Mirror of Justice

John F. Scarpa Conference on Law, Politics, and Culture -- Change of date

The third annual John F. Scarpa Conference on Law, Politics, and Culture, which was originally scheduled for September 2008, will be held instead on Thursday, February 19, 2009.  The venue remains Villanova Law School. 

The keynote address will be given by Professor Martha Nussbaum on a topic drawn from her recent Liberty of Conscience (Basic Books 2008).  Also speaking at the conference wil be Kent Greenawalt, Geoff Stone, Jesse Choper, Richard Schenk OP, John McGreevy, Rick Hills, and MOJ's very own Rick Garnett.

Please mark your calendars and plan to join us for the event. 

Garnett's judgment in O'Neill v. George

Affirmed.

I wasn't at Princeton for the event, but I did, just the other day, read Aidan O'Neill's paper "Judging Catholics: Natural Law, The Catholic Church, and the Supreme Court."  First, there's the issue, mentioned by Rick, of the tendentious characterizations, such as  "conformist" vs. "non-conformist."  Predictably, they do the following sort of work that, well, speaks for itself:  "It might be thought that the Second Vatican Council marked the ascendancy of the non-conformist tendency within the Church in the 20th century bu the long Papacy of John Paul II and the election of Benedict XVI as Pope might seem to mark a renewed ascendancy of conformist Catholicism"  (47, n.1).   

But there's also the issue, likewise mentioned by Rick, that the argument is wrongheaded and, at times, ill-informed.  O'Neill's got a lot going on in the paper (divorce, gay marriage, and contraception come up frequently), but the thesis seems to be that judges in our constitutional democracy would violate their judicial oath by doing what the "conformist" tradition is said to demand of them, to wit, to use the judicial office to advance the Church's "agenda" (40).  According to O'Neill, "for a judge to decide not to apply or to re-interpret a law in a manner which is determined not by the intra-systemic rules and principles governing legal interpretation, but by extraneous considerations -- such as his own or his Church's moral values -- would a usurpation of his or her office" (34).  "The duty of public office holders is to uphold the Constitution under which they hold office, not to undermine that office by seeking to further the agenda of another body or to promote values which are not compatible with the civil society in which they hold office" (39-40).

Where to begin?  What I take to be the Church's actual understanding of what a faithful Catholic judge should do, if he or she is to be faithful, is altogether missing from O'Neill's account.  For an accurate statement of the Thomistic position which inspire and shape the contemporary statements of the magisterium (whether "conformist" or "non-conformist"), one can do no better, for my money, than chapters 3 and 4 of Russ Hittinger's The First Grace (2003), a work that O'Neill appears not to be familiar with. 

On the question of what the judicial office as intended under Article III of our Constitution requires, and what it rules out, in terms of (what we might call, in hope of avoiding a tendentious description) moral judgment, the book to read is H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008).

In a word, the Church doesn't expect the kind of judicial activism O'Neill describes (at length) and fears, and our Constitution does not rule out -- but indeed requires -- some (but by no means all) of the judicial moral judgment of the sort that O'Neill fears.  The premise that the Church's moral teaching amounts to an attempt to get simpletons to advance her "agenda" in the world is not the beginning of a promising argument or discussion.  But then again, as the reader of O'Neill's paper will see, the author seems to think that people in democratic civil society are, on moral matters, epistemically privileged/better off vis-a-vis the Church (see, e.g., 36).       

academic freedom

Pope Benedict XVI's visit has been generating more good stuff and goodness than many of us can keep up with.  The Holy Father's talk to Catholic educators this afternoon will be studied and parsed, and -- one hopes -- absorbed, for a long time to come.  Here, for now, is the nugget on "academic freedom:"

"In regard to faculty members at Catholic colleges universities, I wish to reaffirm the great value of academic freedom. In virtue of this freedom you are called to search for the truth wherever careful analysis of evidence leads you. Yet it is also the case that any appeal to the principle of academic freedom in order to justify positions that contradict the faith and the teaching of the Church would obstruct or even betray the university's identity and mission; a mission at the heart of the Church's munus docendi and not somehow autonomous or independent of it."

The Pope understands and expresses this work of Catholic colleges and universities within the following context, which he expresses with characteristic beauty and acuity:

"The Church's primary mission of evangelization, in which educational institutions play a crucial role, is consonant with a nation's fundamental aspiration to develop a society truly worthy of the human person's dignity. At times, however, the value of the Church's contribution to the public forum is questioned. It is important therefore to recall that the truths of faith and of reason never contradict one another (cf. First Vatican Ecumenical Council, Dogmatic Constitution on the Catholic Faith Dei Filius, IV: DS 3017; St. Augustine, Contra Academicos, III, 20, 43). The Church's mission, in fact, involves her in humanity's struggle to arrive at truth. In articulating revealed truth she serves all members of society by purifying reason, ensuring that it remains open to the consideration of ultimate truths. Drawing upon divine wisdom, she sheds light on the foundation of human morality and ethics, and reminds all groups in society that it is not praxis that creates truth but truth that should serve as the basis of praxis. Far from undermining the tolerance of legitimate diversity, such a contribution illuminates the very truth which makes consensus attainable, and helps to keep public debate rational, honest and accountable. Similarly the Church never tires of upholding the essential moral categories of right and wrong, without which hope could only wither, giving way to cold pragmatic calculations of utility which render the person little more than a pawn on some ideological chess-board."

As I see it, at least on one early reading, the primary message the Pope spoke to those who care -- or should care -- about the work of Catholic colleges and universities, in the US today, is that the work of these institutions is ecclesial:  The Church's educational institutions serve -- indeed, participate in -- the Chuch's foundational mission to all peoples.  The Church's educational institutions do this by inviting people to come together in -- and for -- the common pursuit of, and sharing of, the truth. 

Fr. Neuhaus on "Civilizing Authority"

A little while back, Fr. Neuhaus generously wrote the following in First Things:  "Lexington Books has just published a volume called Civilizing Authority: Society, State, and Church. Edited by Patrick McKinley Brennan, it is a collection of essays written in response to Arendt’s claim [about the disappearance of authority]. Each is worth reading."  As so often happens, I find myself in agreement with Father. 

I hope you'll treat yourself and others to a copy or two here or elsewhere.  In addition to the foreword by H. Jefferson Powell, it includes chapters by Cardinal Dulles, Joseph Vining, Michael J. White, Glenn Tinder, John Coons, Thomas Kohler, Russell Hittinger, J. Budziszewski, Steven Smith, and Brennan.

The Pope Should Be Pleased

Before being elected pope, Joseph Card. Ratzinger invited three Catholic Universities in the United States to convene conferences to study the question of the possibility of a common morality in this global age, and last weekend -- or, rather, from l;ast Thursday through Sunday -- The Catholic University of America rose to the challenge.  CUA, acting through its new Center for Law, Philosophy and Culture, which is under the direction of our friend William Wagner, hosted a standard-setting conference on the theme "A Common Morality for the Global Age: In Gratitude for What We Are Given."  The principal papers will be published in the Center's Journal of Law, Philosophy and Culture.  We are all in the debt not only of Bill Wagner but also of CUA President Fr. David O'Connell and CUA Law Dean Veryl Miles for warm hospitality and both scholarly and ecclesial vision.  To name the list of heavy-hitters is only a beginning: Stanley Hauerwas, Sir John Polkinghorne, Kenneth Schmitz, Nicholas Boyle, Michael Sandel, Jean Porter,Gilbert Meileander, Kathryn Tanner, Thomas Hibbs, Robert George, Paul Weithman, Hadley Arkes, Francis Oakley, Richard Helmholz, Kenneth Pennington, Jean Elshtain, William Schweiker, Brian Tierney, David Hollenbach SJ, Kevin Hart, Robert Wilken, Mahmoud Ayoub, Rabbi Barry Freundel, Robert Burt, and many others.  It was, as Lisa Schiltz said to me in conversation during a break on Saturday, the feel of the event -- the way in which the conference theme of "gratitude for what we are given" animated and disciplined the hard discussion of pluralism, terrorism, disagreement, "rights," etc.  There was a palpable sense throughout the conference that it has become exigent for Christians to come together with others to give witness to the reality of moral norms that should guide and protect us all.  I found particularly insightful the papers by Jean Porter and Frank Oakely; Porter spoke to the theological basis of natural law and the need for Christians to witness by sharing natural law norms even with those who cannot affirm the theological premises, and Oakley mapped out the voluntarist and rationalist strains in the natural law tradition from Plato to 18th century. 

There's much more to say about this, but I'll end for now by congratulating CUA on a most successful, and hope-generating, gathering.  It's apt that Pope Benedict will visit CUA only weeks after the university hosted the conversation he inspired.

Mark your calendars for Scarpa III

I am pleased to announce the complete line-up for this fall's third-annual Scarpa Conference on Law, Politics, and Culture, to be held at Villanova University on Friday, September 12, 2008.  We have attracted a diverse group of spectacularly qualified speakers to address both broad and narrow questions concerning free exercise of religion, establishment, equality, accomodation, conscience, "public reason," the freedom of the Church, and the Church in the United States.  Most of these issues are at the heart of Liberty of Conscience (Basic Books 2008) by Martha Nussbaum, who will deliver the conference's keynote address. Professor Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics in the University of Chicago Law School; at Chicago, she is also appointed in Philosophy, Classics, Divinity, and Political Science.

Also speaking at the conference will be R. Kent Greenawalt, University Professor, Columbia University; Roderick M. Hills, Jr., William T. Comfort III Professor, New York University School of Law; Jesse Choper, Dean emeritus and Earl Warren Professor of Public Law, University of California at Berkeley, Boalt Hall; Steven Smith, Warren Distinguished Professor, University of San Diego School of Law; Very Reverend Richard Schenk, OP, Professor, Domincan School of Philosophy and Theology, Graduate Theological Union, Berkeley, CA; Geoffrey Stone, Dean emeritus and Harry Kalven, Jr., Distinguished Service Professor, University of Chicago Law School; and John T. McGreevy, Professor of History, University of Notre Dame.

Please mark your calendars and plan to attend. If you have any questions about the conference, please do not hesitate to get in touch with me.  The conference falls on the Friday before Villanova's Parents' Weekend, which means that hotel reservations should be made as early as possible.

Tamanaha's mistake

Tamanaha asserts the following:  "If non-believers make political decisions by the lights of their best moral judgments, the fact that they wrongly do not believe in the Christian story does not prevent Christians from enjoying eternal salvation. No harm done to them, at least with respect to the hereafter."

Non-believers making political decisions "by the lights of the their best moral judgments" could, just conceivably, prevent preachers from preaching, ministers from ministering, sacraments from being celebrated, monks from chanting, parents from sharing true religion with their children (e.g., Joel Feinberg's "right to an open future"), and so forth.  On some Christian theologies, I suppose, these failures would not "harm" Christians or potential Christians with respect to the hereafter.  (See Coons and Brennan, By Nature Equal (1999)).  On other Christian theologies, however, such failures just might have the consequence of either preventing people from getting to heaven or, at least, of making it more difficult for them to do so.  The recent document from the Congregation for the Doctrine of the Faith, on the importance of evangelization, certainly doesn't take the view that it is immaterial whether or not people hear the Good News.   

One poor Jesuit's point of view?

Dear Fathers and Brothers, Pax Christi

We are all aware of the response given to the most recent encyclical of Pope Paul VI, Humanae vitae, about the problems raised by the question of contraception. While many completely accept the teaching of the encyclical, a number of the clergy, religious and laity violently reject it in a way that no one in the Society can think of sharing. Yet, because the opposition to the encyclical has become widespread in some places, I wish to delay no longer before calling to mind once more our duty as Jesuits. With regard to the successor of Peter, the only response for us is an attitude of obedience which is at once loving, firm, open and truly creative. I do not say that this is necessarily painless and easy.

In fact, on various grounds and because of particular competence, some of us may experience certain reservations and difficulties. A sincere desire to be truly loyal does not rule out problems, as the Pope himself says. A teaching such as the one he presents merits assent not simply because of the reasons he offers, but also, and above all, because of the charism which enables him to present it. Guided by the authentic word of the Pope -- a word that need not be infallible to be highly respected -- every Jesuit owes it to himself, by reason of his vocation, to do everything possible to penetrate, and to help others penetrate, into the thought which may not have been his own previously; however, as he goes beyond the evidence available to him personally, he finds or will find a solid foundation for it.

To obey, therefore, is not to stop thinking, to parrot the encyclical word for word in a servile manner. On the contrary, it is to commit oneself to study it as profoundly as possible so as to discover for oneself and to show others the meaning of an intervention judged necessary by the Holy Father.

Once we have correctly grasped the meaning of the encyclical, let us not remain passive. Let us not be afraid to rectify our teaching, if need be, while at the same time explaining why we are doing so. Let us develop our teaching as profoundly as possible rather than restrict it. Let is strive for a better pastoral theology of the family and of the young people. We must not forget that our present world, for all its amazing scientific conquests, is sadly lacking a true sense of God and is in danger of deceiving itself completely. We must see what is demanded of us as Jesuits. Let us collaborate with others in centers of the basic research on man, where the specific data of Christian revelation can be brought together with the genuine achievements of the human sciences and thus achieve the happy results that can be legitimately anticipated. In all this work of sympathy, intelligence, and love, let us always be enlightened by the Gospel and by the living tradition of the Church. Let us never abandon the papal teaching we have just received. Rather, we must continually seek to integrate it into an ever-widening anthropology. The present crisis makes clear this urgent need.

In so fulfilling our mission as Jesuits, which is to make the thought of the Church understood and loved, we can help the laity, who themselves have much to bring to the problems touched on in the encyclical, and who rely on us for a deep understanding of their points of view.

You understand well that it is the spirit of the Constitutions which inspires me as I write these words. For, as the Constitutions tell us in substance, each member of the Society must remember that his personal manner of serving God is realized through a faithful obedience to the Roman Pontiff. That is why I am certain that today too, the Society is able to show itself worthy of four centuries of complete fidelity to the Holy See.

It certainly cannot be said that the Second Vatican Council has changed all this. The Council itself speaks formally of "this religious submission of will and of mind," which "must be shown in a special way to the authentic teaching authority of the Roman pontiff, even when he is not speaking ex cathedra. That is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence and the judgments made by him sincerely adhered to according to his manifest mind and will" (Lumen Gentium, n.25).

Nor can it be said that the Pope was speaking of matters that do not involve our faith, since the essence of his teaching directly concerns the human and divine dignity of man and of love. In the enormous crisis of growth which envelops the whole world, the Pope himself has been what the entire Church must be, and Vatican II affirmed, "both a sign and a safeguard of the transcendence of the human person" (Gaudium et Spes, n.76). For this reason the service we as Jesuits owe to the Holy Father and to the Church is at the same time a service we owe to humanity itself.

In my awareness of our obvious duty as Jesuits I could say much more, particularly at this time which seems to me crucial for the Church. Difficult times are times made for the Society, not to seeks its own glory, but to show its fidelity. This is why I am certain that all of you will understand my words. As for those for whom the encyclical presents personal problems of conscience, I wish to assure them that for that very reason I am keeping them in my affection and prayers.

May St. Ignatius help each of us to become, with the aid of the Holy Spirit, more Ignatian than ever. May he obtain for us the understanding that our legitimate desire to be totally present to this world demands of us an ever-increasing fidelity in the service of the Church, the Spouse of Christ and the Mother of all mankind.

I commend myself to the prayers of all of you. Most devotedly in Christ,

Pedro Arrupe, S.J., Praep. Gen. Soc. Iesu.

Dellapenna on Wills on abortion

I am posting the following on behalf of my Villanova Law colleague Joseph Dellapenna:

On October 3, Michael Perry posted on Mirror of Justice Martin Marty’s brief comment on the new book by Garry Wills entitled, Head and Heart: American Christianities. Marty raises a number of alleged inconsistencies in those who argue that an embryo or fetus is a person, raising arguments of a theological or philosophical nature. Marty also alludes to certain arguments that Wills derived from the historical treatment of abortion. I claim no special expertise regarding theology or philosophy, and I am not even a Catholic, so I will not attempt to address the theological or philosophical points that Marty found in Wills’ book. I have, however, written an exhaustive study of the history of abortion—Dispelling the Myths of Abortion History (Carolina Academic Press 2006)—and therefore feel qualified to raise certain points that derive from that history.

The central historical point in Marty’s comment is that “the subject of abortion is not scriptural, ‘it is not treated in the Ten Commandments, the Sermon on the Mount, or anywhere in the Jewish Scripture, the New Testament or the creeds and ecumenical councils.” He goes on to repeat that Thomas Aquinas followed Aristotle in concluding that a person arose (the soul was infused) when the fetus was fully formed at 40 days (for males) or 80 days (for females) after conception. This is hardly the entire story, to say the least.

It is true that the Bible says nothing about abortion, but then law generally said very little about abortion at the time the Bible was first written down. This was not because people thought abortion was unobjectionable, but because abortion was such a rare practice at the time  that few people said much about it at all, in any source. Those who did write about abortion, discussed it in a very abstract way, and often only as an afterthought to a more extended, and more concrete, discussion of some related offense—usually homicide, but sometimes as a crime against the mother. Tertullian, one of the leading Church fathers, for example, insisted that a fetus was a person from the moment of conception. Others, including St. Clement, Origen, and St. Augustine, followed Aristotle and the theory of mediate animation (“animation” in Latin refers to the infusion of a soul). But even these Church fathers condemned abortion before animation as a grave sin, but simply not as homicide. I discuss these points, with full references, in chapter 3 of my book.

Why this neglect of abortion in the ancient sources? The answer, which is mostly forgotten today, is that abortion until fairly well along into the nineteenth century was tantamount to suicide. Women rarely, if ever, underwent a voluntary abortion. We in fact have a significant number of legal cases from as far back as 1200 in England and even earlier in Roman law, in all of which the abortion was forced upon an unwilling woman. This simple fact is reason enough why the Bible and most other legal and religious sources from that time treated as an abstract, a hypothetical idea. I have elaborately documented the evidence for the techniques of abortion in chapter 1 of my book. The real social problem, which was addressed in detail and repeatedly in legal and religious sources, was infanticide—a social problem that only receded in importance with the development of abortion techniques in the late nineteenth and early twentieth century that were safe enough for women wanting to be rid of an unwanted child to be able to choose abortion in preference to infanticide. I describe  the evidence for the prevalence of infanticide in chapter 2 of my book.

Our “collective amnesia” about just how dangerous and rare abortion was underlies what I have termed the “new orthodoxy” of abortion history, linked to names like Angus McLaren, Cyril Means and James Mohr. The new orthodoxy holds that abortion was always a common practice and therefore must have been generally accepted before the enactment of the nineteenth century abortion statutes because it was so seldom condemned and was only prosecuted when the abortion was imposed upon a woman rather than sought by her. I discuss the enactment of the nineteenth century abortion statutes in chapters 5 to 9 of my book. Unfortunately, Marty and Wills seems to have bought into the new orthodoxy without seriously examining the relevant evidence. To conclude from the prevalent silence regarding abortion in the early texts that abortion was therefore not condemned when what little discussion there was unanimously condemned it, makes no more sense than would a conclusion that Christianity has nothing to say about negligently driving an automobile because the ancient texts say nothing about how one should drive a car. And, of course, there are innumerable other features of modern life that would be left open to similar arguments.

"[P]articipation in the eternal reason of God."

Benedict XVI: Natural Law Is Base of Democracy

Says Ignoring It Is a Crisis for Human Civilization

VATICAN CITY, OCT. 5, 2007 (Zenit.org).- Benedict XVI says that natural law must be the foundation of democracy, so that those in power are not giving the chance to determine what is good or evil.

The Pope said this today when receiving in audience the members of the International Theological Commission, who had just completed their annual plenary meeting, held in the Vatican this week under the presidency of Cardinal William Levada.

The Holy Father discussed with the theological experts what he considers the antidote to "ethical relativism."

Natural law, the Pontiff explained, is "the norm written by the Creator in man's heart," which permits him to distinguish good from evil.

But, he contended, partly because of "c ultural and ideological factors, today's civil and secular society is in a situation of confusion. The original evidence for the foundations of human beings and of their ethical behavior has been lost, and the doctrine of natural moral law clashes with other concepts that run directly contrary to it.

"All this has enormous consequences on civil and social order. A positivist conception of law seems to dominate the thought of many scholars."

Benedict XVI explained that according to these scholars, "humanity, or society, or in effect, the majority of citizens, become the ultimate source for civil legislation."

Unnecessary relativism

He continued: "The problem that arises is not, then, the search for good but the search for power, or rather the balance of power.

"At the root of this tendency is ethical relativism, which some people even see as one of the principle conditions for democracy because, the y feel, relativism guarantees tolerance and mutual respect.

"But if this were true, the majority at any given moment would become the ultimate source for law, and history shows with great clarity that majorities can make mistakes.

"True rationality is not guaranteed by the consensus of the many, but only by the openness of human reason to the reason of the Creator and by listening together to this Source of our rationality."

Freedom

Benedict XVI affirmed that natural law is actually a guarantee of freedom.

He explained: "When fundamental essentials are at stake: human dignity, human life, the institution of the family and the equity of the social order -- in other words the fundamental rights of man -- no law made by men and women can subvert the norm written by the Creator in man's heart without society itself being dramatically struck ... at its very core.

"Thus natural law is a true guara ntee for everyone to live freely and with respect for their dignity, protected from all ideological manipulation and from all arbitrary abuses of the powerful.

"No one can disregard this appeal. If by reason of a tragic clouding of the collective conscience, skepticism and ethical relativism managed to annul the fundamental principles of natural moral law, the very democratic order itself would be profoundly undermined at its foundations."

The Pope said that men and women of all faiths should combat this possibility.

He said: "Against such clouding -- which is a crisis for human, even more than for Christian, civilization -- the consciences of all men and women of good will must be mobilized, both laypeople and followers of religions other than Christianity, so that together they may make an effective commitment to creating ... the conditions necessary for a full awareness of the inalienable value of natural moral law.

"The advance of individuals and of society along the path of true progress depends upon respect for natural moral law, in conformity with right reason, which is participation in the eternal reason of God."

the common "good"

There's a nice essay (http://www.americamagazine.org/content/article.cfm?article_id=10279 ) in the October 15 America on the importance of recovering the concept of the common good in our contemporary American political discourse and practice.  Not moral values, not pluralism, not rights, not dignity -- the "common good" at the center, those other concepts taking their place in service of achieving the common good (and the individual goods that it includes).  Hats off to the authors, Kelley and Gehring.

Disruption and hiring

The questions that Fr. Miscamble, Peter Steinfels, John McGreevy, and others are working through are hard, and I admire all concerned for their clear acknowledgment that something -- but what? -- needs to be done to reverse the trend according to which formerly "Catholic" universities no longer deserve that predicate. 

Approaching the issue from a slightly different angle than any I've seen in the recent discussions, I'll take Villanova, where I am privileged to work, as an example.  Villanova University is, as it has been from its founding, an aposolate of the Order of St. Augustine.  The Augustinians have chosen to allow lay men and women (along with other religious and clerics) to join with them in that apostolate at Villanova.  It would be self-defeating, indeed perverse, for those charged with this apostolate to attract to Villanova those who either don't support or are hostile to the apostolate.  Obviously, those doing the hiring at Villanova will and must look for qualities in addition to ones bearing directly on support of and contribution to the apostolate, but it's hard to see how one can justify adding folks who do not in some way further the apostolate as such -- unless by outright denying that the University should be engaged in its declared apostolate (a point to which I return below).

As a matter of fact, however, most "Catholic" colleges and universities, including Villanova, do most of their hiring without regard for apostolate or mission.  It would seem to me, therefore, that the first necessary step is to try to get agreement that support of apostolate/mission is as imporant in potential faculty hires as are intelligence, education, collegiality, and the like.  With most people in most Catholic places of higher education not even granting the legitimacy of hiring for apostolate/mission (let alone its desirability or exigence), it's no wonder we cannot begin to reach consensus on whether hiring Catholics (with a numerical goal in mind) is the way to go or hiring "for mission" is the preferred path.  In each of the several Catholic law schools I know, non-Catholics are among the biggest supporters of mission, but in most Catholic universities, including their law schools, controversy rages over whether or not to hire "for mission." 

I think it's virtually beyond serious question that, whatever has been going on over the last generation has delivered a raft of Catholic places of higher learning that are no longer meaningfully Catholic.  In my judgment, the sponsors of those institutions with charismatic and canoncial apostolates should either acknowledge as much and stop pretending the contrary or take the necessary action to renew the religiosity of their institutions.  What that action would be, I'm not entirely sure, and obviously it would to some extent vary from place to place.  It's worth bearing in mind, though, that (as Bernard Lonergan observed) extraordinary action may be required to reverse a cycle of decline.  I can understand why some people are uncomfortable, for example, with numerical goals for hiring engaged *Catholics* (rather than hiring "for mission"), but it would seem to me that the burden is on those who oppose such numerical goals to demonstrate an alternative that will likely do better.  Personnel are policy, and engaged Catholics are at least prima facie on the side of the sponsoring Catholic religious order's apostolate. 

Peter Steinels worries about a "top-down fiat [that will be] disruptive of the university community."  In my judgment, such disruption may be exactly what is needed to reverse the unhappy trend that seems to move forward with inexorable force.  But, granting Steinfels's concern, what about the "disruption of the university community" that occurs when colleagues deny that hiring for mission is even legitimate, claim that the Catholic quota is filled, or openly mock and actively subvert the religious identity of the institution?  What about this disruption that quietly but insatiably eats away at the core season after season, day after day?  I don't disagree with Steinfels that "hiring for mission" has promise, but it has to be done.  How many pro-mission faculty can one find at such "Catholic" schools as Georgetown, Fordham, Boston College, Santa Clara, and the rest?  I suspect that if the incumbents were pro-mission, hiring "for mission" wouldn't be so controversial as to be the exception rather than the rule.

Let me be clear:  In my judgment, Catholic places of higher education should  be inclusive, both at the faculty level and at the student level.  But there is no inconsistency between being authentically Catholic and genuinely inclusive.  The arms of the Church are wide.   

 

"ideology" in faculty hiring

The Chemerinsky debacle has generated some throughtful blogging on the proper role of (I'll call them) firmly held commitments in faculty hiring ("ideology" is too pejorative).  On Ilya Somin's principles (as posted  by Volokh, see below), it would be acceptable for a self-describing Catholic law school *openly* to favor Catholics for faculty positions, but wrong for the same law school to discriminate against, say, Democrats for faculty positions. 

If, say, the Catholic religion taught (as it does NOT) that non-Catholics are necessarily going to hell, there might be reason to worry whether Catholic faculty members could treat non-Catholic students fairly.  But, whatever the religion's teaching, the cognizable issue is indeed whether the potential faculty member is likely to discriminate against students who do not profess that religion.  The presumption should be in favor of religious adherents' opportunity to be non-discriminatory in the exercise of the professional duties.

Somin at Volokh:

When Is it Permissible for Universities to Refuse to Hire Professors Based on their Political Views?

The Chemerinsky saga raises a broader question: Is it ever permissible for a university to refuse to hire an academic because of his political views? For reasons that Eugene Volokh elaborates here, schools should be much more hesitant to reject professors on political grounds than high-ranking administrators such as law school deans. I am tempted to say that taking ideology into account in faculty hiring is never defensible. However, there are three situations where it probably is:

I. Institutional Commitments to a Religion or Ideology.

Some schools are explicitly committed to promoting a particular religion or (less often) political ideology. In such cases, it is permissible for the school to give preference to professors who share that commitment. For example, Brigham Young could legitimately prefer Mormon professors over non-Mormons. However, a school that follows this approach should openly announce its commitments and what they entail in terms of faculty hiring. It would be wrong to mislead prospective students and faculty members by secretly pursuing an ideological or religious agenda behind a veneer of supposed neutrality. To my knowledge, most religious universities that give preference to co-religionists in faculty hiring are in fact open about their agenda. By contrast, some secular schools that engage in ideological discrimination are not.

II. Ideological Commitments that Conflict with Professional Competence in One's Field.

Some ideological commitments are at odds with basic professional competence in an academic's own field. For example, a school would be justified in refusing to hire a World War II historian who is a Holocaust denier. Even if his professional credentials were otherwise adequate, the Holocaust denial in and of itself calls his competence into question because the evidence against that position is so overwhelming.

However, it is essential to recognize that this applies only to views on issues that directly relate to the scholar's academic work. Many people have outlandish or poorly supported views on political issues unrelated to their areas of expertise. Views on these unrelated issues should not be held against them in the academic hiring process. For example, Noam Chomsky, in my opinion, has crackpot views on various political issues, such as denying the existence of Pol Pot's mass murders in Cambodia (whose reality is almost as well established as that of the Holocaust). However, his poor judgment on these issues is irrelevant to his academic work as a linguist, in which field he is a leading authority.

Even within job candidates' own fields, there is a danger that hiring committees will tend to define as professionally incompetent any view that diverges too much from their own. That risk is difficult to eliminate entirely, as most people understandably have greater tolerance for views similar to their own than for those that are very different. There is no way to completely cure this bias. All we can do is to try to be vigilant about it, and also to ensure that a wide range of ideologies are represented on faculties. Ideological diversity reduces the danger of political bias in hiring, because it is hard to claim that a job candidate's views are beyond the pale of serious scholarship if some of your current colleagues share them.

III. Ideologies that Prevent Adherents from Treating Students Fairly.

In very rare cases, a job applicant's political ideology might cast serious doubt on his or her ability to treat students fairly. For example, a university could understandably refuse to hire a virulently racist professor for a position where he would be responsible for teaching large numbers of African-American students. After the fact sanctions for discriminatory behavior by the professor may not be sufficient to prevent discrimination, especially given the reluctance of most administrators to sanction academics for all but the most egregious in-class misconduct. Moreover, professors have a great deal of discretionary authority over students, and thus many opportunities to discriminate in ways that are hard for administrators to detect after the fact.

Like the previous one, this exception to the principle of tolerance can easily be abused. For example, political opponents could interpret any opposition to an ethnic or religious group's political agenda as hostility to the group itself. The classic example is the attempt to define all opposition to affirmative action as racist. But there are parallels to this on the right. Thus, it is important to remember that this justification only applies in cases where the job applicant has a prejudice against a group so strong that he is likely to discriminate against students who are members of the group. It is not enough that he opposes some element of the group's political agenda. In the case of religious groups, it is not enough that he opposes the group's theology (e.g. - if he is an evangelical Christian who believes that those who do not accept Christ will go to Hell).

In assessing both the second and third exceptions, faculties should err on the side of tolerance when in doubt. Otherwise, free academic inquiry could be seriously undermined. At the same time, we have to concede that there are extreme cases when schools can legitimately refuse to hire academics based on ideology.

Scarpa Conference on October 16

There are still seats available for Villanova's second annual John F. Scarpa Conference on Law, Politics, and Culture, but they're going fast.  If you or people you know are planning to attend but haven't registered, please register soon at http://www.eventbrite.com/event/68959259 

This year's topic is "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."  Justice Antonin Scalia will deliver the keynote address, and other presenters will include Paul Kahn (Yale), Jean Porter (Notre Dame), Jeremy Waldron (NYU),  and James Stoner, Jr. (LSU).

We hope to see lots of MOJers and friends of MOJ at Villanova on October 16.

"The Vatican" dixit?

Prompted by Steve Shiffrin's most recent post, I'm finally going to pose a question that's been on (and off) my mind for more than a season.  What do you mean, Steve, when you say "the Vatican teaches" or "the Vatican says" or "the Vatican teaching on?"  Also, what do others mean when they use these and similar expressions? 

Nothing is signed "the Vatican."  What happens if we substitute the real signatories for "the Vatican?"  Does this create problems for Steve's (or others') positions on authority, obedicence, etc?   

Time for the unpopular -- and, for a change, a little joy

The Sept. 10 issue of America magazine includes a courageous cover story by Wilson Miscamble, CSC, titled "The Faculty 'Problem': How Can Catholic Identity Be Preserved?"  Miscamble is professor of history at Notre Dame, and what he has published in "The National Catholic Weekly" is a lawyer's brief arguing that Notre Dame has lost -- or is about to lose -- its claim to be a meaningfully "Catholic" university and calling for the action that is necessary to stop what is in fact not an inevitable loss of identity.  Miscamble also draws the lessons for places that haven't been as blessed with fidelity as Notre Dame has been:  Notre Dame, and other historically Catholic universities, can choose to remain, or to become again, Catholic, but it's a choice, a choice that would involve a lot of hard and frequently unpopular work.  When a member of the sponsoring religious order publicly questions whether Notre Dame, of all places, is going to end up Catholic and does so, as Miscamble has, in measured but strong terms, it's at last time to pay attention.  As one friend put it to me:  "Miscamble shows exactly how the store gets sold."

Miscamble makes the case that the right faculty hiring is absolutely essential to creating and maintaing a school's Catholic identity.  He also argues that, in the present circumstances of departments and units that are indifferent or even hostile to mission, presidents and provosts and boards of trustees must sit up straight, put down their coffee cups, slide the honorific paper weights to one side of the well-varnished desk, and do something, even something unpopular:  "It must be understood . . . that this is not a matter that can be massaged by minor measures.  The temptation for administrators is to hope that a little adjustment here and a bit of tinkering there might improve the situation without stirring faculty opposition.  Settling for minor measures in the present circumstances, however, indicates a complicity in the secularization process.  A major change in the hiring process is required, and the need for it must be approved at the level of the board of trustees and implemented with courageous leadership, whatever faculty resistance it generates." 

The opposition to Catholic universities' actually being (or becoming again) Catholic comes in many forms and from many quarters -- and, to be sure, there's no Platonic form of the Catholic university.  Many of us in "Catholic" law schools are familiar with the internal opposition that is pure, old-fashioned anti-Catholic bigotry, the more subtle but monstrously crude opposition that supposes that Catholics can't be smart (and that people who haven't gone to the short list of schools, which of course includes no Catholic places, aren't good enough), and the contented, supine opposition that says "I go to Mass on Sundays, say the creed, support my parish, and the rest, but my faith -- and yours -- has nothing to do with providing professional education."  Some of us are also blessed to be familiar with deans and colleagues (not all of them Catholics!) who take the work of building inclusive Catholic places of higher education to heart.  But, if Miscamble is right, those of us in the classrooms and in the departments need help from above.

The observation that what presidents, provosts, and boards must do will be unpleasant because unpopular should not be allowed to obscure the end goal, and one dimension of it in particular.  Catholic Christians living or working together in inclusive communities can be expected to be people of joy, the joy that attends believing in and sharing the Good News.  Mary Ann Glendon exemplifies this when, in answer to the question "Why are you still a Catholic?", she replied (in print): "I love being Catholic!"  The work of building Catholic universities depends for its success on people who, loving their faith and Church and their God, can show by their joy and generosity that the work is attractive, even compelling.  Catholic institutions don't get built without self-sacrifice on the part of the builders.      

    

         

Don't miss it . . .

The Second Annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova on October 16, and it's now possible to register for the event by clicking here http://www.eventbrite.com/event/68959259

This year's topic is "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."  Justice Antonin Scalia will deliver the keynote address, and the other speakers include Professors Paul Kahn (Yale), Jean Porter (Notre Dame), James R. Stoner, Jr. (LSU), and Jeremy Waldron (NYU). 

The early returns suggest that the event is going to fill up, so please register early (and tell your friends)!

The schedule for October 16 is as follows:

8:00-8:45 a.m. - Registration/Continental Breakfast

8:45 a.m. - Welcome: Father Peter Donohue, OSA, President of Villanova University

8:50 a.m. - Welcome: Dean Mark Sargent, Villanova University School of Law

9:00 a.m. - Textualism and Democracy

Jeremy Waldron
University Professor, New York University School of Law

Commentator:

Professor Catherine Lanctot
Professor of Law, Villanova University School of Law

Moderator:

Professor Chaim Saiman

10:00 a.m. - Break

10:15 a.m. - Determination and Deduction: How Aquinas Might Distingquish the Work of the Legislator from the Work of the Judge

James R. Stoner, Jr.
Professor of Political Science, Louisiana State University

Commentator:

Professor Michael Moreland
Assistant Professor of Law, Villanova University School of Law

Moderator:

Visiting Professor Kevin Walsh

11:15 a.m. - Meaning, Intention, and the Purposes of Law: Judicial Interpretation in a Natural Law Context

Jean Porter
John A. O’Brien Professor of Theology, University of Notre Dame

Commentator:

Michael J. White
Professor of Law and Professor of Philosophy, Arizona State University

Moderator:

Professor Robert Miller

12:15 p.m. - Lunch (boxed lunches served in Bartley Hall)

1:10 p.m. - Keynote Address: The Role of Catholic Faith in the Work of a Judge

Hon. Antonin Scalia
Associate Justice, Supreme Court of the United States

Introductions by Dean Mark Sargent and Professor Steve Chanenson

Moderator:

Professor Steve Chanenson

2:15 p.m. - Break

2:30 p.m. - Sovereignty and Our Supreme Court: A Holy Alliance?

Patrick McKinley Brennan
John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law

Commentator:

Paulina Ochoa Espejo
Assistant Professor of Political Science, Yale University

Moderator:

Professor and Associate Dean Doris Brogan

3:30 p.m. - Charisma and the Foundations of Judicial Authority

Paul Kahn
Ralph R. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr., Center for International Human Rights

Commentator:

Penelope Pether
Professor of Law, Villanova University School of Law

Moderator:

Professor Tiffany Graham

4:30 p.m. - End

4:45 p.m. - Mass, St. Thomas of Villanova Church

Atilla Gregorian, SJ

I recently had a chance to begin -- and I'm only about a quarter of the way through the almost 550 pages of  -- Walter F. Murphy's Constitutional Democracy: Creating and Maintaining a Just Political Order (Johns Hopkins, 2007).  Mary Ann Glendon describes the book as a "masterpiece," and I have every reason to believe that she is, as so often happens, spot on.  The argument of the first part of the book is developed through an imagined colloquy among a group of select individuals whose task it is to draft a constitution for a nation that is just emerging from a phase of rule by a tyrannical junta.  Sometimes the literary device rankles a little, but on the whole I think it's a smashing success, especially as it allows the "voice" of the lefty Jesuit in the group to emerge and make a series of impressions.  This "worker priest," Fr. Atilla Gregorian SJ, wants the constitution to reflect and advert to "the dignity of the human person."   Many others in the drafting group suspect that there's no there there in said "dignity."  Still others are of the view that there's way too much that's spooky in the vaunted "dignity." 

As I say, I'm not nearly done with the book, but I hasten to recommend it, especially to those of us who frequently find ourselves talking up "the dignity of the human person" for purposes of shaping thinking about law and society.  Sometimes Murphy gives at least this reader reason to resist Gregorian's rhetoric; at other times Gregorian seems to say exactly what needs saying.  Even the popes who can't be suspected of being crypto-Kantians (e.g., Pius XII) spoke frequently and passionately of the dignity of the human person, but of course they did so with the benefit of a metaphysical scaffolding that it's not clear Fr. Gregorian would affirm.      

What "the rule of law" doesn't require

Brian Tamanaha says he and I agree about Aquinas.  I'm not sure we do, but I'll leave that for another day.  Brian's account places an emphasis on coercion that I think occludes what, on Aquinas's account, makes law obligatory.

Now, to the matter at hand.  I'll stipulate that Brian is right that the rule of law requires that "lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law."  Brian's next claim, in the immediately succeeding sentence, is that the "systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law."  But which "crucial aspect" is he referring to?  The question, which I take to call for an empirical answer, is whether those who enter after a process of "systematic ideological vetting" are in fact, or are likely to be, successful in "bind[ing]" themselves to abide by and enforce the law.  If the answer be in the affirmative, then I'm not sure what the worry is with respect to "filling the Department with lawyers who will apply the law in a manner that furthers ideological goals."  If the people getting hired at Justice don't follow the law, that's not a threat to the rule of law, that's a failure of the rule of law.  If the people getting hired at Justice are following the law, then, pro tanto, the rule of law is secure.

Now, let me be clear.  First, I do think that prudence dictates against some of what I understand the DOJ to have been up to with respect to hiring.  But I wouldn't leap, as Brian seems to, to the worry that the rule of law is threatened when people are given preference for their political views and commitments.  There may be things to object to in the process that the DOJ has apparently recently used, but I don't think "the rule of law" is is lost or on the ropes until you can say that people aren't following -- or, perhaps, are about not to follow -- the law.  To acknowledge the elephant in the room, Article III judges get nominated in part because of their political and moral commitments.  The question going forward is always whether, as an empirical matter, each individual judge is following the law.  Why is the issue importantly different at DOJ?  Second, with respect to what officials at DOJ do in the interstices of or the open-textured spans of "the law," Congress could seek to affect it by requiring that appointments by politically balanced, on the model of the "independent commissions."  But, becasue Congress hasn't sought to do so, and because so far forth the evidence seems to be that the appointees are following the law and interpreting it in a way that is consistent with our traditions of interpretation, there is no loss of, nor a demonstrable threat to, the rule of law.  Again, I'm not saying the "screening" we're hearing about was prudent.  In the end, I suspect Brian of trying to get too much from "the rule of law," perhaps in part because objections that sound in prudence may require a moral or political theory that is contestable in a way that Brian thinks "the rule of law" is not.  The "rule of law" seems a strange weapon with which to attack "ideological bias" that has not been demonstrated to lead to lawlessness or unlawfulness.           

The other Aquinas and the Bush administration

Rob beat me to Tamanaha over at Balkanization, but now I have even more say, though I'll try to keep it brief.  As far as the relevant context goes, Aquinas is not the ally against the Bush administration that Tamanaha makes him out to be.  Aquinas does think that the prince/legislator (the English Dominicans' translation of the Summa theologiae that Tamanaha relies on, the standard translation, renders the Latin word "princeps" and the like as "sovereign," but this is a seriously misleading mistranslation, a function, I'm afraid, of the time at which the learned translators were at work), should follow the law, even though no one can legally coerce him to do so.  But does the screening of Justice Department applicants entail a disregard of, or a call to disobey, the law?  As such, no.  Tamanaha's recent work has worried about the pouring of ideological agendas into the skins of the rule of law, but the question about the Justice employees who get appointed is simply whether in their work they are following the laws set down.  The screening may raise people's worries that they'll be incapable of following the law that has been laid down, but that's another matter.      

One should add, of course, that Aquinas's point in q. 96 art. 5, from which Tamanaha quotes, is not that the princeps cannot change the law or act beside the letter of it.  At the end of the reply to obj. 3 of 96.5, Aquinas writes "Again the princeps is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place."  In the next question, 96.6, Aquinas further spells out the conditions under which someone who is under the law can act beside the letter of that law.  The permission, shaped and limited by the law's necessary commitment to the common good, is impressive, especially from the perspective of the flat-footed textualism or originalism that some conservatives and others insist is the remedy for our cultural woes.

Tamanaha writes that "the ultimate guarantor of the rule of law is the power to threaten and exert violence."  Aquinas does not agree.  On Aquinas's account, the reasonableness of the law is a necessary condition of its being binding, and its reasonableness comes from, among other sources, its being in the interest of the common good.  This alignment with and contribution to the common good, this "reasonableness," is, of course, no part of the account of Hobbes, whom Tamanaha identifies as Aquinas's ally.  For Aquinas, what we might call "the rule of law" occurs focally in the the prince's or his subjects' free conformity to the reasonable dictate of the prince, that is, the person charged with the common good of the community.  When force -- even lawful force -- has to enter, in some sense the rule of law has broken down or failed.

In sum, or so it seems to me:  Vague worries about the arrival of ideology that threatens "the rule of law" are a distraction from the clean questions put by Aquinas:  Are the officials operating within their grant of authority under the laws set down, that is, the reasonable ordinances put in place for the common good?  The reason why we shouldn't talk about "sovereigns" in this context is that, when that portentous word is used, there's inevitably an (at least) implicit claim that one can be above the directive force of the law.  On Aquinas's account, if the law be reasonable, that is, if it be a genuine law, no one is above its directive force, even if no one is in position lawfully to impose it through coercion.          

Reply to Eduardo

I don't believe what I wrote "certainly (sic) suggests" that "Professor Kaveny's writing" on the subject of abortion merits excommunication.  But, just to dispel any doubt, I did not then, nor do I now, know of any ground that would justify the Church's declaring Professor Kaveny excommunicated.  No, we're all in this together, at least for now.  I've long held Cathy Kaveny in very high regard, something she, but perhaps not Eduardo, would have every reason to know.  I just disagree with her from time to time, and she with me, and there's no surprise or evil in that.  Concocting a reading of my post according to which I am so presumptuous as to suggest that our partner in dialogue should be excommunicated is pure silliness.   

In what I wrote I linked to Pope Benedict's recent comments on the possible declaration by Mexican bishops of the latae sententiae excommunication of Mexico's elected officials who had voted to decriminalize first-trimester abortions.  I did so in order to provide a cutting-edge context in which to evaluate the principle Kaveny had recently advanced in her editorial in Commonweal, and I quoted that principle (I did not give a "summary" of the editorial to which I also linked) according to which the Court "would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrife her fundamental integrity to carry her baby to term."  The part of that principle that I've now italicized is really very far from anything the Church is saying about the principles that should guide decision-making and political choices that bear on abortion.  Professor Caveny seeks with the principle to acknowledge and serve simultaneously two sets of "core values."  But again, "core values" is a not-so-subtle way of taking one's attention of the Church's principle, indeed that of the natural moral law, according to which it is a grave moral evil intentionally to take innocent human life.  Eduardo says Kaveny "is talking about abortion to protect the health or life of the mother."  Is that really all she is talking about with her concept of "secular law" that treats as "fundamental" something other than the basic principle that good is to be done and pursued and evil avoided?  Kaveny suggests that her principle would be a step toward a "workable compromise."  I understand the de facto need for incrementalism in undoing Roe in the immediate future, but I don't think the Church bids us have our eye on a "compromise" premised in part on the "fundamental" advanced by Kaveny.

Since I don't have any reason to believe Professor Kaveny should be excommunicated, I don't need to reach Eduardo's question about whether I'm not edging toward endangering "academic freedom."  But, just to be clear about this too, let me say that I adhere to the Church's norms regarding who is fit to teach in Catholic colleges and universities.  It's not really about whether "[I] would stop there."  There are norms, and putatively Catholic colleges and universities should adhere to them, and they should do so in a spirit of unity and charity.  Those norms, for their part, are deeply infused with and shaped by the Church's perennial judgment of the importance of scholars seeking the truth in freedom.  I'm sure, though, that there are some conceptions of "academic freedom" that are out of place in Catholic places of higher learning.  I suppose one might even under some circumstances have to choose between "Catholic" and "academic freedom." 

      

Kaveny, Carhart, and excommunication

Anyone giving serious consideration to Cathlen Kaveny's remarkable editorial on Carhart (http://www.commonwealmagazine.org/article.php3?id_article=1926) will do well to consider at the same time Pope Benedict's recent remarks on the automatic excommunication of the Mexican politicians who supported the legalization of first-trimester abortion  (http://news.yahoo.com/s/ap/20070509/ap_on_re_ca/pope_mexico_1).  Professor Kaveny recommends an American legal regime that "would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrifice her fundamental physical integrity to carry her baby to term."  In pondering that recommendation in the context of the Church's contrary insistence, I keep coming back to Maritain's acute observation that today "It is no longer the human which takes charge of defending the divine, but the divine which offers itself to defend the human."       

Don't read it

You won't want to read the second installment of vol. 52 the Villanova Law Review that has just become available online and in print.  Don't even consider glancing at the intellectual product of Villanova's first annual Scarpa Conference on Law, Politics, and Culture, the topic of which was "From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture."  Please don't let your curiosity lead you to our very own Rick Garnett's "Church, State, and the Practice of Love" or Amy Uelmen's ""Reconciling Evangelization and Dialogue Through Love of Neighbor."  And since no one will be tempted by Cardinal Dulles's keynote address "The Indirect Mission of the Church to Politics," there's no risking in mentioning it here.

And while I'm at it, please don't mark your calendar for the next Scarpa Conference on Law, Politics, and Culture that will be held at Villanova on October 16, 2007.  You certainly won't want to hear Justice Scalia, or Paul Kahn (Yale), or James Stoner (Louisiana State), or Jean Porter (Notre Dame), or Jeremy Waldron (NYU) on "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."          

Limbo?

Panel Backs Hopes for Unbaptized Infants Who Die
Pope OKs Publication of Report on Limbo

VATICAN CITY, APRIL 20, 2007 (Zenit.org).- Benedict XVI authorized the publication of a report that expresses the hope that babies who die without baptism are able to get to heaven.

The report by the International Theological Commission, published today, concluded that there are serious theological and liturgical grounds for the hope that such babies are saved and enjoy the beatific vision.

The commission says the theological hypothesis of "limbo" appeared to be based on an unduly restrictive view of salvation.

The 41-page document noted this is an "urgent pastoral problem," especially because of the large number of unbaptized babies who die as victims of abortion.

The commission's documents are not considered official expressions of the magisterium. But the commission does help the Holy See to examine important doctrinal issues.

The Catechism of the Catholic Church in No. 1261 explains: "As regards children who have died without baptism, the Church can only entrust them to the mercy of God, as she does in her funeral rites for them.

"Indeed, the great mercy of God who desires that all men should be saved, and Jesus' tenderness toward children which caused him to say: 'Let the children come to me, do not hinder them,' allow us to hope that there is a way of salvation for children who have died without baptism.

"All the more urgent is the Church's call not to prevent little children coming to Christ through the gift of holy baptism."

TSA and the Rule of Law

I've been on the TSA Watch List for years.  I know all about not being able to check in at home or at the curb or at the kiosk, the long lines and rude questions, the shuntings from one counter to another, the super-scrutinies, the wonderings out loud about whether I'll able to provide the "documentation" they need, guessing what the required documentation will be this time, the ransacking of my luggage . . . .  It's all too familiar.  I've even had lost luggage, but until now i never occurred to me that the Bush Administration might be behind the disappearance.  But that's probably because, for good or ill, I've never spoken publicly against the Bush administration.  (I'm not saying I couldn't come up with something to say).  Why am I, Patrick Brennan, not free to fly without interference?  I'd be tempted to say that I'm on the Watch List is because of my association with MOJ, but I've been on the Watch List longer than I've been on MOJ.  I have spoken in favor of the Church, however.  Will that do it?  Perhaps speech has nothing to do with it and it's sufficient that I'm a Patrick Brennan?  I've done everything possible to get off the list.  I do have the consolation of a letter telling me that agency's decision on my request to be removed from the List is final and, therefore, appealable to the U.S. Court of Appeals.  The special beauty of the letter, though, is that it doesn't tell me what the agency decided, not even a clue.  I'm still on the list, that's for sure -- but the letter doesn't even admit that I was ever on the list to begin with.

Just one story.  One time, several years ago, I was noticing wide discrepancies in the TSA agents' practices regarding travelers' sho