Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, December 9, 2016

Important AR Supreme Court birth certificate ruling

The Supreme Court of Arkansas announced yesterday that the state has a vested interest in continuing to list a child's biological parents on his or her birth certificate. Last year, the county circuit court had allowed three same-sex couples to amend the birth certificates to include both spouses' names without a court order (as required in adoption cases). That decision was overruled. 

Writing the AR Supreme Court's opinion, Justice Josephine Linker Hart explained: "In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths."  The dissent argued that the inclusion of the parent's name on the birth certificate ought to flow from marriage--not biology.  Find the state court's opinion here.  

Like the legal fiction created by the abortion cases in the use of the term "potential life" to describe the very actual, albeit nascent, vulnerable, and dependent human being whose life is snuffed out by the procedure, Obergefell v. Hodges created another such fiction regarding basic biology.  From the Obergefell Court's opinion: "A third basis of protecting the right to marry...draws meaning from related rights of childrearing, procreation, and education..." And then, "All parties agree, many couples provide loving and nurturing homes to their children, whether biological or adopted." I do not quote these here to dispute the substantive point of the parties' agreement; rather, I seek to emphasize Kennedy's use of the terms procreation and biological children in the context of same-sex relationships. The use of these terms by the highest court in the land--like "potential life" in decades past--is pure legal fiction. To repeat the good Arkansas judge, who is simply upholding a well-grounded tenet of equal protection jurisprudence: "It does not violate equal protection to acknowledge basic biological truths." 

Correction: The original version of this post incorrectly used the postal abbreviation for Alaska. 

December 9, 2016 in Bachiochi, Erika | Permalink

Monday, November 14, 2016

Harvard Law Review issue dedicated to Justice Scalia

Find the brief In Memoriam in the current issue posted here. Justice Kagan's remarks are especially moving. 

November 14, 2016 in Bachiochi, Erika | Permalink

Friday, November 4, 2016

Forthcoming: Debating Religious Liberty and Discrimination

The prolific Ryan Anderson and Sherif Girgis team up once again to engage John Corvino, this time on the religious liberty implications of burgeoning SOGI laws. The point-counter-point book is set to be released by Oxford University Press this spring. 

November 4, 2016 in Bachiochi, Erika | Permalink

Forthcoming: A Liberalism Safe for Catholicism?

Dan Philpott and Ryan Anderson have announced the forthcoming publication of a compilation of 70 years of articles from the Review of Politics. A Liberalism Safe for Catholicism: Perspectives from the Review of Politics is due out from University of Notre Dame Press later this spring.

Here's the summary of the book on Amazon:

In A Liberalism Safe for Catholicism?, editors Daniel Philpott and Ryan Anderson chronicle the relationship between the Catholic Church and American liberalism as told through twenty-seven essays selected from the history of the Review of Politics, dating back to the journal’s founding in 1939. The primary subject addressed in these essays is the development of a Catholic political liberalism in response to the democratic environment of nineteenth- and twentieth-century America. Works by Jacques Maritain, Heinrich Rommen, and Yves R. Simon forge the case for the compatibility of Catholicism and American liberal institutions, including the civic right of religious freedom. The conversation continues through recent decades, when a number of Catholic philosophers called into question the partnership between Christianity and American liberalism and were debated by others who rejoined with a strenuous defense of the partnership. The book also covers a wide range of other topics, including democracy, free market economics, the common good, human rights, international politics, and the thought of John Henry Newman, John Courtney Murray, and Alasdair MacIntyre, as well as some of the most prominent Catholic thinkers of the last century, among them John Finnis, Michael Novak, and William T. Cavanaugh. This book will be of special interest to students and scholars of political science, journalists and policymakers, church leaders, and everyday Catholics trying to make sense of Christianity in modern society.

As a student of the late Fr. Ernie Fortin's, I'm especially happy to see John Finnis' (specially commissioned) response to Fortin's 1982 review of Natural Law and Natural Rights. Finnis pre-released his response to Fortin last year in the American Journal of Jurisprudence, writing:

Of the published reviews of Natural Law and Natural Rights, one of the most, and most enduringly, influential was Ernest Fortin's review-article "The New Rights Theory and the Natural Law" (1982). The present essay takes the occasion of that review's latest republication [in the Philpott/Anderson book] to respond to its main criticisms of the theory of natural law and natural or human rights that is articulated in Natural Law and Natural Rights.

Perhaps one of Fr. Fortin's students will take up the good priest's mantle and offer a response. 

November 4, 2016 in Bachiochi, Erika | Permalink

Thursday, October 27, 2016

Justice Scalia honored at CIC

Don't miss Ed Whelan's beautiful tribute to the late Justice Scalia at NRO today.  

 

October 27, 2016 in Bachiochi, Erika | Permalink

Wednesday, October 26, 2016

Glendon on Tradition

For those on MOJ and beyond thinking about tradition and the law, I can't commend to you enough Mary Ann Glendon's fine collection of her own essays, Traditions in Turmoil, published in 2006.

From the Author's Preface: "Nearly all of these essays [] were written when demographic turbulence was at its height...[when] legal, social, and religious [traditions] were in a state akin to which students of complex adaptive systems call 'the edge of chaos.'" And then: "The edge of chaos is a scary place, but it is also charged with potency." More:

As a living tradition moves forward, it is laden with the accumulated accidents and inventions of the men and women who have gone before--a cargo of useful ideas and practices that await development, and a jumble of outworn artifacts that might well be left behind. Future generations will judge whether our own period of stewardship has burdened or enriched their inheritance, whether we have advanced or hindered the conditions for human flourishing. 

The clarifying lens from within which Glendon writes many of the book's essays, that I hope will be brought to bear on the new and important work at the Tradition Project, is that provided by Jesuit philosopher, Bernard Lonergan. Glendon ends the book's Preface with this:

It seems to me that no one has better suggested the spirit in which citizens, scholars, and members of a pilgrim Church should confront the challenges of traditions in turmoil than the philosopher Bernard J. F. Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new possibility. But what will count is a perhaps not numerous center; big enough to be at home in both the old and new; and painstaking enough to work out one at a time the traditions to be made." That is the spirit in which I have tried to work, and I hope it is reflected in these essays.

Professor Glendon read Lonergan with the great Father Flanagan at Boston College when she first began teaching at BC Law in the 1980s. The experience deeply influenced Glendon's own uncanny and inspiring ability to distinguish carefully points of progress--"insight"--from within times of decline, and to hold both in her learned and fertile mind simultaneously.  

The first essay of the collection, "Tradition and Creativity in Culture and Law," was the 1992 Erasmus Lecture, published in the November issue of First Things that year. And it's a great place to start. A sneak peak: 

The idea that tradition is antithetical to creativity of the human sort is what I propose to examine and challenge along with its usual underlying assumptions that tradition is necessarily static, and that the essence of creativity is originality. To anyone with a scientific bent, my project will seem to be an exercise in the obvious. For in the history of science, as Stephen Toulmin, Thomas Kuhn, and others have made clear, nearly every great advance has been made by persons (typically, groups of persons) who simultaneously possess two qualities: a thorough grounding in the normal science of their times, and the boldness to make a break with the reigning paradigm within which that normal science takes place. My concern, however, is the progress of antitraditionalism in the human sciences, where what counts as an advance, or creativity, is more contestable, and where many eminent thinkers now devote much of their energy to attacking the traditions that have nourished their various disciplines.

 

I shall confine my attention here to the field with which I am most familiar, namely the law, though this may vex the spirit of Erasmus, who seems to have had a rather low opinion of lawyers, calling them “among the silliest and most ignorant of men.” Erasmus might have been amazed, however, if he could have known the degree to which lawyers themselves, and especially teachers of lawyers, would one day come to exhibit disdain for their own craft, and to disavow openly the ideals of their traditions. I say tradition s , for, where Americans are concerned, there are three of them involved: the common law tradition that we inherited from England, the tradition of American constitutionalism, and the craft tradition of the profession.

Do read the whole thing. But a jump to the Lonerganian conclusion: 

[T]he fact remains, as Aristotle pointed out long ago, that dialectical reasoning is the only form of reasoning that is of much use in “the realm of human affairs,” where premises are uncertain, but where, though we can’t be sure of being right, it is crucial to keep trying to reach better rather than worse outcomes. It is time for lawyers and philosophers alike to recognize that common law reasoning is an operating model of that dialectical process, and that its modest capacity to guard against, and correct for, bias and arbitrariness is no small thing. Over time, the recurrent, cumulative, and potentially self-correcting processes of experiencing, understanding, and judging enable us to overcome some of our own errors and biases, the errors and biases of our culture, and the errors and biases embedded in the data we receive from those who have gone before us. As Benjamin N. Cardozo once put it, “In the endless process of testing and retesting, there is a constant rejection of the dross.”

And so, by a long and circuitous route, I come back to the proposition with which I began: that human creativity is inescapably dependent on what has gone before. This is not a very remarkable proposition. Perhaps what ought to seem remarkable is only the extent to which so many practitioners of the human sciences seem to want to ignore it.

 

October 26, 2016 in Bachiochi, Erika | Permalink

Friday, October 14, 2016

The Pioneer Institute releases study on Common Core and Catholic schools

In collaboration with the American Principles Project, the Boston-based Pioneer Institute has released the study, "After the Fall: Catholic Education Beyond the Common Core," written by scholars Anthony Esolen, Dan Guernsey, Jane Robbins, and Kevin Ryan. The purpose of the study, as stated in the Executive Summary, is to take "a critical look at the issues and principles behind the Common Core movement and, in particular, the standards’ effect on and suitability for Catholic schools." It's a robust 40 page version of the 2013 letter more than one hundred Catholic scholars addressed to the nation's bishops concerning the implementation of Common Core in diocesan schools (coordinated by Robbie George and Gerry Bradley). More than half of the dioceses, including Boston, have adopted Common Core. 

The study presents and then refutes the most popular arguments in favor of the program in Catholic schools and then proposes an authentically Catholic alternative:  liberal arts education.  The study beautifully and effectively exhorts Catholic schools to retrieve their inheritance of virtue-based character education and the "soul-shaping and soul-expressing power" of great literature, among the many merits of classical Catholic education. 

From the study's preface, by Ambassadors Raymond L. Flynn and Mary Ann Glendon:

Realizing that combining humanities and the arts with religious instruction aids spiritual development, Catholic schools have traditionally provided a classical liberal-arts education that generations of grateful parents and students have prized. Through tales of heroism, self-sacrifice, and mercy in great literature such as Huckleberry Finn, Sherlock Holmes, and the works of Charles Dickens, Edith Wharton, Dante, and C.S. Lewis, they seek to impart moral lessons and deep truths about the human condition. The moral, theological, and philosophical elements of Catholic education that are reinforced by the classics have never been more needed than they are in this era of popular entertainment culture, opioid epidemics, street-gang violence, wide achievement gaps, and explosive racial tensions.

 

Common Core, on the other hand, takes an approach that is contrary to the best academic studies of language acquisition and human formation. It drastically cuts the study of classical literature and poetry, and represents what Providence College English Professor and Dante scholar, Anthony Esolen, calls a strictly utilitarian view of mankind, “man with the soul amputated.” It is devoid of any attention to “the true, the good, the beautiful.” It eliminates the occasions for grace that occur when students encounter great works that immerse them in timeless human experiences. Instead, it offers stones for bread in the form of morally neutral “informational texts.” The basic goal of Common Core is not genuine education, but rather the training and production of workers for an economic machine. We see this in the reduced focus on classic literature, and in the woeful mathematics standards that stop short of even a full Algebra II course – giving students just enough math for their entry-level jobs. The goal is “good enough,” not academically “excellent.”

...

All students ought to read Dante, Shakespeare, and Flannery O’Connor; those who do are better for it, regardless of whether they plan to become philosophers or welders. All students ought to study, or at least be given the opportunity to study, mathematics that allow them a sustained and detailed scientific investigation of creation. But Common Core seems to view “overeducating” students as a waste of resources, or, as its proponents say, “human capital.” In what looks like an effort to define human beings as mere objects or beasts, it aims to provide everyone with a modest, utilitarian skill set...

 

As the influence of religion diminishes, for the sake of our civilization itself, it becomes more urgent than ever to find ways to provide children with the fundamental intellectual, spiritual, and moral ideals necessary for humans to flourish. But Common Core moves in the opposite direction. Sterile informational texts and workforce training will not help children to learn how to be good human beings. And no free society can survive for long without cultivating character and competence in its citizens and public servants.

 

Common Core’s shift away from the moral and cultural patrimony of Western Civilization comes at a most unfortunate time, when increasing marginalization of religion in our society is taking a severe toll on the moral culture that sustains our American democratic experiment. Religion plays a pivotal role in sustaining our freedoms, upholding the rule of law, creating a culture of compassion for the disadvantaged, and fostering social cohesion. Even the professed atheist Jürgen Habermas recognized that Western culture cannot abandon its religious heritage without endangering the great social and political advances grounded in that heritage.

 

Kevin Ryan and Mary Ann Glendon sit on the Board of Trustees and Advisory Board, respectively, of my children's school--the first classical Catholic school in the Boston area, founded in 2013. St. Benedict's, and other schools like it, are a true education in freedom, and parents are catching on:  we will outgrow our current site this coming year. As the Pioneer Institute study shows, and Hillsdale education professor Jeff Lyman discussed in a presentation to the school community last night, once a student's natural faculties are perfected in the study of the liberal arts, that student can go on to learn anything -- even contributing in a meaningful way to the "workforce" (the be all and end all of Common Core)! But, far more essentially, the student educated in the classical Catholic tradition will learn what it means to be a human being with an eternal destiny--and, as such, how to live a virtuous life and thereby contribute to the common good. The timing of this study, in light of the abject moral failings of our presidential candidates, could not be better. 

October 14, 2016 in Bachiochi, Erika | Permalink

Learned Hand's "Spirit of Liberty" Address

As we contemplate the days ahead, it's well worth rereading this great judge's brief remarks on liberty, delivered in 1944 in New York's Central Park, where more than a million people, including 150,000 newly naturalized citizens, gathered for "I Am an American Day." Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

Here's the whole thing: 

We have gathered here to arm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

 

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

October 14, 2016 in Bachiochi, Erika | Permalink

Friday, September 23, 2016

David Upham on Meyer versus Pierce

I've just happened upon an intriguing comparison of the Lochner-era cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) in Rutgers Journal of Law and Religion, published in 2012. The piece, entitled Pope Pius XI's Extraordinary -- But Undeserved-- Praise of the American Supreme Court is authored by David Upham, Director of Legal Studies and Associate Professor in the Politics Department at University of Dallas.  

Though Meyer and Pierce are generally cited together for the proposition that the 14th amendment protects the right of parents to direct the upbringing of their children, Upham shows that the manner in which the Court reasons to that right is distinctive in Meyer and Pierce, though they deal with similar questions and were decided within two years of one another. According to Upham, in Meyer, the Court uses expressly natural law reasoning to depict the integral relationship between marriage, procreation, and educational authority: the parent had a "natural duty to give his children education suitable to their station in life..." to which a corresponding "right of control" in the parent was secured by the common law and 14th amendment. Upham argues that, unbeknownst to Pope Pius XI who praised the Court's opinion in Pierce, its authors were actually no friends of natural law theory (whether of the Thomistic or Lochnerean variety). 

Note that in Meyer, unlike Pierce, one reads an express statement that the common law and the Constitution served merely to recognize and guarantee, respectively, these natural familial rights, but not to establish or create them....Furthermore, unlike Pierce, which defined parental authority to include even the power to determine the child’s “destiny,” the Meyer opinion indicated that natural (and common law) rights are ordered to a pre-established natural end or destiny; that is, these rights are all essential to the pursuit of happiness.

 

September 23, 2016 in Bachiochi, Erika | Permalink

Substantive Due Process to be Debated at Georgetown

The Center for the Constitution at Georgetown Law Center and the James Wilson Institute (aka Hadley Arkes' outfit in DC) are co-sponsoring a day-long conference on substantive due process on October 6th. Hadley Arkes and Matthew Franck will open the event with a long-anticipated debate of their now well-known opposing views of the subject.

Michael Stokes Paulsen and Justin Dyer will then take the floor to discuss what might be called the jurisprudential book ends of the doctrine:  Dred Scott and Roe v. Wade. Dyer, of course, has written a book length treatment of the similarities between the two cases, and Paulsen treats the comparison repeatedly in his masterful The Constitution: An Introduction. 

Randy Barnett, the director of the Center and hero of libertarians everywhere, concludes the day with with the keynote, proposing a "good faith theory of due process of law." Barnett's "presumption of liberty" is sure to make a central appearance--as will, one expects, that other substantive due process case, unmentioned in the day's schedule: Lochner

I am hoping to make the event and promise to blog if I do. 

 

September 23, 2016 in Bachiochi, Erika | Permalink