biases. I assume Eduardo does not think, though, that it is racist, or even inappropriate, to have questions, even doubts, about the ideas expressed in Judge Sotomayor's Berkley essay?
Finally, I cannot resist expressing some irritation at the suggestions -- not by Eduardo, but in some quarters -- that Judge Sotomayor is untouchable because she is Latina, or that Republicans raise questions at their peril, because Latinos will rightly resent anything short of a coronation. Miguel Estrada must be thinking, "if only that were true!" As my colleague, Bill Kelley, explains here, questions are appropriate, even if the outcome is certain and even if the Republicans decide not to follow the Democrats' recent example (in the Alito and Roberts contexts) and not to vote against obviously well qualified nominees entirely for ideological reasons.