Mirror of Justice

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Thursday, December 18, 2014

"The Fate of Unreasonable People"

I came across, while looking for a citation, this paper, by Fuat Gursozlu, a philosopher at Loyola University Maryland, "a Jesuit Catholic university committed to the educational and spiritual traditions of the Society of Jesus and to the ideals of liberal education and the development of the whole person."  The paper is called "Political Liberalism and the Fate of Unreasonable People."  I suppose it could be seen as simply yet another of the many, many exercises in Rawls exegesis but . . . I actually found it more than a little chilling (in part because it is hard to avoid the unsettling apparent fact that the position defended in the paper is probably entirely mainstream, at least in the academy).  Here is the conclusion:

The practical political task of containing unreasonable doctrines is primarily concerned with the reformation of unreasonable citizens over time. Rawls is aware that when unreasonable doctrines grow so strong, it may be too late for the liberal democratic regime. The argument for the normative stability of the regime and the account of containment as transformation points out the need to prevent the unreasonable from becoming strong enough to overwhelm the liberal political regime. Steven Macedo points out that liberalism constitutes a regime that cannot help but shape citizens’ lives “deeply . . . and relentlessly.”  For Macedo, political liberalism should shape people’s commitments and habits “without exactly announcing that purpose on their face.”  This is a necessary political work that is beyond any “regret, apologies, or adjustment.” The account of containment as transformation centers on the idea expressed by Macedo: transformation of the unreasonable people living in a liberal political order without announcing that purpose in their face. 

"Forced to be free," redux.  Justice Jackson, no doubt, would have had some appropriate things to say about this . . . . 

December 18, 2014 in Garnett, Rick | Permalink

Wednesday, December 17, 2014

Schulman on parents rights, Pierce, barbarism, etc.

Prof. Jeffrey Schulman has posted a new paper (which appears to be part of new book, The Constitutional Parent), called "Meyer, Pierce, and the History of the Entire Human Race:  Barbarism, Social Progress, and (the Fall and Rise of)  Parental Rights."  Here is the abstract:

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority. 

The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play. 

Part I of this article looks at what might be the most formative application of stage-theory to family relations, John Millar’s The Origins of the Distinctions of Ranks (1771). Drawing on the sociohistorical work of David Hume and Adam Smith, Millar provides an empirical account of how rights of personal authority (the right of husband over wife, father over children, and master over servant) arise out of and evolve in response to changing socioeconomic conditions. For Millar, there is little doubt that parental authority “has been reduced within narrower bounds, in proportion to the ordinary improvements of society.” 

A product of the Scottish Enlightenment’s focus on sociability, Millar’s historical critique of paternal authority translated comfortably to the individualistic currents of the nineteenth century. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural and legal historian Henry Maine and the British moral philosopher Herbert Spencer. Though these writers took different routes through the emerging sociological territory of the nineteenth century, they all agreed that the historical record dictated the conclusion that there is no social progress without the repudiation of patriarchalism. 

With its focus on economic conditions and its pragmatic approach to rights, stage-theory could be put to far more radical uses. In the socialist utopia imagined by Marx and Engels, the private family would vanish along with private property and profit. Part III of this article has two goals: to remind readers that 1) socialist historymaking considered the dissolution of the bourgeois family as a key step toward a stateless state, and 2) this repudiation of the family was no mere doctrinal abstraction for American legal professionals. As the Supreme Court weighed the competing claims of parent and state, the threat of a socialist takeover of the family — “the principle of the soviet” — was always close at hand. 

In response to this unhappy prospect, the Court drew from the murky, mysterious well of state-constraining liberties we refer to as substantive due process. Repudiating the communistic models of ancient states — Sparta being the poster-child of historical statism — the Court began to write it own story of social progress. Social primitivism lay not in the patriarchal family but in the paternalistic state, and progress did not lie in a movement from personal rights to public responsibilities, but just the reverse. With regard to domestic life, this narrative of progress was one of struggle: a struggle of parental rights against the ever encroaching state. For the modern Court, regulation of the family would no longer be one of the proper functions of government. If history has an ash heap, and if the Court had its way, Sparta would once and for all be relegated to it.

One of the first papers I published, as a law professor, was a defense of Pierce and of a relatively strong view of parents' rights, or of what Prof. Stephen Gilles calls "liberal parentalism."   Here is the abstract to that paper:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

Interesting readers might also want to check out our own Mike Scaperlanda's take, here.  

December 17, 2014 in Garnett, Rick | Permalink

Monday, December 15, 2014

An important case in Colorado

Once again, the Blaine Amendments threaten to play Grinch and undermine creative education reform, this time in Colorado.  More here.

December 15, 2014 in Garnett, Rick | Permalink

Program Director sought for LMU's "Academy of Catholic Thought and Imagination"

More info is here.  Spread the word:

The Academy of Catholic Thought and Imagination (ACTI) is a community of scholars who work in dialogue with the Catholic intellectual tradition by developing, critically examining, communicating, or otherwise engaging the rich resources of Catholic thought and imagination, especially as it is informed by Jesuit thought tradition and Ignatian spirituality. The director will oversee all aspects of the Academy which serves as a hub for scholarship, interdisciplinary research, innovative pedagogy, and creative outreach across LMU’s campus, in the greater Los Angeles community, and beyond. The Academy is a strategic priority at Loyola Marymount University and the director reports directly to the provost. 

December 15, 2014 in Garnett, Rick | Permalink

Saturday, December 13, 2014

Upcoming conference (AALS overlap!): "The Vocation of a Christian Law Prof"

For everyone planning on attending the AALS Annual Meeting in DC -- and for any law professors or law students who'll be in the area in early January! -- here's information about the upcoming Lumen Christi / Law Professors Christian Fellowship event, featuring our own Rob Vischer and Prof. Barbara Armacost (U. Virginia).  Sign up now!


December 13, 2014 in Garnett, Rick | Permalink

"Public Schools and the Wall of Separation"

Over at First Things, Mark Bauerline has a helpful report about a recent lecture by Philip Hamburger -- author of (among other things) the crucially important book, Separation of Church and State -- on the "wall of separation" metaphor, public schools, religious freedom, and anti-Catholicism.

December 13, 2014 in Garnett, Rick | Permalink

Monday, December 8, 2014

Timely (and timeless?) wisdom from Justice Brennan

From his concurring opinion, in McDaniel v. Paty (1978):

That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife, does not rob it of constitutional protection. . . .   The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally.


Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches, as much as secular bodies and private citizens, have that right. . . .


The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals, and therefore subject to unique disabilities . . . .  Government may not inquire into the religious beliefs and motivations of officeholders -- it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction . . . ..


In short, government may not, as a goal, promote "safe thinking" with respect to religion, and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists, no less than members of any other group, enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion as it has done here . . . .  It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life. . . .


Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion, or from becoming drawn into ecclesiastical disputes. [n26] These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines, and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas, and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best.

December 8, 2014 in Garnett, Rick | Permalink

Monday, December 1, 2014

Fr. John Jenkins on "The Challenge and Promise of Catholic Higher Education"

Thanks to Bernard Prusak, at dotCommonweal, for this account of a recent lecture by Notre Dame's President, Fr. John Jenkins, on the "Challenge and Promise of Catholic Higher Education."   You can watch the video of Fr. Jenkins's talk here.  Here's a bit from Prusak:

Part 3 begins at 38:30 and takes up the two questions laid down by parts 1 and 2: 1) If some model like a revived neo-scholasticism isn’t the way for Catholic colleges and universities to go, then what is? That is, how else can Catholic higher education be coherent and distinctive? 2) What do Catholic colleges and universities have to say about the “higher purposes” of learning and inquiry? In other words, what answer can Catholic higher education give to the “danger” presented by the accelerating commodification of education?

Jenkins’ answer to both these questions is the same: what can orient and shape Catholic colleges and universities, and what can inform these institutions’ self-understanding and presentation of themselves, is the long tradition of Catholic thought. As he acknowledges, Jenkins is drawing here from Alasdair MacIntyre, who defines a living tradition as “an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.” As MacIntyre also writes (again in After Virtue), “Traditions, when vital, embody continuities of conflict.” Jenkins’ proposal is that the Catholic tradition, rooted in the doctrines of creation and redemption (minute 39), provides both “a rich set of values not readily accessible at our secular peers” and a set of commitments that “open up the possibility of interesting debate” and distinctive research programs and curricula (minute 42). Though coming toward its end, this is the heart of the paper. . . .


December 1, 2014 in Garnett, Rick | Permalink

Friday, November 28, 2014

Prof. Robert E. Rodes, Jr., R.I.P.

My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning.  During his career, he wrote about church history, courtly love, workman's compensation, maritime law, religious freedom, liberation theology, symbolic logic, legal ethics, .  . . .  He had been working on (yet) another book, a collection of his articles on church-state relations.  Here is a very nice announcement and collection of reflections.   For an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer, called "The Christian Jurisprudence of Robert E. Rodes, Jr."  Here is an excerpt from the announcement mentioned above, by my colleague Judge Kenneth Ripple:

His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .

November 28, 2014 in Garnett, Rick | Permalink

Wednesday, November 26, 2014

John Witte named Woodruff Professor at Emory

Prof. John Witte is one of the most prolific and important law-and-religion scholars now working, and he has been a wonderful friend and generous mentor to me and to many others.  This news, about his appointment to the very prestigious Woodruff Professorship (an honor he now shares with our own Michael Perry!), is wonderful.   From the press release:

John Witte Jr.—acclaimed teacher, prolific scholar and director of the Center for the Study of Law and Religion—has been named Robert W. Woodruff Professor of Law at Emory University School of Law.

Witte, an internationally recognized legal historian and expert on Christian jurisprudence, marriage and family law, religious liberty and human rights, came to Emory in 1985. He has spent the past 29 years breaking ground in the field of law and religion, while remaining committed to his first calling as a teacher. 

“The Woodruff professors are more than teachers and scholars of distinction; they serve a broad constituency that transcends individual departments and programs,” says Provost Claire Sterk. “As a leading authority on law and religion with an impressive body of scholarship, Professor Witte has earned a place among Emory’s most distinguished faculty.”

Witte has taught more than 5,500 students in courses such as criminal law, constitutional law, legal history, marriage and family law, religious liberty, human rights, and law and religion. Emory Law students have elected him Most Outstanding Professor 12 times. The Black Law Students Association has also elected him Most Outstanding Professor. More than 100 students have published books and articles under his supervision.

Emory University has recognized his teaching with two Crystal Apple Awards, the Emory Williams Distinguished Teaching Award, the Distinguished Faculty Lecture Award and the University Scholar Teacher Award, which was matched by a national award from the United Methodist Church Board of Higher Education.

Witte has delivered more than 350 public lectures around the world and is a regular keynote speaker at academic conferences. He has published 220 articles, 15 journal symposia and 27 monographs and anthologies, with five monographs under contract.

“Professor Witte’s writings and lectures have put him at the forefront of law and religion scholars around the world,” says Dean Robert A. Schapiro. “His work is known and praised by scholars of law, theology, philosophy, ethics, politics and history alike.” . . .

November 26, 2014 in Garnett, Rick | Permalink