Tuesday, September 26, 2017
. . . I suggest that the immediate question is whether American society is properly civil. This question is intelligible and answerable, because the basic standard of civility is not in doubt: "Civilization is formed by men locked together in argument. From this dialogue the community becomes a political community." This statement, made by Thomas Gilby, O.P., inBetween Community and Society, (New York: Longmans, Green & Co., 1953.) exactly expresses the mind of St. Thomas Aquinas, who was himself giving refined expression to the tradition of classic antiquity, which in its prior turn had given first elaboration to the concept of the "civil multitude," the multitude that is not a mass or a herd or a huddle, because it is characterized by civility.
The specifying note of political association is its rational deliberative quality, its dependence for its permanent cohesiveness on argument among men. In this it differs from all other forms of association found on earth. . . .
It is otherwise with the political community. I am not, of course, maintaining that civil society is a purely rational form of association. We no longer believe, with Locke or Hobbes, that man escapes from a mythical "state of nature" by an act of will, by a social contract. Civil society is a need of human nature before it becomes the object of human choice. Moreover, every particular society is a creature of the soil; it springs from the physical soil of earth and from the more formative soil of history. Its existence is sustained by loyalties that are not logical; its ideals are expressed in legends that go beyond the facts and are for that reason vehicles of truth; its cohesiveness depends in no small part on the materialisms of property and interest. Though all this is true, nevertheless the distinctive bond of the civil multitude is reason, or more exactly, that exercise of reason which is argument.
Friday, September 22, 2017
More info here!
The Notre Dame Institute for Advanced Study (NDIAS) brings together leading thinkers from around the world to live and work at the University of Notre Dame as Fellows in a residential intellectual community. The Institute supports outstanding, innovative research in all academic disciplines that is directed toward, or extends inquiry to include, ultimate questions and questions of value, especially as they engage the Catholic intellectual tradition. Consistent with, but not limited to, this tradition the NDIAS encourages its Fellows, regardless of their particular expertise and research,
to think about their work with a view toward the unity of knowledge in a manner that pushes beyond mere interdisciplinarity; and
to explore the relationship between the descriptive (the world as it is) and the normative (the world as it should be).
Wednesday, September 20, 2017
During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit. A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.
More surprising, and disappointing, than these scholars' defenses have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal. [UPDATE: What I say below applies also to Cathy Kaveny's Washington Post op-ed, defending Feinstein's questioning.] In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing. Read the linked-to pieces for yourself. Then, consider these thoughts of mine, for what they are worth:
- (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role. It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations. This kind of questioning does not violate the "No Religious Tests" Clause of the Constitution.
- (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views. In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X. This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.
- (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken). The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different. Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations. Rather, Sen. Feinstein said this:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.
This is not an appropriate question. (Nor was Sen. Durbin's "are you an orthodox Catholic?") This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism. It's what was done to Al Smith and John F. Kennedy. Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your faith commitments." Sen. Feinstein's critics are right; her defenders are wrong. The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they). The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly."
Tuesday, September 19, 2017
Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018
In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.
Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:
Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)
Definition and classification of both religious violence and religious extremism
What is the relationship between religious freedom and religious extremism?
Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?
How should we distinguish between a deeply religious lifestyle and extremist
What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)
How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE
Faculty of Law
Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?
Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?
What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?
The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.
An abstract of 500 (max.) words should be sent to email@example.com no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
All participants will be provided three days of hotel accommodation and board during the
After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.
The organizing committee:
Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA
JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state
Here's a bit:
[T] idea that “error has no rights" . . . has often (and, John Courtney Murray contends, wrongly) been labeled a medieval teaching of the Catholic Church. Whatever its source, the maxim has substantial appeal: Why should a state tolerate error? If civil unity matters, why risk infection from wrongheaded ideas? Many of the darkest moments in church–state relations drew strength from this view — from Calvin’s burning of Michael Servetus to the Inquisition, the beheadings of Bishop John Fisher and Thomas More, and the Saint Bartholomew’s Day Massacre. Legal rights should protect the good — we repeatedly hear. They ought not be asserted in the defense of evil. Fortunately, both church and state in the West generally reject that totalitarian idea.
Sunday, September 17, 2017
From the Merry Band at Becket:
Becket is currently soliciting applications for our Constitutional Law Fellowship, to begin in September 2018.
The fellowship gives recent 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 an excellent stepping stone to private practice, academia, or a permanent position at Becket.
Applications will be received on a rolling basis starting now until December 31, 2017. Interviews will be conducted thereafter with offers made typically by the end of January 2018. The fellowship begins in September 2018. Fellowship terms are for one year and offer a competitive salary and benefits.
Applications should include a cover letter addressed to Becket's recruitment chair Hannah Smith, along with a resume, transcript, writing sample, and references. Applications should be emailed to Chelise Fox at firstname.lastname@example.org.
I very much enjoyed this essay, in First Things, by Archbishop Chaput. A bit:
. . . Next year, 2018, marks the twenty-fifth anniversary of the release of Veritatis Splendor, John Paul’s great encyclical on the “splendor of truth.” Written to encourage a renewal in Catholic moral theology and a return to its classical Catholic roots, Veritatis Splendor grounds itself in a few simple convictions. Briefly put: Truth exists, whether we like it or not. We don’t create truth; we find it, and we have no power to change it to our tastes. The truth may not make us comfortable, but it does make us free. And knowing and living the truth ennoble our lives. It is the only path to lasting happiness.
In the years that have passed, the crisis of truth has only seemed to grow. Our age is one of cleverness and irony, not real intellect and character. Today the wisdom of Veritatis Splendor is more urgently needed than ever.
It’s common, even among people who identify as Catholics, to assume that the Church’s moral guidance is essentially about imposing rules, rules that breed a kind of pharisaism. But this is exactly wrong. It’s an error that radically misunderstands the substance of Catholic teaching. It’s also one of the worst obstacles to spreading the faith.
John Paul II knew this. . . .
Saturday, September 16, 2017
Here's my contribution to the SCOTUSblog symposium on the upcoming Masterpiece Cakeshop case. Here is a bit:
. . . One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.
That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.
This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.
So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . .
Here's the California Senate's resolution relating to the 500th anniversary of the Protestant Reformation. It seems to me that some in the Senate need to read, e.g., their Eamon Duffy and Brad Gregory. A "Whereas" clause about the dissolution of the monasteries (#givebackYorkMinster) is conspicuously absent. (I kid, I kid.)
Wednesday, September 13, 2017
I see that our good friends at Pepperdine have started to market themselves as "The Nation's Premier Christian Law School." I certainly agree that Pepperdine is an excellent institution that does a very good job of engaging and meaningfully embracing its Christian character. I hope, though, that they have not fallen into the old error -- and, knowing so many at Pepperdine, I have to believe they have not -- of excluding Catholics (and, more specifically, certain outstanding Catholic law schools) from their definition and understanding of "Christian"! Remember, Evangelicals and Catholics Together (on law)!
UPDATE: Although (as I hope is clear!) I intended this post as a gentle and affectionate bit of teasing, and not a critique, I should add that in various other places and communications of Pepperdine's it is said that the institution "aspires" or has "aspirations" to be the Nation's Premier Christian Law School. And, Dean Paul Caron has stated:
Since my first day, I have loved working towards our shared goal to become the nation's premier Christian law school by combining academic and research excellence with a deep-rooted commitment to our Christian mission that welcomes people of all faiths and backgrounds.
Such aspirations are, of course, entirely appropriate and to be celebrated. Those of us who teach at the Nation's Premier Christian Law School welcome the competition! =-) (I kid, I kid.)
UPDATE: Dean Caron has written a gracious follow-up post which sets everything straight and kindly concludes:
I am of course a huge fan of Notre Dame and the other great Christian law schools, and of the fine faculties at those schools. None of us at Pepperdine would in any way ever intimate that Notre Dame or other Catholic law schools should not be considered Christian law schools. Indeed, we have a large number of Catholics on our faculty (in addition to Jewish, Muslim, ans Sikh faculty). Like Rick, we believe we are all "fellow laborers in the vineyard."