Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, December 22, 2017

"The only good Catholic is a bad Catholic."

In looking into the relationship between anti-immigrant sentiment and anti-Catholicism earlier today, I came across an interesting New York Times write-up of a panel on anti-Catholicism that took place in 2008. Unsurprisingly, Fr. Neuhaus's observations stood out. I've highlighted the most provocative and seemingly accurate Neuhaus-ism, which I've not previously seen.  

The Rev. Richard John Neuhaus — a leading conservative intellectual, a former Lutheran pastor and the editor of the leading Catholic journal First Things — offered a surprising view on the question.

“To be a Catholic is not to be refused positions of influence in our society,” he said. “Indeed, one of the most acceptable things is to be a bad Catholic, and in the view of many people, the only good Catholic is a bad Catholic.

Father Neuhaus dismissed the notion that anti-immigrant sentiment was related to anti-Catholicism, since many Latino immigrants to the United States are Catholic. (But he did note that the church, which has been strongly pro-immigrant, could be seen as having a vested interest in the immigration debate, since immigrants are a major source of members.)

Would that Fr. Neuhaus were wrong; but he was, and remains, right.

December 22, 2017 in Walsh, Kevin | Permalink

Mormons, Missionaries, Catholics, and the N.B.A.

I was speaking yesterday with a politically astute acquaintance who had a theological rather than political take on why Senator Orrin Hatch has been a champion of amending the Constitution to make naturalized citizens eligible to be President of the United States.

My political take had been that the natural born citizen eligibility requirement was particularly salient for a Senator from Utah because (1) the "natural born" status of children born abroad to American parents is legally unclear, and (2) Utah voters are disproportionately more likely than voters in other states to have families with children born abroad to American parents. But (2) may not be true because Mormon missionaries are overwhelmingly single and stay that way during their mission.

My acquaintance's alternative explanation was the Mormon emphasis on conversion, and the similarity between naturalization and conversion. I'm not well-versed enough in Mormon theology to assess this explanation, but the similarity between naturalization and religious conversion is an obvious one.

Attend a naturalization ceremony and watch the new citizens take their oath to the United States (see around 3-minute mark), and you'll see how. Alternatively, consider the wording of the Oath of Allegiance:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

The renunciation of one's prior allegiance, together with the promise to "bear true faith and allegiance" to the Constitution and laws of the United States of America, combines commitments of both head and heart. 

According to Gerhard Casper, the "abjuration" oath probably originated with John Jay. It has been in federal law since the Naturalization Act of 1795, which in turn seems to have had a provision of New York's Constitution of 1777 as its model. If Casper is right, then the federal abjuration oath and the natural-born citizen requirement for presidential eligibility share the same parentage. 

Many Americans of the founding generation were anti-Catholic, of course. Among this group, John Jay is particularly prominent. One of Jay's concerns was that Roman Catholics would hold an allegiance to the pope and other ecclesiastical authorities above allegiance to the civil government, and that even if such allegiance were abjured, Roman Catholics would treat the pope as having authority to absolve individuals' allegiance to the civil government. These concerns were later reflected in the 1850s proposal by Know Nothing leader Thomas Whitney to add "ecclesiastical" to the abjuration oath.

Given the history of the natural born citizen requirement and the historical intertwining of anti-Catholicism with anti-immigrant sentiment, American Catholics would seem to be a natural base of support for an amendment to remove the "natural born" presidential eligibility requirement from the Constitution.

It's time for a new season in our stance as a nation toward naturalized citizens. Go N.B.A.!

December 22, 2017 | Permalink

Thursday, December 21, 2017

George Weigel on "The Catholic Journey to Religious Freedom"

National Review has published the text of a recent lecture given by George Weigel on Dignitatis Humanae and the question whether it is best seen as a "fundamental change or [a] development."  As he puts it, "[d]id DH mark a rupture in the Catholic tradition’s thinking about the relationship between religious and political authority in society and in the state?  Or was DH a genuine, which is to say organic, development of Catholic church-state theory?"  Along the way, he provides some helpful reminders about Westphalia and all that (e.g., "the Westphalian formula, cuius regio eius religio — the prince’s religion is the religion of the state and must be the religion of the people — can and should be considered the modern West’s first experiment in the totalitarian coercion of conscience by state power.")  Here's a bit:

So Dignitatis Humanae was not a surrender document in which the Church finally raised the white flag to political modernity; it was a retrieval and development of the Church’s own tradition. Moreover, it was also a genuine contribution to modern secular political theory. For to define religious freedom as a basic human right that a just state must acknowledge is to say that there are certain spheres of life into which state power must not intrude — and that is to help create the social space for a vibrant civil society. The modern state comes in many forms and flavors, but all of them seem to have a built-in tendency to occupy more and more social “space.” Religious freedom, embodied in constitutional and positive law and warranted by widely held cultural norms, is a crucial barrier to that “occupation,” for it declares part of the “space” of society off-limits to state-power. Thus religious freedom is a crucial buttress to genuine social pluralism as well as a barrier to the totalitarian temptation that infects all forms of political modernity.

I agree!  (See, e.g., this and this.)  

December 21, 2017 in Garnett, Rick | Permalink

Wednesday, December 20, 2017

The Pennsylvania v. Trump PI and an example of biased assimilation

I just had the chance to read EDPA Judge Beetlestone's opinion explaining the grant of preliminary injunctive relief to Pennsylvania in the Commonwealth's challenge to the overdue conscience protections afforded employers by Interim Final Regulations implementing the ACA and the RFRA. There are problems from beginning to end. But for now I'll focus on a particularly striking example of motivated reasoning in the opinion. 

Students of judicial opinions are familiar with the concept of motivated reasoning. The example here, a type known as "biased assimilation," might perhaps even more accurately be described as a motivated _lack of_ reasoning. This is the "tendency to interpret information in a way that supports a desired conclusion. Supporting facts may seem overwhelmingly strong and negating facts may seem automatically weak."

To support a legal conclusion about the harm from unintended pregnancies that will result in the absence of a preliminary injunction, Judge Beetlestone credited an incredible statistic that can be shown to be false for anyone with some curiosity, an internet connection, and the ability to read footnotes. 


Here's the sentence that sent me looking: "Eighty five percent of women who do not use any form of contraceptive services and who do not want to become pregnant, become pregnant in one year." Can that really be true? At a minimum, mustn't there be a population constraint of some sort, such as "sexually active women between ages __ and __"?  As written, the sentence just can't be right.

The cited source is p. 106 of the Institute of Medicine Report. Sure enough, the table at that page does appear to support Judge Beetlestone's proposition. Table 5.3 is titled "Percentage of U.S. Women Experiencing an Unintended Pregnancy During First Year of Typical Use and Typical Year of Perfect Use, by Contraceptive Method." The first "method" is none, and this carries an 85% chance of "experiencing unintended pregnancy in first year" of both "typical use" and "perfect use." 

But isn't there something strange going on here? The table is about "unintended pregnancies" and "contraceptive method," but the statistic is about the use of no method at all. Unfortunately, the citation in the IoM Report is not particularly helpful. It just says: "SOURCE: © 2007 by Contraceptive Technology Communications Reprinted by permission of Ardent Media, Inc." But Google steps in where the IoM authors fell short. I pasted the source material into a google search box and went to the first hit: http://www.contraceptivetechnology.org/. From there I clicked on "The Book," which brought me to a drop-down menu. The first choice was "Take a Peek > Contraceptive Efficacy." That sounded like what I was looking for, so I did take a peek. And I found a table very similar to the one in the IoM Report.

Among other things, this version has footnotes not included in the IoM version. The most important is footnote 4, which is the footnote to the "None" "method" yielding an unintended pregnancy rate of 85% in a year. It turns out that the number is pretty much the opposite of what Judge Beetlestone cited it for. Here's what the footnote says:

The percentages becoming pregnant in columns (2) and (3) are based on data from populations where contraception is not used and from women who cease using contraception in order to become pregnant. Among such populations, about 89% become pregnant within 1 year. This estimate was lowered slightly (to 85%) to represent the percentage who would become pregnant within 1 year among women now relying on reversible methods of contraception if they abandoned contraception altogether. (emphasis added)

The 85% figure is not about unintended pregnancies. The population includes "women who cease using contraception in order to become pregnant."

There are still a lot of unanswered questions about the population at issue (age range, sexual activity, and so on). But there's no need to go any further at this point. The district court's statistic was facially incredible, and a little digging would have easily uncovered the mistake. 

It's just one example, to be sure, and just about one part of the opinion. But it has the virtue of being an unarguable error. The best explanation is biased assimilation. 


December 20, 2017 | Permalink

Tuesday, December 19, 2017

Getting started with the N.B.A. (Natural Born Amendment)

There are tens of millions of American citizens who are not natural born, or whose status as natural born is a matter of some dispute. A naturalized citizen like Jennifer Granholm or Arnold Schwarzenegger is plainly ineligible for the presidency, for example, while someone born abroad to an American parent, like Ted Cruz, may or may not be eligible depending on the legal meaning of "natural born." With so many people excluded or placed under a shadow by the "natural born" requirement, there is no particular partisan valence to an amendment that eliminates it. But that kind of valence is inescapable once a proposed amendment appears instrumental to a particular person's candidacy.

One reason to move quickly on eliminating the "natural born" presidential eligibility requirement is to get it done before the amendment can be tied to a particular potential candidate. Examples of how partisan politics can distort perceptions are easy to come by. While the "birther" controversy about Barack Obama was brewing, for example, some were suspicious of attempts to eliminate the "natural born" requirement. Similarly, controversies about Republicans like John McCain and Ted Cruz led to (sometimes justified) accusations of motivated reasoning in dismissing concerns about "natural born" status.

Another reason to move quickly is that the idea is an obvious political winner with virtually no political downside. Politicians whose stances on illegal immigration have led to charges of anti-immigrant bias should be tripping over themselves to get out in front in support of an amendment to remove the last vestige of citizenship inequality. For them, the problem with illegal immigration is that it is illegal. People who follow the rules to become naturalized citizens are in a totally different category from people who haven't followed the rules and have stayed in the shadows as a consequence. Throwing symbolic support behind those who follow the rules is a way of underscoring this aspect of their viewpoint. That the support is largely symbolic does not make it insignificant. Symbolism matters.

Timing also matters. If an amendment to eliminate the "natural born" requirement were to become associated with Democrats before Republicans, that would probably guarantee that it goes nowhere in the present political climate. For too many, it would be viewed as just another mushy Democrat play for the immigrant vote. Interestingly, though, the partisan taint would probably not run in the other direction. If Republicans were to be the first champions of eliminating the "natural born" requirement, it could be attacked as politically opportunistic, to be sure. But the move could also be viewed as clever and perhaps even refreshing among the cynically minded, rather than as soft or devious. The merits of eliminating the "natural born" requirement would be sufficiently attractive to Democrats precisely on the merits that Republican championship of the amendment would not prevent them from also supporting it. 

To get the ball rolling, it will be necessary to find the right political champions. Fortunately, that should not be difficult. There have been so many past failures to amend the natural born citizen requirement that the ranks of past proponents provide a natural place to start. And studying the reasons for those failures (apart from the sheer difficulty of the amendment process) can supply some starting insights about what to do differently. 

December 19, 2017 in Walsh, Kevin | Permalink

Undermining Democracy

In the back page entry of the January 2018 issue of First Things (available here), Matthew Schmitz argues that Rev. Richard John Neuhaus has been proven right.  In a 1996 symposium issue of the magazine focusing on the judicial usurpation of democratic government (here and here), Neuhaus warned of “a growing alienation of millions of Americans from a government they do not recognize as theirs.”  That, of course, sounds a lot like the Trump voter of 2016 (a connection that Schmitz does not expressly make) – alienated and doubting the moral legitimacy of the American regime under which he or she lives.

The piece is worth reading.  Schmitz cites a recent study that shows that rising numbers of young Americans would welcome a strongman who does not have to "bother with parliament and elections" and who even would support military rule.  Surely these statistics would seem to indicate that Neuhaus was, indeed, correct, even if this reaction among the electorate is prompted less by judicial usurpation (as reflected, preeminently, as Neuhaus noted, in the Supreme Court's creation of the abortion license, and more recently in the judicial redefinition of marriage) than it is by the fecklessness and inattention of the political branches.

I would add, however, that those who are abandoning what had been regarded as constituent elements of democratic society (e.g. rights to a free press, free speech, religious freedom, and conscience) are not exclusively or even mostly on the Right (if in fact Trump voters can collectively and meaningfully be described as being on “the Right”).  Moreover, the people who question these commitments don't believe that they are abandoning democracy.  The students and others protesting at Yale, Missouri, Berkeley and elsewhere don't believe that they are undermining democracy but fulfilling it.

Schmitz quotes Notre Dame's Scott Moore as concluding that Neuhaus was correct to see "the inadequacy of purely procedural commitments for ensuring the legitimacy of government."  (This is something about which I have argued at some length. See here).  Neuhaus knew, together with Pope John Paul II, that when "the procedural rules of democracy" become "untethered from the substantive truths of democracy" the result is "the end of democracy." But the procedural rules of liberal democracy at least afford the participants within it the opportunity to find their way back to the moral premises upon which all legitimate government is founded.  When even these procedural rules are abandoned -- and worse still, abandoned in the name of democracy -- the groundwork for totalitarian rule is truly laid.

December 19, 2017 | Permalink

Sunday, December 17, 2017

Catholic Lawyers Guild of Chicago Day of Reflection


cordially invites you, your family and other guests to attend its annual


Faith: The Dynamism for Justice and Reconciliation

Saturday, February 24, 2018
8:30am to 4:00pm

Archbishop Quigley Center
103 E. Chestnut St., Chicago

Fr. Joseph Daoust, S.J., is the superior of the Jesuit community at the Holy Rosary Mission at the Pine Ridge Indian Reservation in Pine Ridge, South Dakota. Fr. Daoust is also the former president of the Jesuit School of Theology at Berkley and former law professor at University of Detroit Mercy College of Law.


More information here.

December 17, 2017 in Garnett, Rick | Permalink

Friday, December 15, 2017

The "Irish-Born" Robinson Amendment

The constitutional strike-through amendment that I'd like to see adopted as soon as possible is one offered by Congress William Erigena ("Irish-Born") Robinson in 1868. The immediate political context for Robinson was perceived second-class citizenship for naturalized American citizens of Irish descent who had fought for the Union. Robinson's proposed amendment would have removed the "natural born Citizen" requirement for presidential eligibility from the Constitution. 

On May 18, 1868, Rep. Robinson introduced a resolution proposing as a constitutional amendment:

That article two, section one, subdivision four, be amended so as to read:

No person except a Citizen of the United States shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States. 

Assuming that Robinson would have kept the capitalizations of the original (unclear from the Congressional Globe version), this proposed amendment would not have added any language to the Constitution, but would have taken out the words "natural born" and the by-then-obsolete language authorizing non-natural-born citizens who were citizens at the time of ratification. In red-line form, the amendment would be:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Eligibility to run for President was not the most pressing issue for Irish-American naturalized citizens at the time. The broader context was a form of second-class citizenship abroad. Under the doctrine of perpetual allegiance, Britain was jailing for disloyalty Irish-American naturalized citizens found within Canada, Ireland, and Britain, and the United States government had to be pressed hard to guarantee that naturalized citizens traveling abroad received the same protections as natural born citizens. 

Although imprisonment abroad was more practically pressing, the ineligibility of Irish-American naturalized citizens for the office of President was of sufficient significance that Rep. Robinson introduced his amendment.

Coming off a bloody war in which tens of thousands of Irish-born American citizens were killed or wounded, and in which a dozen Irish-born Americans were Union generals, the eligibility exclusion was a reminder that not all citizens were created as equal citizens.

Seen in this light, the motivations for Robinson's amendment are similar to those behind the Twenty-Sixth Amendment, adopted a little over a century later. That amendment guaranteed the right to vote for eighteen year-olds. One of the most prominent arguments for that amendment, in the shadow cast by the Vietnam War, was that those who are old enough to die fighting for the country should not be excluded by their relative youth from being full voting members of the nation.

In future posts, I'll discuss the merits of a renewed attempt now at the "Irish-Born" Robinson Amendment. For now, though, I'll close with a connection to Catholic thought. William Erigena Robinson's middle name was of the same derivation as the name of John Scottus Eriugena. That earlier Irish-born man was "generally recognized to be both the outstanding philosopher (in terms of originality) of the Carolingian era and of the whole period of Latin philosophy stretching from Boethius to Anselm." Not a bad namesake!

December 15, 2017 | Permalink

Moyn on Waldron on "The Basis for Human Equality"

Over at Commonweal, Prof. Samuel Moyn has a review of Jeremy Waldron's One Another's Equals:  The Basis of Human Equality.   I'm not as sanguine as Prof. Moyn seems to be that (his concluding sentence) "[w]e can even resolve to fight harder for that equality without denying that our ancestors would have railed against it, or worrying that only God can guarantee our beliefs that all humans are both equal and equally special."  That is, I do think we should "worry[]" -- and I do -- that "only God" can provide a firm basis for the kind of moral-equality claims that we want to, and should, make.  After all -- as Moyn notes Waldron insists -- that human persons are moral equals is a "truth to endorse" and not merely a "decision to make." 

Moyn writes:

The importance of what he calls a “range property” grounding equality, Waldron contends, is that it allows us to reject the view that any trait that comes in various forms cannot do the work. For example, religious thinkers have claimed that only a “transcendent” feature that everyone has in precisely the same way—for example, if each was equally made in God’s image—could serve to justify their equal standing. Waldron shows this is not so. It is enough that human capacities come within a given range to entitle people to regard themselves as one another’s equals. (As Waldron goes on to acknowledge, this very argument makes it difficult to grant the equality of the profoundly disabled.)

To me, though, the fact that a "range property" like a particular "capacity" cannot provide a ground for the "equality of the profoundly disabled" counts against this range-property-based argument.  So, as Moyn says, perhaps "the fact that [Waldron makes the secular case for equality so difficult to make out almost inevitably points him in a religious direction. He goes so far as to suggest there are 'possible grounds we might have for thinking that a religious foundation for basic human equality is necessary.'” Indeed, I think.

December 15, 2017 in Garnett, Rick | Permalink

Thursday, December 14, 2017

Strike-through amendments as the flip side of interpolating amendments

Legal changes to legal instruments can take various forms. Parties who wish to eliminate a contract provision or legislators who want to eliminate a phrase in a statute, for example, can just strike out the language that needs to go. The flip side of this kind of change is one that interpolates new words into a contract or into a statute. Both kinds of change are common in a range of legal instruments. 

When it has come to amending the Constitution of the United States, however, we have adopted a different form---supplemental add-on language tacked to the end. This kind of amendment resembles a codicil to a will. It modifies the legal effect of the original instrument by adding supplementary or replacement language without making any change to the wording of the original instrument itself.

This form is not what James Madison wanted. He acquiesced on form to save substance, as the supplemental form was important to a small group of congressmen whose votes he needed on the proposed amendments.

The First Congress's choice of this form for the first ten amendments was probably a bad decision. Putting the language that accomplishes the legal change together with what is being changed can provide more clarity than tacking it on to the end.

Consider, for example, the two amendments proposed by Madison that include protection for the "rights of conscience" against infringement by the federal government and the state governments. The protection against federal infringement would have been in Article I, § 9 (together with other limitations on the federal government), while the protection against state infringement would have been in Article I, § 10 (together with other limitations on state governments). The placement informs interpreters about the kind of protection given. 

For an idea of just how much clearer our Constitution would read if Madison's proposed form for amendments had been, take a look at the superb article by Professor Edward Hartnett, A "Uniform and Entire" Constitution; Or, What if Madison Had Won?, 15 Constitutional Commentary 251 (1998). Among other insights, Hartnett explains how a combination of interpolations and strike-throughs would have more powerfully extirpated slavery from the Constitution than doing the deed with a stand-alone Thirteenth Amendment. To better understand his discussion of the Thirteenth Amendment, though, one must appreciate his earlier explanation of how most of the "Bill of Rights" provisions of the first ten amendments would have been interpolated in Article I, § 9, "immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws." One "embarrassing drawback" of this location for a bill of rights, Hartnett notes, is that Article I, § 9 also includes the protection of the slave trade from being banned until 1808. And here now we can pick up with Hartnett's discussion of an interpolated/strike-through Thirteenth Amendment:

The Thirteenth Amendment abolished slavery. If it were integrated into the body of the Constitution, it would fit comfortably in the Madisonian bill of rights in Article I, section 9. Indeed, since the Thirteenth Amendment renders irrelevant the limitation on Congressional power over the slave trade contained at the beginning of Article I, section 9, the language abolishing slavery can take the place of that evil provision. The result is that what earlier looked like an embarrassing way to begin a bill of rights would be eliminated, and the most basic right---the right to be free from enslavement---would take its place, joining such rights as habeas corpus, free speech, free exercise of religion, protection against unreasonable searches and seizures, and the prohibition on bills of attainder. Under Madison's approach to amendments, the limitation on the amendment power to protect the slave trade, as well as the hated fugitive slave clause of Article IV, section 2, would likewise be removed from the Constitution.

Pretty neat, huh?

The proposed strike-through amendment I have been setting up with MOJ posts this week would also take something right out of the Constitution. Morally speaking, the provision does not approach the evil of the provisions protecting the institution of slavery in various ways. But it is out of step with some fundamental commitments of our American experiment in self-government.

December 14, 2017 in Walsh, Kevin | Permalink