Friday, November 10, 2017
As Marc mentioned the other day, the annual Fall Conference sponsored by the Notre Dame Center for Ethics & Culture is in full swing. (It's always a wonderful event.) I had the pleasure of moderating a panel of law-professor-Criminal-Law-profs, including our own Marc DeGirolami and Cecelia Klingele, and also MOJ-friends John Stinneford and Meghan Ryan. It isn't always the case that multi-speaker panels actually cohere with each other, or with the panel's ostensible theme, but this one definitely did.
Meghan provided an overview and orientation of the various purposes and goals of punishment; John reflected on what exactly "punishment" is and the extent to which it is (or should be) connected to moral blameworthiness (and not merely social control); Marc discussed the different ways we have talked about, and talk about today, "evil" (with reference to, inter alia, Arent, Mill, and Stephen); and Cecelia rounded things out with some cautionary notes about the moves in Criminal Law and corrections in the direction of algorithm-driven risk-assessment and big-data-dependent predictive policing. A good time was had by all!
Thursday, November 9, 2017
In Iron Curtain: The Crushing of Eastern Europe, 1944-1956, Pulitzer Prize-winning historian Anne Applebaum tells the simultaneously captivating and tragic story of the degradation of Eastern Europe as it was absorbed into the Soviet empire after World War II. In little more than a decade, the vibrant and rich cultures of many Eastern European nations were stripped to the bone so that they could be reincarnated as totalitarian systems beholden to a communist ideology.
In a 2014 post here at Mirror of Justice about Applebaum’s award-winning book, I highlighted the antipathy of Soviet
occupiers to the Catholic Church in Poland and Hungary, precisely because “[r]eligious leaders were a source of alternative moral and spiritual authority.” Following the Leninist path taken earlier by the 1917 Bolsheviks, the Soviet occupiers of Eastern Europe were bent on “crushing” civil society, banishing tradition, suppressing diversity of thought, and burning down all institutions. Only then could they sow the new communist seed into the freshly scorched earth.
Earlier this week in the Washington Post, Anne Applebaum drew upon her considerable historical wisdom to warn us about the resurgence of Bolshevism with its nihilistic attitude of destruction in today’s western society and in the United States. In a column titled 100 Years Later, Bolshevism is Back. And We Should Be Worried, Applebaum reminds us that the ascendance of Bolshevism in Russia in 1917 came suddenly and with little warning. The economic and cultural devastation that Lenin and the Bolsheviks brought to Russia came not through a popular movement but rather by the calculated extremism of a chaos-worshipping minority. The popular and moderate regime that initially succeeded the Czar was suddenly swept away by the intransigent Bolshevik leaders, who brooked no compromise, reveled in smashing everything before them, and boldly seized power for a fanatical minority.
The signature characteristic of Bolshevism was then (and remains today) not its socialist ideology as much as its uncompromising hatred of anything and everything that stands in the way of absolute power. The Bolshevik game-plan is a cynical play for power by fomenting chaos and disrupting civil society. Thus, as Applebaum explains, the neo-Bolsheviks of today can be identified not so much by liberal/left or conservative/right ideology but by their origins on “the extremist fringes of political life” and their desire “to overthrow existing institutions.”
To be sure, heirs to Bolshevism can be found on the far left of American political life, especially on campuses where the Marxist fringe, as described by Applebaum, “policies the speech of its members, fights to prevent students from hearing opposing viewpoints, and teaches a dark, negative version of American history, one calculated to create doubts about democracy and to cast shadows on all political debate.” But while we should be troubled by this development and worry about its foothold on the edges of the Democratic Party, it has not yet tasted power.
By contrast, the Bolshevism of the American right has grasped political power. The key strategy of these modern Bolsheviks of the right is what Applebaum calls their adoption of “Lenin’s refusal to compromise, his anti-democratic elevation of some social groups over others and his hateful attacks on his ‘illegitimate’ opponents.” As Applebaum notes, Stephen Bannon has
been rather candid by expressly comparing himself to Lenin, saying he has the same goal of “bring[ing] everything crashing down.” Consider the deliberate chaos promoted by the Trump White House team, the pattern of falsehoods in perpetuating political myths, and the constant attempts to delegitimize political opponents while provoking outrage by a small base of true believers. As a particular worry to people of faith and conscience, these neo-Bolsheviks are “often not real Christians, but rather cynics who use ‘Christianity’ as a tribal identifies, a way of distinguishing themselves from their enemies.”
The Russian Bolshevik revolution in 1917 shocked all observers with its sudden fury and unexpected success, while lacking anything approaching majority support in Russia. If we are not careful, so too the Trump insurgency might still succeed in its authoritarian agenda despite waning support from a tiny minority of the population. As Applebaum warns, we must not be complacent:
At the beginning of 1917, on the eve of the Russian revolution, most of the men who later became known to the world as the Bolsheviks were conspirators and fantasists on the margins of society. By the end of the year, they ran Russia. Fringe figures and eccentric movements cannot be counted out.
Wednesday, November 8, 2017
Thanks to Marc for posting about the Notre Dame Center for Ethics and Culture conference on Good and Evil. Sounds like a great criminal-law panel. As Marc notes, I'll be presenting (in a different panel) on the concept of irony in religious-freedom disputes, somewhat along the lines that I and Marc discussed on the blog a while back.
I'm delighted to be participating in the annual conference of the Notre Dame Center for Ethics and Culture, which begins tomorrow and runs through Saturday. This year's theme is "Through Every Human Heart" and focuses on ideas of good and evil.
I'm on a criminal law panel moderated by Rick Garnett and together with Cecelia Klingele, John Stinneford, and Meghan Ryan. I think Tom Berg is also on another panel involving free speech. My remarks will consider the fate of evil as a concept in scholarship about criminal law and punishment. If I have some time left over, I'll talk about good too. My general thesis is that both of these ideas are basically irrelevant in academic discussion of criminal law (I wrote something about this when I was just a young MOJ pup years back).
Tuesday, November 7, 2017
A few days ago, Stephen Schneck posted this reflection at U.S. Catholic. Although I agree with most of what he writes, I have a few quibbles, too.
First, under "Practice Politics," he writes "Catholic teachings insist on the importance of voting." True, but I'd want to clarify that voting's "importance" does not mean that, in every election, Catholics are morally obligated to vote. Not only are there many other ways to effectively "practice politics," it could also be the case that one communicates an important point by not voting.
Second, under Reflection 3 ("Discern the Common Good"), he writes:
The measure for the common good is not military prowess, technology, or the Dow Jones Index; it is instead the quality of life of the least among us. In Catholic teachings citizens should vote with the least among us foremost in their minds.
It strikes me that this way of putting things is running together two distinct ideas: First, it seems right that, as a matter of solidarity, we should take special care to practice politics in such a way as to protect the vulnerable. The "common good," though, is usually defined in the Catholic Social Tradition (See Catechism para. 1906-09):
"the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."26 The common good concerns the life of all. It calls for prudence from each, and even more from those who exercise the office of authority. It consists of three essential elements:
1907 First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."27
1908 Second, the common good requires the social well-being and development of the group itself. Development is the epitome of all social duties. Certainly, it is the proper function of authority to arbitrate, in the name of the common good, between various particular interests; but it should make accessible to each what is needed to lead a truly human life: food, clothing, health, work, education and culture, suitable information, the right to establish a family, and so on.28
1909 Finally, the common good requires peace, that is, the stability and security of a just order. It presupposes that authority should ensure by morally acceptable means the security of society and its members. It is the basis of the right to legitimate personal and collective defense.
So, one of the conditions that makes up the common good is "the stability and security of a just order" and, relatedly, effective "collective defense."
Finally, Schneck writes that "[i]n Catholic teachings citizens should vote for the virtuous." Not necessarily. For starters, we don't always (to put it mildly) have that option. It seems that this reflection is running together the importance of "policies that inculcate virtue" with a policy of "voting for the virtuous." It could easily be, in any given election, that the prudent course -- the best way to secure policies that inculcate virtue and protect the common good -- is to vote for a particular candidate who is not particularly commendable in terms of his or her character. Now, to be clear: I do believe, and have for as long as I can remember, that "character matters." (As I discussed about a year ago, here.) A candidate's lack of virtue or a candidate's bad character will often be good reasons to vote against him or her.
Like I said . . . quibbles!
I'm looking forward to joining Melissa Rogers and Bishop McElroy for a discussion at this event:
Faith, Common Good, and Democracy in a Time of Pope Francis and President Trump
Before his death 50 years ago, John Courtney Murray, S.J., the preeminent Catholic theologian on democracy and religious freedom, wrote that people:
of all religions and of no religion must live together in conditions of justice, peace and civic friendship, under equitable laws that protect the whole range of human rights, notably including the right to religious freedom. It is therefore necessary for the Church to show the way to justice and peace in society…
The implications of Murray’s call to action in our polarized politics and challenged Church will be explored in a one-on-one conversation with Bishop Robert McElroy of San Diego, who authored the book The Search for an American Public Theology: The Contribution of John Courtney Murray (Paulist Press, 1989). The bishop will then be joined by former executive director of the White House Office of Faith-based and Neighborhood Partnerships Melissa Rogers and Professor of Law and Associate Dean at the University of Notre Dame Richard Garnett for further discussion of faith, the common good, and democracy. These panelists will answer several key questions:
- What are the legacy and lessons of Murray’s groundbreaking work on faith and democracy?
- How are religious freedom and the common good threatened and advanced today?
- How do these principles challenge us in a nation led by President Trump and in a Church led by Pope Francis?
John Carr, director of the Initiative on Catholic Social Thought and Public Life, will moderate the Dialogue.
A committee at the University of Michigan is studying whether to rename an academic building currently named for geneticist and cancer researcher C.C. Little, the university's president in the 1920s, who was also a leading eugenicist and president of the American Eugenics Society. At a September forum accompanying a student rally calling for the renaming, a UM history professor reviewed Little's involvement:
[P]rofessor Martin Pernick opened the panel by discussing the topic of eugenics in a broad sense and what role Little played in it. Pernick made the argument that being in support of the idealistic form of eugenics was not cause enough to remove a person’s name from the building they were named after.
“Eugenics meant a lot of different things to a lot of different people,” Pernick said. “Charles Darwin’s cousin, Francis Galton, defined it as the use of science to improve human heredity. Who can argue with that? Using science to improve things.”
Pernick explained Little’s interpretation of eugenics was what merited a renaming of the building named after him. According to Pernick, the type of genetics Little supported was one that promoted the advancement of those who held power in society in the early 20th century, through any means necessary.
“The kind of eugenics that Little promoted included all of the American Eugenics Society’s most controversial methods: compulsory sterilization, ban on interracial sex, selective immigration and restrictions by ethnicity,” Pernick said.
In an interview, university president Mark Schlissel says he has no opinion yet and is waiting for the committee report, which he notes is charged with suggesting criteria for these renaming debates:
[O]ne of the more interesting and challenging criteria is: You can imagine there are many ideas that in today’s context seem ridiculous, that they’re so out of step with our current values and the current social norms in our society that they make no sense. However, when you’re thinking about a naming, you have to actually go back in time to when the naming happened, and then figure out in the context of those times, how do you judge that person? Were they typical of their era, or were they a terrible outlier that, regardless what the era was, you wouldn’t want to associate yourself with their values? That’s a very hard thing to do because I’m sure 100 years from now there are going to be things that we all do and think and care about today that our society a century from now is going to think about really differently. That’s happened all throughout our history, there’s no reason to think it’s not going to keep happening.
How should one shaped by the criticism of eugenics found in Catholic social thought assess a debate like this? (1) Welcome the fact that the wrongs of eugenics have been brought to campus attention through the kind of student advocacy that we've seen concerning other historical wrongs? (2) Suspect, and complain, that condemnations of eugenicists will be selective (e.g. entirely omitting Margaret Sanger or Clarence Darrow) and overly narrow (e.g. underplaying its threats to human dignity that are not tied to racial/ethnic discrimination) and will simply rest on the currently dominant political views on campus? (3) Some other assessment?
Wednesday, November 1, 2017
Yesterday, my friend and colleague, Prof. Amy Coney Barrett, was confirmed to the United States Court of Appeals for the Seventh Circuit. I was pleased that a few Democratic senators -- including two Catholics, my own Senator Joe Donnelly and also Virginia's Tim Kaine -- supported her confirmation, as did hundreds of students, scholars, colleagues, and co-clerks.
Prof. Barrett's record was glaringly distorted and misrepresented by interest groups. The "Alliance for Justice" behaved particularly badly, and dishonestly. Several of the senators who questioned her during her hearings also acquitted themselves, to put it mildly, poorly. She was subjected to a particularly low and Dan-Brown-esque (and also factually inaccurate) piece in the New York Times, about her association with the People of Praise, written by a journalist who should have known better. There is no doubt that, in some quarters, the fact that Barrett is a practicing Catholic, who has been public about the Faith's importance to her and who has reflected thoughtfully on its implications for her professional life, was a motivating factor for opposition, criticism, and attacks. To their great credit, many who do not share Barrett's jurisprudential views, and do not (at all) support this President -- for example, Noah Feldman and Chris Eisgruber -- spoke out clearly and powerfully against the inappropriate attacks.
To be sure, these facts do not establish, technically speaking, a violation of the Constitution's ban on religious tests for federal office. In addition, it is not the case (contrary to what was said by those who persisted in defending Barrett's attackers) that to criticize the tactics of those who opposed Barrett's nomination is to say that a judge's "personal views" are never relevant to her judicial work or to senators' decisions about whether to vote to confirm.
The judicial-confirmation process has been in bad shape, at least since Robert Bork's failed nomination, for a long time; I believe the deterioration accelerated after 2000 and is now perhaps as bad as it has ever been. However, I suppose it would be strange if, in the midst of a larger politics that seems to be failing in many ways, our judicial-confirmation process were civil, healthy, and honest. St. Thomas More, patron of lawyers and statesmen, pray for us!
Monday, October 30, 2017
In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:
In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.
This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.