Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, February 25, 2017

Should Catholic parishes join the sanctuary movement?

With the Trump administration’s expansion of deportation efforts, there is increasing talk of churches stepping up to serve as “sanctuaries” for undocumented immigrants. With many Catholics suspecting that “the current policies of the administration toward immigrants and refugees is at odds with the clear command of the scriptures to welcome the vulnerable stranger,” Charles Camosy points out that it may become necessary for Catholic parishes to risk fines and prosecution by protecting those subject to deportation. As NPR reports (in a story featuring expert insight from our own Rick Garnett), this clash is already becoming a reality.

This re-emergence of the sanctuary movement raises an important but difficult question: When is it appropriate for the Catholic Church to defy the law? I believe that there may be circumstances over the next four years in which defiance is justified, even obligatory.  But given the Church's support for the rule of law, those circumstances must be articulated with specificity, humility, and restraint.

The “sanctuary” label is thrown around loosely in our current debates. I’m not talking about material support for undocumented immigrants – that is, to me, a clear obligation for Christians that does not turn on one’s immigration status. That’s why past efforts to criminalize the provision of such support were roundly and rightly condemned by bishops. 

I’m referring instead to the provision of shelter to undocumented immigrants for the express purpose of preventing their deportation. Churches have no legal authority to prevent deportation of someone who has sought sanctuary on church property (and never have, in the U.S. at least); any prevention power comes from the understandable reluctance of government agents to carry out enforcement actions on church property or from making it more difficult to find individuals subject to deportation by utilizing church-centered networks of concealment.

As fans of Victor Hugo know, European churches functioned as sanctuaries in a more formal, jurisdictional sense. In my understanding, though, entry into the church was not a permanent shield from the law, but simply a temporary respite during which time the church might intervene on the individual’s behalf or the individual was expected to choose whether to turn himself over to the temporal authorities or leave the country.  It was not a blanket escape from the law’s reach.

More recently, American churches formed a network of sanctuaries in the 1980s for refugees seeking to escape Central America. This was not a categorical response to the Gospel’s call to welcome the stranger; this was a response to a particular problem: it was nearly impossible for these refugees to gain asylum status because the Reagan administration could not admit that their home countries were committing human rights abuses.  Our law prohibited foreign aid to countries committing such abuses, and we were funding the Salvadoran and Guatemalan governments.  Instead of jeopardizing the aid, the Reagan administration classified the Central Americans as economic migrants.  The churches that defied the law in the 1980s were targeting a particular injustice, not vindicating a more general commitment to welcome the stranger.

Faithful Catholics can reasonably disagree about the prudent contours of our immigration laws. The Church does not teach that all immigration laws – and the enforcement of such laws – are contrary to the moral order and should accordingly be defied as unjust.  The Church does teach that the rule of law is important to human flourishing, and that the legitimacy of the political community’s duly elected leaders should be respected.  As such, those instances when the Gospel supports – or even requires – defiance of the law should be spelled out with care.  Perhaps the grounds for defiance are formed when the federal government would seek to deport a parent with dependent children, or to return an immigrant to a country where her life will be in danger, or to deport a person who arrived her as a child and knows no other home.  Whatever the particulars, my only point is that the particulars matter.  A categorical stance of defiance toward the enforcement of immigration laws strikes me as inconsistent with Church teaching.

February 25, 2017 in Vischer, Rob | Permalink

Friday, February 24, 2017

Inazu on the University

For those who have not (yet) read John Inazu's important recent book, Confident Pluralism, you can get a helpful preview of his prescriptions through a short essay he has just posted, Law, Religion, and the Purpose of the University.  Key sentence: "If we can make university a place for MacIntyre’s constrained disagreement and Murray’s warring creeds, we can help to initiate students into the kind of conflict through which they learn to live together rather than fracture through indifference, apathy, or violence."

February 24, 2017 in Vischer, Rob | Permalink

Thursday, February 23, 2017

When is "all-out war" an appropriate political strategy?

I continue to be troubled by many of President Trump’s stated priorities, chosen narratives, and policy decisions.  I confess that I am also troubled by the opposition’s deepening embrace of across-the-board resistance to the Trump administration per se, rather than resistance targeting particular actions and statements.  This tactic did not originate with Democrats in 2017, of course, though it appears that we may witness a significant ratcheting up of the obstructionist tendencies reflected previously in the GOP’s default stance toward President Obama.  

How should Catholics think about, and respond to, a political culture that appears set to cast every disagreement on policies and priorities as part of a no-holds-barred contest of good versus evil? I know that Catholic philosophers and theologians have contributed key insights to our understanding of the moral permissibility/obligation of armed resistance and conscientious objection, for example, but our current climate poses a different question: Under what circumstances should citizens and elected officials withhold all cooperation and support from those elected officials with whom they disagree?  This is not just about resisting the enforcement of enacted laws (though it likely will include that); it’s also about refusing to offer even selective encouragement, build relationships, or compromise across the great Trump divide – and punishing those elected officials who do.  Is across-the-board resistance morally justifiable short of a regime that lacks any political legitimacy (e.g., took power by force) or reflects a sustained and deliberate course of action that conflicts totally with the moral law (e.g., the Nazis)?

I believe that Catholic social teaching on the importance of participatory political structures and practices is premised on an orientation toward optimism, cooperation, good faith, and a willingness to discern the potential for positive outcomes, even from elected officials who lack virtue. I do not believe that a stance of across-the-board resistance to our duly elected officials is morally justifiable unless and until we are at the point at which political revolution is morally justifiable.  That might be simultaneously harshly judgmental and hopelessly naïve on my part.  I’m certainly open to being persuaded that I’m wrong.  This strikes me as a subject that warrants more insight from the Catholic intellectual tradition, and soon.

February 23, 2017 in Vischer, Rob | Permalink

Saturday, February 18, 2017

Solidarity in the era of Trump

What does it mean to practice solidarity at a time marked by intense political divisions and alienation? Emily Esfahani Smith has a thoughtful essay in New York magazine about what it means to belong: 

[A] sense of belonging based on group membership is a false substitute for the real thing. Psychologists say belonging is defined by being in a relationship or part of a community where you are valued for who you are intrinsically. Just like we need food and water to thrive physically, we need to feel valued, needed, and cared for — like we matter to others — to thrive psychologically. Belonging that requires group affiliation is by nature contingent — your value is defined through associating with the group, not through who you are.

Group membership as a false proxy for belonging is nothing new, of course, but it may have taken on a more intense political dimension as we align ourselves according to the views expressed through our social media feeds and reactions to the President's latest [hateful bomb-throwing / plainspoken truth-telling].  Smith offers a beautifully simple example of the mindset to be reclaimed through the story of a restaurant encounter across the political divide.

Catholics have long taught this idea of unconditional belonging via the principle of solidarity -- the "firm and persevering determination to commit oneself . . . to the good of all and of each individual," as John Paul II put it.  This has proven easier to teach than embody, but there's no better time than now to remind ourselves that the most fertile ground in which solidarity can take root is in our immediate sphere of influence, one relationship at a time.  

Solidarity has implications for policy debates, to be sure, but if we're not committed to practicing solidarity in our everyday interactions, it can become a hopelessly abstract description of a worldview, which we then deploy as a bludgeon against those who reject that worldview.  If we value others intrinsically, our capacity for belonging to one another cannot be a function of our political agreement. 

February 18, 2017 in Vischer, Rob | Permalink

Wednesday, February 15, 2017

Camosy on our Post-Truth Culture

Over at Crux -- a relatively new forum for Catholic news, analysis, and commentary edited by the indispensable John Allen Jr. -- Charles Camosy makes some important points in his op-ed on truth in our political culture.  Building on Andrew Sullivan's recent essay on truth-telling in the Trump administration, Camosy locates Trump as just the most extreme example of a post-truth trajectory we've been on for some years (e.g., it depends on the meaning of "is," unborn life as a "clump of cells," "hands up, don't shoot" being "built on a lie").  We are arriving at a moment predicted by Alasdair MacIntyre in After Virtue.  As Camosy reminds us, "[o]nce morality and politics were severed from any common understanding of the good-once the West at least tried to be genuinely plural with regard to our foundational moral principles-we got on a cultural road that could lead nowhere other than where we currently find ourselves."  Camosy calls Catholics to rise up to challenge the post-truth strategy that has become so politically effective, citing the Focolare movement as an example of how we can "create intentionally diverse communities of dialogue - communities in which people with different understandings of the good can at least come together in a shared reality and disagree on the basis of a common set of facts."

February 15, 2017 in Vischer, Rob | Permalink

Sunday, February 12, 2017

Wendel & Luban on religious lawyering

Two of my favorite legal ethics scholars -- Brad Wendel and David Luban -- have joined forces to write an accessible history of philosophical legal ethics.  Breaking down the relatively short (40-year) span of serious theoretical work in the field into two waves, the first grounded in moral philosophy and the second grounded in political philosophy, Wendel and Luban provide a helpful introduction to how scholars have criticized and defended the lawyer's role against broader normative frameworks.  MoJ readers might be especially interested in the treatment of the religious-lawyering perspective, championed most famously by Tom Shaffer.  The authors conclude:

A Christian lawyer may wonder, for example, whether it is possible to be a lawyer without being involved in the fallenness of all human institutions, including the law. Since the answer to questions formulated in these terms would themselves be dependent upon other theological commitments, the influence of the religious-lawyering literature was somewhat limited. Its wider impact depended upon its translation into what Rawls would call public reasons, in which case it risked losing its distinctive prophetic voice.

They're undoubtedly correct to characterize the influence of the religious-lawyering literature as "limited" (at least for now), but I'm not entirely certain that those limits are strictly a function of a failure to undertake a Rawlsian translation.  That's a longer conversation.  In the meantime, you should check out the paper - it is worth your time.

February 12, 2017 in Vischer, Rob | Permalink

Saturday, February 11, 2017

Where are Catholic law schools on the road to character?

I finally got around to reading The Road to Character by David Brooks. Brooks often receives the same criticisms as law professors doing interdisciplinary scholarship – i.e., that our work reflects a glibness and lack of depth, skating from one field of knowledge to another without mastery.  I see Brooks (and many law professors) as providing a needed service in making a broad set of relevant insights more broadly accessible than they would ever be if left solely in the hands of the scholars who have spent their whole careers studying a single field.  What may be lost in depth is gained in currency.  The same is true of his latest work.

I enjoyed The Road to Character for many reasons, but for MoJ purposes, it made me think about the role that Catholic law schools can play in character development.  Brooks points out early in the book that today, “teachers tend to look for their students’ intellectual strengths, so they can cultivate them,” but a century ago, they “tended to look for their students’ moral weaknesses, so they could correct them.”

He recounts asking the head of a prestigious prep school how the school teaches students about character. She responded “by telling me how many hours of community service the students do. That is to say, when I asked her about something internal, she answered by talking about something external.”  Brooks observes that “[m]any people today have deep moral and altruistic yearnings but, lacking a moral vocabulary, they tend to convert moral questions into resource allocation questions.”

What would Catholic law schools say if Brooks asked us how we teach about character? I admit that our public service requirement would be a strong candidate for inclusion in my answer (at least before reading this book).  Law schools also – I hope – work to inculcate the norms and dispositions that are integral to membership in the legal profession.  And some schools (including St. Thomas) are doing more to facilitate self-awareness (through required exercises like Strengths Finder and courses that allot time for structured self-reflection), which is a necessary component of character development.

But should we do more to tap our theological resources? As Brooks explains, for example:

[S]in is a necessary part of our mental furniture [because] without it, the whole method of character building dissolves. From time immemorial, people have achieved glory by achieving great external things, but they have built character by struggling against their internal sins. People become solid, stable, and worthy of self-respect because they have defeated or at least struggled with their own demons. If you take away the concept of sin, then you take away the thing the good person struggles against.

Of all the historical figures Brooks mined for insights on character development, the most powerful (not surprisingly) was Augustine. According to Brooks, Augustine observed that “people can understand themselves only by looking at forces that transcend themselves. Human life points beyond itself.”  For Augustine, at least, there was no substitute for the divine, and “if you think you can organize your own salvation you are magnifying the very sin that keeps you from it.”  I don't know if Augustine's insights are as translatable outside a Christian experience as the structure of Brooks' survey approach implies (take a bit of Dwight Eisenhower here, a bit of George Eliot here, and some Augustine for good measure).  Transformative religious experience is a tricky road-to-character program ingredient for law schools open to students from any or no faith tradition. 

But we cannot ignore Augustine's lessons for education.  Since “you become what you love,” Augustine believed that education should entail the reordering of our loves. Brooks explains that “[w]e don’t become better because we acquire new information. We become better because we acquire better loves.” As such, “[w]hen you go to a school, it should offer you new things to love.”  What are we teaching our students to love?

In the book’s conclusion, Brooks laments the rise of the meritocracy mindset, in which the self is seen as “a vessel of human capital,” rather than the seat of the soul; the self is thus about talent, not character.” The meritocracy has shaped our definition of character, as the term now “is used less to describe traits like selflessness, generosity, self-sacrifice, and other qualities that sometimes make worldly success less likely,” and more often “used to describe traits like self-control, grit, resilience, and tenacity, qualities that make worldly success more likely.”

With the pressure to attract the best and brightest, and to maximize those students’ chances of gainful post-graduation employment, it is not easy for law schools to be counter-cultural when it comes to character formation. But Catholic law schools may be positioned to broaden the conversation in ways that create space for our students to grapple with the classic understanding of character.  The road to character, as Brooks puts it, “begins with an accurate understanding of our nature, and the core of that understanding is that we are flawed creatures.”  Character, in the end, is “a set of dispositions, desires, and habits that are slowly engraved during the struggle against your own weakness.”  Our faith tradition provides a framework through which to conceive of such a struggle, and we (hopefully) have a community that can support the struggle.  We all need, in Brooks’ memorable phrasing, “redemptive assistance from outside,” for we “wage our struggles in conjunction with others waging theirs, and the boundaries between us are indistinct.”

Can we help our students see beyond the external striving that makes up so much of the law school experience and identify the internal struggle that is constitutive of character? If so, what form could that help take?

February 11, 2017 in Vischer, Rob | Permalink

Friday, February 10, 2017

Civil friendship in a digital age

John Allen Jr. is always worth reading, and he has a lovely reflection comparing "two different Americas" through the lens of New York City's "two Dolans" -- the Knicks owner (angry and confrontational) and the Cardinal (open and committed to friendship despite disagreements).  He identifies as a "defining quality of [Cardinal Timothy Dolan] a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them."  The roots of this quality are best captured, according to Allen, by a story the Cardinal tells about his dad:

My dad was a very upbeat guy, with a tremendous sense of humor, who would always see the best in people. The kind of people that others didn’t get along with, he liked. It was almost like he wanted to give them a chance … Dad’s philosophy of life was that if you can get somebody on a lawn chair, outside on a Sunday, while he was doing pork steaks in the barbeque pit, listening to Harry Caray and the Saint Louis Cardinals in the background with a bottle of Busch, you could win over anybody. There’s nobody that if you eyeball, and really start talking to … rare would be the person with whom you could not find common ground.

This beautifully conveys the attitude of civil friendship, which calls citizens to live the virtue of solidarity within the political community.  As illustrated by the Cardinal's recollection, we are to assume the good will of our neighbors; not make our relationships with our fellow citizens contingent on political agreement, worldview alignment, or personality compatibility; and recognize that connections across difference and disagreement are intrinsically valuable, not just instrumentally advantageous.  But how do we embody this spirit when so little of our social interaction takes place in any sort of face-to-face venue, much less on lawn chairs around the barbeque pit? 

One obvious (but by no means easy) answer is to reallocate and reprioritize our time toward the face-to-face.  We should do that, early and often, but that will only go so far in terms of shaping the society-wide perceptions of politics- and worldview-driven division and alienation.  The front porch and neighborhood coffee shop are not going to reemerge as the primary venues for engaging our fellow citizens across our differences anytime soon.  As such, it is absolutely vital that scholars, community advocates, clergy, politicians, and neighborhood grill masters spend time thinking and sharing ideas about how we talk to each other across difference, especially when those exchanges are facilitated by technology, not by adjoining back yards.  I mean more than internet etiquette, I think.  Can emerging technologies actually help use digital tendencies to promote face-to-face relationships?  (I'm thinking, for example, of apps like Next Door.)  Can technology make local politics more accessible -- and appealing -- to residents?  Can opinion leaders change the tone and expectations of political engagement, whether in-person or online, and can the public incentivize them doing so?  How can we train young people (and not-so-young people) to embrace vulnerability? 

Realistically, true friendship will not be the aim in most political engagement that takes place in a digital world.  But an orientation toward friendship should still shape that engagement.  That's what civil friendship contemplates; we need to figure out what it looks like today. 

February 10, 2017 in Vischer, Rob | Permalink

Thursday, February 9, 2017

Will anti-Trump = pro-institutions?

In America magazine, Bill McGarvey has an optimistic essay suggesting that the Trump administration is inspiring a defense of institutions that the public had long taken for granted:

The good news? These unprecedented executive actions [by President Trump] have inspired equally unprecedented public outrage. Countless people—men, women, young, old, from every imaginable background—have taken to the streets to protest. People who have never been activists before are getting involved. In this time of institutional diminishment, it has taken the threat to stable institutions that we take for granted for millions to awaken and rise up in their defense.

I hope he's right, but I think it's too early to tell.  One concern I have is that the political movement that ultimately wins out over President Trump's populist nationalism will build on Trump's political strategy and simply replace his substantive policy ideas and worldview.  Trump succeeded, in part, by promoting a cynical view of institutions, which, in his rhetoric, are largely indistinguishable from "the establishment."  Will the Democratic Party's next standard-bearer beat out his or her rivals with a full-throated defense of institutions, or by using Trump's tactics ("the system is rigged") to accomplish different policy goals while doubling down on cynicism toward institutions?  The case for institutions may be too nuanced to get much oxygen  in a political climate where outrage will be the dominant element for the foreseeable future.

February 9, 2017 in Vischer, Rob | Permalink

Thursday, February 2, 2017

Counting on lawyers

If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:

[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.

Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.

February 2, 2017 in Vischer, Rob | Permalink