Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, September 23, 2016

Call for Papers: "The Common Good as a Common Project"

Some graduate students at Notre Dame are putting together what looks to be an outstanding conference, which might well be of interest to MOJ readers:

Keynote speakers:

  • Alasdair MacINTYRE, University of Notre Dame
  • Jean-Luc MARION, University of Chicago and the Sorbonne
  • Jean PORTER, University of Notre Dame
  • Emilie TARDIVEL-SCHICK, Institut Catholique de Paris

The common good enjoys a central place in classical and Christian social thought. Although the concept is frequently invoked in both theological and political discourse, its rhetorical use is rarely connected to a more satisfying theory of its form or content. When rigorously conceived, however, the common good has ramifications for nearly all social inquiry, both empirical and theoretical. The resurgence of interest in the principle of the common good demands a two-fold conversation: one part building a conception of the common good that moves beyond vague or platitudinous gestures and the other applying the principle to social questions in a rigorous and intelligent way. This conference aims to embody that conversation across the many disciplines which can view the common good as their common project.

We invite both theoretical and applied papers that address key questions about the common good:  Is the common good still relevant today? Which conception of the common good best illuminates our understanding of politics, ethics, economics, and other social institutions? What arrangements in family life, civil society, and politics will best foster the common good? Submissions are welcome from the perspective of any discipline of social inquiry, including but not limited to: philosophy, theology, political science, sociology, economics, history, and law. The conference will be structured to foster exchange among competing theoretical conceptions of the common good as well as debate about the application of these conceptions to particular disciplines and moral/social/political problems.

Please submit an abstract of no more than 300 words by November 15, 2016 to cg2017@nd.edu. Notices of acceptance will be sent by December 6, 2016.

All presenters at the conference will receive a private hotel room for two nights during the conference as well as a small stipend of up to $150 to help defray documented transportation expenses. There is also a limited fund to further assist those who may be traveling from abroad; such funds will be awarded upon request, based on availability. For more information, please email us at the above address or visit the conference website at nanovic.nd.edu/cg2017.

September 23, 2016 in Garnett, Rick | Permalink

Thursday, September 22, 2016

Great opportunity at the Becket Fund

Check out the information, here, about the Constitutional Law Fellowship with the merry band of happy warriors at the Becket Fund for Religious Liberty:

The Becket Fund’s Constitutional Law Fellowship gives exceptional recent law clerks or law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is also an excellent stepping stone to a judicial clerkship, private practice, academia, or a permanent position with the Becket Fund.

September 22, 2016 in Garnett, Rick | Permalink

Monday, September 19, 2016

A "Consistent Ethic of Life" Party

At Crux, Charlie Camosy has some thoughts about, and is developing a proposal regarding, a Consistent Ethic of Life (CLE) political party.  Way, way back, in the early days of MOJ, Dean Mark Sargent and others also speculated/hypothesized/ruminated about such a party.  He points out, among other things, that "we consistent ethic folks have a problem: there is no agreement about what a pro-life party with a consistent ethic should look like."  I agree.  (Like Charlie, but for some different reasons, I don't regard the American Solidarity Party as a promising venture or alternative to our current situation.)

(At least) two questions, it seems to me, would have to be "on the table":  One would be "what positions and policies would such a party have to address specifically, and what would it need to say about them?"  Another would be, "what positions, if taken or endorsed by another party, would preclude -- or, maybe, weigh heavily against -- an endorsement by the CLE party?"

I'm pretty sure the two-party system is here to stay, in the U.S., so this might all be, as they say, "academic"; still, its interesting to think about.  And, who knows:  I was pretty sure a year ago that the two major parties' nominees would be Joe Biden and Jeb Bush . . .       

September 19, 2016 in Garnett, Rick | Permalink

Thursday, September 15, 2016

Saint John Paul II . . . patron of alpinists?

I love this . . . 

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September 15, 2016 in Garnett, Rick | Permalink

Bruce Frohnen on "Constitutional Morality and the Rise of Quasi-Law"

I invited Prof. Bruce Frohnen to write up a few words about his and George Carey's new bookConstitutional Morality and the Rise of Quasi-Law, which I think might be of interest to MOJ readers:

For decades I argued with my late friend and colleague, Georgetown political scientist George Carey, over whether the American Constitution is a dead letter. George thought it was dead. I still believe it is not quite dead. This limited disagreement rests on a more fundamental shared understanding that is at the heart of our recently released book: American political actors no longer respect their Constitution or the institutions, beliefs, and practices that until recently supported it and were supported by it in turn.

The theme of our book is that America’s unwritten constitution—that combination of traditions, legal structures, and political customs that shape a people’s public life—no longer fits the Constitution as written. This will come as no surprise to most students of constitutional government, but its implications have long been minimized or ignored. Our Constitution was designed for a free and virtuous people leading their lives within largely self-governing families, churches, and various local associations. Our national government now is run by and for elites committed to transforming society through mechanisms intrinsically hostile to the limited government dictated by the Constitution’s plain language.

Defenders of the current regime habitually dismiss defenders of our constitutional republic as retrograde yokels pining for a bygone era of horses, buggies, and institutionalized oppression. It is time to look beyond such self-serving obfuscations to the source and effects of the hostility toward constitutional, procedural, and legal restraints on which our current regime is based.

From Woodrow Wilson, through Franklin Roosevelt’s New Deal and to this day, Progressives have demanded that the “deadlock of democracy” be broken. They have sought to undermine constitutional restraints on centralized power in the name of “doing the people’s business.” That “business” has been establishing a new order under which administrative experts will protect individuals from want, prejudice, and disapproved hierarchies.

The Framers’ Constitution aims to provide specific, limited public goods, most especially the mediation of disputes among more fundamental associations and political units—those associations and units within which people may pursue good lives in common as self-governing, free people. That Constitution maintained the rule of law and ordered liberty through formal structures and procedures requiring development of supermajority support for most significant policy changes. As the Framers knew, the Constitution’s formal structures cannot function without a supporting constitutional morality emphasizing restraint and acceptance of formal limitations on power. Checks and balances limited arbitrary power only to the extent they were applied moderately and for limited, moderate goals.

Progressivism delegitimized this constitutional morality by presenting the people’s will as the sole source of political legitimacy and by propagating the myth of a “living constitution.” Living constitutionalists claim to seek the best in our Constitution by deriving abstract principles (equality and popular sovereignty) from it, then re-defining constitutional, legal, and governmental practice accordingly. Missing in this rosy picture is the rule of law essential for popular self-government. Progressives’ hostility toward constitutional restraint has produced a system in which Congress no longer makes laws, instead “enabling” executive agencies to do so. Their judges no longer adjudicate under law, instead approving or nullifying laws, institutions, and entire traditions according to their own ideological prejudices. Progressive and even putatively conservative Presidents no longer execute laws, instead ruling by decrees including executive orders suspending immigration laws and legislative signing statements establishing new federal agencies.

The result is a regime of quasi-law. Ignoring the essential nature of a constitution as rules for the making of rules, dispensing with the separation of powers as inconvenient, and rejecting their duty to restrain both their institutional rivals and themselves from overreaching, political actors today issue directives, from whatever branch of government, that have the form and effect of law, but lack essential legal characteristics. We examine these directives in terms of Lon Fuller’s elements necessary for law’s internal morality. They lack generality, being crafted for individuals or interest groups. They fail to provide notice to the ruled because they may come from any (or all) sources of political power. They lack clarity because they allow administrators largely unlimited discretion. They are inconsistent with one another and change radically over time. And they are administered in a manner that differs wildly from that in which they are declared. Consequently, we or our associations must “plea bargain” if charged with violations; we must seek waivers from unworkable regulatory schemes; and we must appeal to the political prejudices of particular judges to defend rights (including that to self-government) guaranteed by the Constitution. From citizens we quickly are becoming subjects of a lawless regime.

This electoral season gives scant reason to hope for re-establishing a genuine rule of law. But it is important to note that we have slid this far into a regime ruled by decree through decades of misunderstanding and constitutional corruption. At root the problem is that we demand too much from our central government and too little from ourselves, as individual persons and as members of more local, fundamental associations. Lawyers and political scientists bear particular responsibility for our dilemma because they have cast aside the model of constitutionalism on which our political tradition was built in favor of one that flatters their view of themselves as experts capable of designing a more fair and just society. But just order cannot be commanded from the political center; it must grow from people’s more natural associations. The character of a people is rooted in its culture, not its politics. And if politics is made the master of culture, our political leaders will become our masters, and our freedom will disappear. Specific reforms are simple to find, for they entail use of the tools (especially the powers of veto, impeachment, and removal from office) already provided by our Constitution as written. But any possibility of improvement requires acceptance of the fact that free governments can only exist within constitutional orders that limit, separate, and aim political power in the interests of associations more natural and fundamental than the central government.

Thanks, and congrats, Bruce!

September 15, 2016 in Garnett, Rick | Permalink

Wednesday, September 14, 2016

McGurn responds to the (really bad) USCCR report

Here.  A taste:

The commission report is called “Peaceful Coexistence: Reconciling nondiscrimination principles with civil liberties.” Its top finding is this: “Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of pre-eminent importance in American jurisprudence.”

Translation: Nuisances including the First Amendment’s “free exercise” of religion guarantee take a back seat to the rapidly multiplying non-discrimination causes such as the “right” to coerce any baker you want into baking the cake you want for your same-sex wedding.

In her own submission to the report, the commission’s Gail Heriot pinpoints the flaw in the finding. A University of San Diego law professor, Ms. Heriot says she could easily imagine a case for Mr. Castro’s position. But instead of an argument, she says, the commission offers a decree.

“By starting with an assertion that antidiscrimination laws are ‘pre-eminent,’ she writes, “the Commission’s analysis essentially begins with its conclusion. Why should anyone accept it? The Commission said so.”

I recommend readers take a look at the excellent dissenting statements from Commissioners Kirsanow and Heriot, and also the expert statements that were submitted by, among others, Prof. Michael Helfand and Prof. John Inazu.

September 14, 2016 in Garnett, Rick | Permalink

Tuesday, September 13, 2016

My take on the election: "Neither"

Here's something I wrote for Commonweal on the upcoming presidential election.  

Shorter version:  Trump and Clinton are awful (yes, she is) and we should be ashamed of ourselves for nominating them.  That said, she's going to win.  I'm voting for neither.  In any event, turn out and vote for divided government to reduce the damage to religious freedom and other important causes.


September 13, 2016 in Garnett, Rick | Permalink | Comments (0)

Monday, September 12, 2016

"Freedom Of, From, For, and Within Religion: Dimensions of a Common Right?"

This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS).  The theme was "Freedom Of/For/From/In Religion:  Differing Dimensions of a Common Right?" (more info here).  Here's the blurb:

Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.

Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.

My own paper was called "Freedom For Religion:  (Yet) Another View of the Cathedral," and in the paper I mulled over (as I have in some other places) the passages in Dignitatis Humanae that refer to the duty of the public authority to take care of the "conditions" for religious freedom and to proactively support the "religious life" of people (in ways consistent with the religious freedom of all).  

What was particularly rewarding was the fact that scholars came from around the world, not only North America and Europe, and so we were able to get some perspective on the variety of challenges that religious freedom faces in different contexts.  (And, it was nice to grab a pint with fellow MOJ-er, Tom Berg!) 

September 12, 2016 in Garnett, Rick | Permalink

Wednesday, September 7, 2016

"To Whom Do Children Belong" by Prof. Melissa Moschella

I've just ordered Prof. Melissa Moschella's (CUA, Philosophy) new bookTo Whom Do Children Belong?  Parental Rights, Civic Education, and Children's Autonomy.  (It's good timing, since I will be talking this afternoon about Justice Douglas's troubling opinion in the Yoder case!).  

The book is reviewed by Prof. Chris Tollefsen here, at Public Discourse.  Here are the opening paragraphs of that review:

Melissa Moschella begins her new book on parents’ rights and children’s education with a quotation from Melissa Harris-Perry that might be familiar toPublic Discourse readers: “we have to break through our kind of private idea that kids belong to their parents or kids belong to their families and recognize that kids belong to whole communities.”

The implications of such a claim are breathtaking. If Harris-Perry is right, where the rearing and educating of children are concerned, the community—and in particular, the political community—should determine both the ends of such care and education and the means to be pursued. The community, in other words, possesses primary authority. Even if that authority is not complete—if, for example, parents also have some authority over their children—such familial authority is at best only partial, derived from an implicit grant from the state.

Such claims strike traditionally-minded persons as outrageous. They seem to be precisely backwards—the reverse of what is true. Families, we think, are prior to the state, which exists to protect families. Within families, parents have primary authority over their children, and even if that authority is partially shared with the state, the primary role of the state is to help parents, not to take over tasks that are properly parental.

Moschella’s book is a vigorous defense of this traditional view.

For other discussions of these issues, check out this book review, by our own Michael Scaperlanda, or this short article of mine (from 2000!  Time flies!).

September 7, 2016 in Garnett, Rick | Permalink

Tuesday, September 6, 2016

Conference of Religiously Affiliated Law Schools

The conference of the Religiously Affiliated Law Schools is coming up at the end of September, and the line-up (which features our own Rob Vischer, among others) looks great.  Be there if you can!

September 6, 2016 in Garnett, Rick | Permalink