Saturday, October 31, 2015
Claremont Review of Books has recently launched a website and currently features my review of Katha Pollitt's Pro and two other books--among them, Robin West's collection of pro-choice and pro-life voices. MoJers Lisa Schiltz and Susan Stabile write in West's collection, and I remain convinced that West takes so well to pro-life argument because of knowing pro-life women like Lisa and Susan!
Sunday, August 23, 2015
Ten years ago this July I was honored by several founders of the Mirror of Justice with their invitation to participate in this great project dedicated to the development and explanation of Catholic legal theory. A fundamental part of this project for me, and I think for others (be they contributors or readers), is to demonstrate this theory’s relevance to the law and its rule. As I said, I was honored to be invited, and it has been an extraordinary privilege to contribute with colleagues and friends on matters of pressing relevance—and, of course, there was the occasional bit of fun. On some occasions, I have enjoyed immensely the opportunity to exchange views with other contributors. I apologize to any of them who may have construed my desire to encounter them as something other than debate and discussion of matters which we all hold dear. I understand your passion for the arguments you presented; I am certain you acknowledge mine.
Whether we agreed or disagreed on finer points is not especially relevant to today’s posting; it was then and remains my objective to get closer to the heart of what Catholic teaching has to offer the law and our societies for the betterment of everyone so that the common good might be fulfilled and natural justice achieved. In particular, it was, is, and remains my perspective that the uniqueness of Catholic teachings and their relevance to civil law must ultimately concentrate on the nature of the human person and this person’s destiny—be it in this world or one’s ultimate destiny, which is union with God. The Second Vatican Council posed the question: quid est homo (what is man; what is the human person)? This statement and the question it presents reflect a crucial foundation stone of Catholic teaching and, therefore, have a bearing on what is done to develop Catholic legal theory. Well, that was how I saw and still see things that appear on this website.
But there is another reason why this statement about human nature and destiny is the catalyst for why I write and post today. About three weeks ago, I was informed that my then current chemotherapy had failed. This latest treatment joined its twelve predecessors in the minus rather than the plus column. Failure is not always easy to accept, but with the grace of God it can be. I knew this day would come sooner or later, so, as best I could, I tried to prepare for it with careful thought and sober prayer. With the thought and prayer in place, I concluded that the doctors and I had given it our best to try and control a disease that would eventually be uncontainable. Although my doctors aggressively pursue cancer cure, they know that they must also care for the patient in other ways, one of which is to respect the patient’s informed wishes. This sometimes means that the patient is saying he has had enough treatment that the best medical science can provide, and it is now time for nature and God to take their respective courses. This conclusion that I have made and accepted is not my disposition and vocation alone; they belong to everyone, especially the Christian and those who believe in and pray to God. Miracles can and do happen, but I do not ask for one. As a consequence of my discernment, I am now in palliative/hospice care. This means I receive bi-weekly phereses and blood transfusions at Dana Farber; in addition to these two items, I receive pain management care at my Jesuit infirmary.
In the interim, I soon hope to finish soon a book manuscript on, of all subjects, the Declaration on Religious Liberty and its relevance to the law. When this project is completed, I will ask that the blood transfusions stop. After all, they are only delaying the inevitable. But in the meantime, there is a little work still to be done and many prayers for you and so many others that must be offered. So, borrowing from Pere Jean in the 1987 French film, “Goodbye, children!”, I offer my own Au revoir, mes amis! À bientôt!
Tuesday, June 30, 2015
Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.
Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.
In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.
Sunday, June 28, 2015
This portrayal of Thomas More's trial for high treason is something upon which Catholic legal theorists may wish to reflect in light of Friday's marriage decision:
Some organizations which received the decision they sought in the litigation have suggested they will now disband. I am skeptical of their claim. As was the case with Henry VIII and his Parliament, will those having rational arguments to present that conflict with the majority decision find themselves in the difficult position of Thomas More? Time will tell.
Tuesday, June 23, 2015
Many of us who contribute to or read the Mirror of Justice know and appreciate the importance of religious liberty to our American republic and beyond. As an important voice in our nation, our bishops are encouraging us to once again observe, discuss, and pray for the Fortnight for Freedom in anticipation of the Fourth of July. In this context, I note that Professor Mary Ann Glendon delivered the 2015 Cardinal Egan Lecture at the NYU Catholic Center last month. Courtesy of the Magnificat Foundation, her lecture is HERE. It is entitled “Religious Freedom: Yesterday, Today and Tomorrow.” It should be no surprise that her thoughts are prescient. In relying on the work of the late Jean Elstain, she poses the question about the kinds of distractions used today to divorce authentic liberty—especially religious liberty—from the citizenry. It seems that bread and circuses can last only so long.
As I had several rough days in chemotherapy on Friday, Sunday, and today, I shall conclude here and let contributors and readers savor Professor Glendon’s insights. In saying this I hasten to add my strong recommendation to read carefully what she has to say.
Monday, June 15, 2015
Today, June 15, 2015, marks the 800th anniversary of the Magna Carta. It is as relevant today as it was 800 years ago. Elements have found their way into longstanding Anglo-American and other law. I find, in particular, the Magna Carta’s discussion of the libertas ecclesiae pertinent. In the first substantive discussion, the Carta states:
In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever.
Of course there are components of this text that raise certain questions about whether the temporal sovereign himself had the authority which he was granting to others, including God. In a later context, Thomas More reminded the civil authorities of his time, particularly King Henry VIII, of the legal significance of these words from the Magna Carta. The king chose to ignore More’s counsel and the words themselves when he substituted as the law of the realm his own will-based legislation that was flawed. In the 21st century, these words of the Magna Carta have, I think, a bearing on the First Amendment of the United States Constitution. After all, the Constitution came from the same bolt of legal fabric as did the Magna Carta.
I am presently working on an essay about religious freedom and the bearing that the Declaration of Religious Freedom of the Second Vatican Council has on the important legal and civil right of religious liberty. With God’s grace, I shall have something completed by the end of the summer. The words of the Magna Carta have a bearing on how I understand religious freedom in the present age.
Friday, May 29, 2015
A few days ago The New York Times published an article entitled “Four Words that Imperil Health Care Law Were All a Mistake, Writer Now Says.” [HERE] A major point presented by this article is that these four words in the Patient Protection and Affordable Care Act of 2010 are at the heart of the legal difficulties associated with this legislation. These words are: “established by the State”. I do not think that this is the only source of interpretative problems in the law, but I digress. This phrase appears over a dozen times in various contexts throughout the bill that was enacted into law. The Times article offers the opinions, of several well-placed individuals involved with the efforts to promulgate the bill, that these words are: “the most contentious” of the bill; “a product of shifting politics”; “inartful”; “a drafting error”; or, “inadvertent language”.
Back in March of 2010 prior to the enactment of this legislation, I offered some thoughts about it HERE at the Mirror of Justice. As I said at that time,
I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.
I also noted in my March 2010 contribution that the meaning of words and their implications are important to legislators and citizens. They are clearly important to lawyers, administrators, and judges, too. I also argued in my earlier posting that there could well be issues raising the requirements of Article I of the Constitution. One of them is: did each house pass the bill in the same form? What was the “same form”, if it ever existed? One veteran legislator involved with the enactment has suggested that the four words “established by the State” “clearly contradicted the main purpose of the legislation.” The purpose of legislation is vital to legislative enactment, but so are other issues. Is it clear what the “purpose” of the Patient Protection and Affordable Care Act is? Another person familiar and involved with the background of the bill’s enactment stated in the Times article that the pending case before the Supreme Court dealing with the meaning of the “four words” involves language that is “so contrary to the intent of those who had written the legislation.” I agree that legislative intent is also quite an important matter in ascertaining the meaning of bills and, therefore, the meaning of laws which incorporate the text of the enacted bill. But what was the intent of this legislation? There is no published legislative history, i.e., committee or conference committee reports, to help us answer these questions about purpose and intent. This is where Catholic legal theory could well have a role to play, but a sound approach to legislative drafting and interpretation also do, too.
Throughout my almost thirty years as a law teacher, I offered courses in legislation. I have long considered that a fundamental course in legislation, especially its interpretation, is crucial to legal education. Not every dean, academic dean, or faculty member has agreed with me. But once again, I make my appeal for the inclusion of this kind of course in indispensable legal education. The “Catholic element” of my view is that the human law has to be founded on objective human intelligence comprehending the intelligible reality; moreover, this stated foundation reflects the principle that the law is a servant not the master of society and all its members. Thus, the words of laws—statutes—need to be clear about what is expected and what is not. After all, fair notice to all members of society about the scope and meaning of the law is vital. Hence, it is critical that lawyers have a fundamental grasp of the tools of statutory construction.
These tools begin with a careful evaluation of the plain meaning of the text; then they consider the intent (what were the legislators, or at least those responsible for bills and their committee consideration, thinking and generally discussing amongst themselves); closely related to intent but sufficiently distinct to merit a different discussion is the purpose or what are the purposes of the proposed legislation, i.e., what objective is the text designed to achieve. Once these issues are addressed, the lawyer must consider the coherence of this legislation with the other laws (e.g., the Constitution, related statutes, and pertinent regulations) that have a bearing on the subject matter of the legislation. There are other considerations as well, but these are the fundamental ones. For those who may be interested in what I consider to be these other issues, you may look at my article in Volume 68 of the Mississippi Law Journal beginning at page 225 (1998)—which develops two earlier essays I wrote that were published in Volume 16 of the Seton Hall Legislative Journal (1992).
I believe that one of the continuing difficulties that this law will face stems from the conflict, internal and external, with the laws dealing with patient care and health. While this is not the only one, I suggest that the meaning of Section 1555 dealing with the freedom not to participate in federal health insurance programs will be another source of legal disputes. If my prediction proves to be an accurate one, the occurrence of these disputes may well be a source of how to teach legislation and its interpretation in the future. In the meantime, the interpretative exercises of the Patient Protection and Affordable Care Act will likely continue.
Friday, May 1, 2015
I express my debt to my friends John Breen (a much-missed colleague) and Patrick McKinley Brennan for their thoughtful recent postings and exchanges that emerge from the recent Scarpa Conference generously hosted by Patrick and Villanova. I have a few thoughts, which are in need of great elaboration, that I modestly add to theirs—and someday, the good Lord willing, I shall accomplish this task. But the nature of a web log is to be brief (even when a posting has to be divided as I do with this one). Today, I set out some thoughts with the hope that they may trigger additional reflections by other Mirror of Justice contributors and this site’s readers. Perhaps what I offer today may also offer supplementary grist for the mills of our Catholic Legal Theorist minds.
Both Patrick and John speak of crisis—may I add crises—which education in general and Catholic (including legal) education face today. Whether the directors of education, including teachers, are aware of these crises remains an open question. However, there is very little evidence to suggest that most educators truthfully comprehend the crises which confront the educational enterprise of today. John refers to the fascinating address delivered by the late Fr. Robert J. Henle, S.J., former president of Georgetown University. Fr. Henle arrived at Georgetown during my senior year of college (1969-70); he remained in that post whilst I was a Georgetown law student (1970-73). In 1997, I had the honor of being a visiting professor at St. Louis University School of Law. At least once a week, I had the honor to celebrate Mass for and with the infirmed Jesuits who lived at Fusz Pavilion, the Jesuit infirmary of the then Missouri Province. Fr. Henle was one of the concelebrants who would not be denied exercising his priesthood notwithstanding his physical blindness and his permanent confinement to a wheelchair. After the first or second Mass that I celebrated for the infirmed, Fr. Henle called me over and said: “You’re new here, aren’t you?” I replied in the affirmative and told him what I was doing at Saint Louis U. for the semester. I then said, “Fr. Henle, I have two of your autographs!” He quickly responded by saying, “Ah, you’re a graduate of Georgetown!” He seemed pleased. But he would also confess a bit of disappointment that, in retrospect, he could see that mistakes were made in his leadership of Georgetown that may well have provided a nurturing environment for the crises of which John and Patrick address.
Fr. Henle and I then began a series of short discussions over the rest of the semester. It became clear to me that Fr. Henle was, as John mentioned, conscious of the transformation that education, particularly education that uses the moniker “Jesuit,” was undergoing. His awareness of this led him to teach a course in Thomistic-based jurisprudence at Saint Louis’s Law School, after he left Georgetown, for as long as he could. I don’t think anyone replaced Fr. Henle by offering such a course once he had to step down due to his mounting infirmity. It struck me that Fr. Henle intended to ask the unasked questions of his law students that few if any other teachers were willing to or cared to raise. His questions became a catalyst for those that I asked of myself and, then, of my students and colleagues who were willing to listen to them.
Tuesday, April 21, 2015
As a student in the public school system—I was known by my confreres who were able to attend Catholic schools as a publican—high school English classes brought the need to read and memorize passages from Shakespeare’s plays, be they history, tragedy, or comedy. One passage that I had to memorize and recite was from “The Merchant of Venice”: Portia’s “the quality of mercy” address, Act IV, Scene 1. In the play, Shylock seeks the legal remedy to which he is entitled: a pound of Antonio’s flesh, but neither a drop of his blood nor an ounce more of his flesh than a pound. If Shylock sheds even the slightest amount of Antonio’s blood or takes even the slightest excess of his flesh, all that he owns will be forfeited under the laws of Venice.
Portia reminds all that the law is the law and is to be followed, but even the highest temporal authority must remember the authority of God, which includes His mercy, which tempers the law. God’s mercy is free; as Portia says, “it droppeth as the gentle rain from heaven.” As mercy is an attribute of God, Himself, the temporal authorities would do well to reflect God’s mercy in the justice they administer—for “mercy seasons justice.” Portia reminds Shylock that, if justice be his plea, “in the course of justice none of us should see salvation: we do pray for mercy, and that same prayer doth teach us all to render the deeds of mercy. I have spoken thus much to mitigate the justice of thy plea…”
In some ways, the recent film “The Judge” displays some of Shakespeare’s lessons about justice and mercy. When Judge Palmer awards mercy to a young trouble-maker, this decision returns to haunt him when he, the judge, is accused of killing the young trouble-maker by running him over with his Cadillac. Lessons of justice and mercy continue throughout the film, but I shall be no plot-spoiler.
The themes of justice and mercy also punctuate Pope Francis’s recent Bull, Misericordiae Vultus, issued on Divine Mercy Sunday—the Second Sunday of Easter. Indeed, the pope has addressed in abundant fashion God’s mercy, but—and this is a point less reported in many media outlets—he has also abundantly addressed sin and the imperative that the sinner must acknowledge one’s sins to receive God’s abundant mercy. As the Holy Father states, “All one needs to do is to accept the invitation to conversion and submit one’s self to justice during this special time of mercy offered by the Church.” If one were to think and say that Francis is divorcing God’s mercy from the need of the sinner to be penitent and confess one’s sins, this view of the papal bull would be erroneous. As the Pope reminds us, our Lord and Savior Jesus Christ came not to call the righteous but sinners. Matthew 9:13. “Jesus is bent on revealing the great gift of mercy that searches out sinners and offers them pardon and salvation.”
But, to receive God’s mercy, pardon, and salvation, one must first acknowledge one’s commissions and omissions that constitute sin. As Pope Francis also asserts, “anyone who makes a mistake must pay the price. However, this is just the beginning of conversion, not its end, because one begins to feel the tenderness and mercy of God. God does not deny justice. He rather envelopes it and surpasses it with an even greater event in which we experience love as the foundation of true justice.” Before the Prodigal Son received his father’s mercy and forgiveness, the son confessed: “Father, I have sinned against heaven and before you; I am no longer worthy to be called your son.” Luke 15:21. Without this acknowledgement on the part of the sinner that one has sinned, how can the quality of mercy drop upon him or her as the gentle rain from heaven?
Saturday, April 18, 2015
I thank Rick for his kind invitation to offer personal thoughts about Francis Cardinal George, OMI. In my almost five years in Chicago, I would see the cardinal from time to time on business matters—mostly regarding the Church in public life, Catholic education, and religious freedom subjects—at his residence or at his office, which was across the street from mine. These meetings were filled with his intelligence. Like Thomas More, the cardinal knew that God created the human person to engage God in the tangle of His mind.
But there was another aspect of the cardinal’s life that few people would have seen. He and I both received our cancer treatment and evaluation at the Loyola University Medical Center. On several occasions, our encounters were simple passings-by in the halls of the Bernardin Cancer Center of the Loyola medical center. On those junctures, there would be from him the friendly “how’s it going?” However, on one Thanksgiving week, we met in the same radiology imaging lab. I was waiting for an MRI when the cardinal entered. He was going to have a CAT scan. We spoke not about business matters addressing public life or religious freedom but about being Christians and priests. The ultimate issue of what is it all about came up.
His Eminence offered a simple and yet brilliant response. His answer to the question focused on salvation. As priests, our responsibility was and remains to help others on their paths to the salvation offered by Christ. But, as mere pilgrims, he mentioned that we, too, were on that same general path and not to forget it. I am confident he found his path without much difficulty and is now in the warm embrace of God. The cardinal mentioned that our suffering, especially from the same general disease we shared, was a gift to help us understand better what our human existence is about and the goal that is our destiny. He found the road that took him home to God. Aware of my own sinfulness, I still struggle to do the same.