Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, March 6, 2015

Wisdom from Lord Acton

I re-encountered this very good bit, thanks to Jacob Levy, from Lord Acton's The History of Freedom and Other Essays (1907):

The modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it, is the enemy of that common freedom in which religious freedom is included. It condemns, as a State within the State, every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, it emancipates the subjects of every such authority in order to transfer them exclusively to its own. It recognises liberty only in the individual, because it is only in the individual that liberty can be separated from authority, and the right of conditional obedience deprived of the security of a limited command. Under its sway, therefore, every man may profess his own religion more or less freely; but his religion is not free to administer its own laws. In other words, religious profession is free, but Church government is controlled. And where ecclesiastical authority is restricted, religious liberty is virtually denied.

For religious liberty is not the negative right of being without any particular religion, just as self-government is not anarchy. It is the right of religious communities to the practice of their own duties, the enjoyment of their own constitution, and the protection of the law, which equally secures to all the possession of their own independence.

He said it (natch) better than I did.  

March 6, 2015 in Garnett, Rick | Permalink

"Capital Punishment Must End"

"Capital Punishment Must End" is the title of this joint-editorial, published by Our Sunday Visitor, The National Catholic Reporter, The National Catholic Register, and America.  I very much agree that our governments should abandon capital punishment.  (More here.)  

That said, I am uncomfortable with connecting the case and movement against capital punishment (as the editorial does in a few places) either to the Supreme Court's pending case in Glossip v. Gross or to the recent decisions by some state governors to halt executions.  I continue to believe that it is important -- that it really matters -- that capital punishment end not as a result of unsound court decisions or possibly-overreaching executive actions.  It sounds increasingly old-fashioned -- or worse!  "formalistic"! -- I know, but legislatures, not judges and governors, make, and un-make, laws.

March 6, 2015 in Garnett, Rick | Permalink

Wednesday, March 4, 2015

American Law From a Catholic Perspective: Through a Clearer Lens

This is the title of an important new book available for order this month featuring many of our fellow MOJ bloggers or friends of MOJ. Contributors include Fr. Robert John Araujo, Thomas Berg, John Breen, Robert George, Michael Scaperlanda and many others. Gerard Bradley notes in his foreword that “[t]he moral evaluative perspective which unfolds in succeeding pages illumines, justifies, and critiques America’s laws.” One of my favorite reviews is from Michael Novak who states:

"Precisely because I am not a lawyer, I really liked this book. For an outsider, it provides a crisp guide to the history of American Catholics under American law – a fairly friendly and yet often antagonistic encounter. I hadn’t known that there are 29 Catholic law schools in the United States today...."

The book also features chapters from two of my colleagues here at Catholic University. My colleague, Robert Destro authored a chapter entitled “The Ethics of Lawyers & Judges Perspectives from Catholic Social Teaching." Additionally, my colleague Lucia Silecchia authored "The Call to Stewardship: A Catholic Perspective on Environmental Responsibility."

From the publisher: "Here readers will find probing arguments that bring the critical perspective of Catholic social thought to bear on American legal jurisprudence."

March 4, 2015 in Leary, Mary G. | Permalink

Assorted last-minute pre-argument thoughts on King v. Burwell

Insufficiently chastened by my embarrassingly inaccurate pre-argument assessment of Yates v. United States, I thought I'd share a few pre-argument thoughts on King v. Burwell. Once the arguments take place, it is very difficult to recover the frame of mind one had about what the Justices ought to have thought after exposure to what they actually think (or at least appear to think as of the time of argument). But preserving this pre-argument frame of mind for later re-examination can helpfully contribute toward calibrating one's assessments as a lawyer about the kinds of arguments that have currency at the Court at any given moment in time. This is not to say that "currency at Court at any given moment in time" is the only, or the best, or even a reliably sound measure of what makes for a good legal argument all things considered, but having a sense of what the various Justices believe to be good arguments at any given moment in time is important enough to be worth being wrong about. 

To slough off all but the most intrepid of readers (if I haven't already), I'll begin with a meta-meta-meta-point about law professor commentary on King v. Burwell. The prompt is Paul Horwitz's post about what he calls "Randy Barnett's latest ref-working post." As typical of his meta-meta-posts, Paul's post about Randy's meta-post contains much to agree with. His identification of many other reasons--besides "ref-working"--that legal academics and legal journalists write commentaries of the sort that Randy criticizes is helpful and accurate as far as it goes. But when Paul turns (in his point 5) to "what Randy himself is engaged in doing," he submerges the simplest and best explanation, which is that Randy is sincerely and appropriately concerned that Chief Justice Roberts buckled in NFIB v. Sebelius and made a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court. Randy does not want this to happen again; he worries not only that other people do, but also that they are working to bring that about, so he tries to counter it even while recognizing the likely futility of such an enterprise given his view of what happened in NFIB v. Sebelius. (If this explanation of Randy's reason for writing is accurate, I disagree with Randy on this point, but I realize why he would think I am wrong and he is right about this. Planned Parenthood v. Casey stands as a monument to various Justices' capacity to make a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court.) Sure, Randy's post "can be read" as "an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of 'the left' to flatter or threaten the Chief." But much "can be read" many ways (as Paul recognizes elsewhere throughout his post), and I draw a different lesson in this meta-meta-meta commentary. (WARNING: "moral sermonizing" ahead.) Most of us can't shake the idea that the Justices are and ought to be "refs," even--and especially--in cases like King v. Burwell. And that is a good thing even while we shouldn't let our attachment to this idea unduly influence our assessments of the extent to which they actually succeed in that role. 

Now for some thoughts on the issues in the case:

Continue reading

March 4, 2015 in Walsh, Kevin | Permalink

"What Scares the New Atheists"

John Gray points out (as many have) a few of the many holes in the aggressive-but-thin atheism of Dawkins et al.  A bit:

The far-reaching claims these thinkers have made for liberal values can be detached from their theistic beginnings; a liberal morality that applies to all human beings can be formulated without any mention of religion. Or so we are continually being told. The trouble is that it’s hard to make any sense of the idea of a universal morality without invoking an understanding of what it is to be human that has been borrowed from theism. The belief that the human species is a moral agent struggling to realise its inherent possibilities – the narrative of redemption that sustains secular humanists everywhere – is a hollowed-out version of a theistic myth. The idea that the human species is striving to achieve any purpose or goal – a universal state of freedom or justice, say – presupposes a pre-Darwinian, teleological way of thinking that has no place in science. Empirically speaking, there is no such collective human agent, only different human beings with conflicting goals and values. 

March 4, 2015 in Garnett, Rick | Permalink

Tuesday, March 3, 2015

"Why Our Children Don't Think There are Moral Facts"

An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:

In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....

The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him. 

CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).

March 3, 2015 in DeGirolami, Marc | Permalink

Monday, March 2, 2015

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.

March 2, 2015 in DeGirolami, Marc | Permalink

Sunday, March 1, 2015

What makes a school Catholic?


My posting today follows a thread developed over the past few days by Professors Rick Garnett and Kevin Walsh. Further catalysts for what I present today are the recent deaths of Professor Charlie Rice and Fathers Richard McBrien and Ted Hesburgh who dedicated their lives to the academy that identifies itself as Catholic. Regardless of personal differences on specific issues, we all share a common project of education that uses the principal modifier Catholic. Regardless of the level of education—be it primary, secondary, tertiary, post-graduate, or professional—the Church has had a long history and therefore a long participation in education. In the present political, social, and legal climates, there has been and will likely continue to be a good deal of discussion about Catholic education as Rick’s and Kevin’s postings inform us.

Recent news items have brought up many facets of the central topic of Catholic education. By way of illustration, these subjects include: the tussles between Archbishop Cordileone of San Francisco and various political, social, and cultural interests based in California and elsewhere; the concerns focused on Notre Dame’s review of the core curriculum and the role of the theology (and perhaps philosophy) requirement(s); the ability of any Catholic institution to hire (and fire) for mission; and, the concession by some institutions (e.g., Creighton and Notre Dame) to grant marital and family benefits to faculty and staff who are in same-sex relationships. As I have indicated, this list is not exhaustive, but it covers some of the more prominent and current controversies intersecting the Catholic institution of education.

Today I argue that these and other controversies emerge from a fundamental misconception of the role of the Church in institutions considered by many as a part of the Church. The list of institutions especially includes educational bodies. One major contributing factor to the existence of these disagreements and disputes is a misunderstanding of Conciliar texts of Vatican II that “the Church has always had the duty of scrutinizing the signs of the times and interpreting them in the light of the Gospel.” (Gaudium et Spes, N. 4) The misconstructions of this phrase have led many to think that the Church needs to conform to contemporary norms rather than to study and evaluate carefully and objectively the claims posed by these modern norms. I subscribe to the latter interpretation which I submit is supported by the use of the word scrutinizing and the phrase interpreting them in the light of the Gospel that appears in Gaudium et Spes (the Latin text reads: per omnes tempus Ecclesiae officium incumbit signa temporum perscrutandi et sub Evangelii luce interpretandi) This provision of Gaudium et Spes recognizes that the Church has a fundamental task of continuing the work begun by our Lord and Savior Jesus Christ who “entered this world to give witness to the truth, to rescue and not to sit in judgment, to serve and not to be served” (opus ipsius continuare Christi, qui in mundum venit ut testimonium perhiberet veritati, ut salvaret, non ut iudicaret, ut ministraret, non ut sibi ministraretur). Much attention has been paid to the idea of “who am I to judge?” uttered by Pope Francis and which is suggested in this last passage quoted from Gaudium et Spes. Pope Francis has indeed been the catalyst of some interesting interpretations about not judging others. But any of us, be we clerical, religious, or lay who are or claim to be disciples of Christ have the sacred trust to evangelize the world in an authentic fashion. The objective of this claim is found in our fundamental prayer taught to us by Jesus: it is God’s will, not mine or yours, that is to be done. Doing the will of God is not judging but acting on the commission our Lord gave to us in Baptism. I shall return to this point later.

But I now return to a central matter that Rick and Kevin have introduced. One way of considering an important issue that they have presented is by asking the question: what makes a Catholic school—regardless of the level of education—Catholic?

Continue reading

March 1, 2015 in Araujo, Robert | Permalink

"John Paul II and the Crisis of Modern Times"

Check out this event, featuring Prof. Russell Hittinger, at Lumen Christi, in Chicago.  If you can attend, then do!

This lecture will compare the great pontificates that represented two “modern times”: Leo XIII at the end of the 19th century and John Paul II at the end of the 20th. Between Leo’s birth in 1810 to JPII’s death in 2005, the lived experience of these two men encompass all modern times, both secular and ecclesiastical – from Napoleon to the iPhone. What was at stake for the Church over the course of this rapidly changing century? How did the social teaching of these two popes differ in addressing the modern crises of their day?

March 1, 2015 in Garnett, Rick | Permalink

Cromwell, ISIS, and "Wolf Hall"

Picking up on a topic that Michael Moreland addressed a few years ago . . . It's not a surprise, I suppose, that the novel and TV series "Wolf Hall" are popular.  Somehow, it had to happen that the Man for All Seasons image of St. Thomas More be torn down.  After all, a Catholic who stood up to the overreaching claims of state power, at the cost of his life, could not be allowed to remain a secular hero forever.  Still, I hope "Wolf Hall" fans and producers will remember some of the points raised in this piece, about Henry, More, Cromwell, and "the biggest land-grab and asset-strip in English history."

March 1, 2015 in Garnett, Rick | Permalink