Friday, July 1, 2016
A final, at least for now (as we disperse to celebrate "Independence Day"), contribution to Kevin's and my conversation (for which I am terribly grateful) about why, in my view, textualism gets it wrong, gets it wrong all the way down, like *all* the way down. Here is an excerpt from some of my unpublished remarks on the occasion of honoring Henry Monaghan; my topic was the thesis of Henry's landmark article, "Stare Decisis and Constitutional Adjudication":
Answers cannot be any better than the questions to which they reply, and Immanuel Kant famously contended that all questions of human reason and speculation can be reduced to the following three: “What can I know? What ought I to do? What may I hope?” I would like to bring these three questions to bear on just a few of Henry Monaghan’s conclusions or suggestions about what I would encapsulate as legality, used here as an umbrella term for considerations bearing on legitimacy, constitutionality, precedent, stare decisis, judicial review, and more.
“What can I know?” I will begin by simply asserting what philosopher Bernard Lonergan, among others, has demonstrated: Much of Western theory, practice, and common sense has been riddled by roughly the same mistake, specifically, that knowing is like taking a good look with the eye of the mind. The mind has no eye, and knowing is not much like taking a good look. Knowing is a compound of potentially cumulative acts, and knowing what I ought to do – Kant’s second question – is not exempt from this fact about how we humans know, if we are to know at all. The fact that knowing is not a simple act but a compound act applies, as it were, even when the knowing is done in service or in the name of law. Legal knowings are compound acts, each of which needs to be performed properly.
To make these general points particular, recall Holmes’s influential contention on the first page of The Common Law: “The life of the law has not been logic: it has been experience.” Holmes was parodying Lord Coke, of course, who had taught instead that “reason is the life of the law; nay, the common law itselfe is nothing else but reason.” Holmes’s trick with his logic-versus-experience false dilemma was to block a third possibility, the one Coke and the larger tradition, including Edmund Burke, for example, meant by reason: not mere experience, not mere logic – but, instead, reason or intelligence rooted in experience, yes, but also unfolding itself through acts of understanding and acts of judgment, including acts of potential self-correction, in the crucible of a living tradition. Experience, in other words, is only a starting point in the life of the law, as in any rational, non-random life; experience takes or makes its place in law, as in the rest of life, based on reasonable judgments about whether our understandings of what we ought to do or not do are correct.
What I would suggest, still more concretely, is that the common law method as it actually functioned in the main – but certainly not as it was caricatured as a closed collection of axioms, syllogisms, and conclusions – is an exemplification writ large of the method of human practical reason writ small: it is potentially progressive, cumulative, and self-corrective, proceeding by acts of experience, through acts of understanding, to acts of judgment, and finally to acts of choice of value. In other words, what above all recommends the common law is the fact that its method is more or less isomorphic with the method of human intelligence. The common law was methodical in the way any true human knowing is methodical. Generalizing, then, I would suggest that any system of law should be evaluated in large part by its success in embodying the method of human intelligence. Human intelligence not only discovers what is; it also discovers what is valuable or good, and these it proposes to the will to be pursued, including in the name of law.
It is in this context, then, that I propose to take the measure of Monaghan on constitutional stare decisis. With respect to stare decisis in general, I would begin by suggesting that, when understood and applied in an appropriately flexible way, it gives effect to the human potential for progressive and cumulative judgments and then instantiations of value. I put to one side for the now the question of what I mean by the malleable term “appropriately flexible,” and turn directly to the question Monaghan confronted in his article “Stare Decisis and Constitutional Adjudication.” I am broadly sympathetic to Monaghan’s approval of constitutional stare decisis, first of all for the reasons I have given based on human cognition, though also, and relatedly, for the justificatory reasons identified by Monaghan himself, system legitimacy and the legitimating of judicial review, among others. In addition, however, I would also underscore and even bolster Monaghan’s thesis that “in the end, the written Constitution cannot sustain the absolute primacy of text over gloss” (770) and, further, that “originalism must confront a constitutional adjudicatory process in which, after two centuries, the original understanding of text is simply a factor in the process of decisionmaking, a factor to be considered and balanced against other factors. Indeed, frequently the text acts operates as little more than a boundary marker restraining judicial lawmaking. In each instance, the case law overwhelms the text and historical understanding.” (772) This it does because the questions raised by human intelligence and answered methodically outstrip the ability of the text to provide an answer.
Monaghan’s admirable candor about how methodical human intelligence sometimes subordinates even portions of written text denominated “Constitution” leads him to acknowledge that “[t]he central problem is this: to accord status to stare decisis requires an acknowledgment that originalism plays a purely instrumental role by contributing to the establishment of legitimate government, which in turn promotes stability and continuity.” (772) He continues: “Neither originalism nor the constitutional text has mystical qualities that compel a return to the fold in the face of transforming departures from the original understanding.” (772) This further candor leads Monaghan to offer tentative affirmative answers to these hard questions: “[I]f the Court legitimately may prevent inquiry into original understanding in order to maintain transformative change, does this concession also license prospective disregard of original understanding when the Court is satisfied that change is necessary to maintain systemic equilibrium? Moreover, should the Court reject the precedent itself in favor of still further change when to do so will achieve the important values?” (772) Monaghan might make his own a favorite metaphor of Lonergan’s: the wheel of method not only turns, it also rolls along.
These remarkable concessions by Monaghan, at the expense of originalism in favor of stare decisis and what I have referred to as the methodical unfolding of human intelligence, are followed quickly by a caution that “in the end any temptation to dismiss the Constitution of 1789 from our view seems to be a mistake. Paul Brest is surely right in stating that ‘the written Constitution lies at the core of the American ‘civil religion.’” (773)
This leads me back to Kant’s third question: “What can I hope?” Well, here I’m not going to pull any punches, and I’ll be brief: What I hope is for "us" to do collective justice of the sort deliberately BLOCKED by “our Constitution” and the embarrassing panoply of "religions" with which it systematically saddles and stymies our ability to live together how Christ teaches us to live together, or, more pointedly, to expose as idolatry what Michael Novak, a great, great, great enthusiast of the Constitution, boasted was an “empty shrine” at the Constitution's core. The much-praised Godlessness of the Constitution sets our collective sights literally hopelessly low. So, while I agree that we should keep the Constitution in view, above all in constitutional adjudication, the first place where "gloss" should overtake "text" is by adding God (assuming arguendo that Omnipotence can take the form of "gloss," an assumption for which there is support in the defenseless baby in the manger in Bethlehem of Judea) and the possibility of God’s social recognition by the state both in public worship and by prudent conformity of human law with higher law.
To move toward my conclusion. I’m not delusional, so, yes, I recognize that nothing like what I've just described is about to happen, perhaps not before the great eschatological rectification of it all. Meanwhile, I agree with Jeff Powell that fidelity to the Constitution is generally worthwhile because of its capacity to instantiate in us what Powell has referred to as the “constitutional virtues,” but I do so with my stated preference for methodism (with a lower-case m) over the virtue of acquiescence, as Powell calls it following Madison. As theologian David Tracy has observed, “when literate cultures are in crisis, the crisis is most evident in the question of what they do with their exemplary written texts.” Textualism would be Exhibit A. It proposes, as Justice Scalia says, that the text of the Constitution (and of other enacted law) be treated as “objectified intent” to be unlocked with the help of dictionaries, those schedules of probable meanings that are no one's meaning. “There is always the temptation in law,” as Joseph Vining has observed, “ to approach a statute [or the Constitution] as if its words had meanings in themselves and by themselves,” but, as Tracy notes, “texts are not dictionaries. In texts, words do not have meaning on their own . . . . We converse with one another. We can also converse with texts. If we read well, then we are conversing with the text. No human being is simply a passive recipient of texts. We inquire. We question. We converse. Just as there is no purely autonomous text, there is no purely passive reader. There is only that interaction named conversation.” The alternative known as textualism evinces, as Vining also observes, an “authoritarianism” justified by “maintaining the supremacy of democratic politics and legislative authority.” But there are values higher than democracy and fidelity to a given manmade text, and it is action in conformity with correct practical understanding.
On the last page of “Constitutional Adjudication and Stare Decisis,” Monaghan asks whether, if what he has argued is correct, “the political order [is] the ground of the constitutional order rather than vice versa,” and then, in a footnote, asks even more pointedly, “have we in effect reformulated our notion of what a constitution is, returning to the pre-Revolutionary War idea that . . . a constitution is essentially a description of the fundamental political arrangements?” My own answer to these questions that Monaghan leaves unanswered is “I hope so.” What can I hope: To quote Bernard Lonergan: “The state can be changed by rewriting the constitution. More subtly but no less effectively it can be changed by reinterpreting the constitution or, again, by working on men’s minds and hearts to change the objects that command their respect, hold their allegiance, fire their loyalty.” (212)
"What can I hope?" It's a question I wouldn't bury by the legal but lawless authoritarianism of another "ism" called textualism. And not just for my sake, but for the common good God intends.
Wednesday, June 29, 2016
Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny. Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know. Two versus three or thirteen senators -- not a matter of natural (let alone divine positive) law! Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.
My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio. My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is, by substituting schedules of probable meanings for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker. I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.
To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally -- decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power" be a function of recorded (or speculative?) probabilities. The compressed argument against textualism in my present paper presupposed (with benefit of citations) earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)
My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can deliver in aid of making what the lawmaker promulgated effective. Textualism is a remote second best, if that, but certainly not the higher road.
Thursday, June 23, 2016
Kevin's characteristically good-natured response to the abstract of my paper, "A Catholic Way to Cook a Hamburger? The Catholic Case Against McLaw," not yet to the paper itself, in which I argue that there is a Catholic way to do law, evoked memories of a wonderful trip I took long, long ago.
The trip was memorable for many reasons, but the relevant one concerns toilets. A good friend and I took an overnight train from Budapest (where he was living) to Brasov, Romania, in Transylvania, for several days of backpacking and camping. The train ride, on that hot summer night, was long, especially so because the air-conditioning wasn't working in our car on the train and the windows in our cabin were stuck shut. We were traveling "First Class," but in immediately post-Communist countries and the decimated infrastructure bad government had produced. More to the point, the toilets on the train were not working. I don't know why, but they weren't. Naturally, this made things dicy for all concerned, and there were many concerned on that long train on that long trip on that long night. I'll never forget it. By the time we reached Brasov soon after dawn, my friend and I were each desperate to use the restroom. Our first hope, to use the facilities at the Brasov train depot, was dashed by our not having the Romanian coins that would allow entry. The adjacent fields were a possibility, we feared, but we started the walk from the depot to downtown Brasov hoping that there would be a more dignified alternative. Shops and the like were not yet open. Not ten minutes later, we saw a billboard for a McDonald's that was advertised to lie a kilometer or so ahead, at the heart of historic Brasov. We were elated at the prospect of relief that would not occur in the wild. Sure enough, McDonald's was open earlier than every other commercial establishment, the bathroom facilities at that McDonald's were *remarkably* similar to those of every other McDonald's I've visited. We were grateful, indeed, not to be disappointed by what McDonald's had promised and then, in fact, allowed. My friend said at the time, and I recall it distinctly, that this was part of the genius of McDonald's, its uniformity and, therefore, reliability.
Kevin's desire for uniformity in the workings and products of federal courts, even, as I see it, at the price to be paid, inevitably, by doing things in a way that contradicts the way human intelligence is intransigently structured to deliver, if it is to deliver, progressive and cumulative instantiations of the good, doesn't cause me to doubt the good that the reliably working restroom at the McDonald's in Brasov delivered in the relevant respect. On the other hand, (1) the McDonald's in Brasov, just as all others, did not serve food in the focal sense of the term "food"; (2) that McDonald's was a blight on the organic integration of the city; and (3) doing actual justice in law is not at all like the successful flushing of a toilet, even in a federal court.
Monday, June 20, 2016
Here , below, is the abstract of a paper I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw." It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course. It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.
Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.
This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.
To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."
Sunday, May 1, 2016
Michael Perry's welcome remembrance of Fr. Daniel Berrigan's witness reminded me of something John Courtney Murray wrote late in We Hold These Truths: "A friendly critic, Professor Julian Hartt of the Yale Divinity School, had this to say: 'Father Murray has not, I believe, clearly enough come to terms with the question behind every serious consideration of limited war as a moral option, i.e., where are the ethical principles to fix the appropriate limits? Where, not what?: can we make out the lineaments of the community which is the living repository (as it were) of the ethical principles relevant and efficacious to the moral limits of warfare?' This is a fair question." A fair question, indeed.
Commenting on Murray's own ensuing judgment that the "American consensus" he invoked no longer obtained, even then, Michael Baxter concludes as follows: "In the years since Murray's death, Catholic social ethicists in the United States have dedicated themselves to pursuing Murray's agenda. But the American consensus remains as elusive as it was in Murray's day; indeed, more elusive. With time, this will no longer point to the plausibility of Murray's compatibility thesis, but rather to its implausibility." A fair conclusion? One awaits countervailing evidence.
What ought "we" do while we wait for the consensus to appear? Vote in every next general election ad absurdum? The Catholic positions defended by Murray on contentious issues, such as nuclear weapons and abortion, have never prevailed in public discourse, let alone in law. The "where?" question, half-answered by Murray, looms larger as every political cycle passes and the returns thereof veto any hope of actualizing Murray's imagined consensus. The natural law never was what the consensus-mongers said it was, and meanwhile the human deficit in effective ability to implement the natural law grows greater as religion is reduced by law, at least for law's purposes, to the efficacy of incense.
Friday, January 22, 2016
The Eleventh Annual John F. Scarpa Conference on Law, Politics, and Culture will be held on Friday, November 11, 2016, at Villanova University School of Law. Yale's Professor Kathryn Tanner will deliver the keynote address on "Christianity and the New Spirit of Capitalism," the topic of her Spring 2016 Gifford Lectures. Professor Tanner's attention to the Christian moral norms that should govern any economy parallels teachings of Pope Francis that have disconcerted many Catholics.
Other speakers at the Conference will include:
Mary Hirschfeld (Assistant Professor of Theology and Economics, Villanova University)
Robert Hockett (Edward Cornell Professor of Law, Cornell Law School)
Joseph Kaboski (Singer Foundation Professor of Economics, Notre Dame)
Patrick Byrne (Professor of Philosophy, Boston College)
Andrew Yuengert (Professor of Economics, Pepperdine University)
Jesus Fernandez-Villaverde (Professor of Economics, University of Pennsylvania)
Brian McCall (Merrill Professor of Law, University of Oklahoma)
Details about the Conference schedule will be announced in due course. Please mark your calendars for November 11, 2016.
Wednesday, December 16, 2015
The expressive power of law defies capture by those inclined ("caused"?) to reduce compliance with (or obedience to) law to either deterrence or "legitimacy." I recommend in this vein Richard McAdams's The Expressive Powers of Law: Theories and Limits (Harvard 2015), a book that can be read especially profitably in tandem with Fred Schauer's The Force of Law (Harvard 2015). Schauer's careful argument for the place of coercion in law's efficacy is somewhat overstated, in my view, and McAdams's account, while doing too little to expose the place in law of reasons for action per se, does a fine job of both demonstrating and refusing to exaggerate law's power of suggestion. With dignitary harms multiplying as causes of action, it's timely to clarify whether the operation of law's expressive power that does not lead to compliance should nonetheless a cause of action make.
Monday, August 31, 2015
Saints weren't born saints, and anyone who has become a saint has done so with lots of help. There is a regrettable tendency in our political culture and its institutions to limit the help as a normative matter to what goes on in private, if at all.
In the Catholic tradition, however, the entire socio-political order, including the state, was -- and should be -- understood to have its service to perform in helping to bring people to the natural and the supernatural common goods. Getting to heaven should not be despite humanity's best efforts at building impeding social barricades -- quite the opposite! The state and the Church should cooperate with each other, without confusing one with the other, for the sake of the salvation of souls.
One of the principal arguments for withdrawing the socio-political structure from a role in helping people to realize the supernatural common good is the assertion, popularized by Fr. Murray, that the state is a "know nothing" when it comes to the supernatural. The state need not, however, be a know-nothing.
In the paper linked here, "An Essay in Christian Constitutionalism: Building in the Divine Style, for the Common Good(s)," I answer the question "What would a Christian constitution, in a predominantly nation, look like?" The paper was prepared for a conference at Rutgers University School of Law, at which Islamic and Jewish answers to the same question, mutatis mutandis, were discussed.
My paper argues that true Christian constitutionalism, that is, Catholic constitutionalism, is a project of building in the divine style, to which there is no real alternative over the long arc of history.
Sunday, May 17, 2015
A blog dedicated to Catholic legal theory is surely an apt forum in which to explore the causes and consequences of lawlessness in the Catholic Church. Today's lesson comes to us from the Diocese of St. Petersburg, where His Excellency Robert Lynch has served as Ordinary since 1996. First, a little background.
Yesterday, Bishop Lynch took to his blog (here), "For His Friends," to celebrate his ordination yesterday of five new priests for the Diocese, the largest class of ordinands there since 1991. I join Bishop Lynch in giving thanks for these new priests of Jesus Christ, all of whom began their studies for the priesthood during the pontificate of Pope Benedict XVI. Here, in part, is what Bishop Lynch had to say to his new priests yesterday:
We don’t teach what we believe as well as we should. We rely perhaps too heavily on old methods of communication and put too much reliance on traditional vestige, hierarchy of orders and judgment. We often hide in the clothes of the past as well as some of the ideas of the past, disregarding the fact that to today’s younger generation not only are these things devoid of meaning and anachronistic but also some can suggest tendencies that may not otherwise be present.
Talk about weird! What "tendencies that may not otherwise be present" is the Bishop talking about at an ordination? Moving on (because there is nothing to see here), to whom does the Bishop refer as "hid[ing] in clothes of the past?" Is the simple choice to wear the traditional vestments of the Roman Rite to "hide?" And don't forget that "some . . . ideas of the past" are also apparently a refuge for those wishing to "hide!"
Was the Archbishop of Miami, His Excellency Thomas Wenski, "hid[ing]" when he celebrated a Pontifical Solemn High Mass according to the Usus Antiquior (here)? Those who have had the privilege of spending time with Arbishop Wenski, who "rides a Harley" (here), can attest that he is no "hid[er]." His public stances on disputed matters of policy have been courageous, and he frequently celebrates Mass in Haitian Creole.
If anyone had any doubt about Bishop Lynch's agenda at the ordination and otherwise, his letter in this link gives it all away. His Excellency has a long history of despising the Traditional Latin Mass (see here), and his letter of April 20, included in full in the link above, virtually breathes contempt for the faithful devoted to the Traditional Mass.
But I said this post was to be about lawlessness, and indeed it is. Bishop Lynch's endless tactics and strategies for making the traditional Latin Mass all but unavailable in his Diocese are in clear violation of the juridical norms set out by Pope Benedict in Summorum Pontificum (here). Pope Benedict made clear that he knew that many Bishops were impeding the celebration of the Traditional Mass under the indult permission allowed since 1984 in Quattuor abhinc annos by Saint Pope John Paul II, and for that very reason Summorum removed Bishops from the loop, so to speak. The permission of the local Bishop is not required for the celebration of the Traditional Latin Mass in public (or in private). Bishop Lynch's specious logic for suppressing the celebration of the Traditional Latin Mass where it is now celebrated and for consolidating its celebration in the Vietnamese Mission parish has the support of no Roman legal norms currently in force. We are witnessing unvarnished antinomianism. I do hope that the good people of the Diocese of St. Petersburg will receive due relief and remedy from the Pontifical Commission Ecclesia Dei, but I am not hopeful.
Why am I not hopeful? Consider these words that Bishop Lynch also spoke to the ordinands he cautioned not to "hide:"
Style your ministry after Pope Francis. Ever the teacher, he is a master of the use of the gesture which captures the hearts of the world. Why, because he acts like most of us think Christ would act. He speaks with authority only when he has to but with wisdom and understanding and openness. He doesn’t hide behind rich vestments and vestiges of power and privilege but leads by example using words only when absolutely necessary. When Raul Castro can suggest that this Pope is truly an ambassador for God, we least of all, should never take him for granted.
Did every Pope until Francis "hide?" And is it true that Pope Francis "use[s] words only when absolutely necessary?" But who am I to judge?
Tuesday, May 12, 2015
Archbishop Victor Manuel Fernandez, the theologian widely acknowledged to have been the lead ghostwriter of Pope Francis's much-praised apostolic exhortation Evangelii Gaudium, recently gave an interview that is remarkable for the crudity of its categories, the tendentiousness of its contentions, and, above all, what it portends for the silent lambs. The Archbishop's way of talking about the Church is so far from what one would expect from a serious theologian and vir Ecclesiae, it's difficult, for me at least, not to despair at the significance of this man's being one of the advisors on whom the Holy Father is reputed to rely the most.
The interview is here, and those who care about how we should love the Bride of Christ should be scandalized by the mentality it bespeaks and the future it all but promises. Keep in mind that its all-but-named target at one point is the recent and utterly unprecedented suggestion (here) by Cardinal Muller, Prefect of the Congregation for the Doctrine of the Faith, that a new role for the CDF would be to provide a "theological framework" for this pontificate. As readers will recall, Cardinal Muller was one of Pope Benedict's last senior appointments in the Roman Curia.
The point Archbishop Fernandez is keenest to drive home is that there will be "no turning back:"
The pope goes slow because he wants to be sure that the changes have a deep impact. The slow pace is necessary to ensure the effectiveness of the changes. He knows there are those hoping that the next pope will  turn everything back around. If you go slowly it's more difficult to turn things back. . . .
[Interviewer] :When Francis says he will have a short pontificate doesn't this help his adversaries?
The pope must have his reasons, because he knows very well what he's doing. [SIC] He must have an objective that we don't understand yet. You have to realize that he is aiming at reform that is irreversible. If one day he should intuit [sic?] that he's running out of time and doesn't have enough time to do what the Spirit is asking him, you can be sure he will speed up.
So, to recap: The Pope will go slowly to make irreversible changes until he "intuits" that he needs to hurry up if he's to succeed in making irreversible changes.
Now, as the larger context of the interview makes unmistakable, Pope Francis of course doesn't commit the mistake of thinking that all in the Church is changeable. Acknowledged as unchangeable, in fact, are the existence of the Petrine office and of the College of Bishops. And so:
The Roman Curia is not an essential structure. The pope could even go and live away from Rome, have a disastery in Rome and another one in Bogota, and perhaps link-up by teleconference with liturgical experts that live live in Germany. Gathered around the pope, in a theological sense, is the College of Bishops in order to serve the people."
This concatenation of wild possibilities gives a new image to ultramontanism. But ultramontanist it is, despite the cultured veneers provided by a newly minted theology of papal popularity. According to Archbishop Fernandez over and over in the interview, the decisive fact is that "the people are with him" "and not with his few adversaries." "[M]ost of the People of God love Francis."
And why shouldn't they? Here comes perhaps the most breathtaking part of a tightly integrated interview that is indeed programmatic in the extreme. It comes in the explanation of why there is "no turning back:" "If and when Francis is no longer pope, his legacy will remain strong." Why, other than nostalgia?
[T]he pope is convinced that the things he's written or said cannot be condemned as error. Therefore, in the future anyone can repeat those things without fear of being sanctioned. And then the majority of the People of God with their special sense will not easily accept turning back on certain things. [emphasis in the preceding par. added]
[Interviewer:] Don't you see the risk of 'two Churches'?
No. There's a schism when a group of important people share the same sensibilities that reflect those of a vast section of society. Luther and Protestantism came about this way. But now the overwhelming majority of the people are with Francis and they love him. His opponents are weaker than what you think. Not pleasing everyone does not mean provoking a schism.
[Interviewer:] Isn't this idea of the pope having a direct rapport with the people something risky, while the Church's ecclesiastical class feels marginalized?
But the Church is the People of God guided by their pastors. Cardinals could disappear, in the sense that they are not essential. The pope and the bishops are essential. Then again, it is impossible that everything a pope does and says will please everyone. Did everyone like Benedict XVI? Unity does not depend on unanimity.
[Interviewer:] Do you think a conclave would re-elect Francis today?
I don't know, possibly not. But it happened . . . .
Yes, it happened. But the creeping infallibility asserted with arresting breadth and clarity in the quoted language should cause the faithful -- whether they consider themselves liberals, conservatives, or, better, just plain Catholic -- to sit up and pay attention and, I dare say, to object.
For example, Pope Francis has never purported to speak ex cathedra, and so how can it be that in his own view, as reported by a most-trusted advisor, nothing he has "said" -- and he says a lot -- can possibly be in error, such that what he has "said" necessarily can be "repeated" ad libitum by the "People of God."
There are changeable elements in the Church visible, and those can indeed be changed. There are unchangeable elements in the Church visible, and those cannot be changed. What, then, is the point of the "they love Francis" populism in service of a creeping infallibilism? Well, perhaps a confusing of the changeable and the unchangeable? What does it mean to "hurry up," as the Archbishop said Francis would, to make "irreversible" changes in what is, ex hypothesi, changeable? The truly unchangeable cannot be changed, even by a Pope in hurry. The authentic theology of the sensus fidelium (cf. Archbishop Fernandez's "special sense," above) is not about the success of demagoguery and Machiavellian politics in the Domus Sanctae Marthae, not about the large numbers who "love [Francis]" and how comparatively few and "weaker" are Francis's "adversaries." Nonetheless, Archbishop Fernandez is more or less content to contend as follows: "This pope first filled St. Peter's Square with crowds and then began changing the Church."
As the Archbishop insisted, Pope Francis "knows very well what he's doing."