Tuesday, June 23, 2015
An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:
Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.
(HT: Ryan Patrico).
This essay was presented at the lecture for legal professionals in Baltimore, Maryland, on May 21, 2015. The roots of the word evangelization are, literally, in the words that mean “to bring good news.” We live in a world that craves good news and, by virtue of our Baptism, all of us – lawyers included – are called to bring good news to a world that, despite all appearances to the contrary, aches for good news and deeply yearns to know the God from whom all good news comes, and to whom all good news leads. I am convinced that there is a powerful role for us in the legal profession to play in this great task of evangelization by being joyful, hopeful witnesses to what is good, just, and simply right. Each are called to respond to the call to evangelize in our own circumstances. This essay explores, briefly, the opportunities that we may have to evangelize, or “bring good news” as lawyers, in three distinct settings: in the ways in which we educate future lawyers; in the way in which our profession is practiced; and, in the substantive law of our land itself.
Check it out!
On this day, in 1608, St. Thomas Garnet was martyred at Tyburn. Here's more about him:
Protomartyr of St. Omer and therefore of Stonyhurst College; b. at Southwark, c. 1575; executed at Tyburn, 23 June, 1608. Richard Garnet, Thomas's father, was at Balliol College, Oxford, at the time when greater severity began to be used against Catholics, in 1569, and by his constancy gave great edification to the generation of Oxford men which was to produce Campion, Persons and so many other champions of Catholicism. Thomas attended the Horsham grammar school and was afterwards a page to one of the half-brothers of Philip Howard, Earl of Arundel, who were, however, conformists. At the opening of St. Omer's College in 1592, Thomas was sent there. By 1595 he was considered fit for the new English theological seminary at Valladolid, and started in January, with five others, John Copley, William Worthington, John Ivreson, James Thomson, and Henry Mompesson, from Calais. They were lucky in finding, as a travelling companion, a Jesuit Father, William Baldwin, who was going to Spain in disguise under the alias Ottavio Fuscinelli, but misfortunes soon began. After severe weather in the Channel, they found themselves obliged to run for shelter to the Downs, where their vessel was searched by some of Queen Elizabeth's ships, and they were discovered hiding in the hold. They were immediately made prisoners and treated very roughly. They were sent round the Nore up to London, and were examined by Charles, second Lord Howard of Effingham, the lord admiral. After this Father Baldwin was sent to Bridewell prison, where he helped the confessorJames Atkinson to obtain his crown. Meantime his young companions had been handed over to Whitgift, theArchbishop of Canterbury, who, having found that they encouraged one another, sent them one by one to different Protestant bishops or doctors. Only the youngest, Mompesson, conformed; the rest eventually escaped and returned to their colleges beyond seas after many adventures. We are not told specifically what befell young Garnet, but it seems likely that he was the youth confined to the house of Dr. Richard Edes (Dict. Nat. Biog., XVI, 364). He fell ill and was sent home under bond to return to custody atOxford by a certain day. But his jailer not appearing in time, the boy escaped, and to avoid trouble had then to keep away even from his own father. At last he reached St-Omer again, and thence went to Valladolid, 7 March, 1596, having started on that journey no less than ten times.
After ordination in 1599, "returning to England I wandered", he says, "from place to place, to reduce souls which went astray and were in error as to the knowledge of the true Catholic Church". During the excitement caused by the Gunpowder Plot in 1605 he was arrested near Warwick, going under the name Thomas Rokewood, which he had no doubt assumed from Ambrose Rokewood of Coldham Hall, whose chaplain he then was, and who had unfortunately been implicated in the plot. Father Garnet was now imprisoned first in the Gatehouse, then in the Tower, where he was very severely handled in order to make him give evidence against Henry Garnet, his uncle, superior of the English Jesuits, who had lately admitted him into the Society. Though no connection with the conspiracy could be proved, he was kept in the Tower for seven months, at the end of which time he was suddenly put on board ship with forty-six other priests, and a royal proclamation, dated 10 July, 1606, was read to them, threatening death if they returned. They were then carried across the Channel and set ashore in Flanders.
Father Garnet now went to his old school at St-Omer, thence to Brussels to see the superior of the Jesuits, Father Baldwin, his companion in the adventures of 1595, who sent him to the English Jesuitnovitiate, St. John's, Louvain, in which he was the first novice received. In September, 1607, he was sent back to England, but was arrested six weeks later by an apostate priest called Rouse. This was the timeJames's controversy with Bellarmine about the Oath of Allegiance. Garnet was offered his life if he would take it, but steadfastly refused, and was executed at Tyburn, protesting that he was "the happiestman this day alive". His relics, which were preserved at St-Omer, were lost during the French Revolution.
Today is also, FWIW, the birthday of my son, Thomas Garnett. Pretty cool.
Yesterday, we celebrated the feast day of St. John Fisher and St. Thomas More, two Catholic heroes who refused to go along, merely "for friendship's sake", with Henry VIII's power-and-money grab.
I realize that, in some quarters, it is thought to be an overreaction to worry about the coming (quickly) grave challenges to religious freedom. It is thought, or hoped, that we can and should leave "culture wars" behind, and that the optimism, joy, and popularity of Pope Francis make worries and concerns about religious freedom something only for the pinched, crabbed, overly litigious or "obsessed." But, unfortunately, the challenges and threats are real and the worries and concerns are well founded. The Pope's popularity and the fact that some who are not ordinarily all that interested in the Church's moral anthropology or account of the world like a few sentences in the new encyclical do not change the fact that it is increasingly mainstream in developed, western countries to think the logic of congruence should be applied to religious institutions and agencies and that it is enough, for religious liberty, to allow people to believe and worship as they like.
It's worth remembering, when we think of Saints Thomas More and John Fisher, that England was chock-full of Catholic bishops and lawyers like them right before the Act of Supremacy . . . and the Sovereign was able to get them on board.
Sound the Horne: Justice Sotomayor's description of facial challenges in Patel ought to "escape our approbation"
Among yesterday's four Supreme Court decisions was a Fourth Amendment challenge to a Los Angeles ordinance imposing special record-keeping and law-enforcement-access requirements on the operators of hotels and motels. Justice Sotomayor wrote the opinion for a five-Justice majority holding unconstitutional under the Fourth Amendment the on-demand inspection requirement in Section 41.49(3)(a) of the Los Angeles Municipal Code.
The first section of legal analysis in Justice Sotomayor's opinion for the Court in City of Los Angeles v. Patel is devoted to establishing that "facial challenges under the Fourth Amendment are not categorically barred or especially disfavored."
The alert reader should recognize that something is off beginning with the opinion's opening description of what a "facial challenge" is: "A facial challenge is an attack on a statute itself as opposed to a particular application." This description reflects a common confusion. Within the universe of justiciable cases and controversies, there is no such thing as "an attack on a statute itself." The judicial power is confined to cases and controversies, and these are always about the operation of the laws with respect to persons or things. If the term must be used (and really, legal analysis would be better off if the term were retired), a "facial challenge" is best understood as a challenge asserting that a particular law is unconstitutional in all of its applications.
Even thus understood, the label can be confusing because many so-called facial challenges are just to a single textually discrete section, or subsection, or phrase in a subsection of a statute. Like in City of Los Angeles v. Patel. The provision declared facially unconstitutional yesterday was just one part of a recordkeeping ordinance enacted in 2008. That ordinance, No. 179533, revised the entirety of Section 41.49 of the Los Angeles Municipal Code, which takes up about three and a half pages of text. The purportedly "facially unconstitutional" subsection is 41.49(3)(a), which is only three sentences long. The successful challenge was not to "a statute itself," but to this subsection (and actually just to a part ... read on).
Even a description of facial unconstitutionality just for subsection 41.49(3)(a) appears overbroad in light of the court's reasoning. In the linked version of Ordinance No. 179533, I have x-ed out the portions of § 41.49(3)(a) that conflict with the requirements of the Fourth Amendment as expounded by the Patel majority: " §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection." The on-demand inspection requirement is just one-half of one of the three sentences in the subsection. And the best solution may be to leave even that language in, and simply to add "after an opportunity for precompliance review" at the end of the subsection's second sentence. All of which is to say that the text of subsection 41.49(3)(a) is not itself unconstitutional. A statement that it is unconstitutional is shorthand (and sometimes misleading shorthand) for something like "because police reliance on the on-demand inspection authorization in LAMC § 41.49(3)(a) brings about states of affairs in which the Fourth Amendment rights of hotel and motel operators may be violated, no police officer may rely on that authorization unless and until Los Angeles provides an opportunity for pre-compliance review."
Justice Scalia's dissent lays out much of this (and more) in two paragraphs worth quoting in full:
Article III limits our jurisdiction to “Cases” and “Controversies.” Accordingly, “[f]ederal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be sure, the reasoning of a decision may suggest that there is no permissible application of a particular statute, Chicago v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting), and under the doctrine of stare decisis, this reasoning—to the extent that it is necessary to the holding—will be binding in all future cases. But in this sense, the facial invalidation of a statute is a logical consequence of the Court’s opinion, not the immediate effect of its judgment. Although we have at times described our holdings as invalidating a law, it is always the application of a law, rather than the law itself, that is before us.
The upshot is that the effect of a given case is a function not of the plaintiff ’s characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional—as is the case here—he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. Cf. Sibron v. New York, 392 U. S. 40, 59 (1968). But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff ’s self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is.
For whatever it's worth, Justice Scalia's claim that "it is always the application of a law, rather than the law itself, that is before us" is consistent with understanding set forth in Professor Richard Fallon's article on facial challenges cited by Justice Sotomayor's opinion for the Court: Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915 (2011). While there is much in the article worth digesting, I commend footnote 31 in particular. (For a less conventional, but still orthodox (if perhaps "more Catholic than the Pope") analysis of the problem of partial unconstitutionality more generally, one can check out my article on the topic. I also wrote a shorter take on facial vs. as-applied challenges for a symposium a little while back.)
And now to the first half of this post's awkward title. An error in wording appears to have made its way into Justice Sotomayor's solo dissent yesterday in Horne v. Department of Agriculture. The Justices in the majority held that a government order grabbing the fruit of the vine from raisin producers was a taking that required just compensation. Justice Sotomayor disagreed with the majority's assessment of the government's raisin marketing order as a per se taking. Her dissent states that the Order "should easily escape our approbation." In context, however, Justice Sotomayor probably meant something like "should easily escape our reprobation" or (for something less theologically loaded) "should easily escape our legal condemnation as a per se taking." This is not a big deal, of course; errors like this can easily creep in at the tail end of an editing process, particularly during the frenetic end-of-the-Term push to get opinions out. Fortunately, there is a process for correcting slips in slip opinions, and "approbation" can be amended before the opinion is off probation.
Monday, June 22, 2015
Walter Miller's "A Canticle for Leibowitz" is one of those books that I've seen on lots and lots of "novels that Catholic readers should read" lists (along with, you know, "The Moviegoer," "The Power and the Glory," "A Confederacy of Dunces," etc.) but never got around to reading. Well, I just finished it. Fascinating (especially in light of what seems to be the trend -- especially in so-called "Young Adult" fiction -- of post-apocalyptic-dystopian stuff). If you are looking for a summer read, check it out. (For a bit more -- and I don't think the piece really "gets" the book, but that's alright -- here's a New Yorker article on the book's legacy that ran a few years ago.)
Sunday, June 21, 2015
Friday was one of my most favorite days of every year -- the day I get to watch my son and his fellow Special Olympians at the state gymnastics meet. As always, it was a day of witnessing what true joy and pride looks like, again and again. If you've never witnessed a Special Olympics competition of any kind, do yourself a huge favor and watch one.
When I got home, I saw that, while I was watching my son, Pope Francis was addressing the Special Olympics team from Italy who will be coming to Los Angeles for the World Games later this summer. Among his thoughts:
Please, remain faithful to this ideal of sport! Do not let yourselves be “contaminated” by the false sports culture, that of economic success, of victory at any cost, of individualism. It is necessary to rediscover “amateur” sport, that of gratuitousness, sport for the sake of sport. It is necessary instead to protect and defend sport as an experience of human values, yes of competitions, but in loyalty, in solidarity -- always dignity for every person!
And, on a somewhat related note, a very sweet message to all fathers from the Jerome LeJeune Foundation: My Dear Dad.
Saturday, June 20, 2015
RR Reno ("Rusty") of First Things just spoke on the modern papal diplomacy of "bold words and striking gestures," which both JPII and now Francis have displayed in great measure (up and against the more inward-facing papacy of Pope Leo and his predecessors). Though Reno only gave passing mention of Laudato Si, he spoke more as an academic than a commentator (as here). Arguing the encyclical is a "diplomatic intervention into a fraught and difficult geopolitical issue," which strikes him as designed to "arrest our attention," he wonders: 1) if the "rich world" diverts much of its GDP to the radical political/economic restructuring of itself (as it would need to in order to achieve the necessary reduction in fossil fuel use, etc.), what will become of our moral responsibility (and current capacity) to help developing countries mature economically?
June 20, 2015 | Permalink
I’m at Providence Abbey in RI today for this delightful conference, "Understanding the Francis Papacy." The conference organizers are to be commended for bringing together a diverse swath of intelligent, engaging and, thus far, quite humorous and compelling Catholic speakers. Attendees include many from the Catholic Worker Movement including Tom Cornell, students, academics, members of the broader community with an affection for the Holy Father, and of course, the Benedictine monks and priests. Here is a list of speakers and topics.
Ross Douthat spoke yesterday evening on “The New Catholic Civil War,” drawing extensively from this recent—provocative--blog post. (Elizabeth Stokes Bruenig is here too, by the way...) Here he lays out his “taxonomy” of Francis' critics: the three groups of Catholics who he judges are most worried about or threatened by Pope Francis, in varying degrees. In general, the recent Pew poll tells us that Francis enjoys enormous support among Catholics. But traditionalist (associated with the Tridentine Mass), capitalist (a particularly American phenomenon), and conservative Catholics (focused on marriage/family issues) are wary for different reasons. Again, the blog post here.
Most interesting though (and not in the post) was Douthat’s ruminations on the distinctions between Francis and his predecessors as to how to deal with argument within the Church (i.e., dissent). Francis definitely thinks he’s letting arguments air--that it’s healthy for the Church to have arguments. Of course there has long been argument in the Church regarding doctrinal matters, but during the last two pontificates, among bishops and priests, doctrinal unity was the "watchword.” Now, bishops are invited to “express themselves.” And they have. And some, as among the German bishops, have revealed a certain style of 1970s Catholic liberalism that was far more resilient than doctrinal conservatives (like Douthat) had thought. We now have a far clearer picture of the state, scope and scale of the divisions in the Church.
Perhaps the pope believes that out of this argument will come “new ideas and new synthesis.” But perhaps there will simply be more public division, whatever happens at the Synod in the fall. Such division, Douthat suggests, would call out for the pope, though probably not this pope, to seek resolution in a conciliar form…
June 20, 2015 | Permalink
Friday, June 19, 2015
A friend passed this along -- almost 110 years old (the piece, not the friend), but very much on-point:
What ails our much-vaunted public school system? Why do our common schools fail to attain the ends for which they were established ? To the many firm believers in the Public Schools, infallibility of our national institutions, these questions, may appear impious, but the facts are concrete. We are "up against it" on the public school question. From far and near comes the cry, give us a school system which will not only thoroughly train the child in the essential elements of knowledge, but so mold the varied and cosmopolitan offspring of our population that they will develop into active, patriotic and morally responsible citizens with the welfare of their country at heart.
How, it is asked, is this to be done? By the unanimous opinion of thinkers, it can only be done by giving to our youth not only mental but moral training. An education which develops the mind and ignores the heart cannot fail to rear a godless, conscienceless, irresponsible class of men, fit for anarchy, socialism, individualism or any of the flagrant isms that are now flourishing.
The Catholic Church by her system of parochial schools is avoiding this great mistake. She is solving the problems of our country, as educators and moralists say it must be solved. In doing so, however, she is not only doing her share to support the State schools, but bearing voluntarily the enormous burden ofher own schools. The injustice of the situation is obvious to every true disciple of justice and right. The time must come in the immediate future, when the country will realize that the training of the heart and the mind go hand in hand. Those who have at heart the perpetuation of our nation as a world-power realize that they must have behind all else an enduring moral code.
With the youth of our country trained to ideals of morality, of civic virtue and an all-abiding belief in God, there will be no doubt that our government shall live on untouched by the evils which have befallen so many of the nations that have been great, to worldly seeming.
Where did the above essay come from? The student Board of Editors, of the Notre Dame Scholastic, October, 1908.