Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, March 10, 2017

Was Sally Yates relying on Ronald Dworkin? If so, is that a problem?

Brad Wendel has posted a critique of Sally Yates' justification for her decision not to enforce the Trump administration's travel ban.  An excerpt:

Whether the order is lawful will be determined by the courts. What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community’s political morality. The interpretation must fit with past legal decisions, but the judge’s aim is also to show the community’s legal practices in their best moral light.  I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.

Wendel's scholarship is always worth reading, and this essay is no exception.  In previous work, I've pushed back a bit on his recurrent thesis that a lawyer's duty of loyalty to the client is vindicated through the lawyer's duty of loyalty to the law, period.  My core concern with Wendel's approach is that our focus on the client as a citizen may obscure a view of the client as a person, though the dynamics are a little different in the context of a government lawyer, and I share his misgivings about Yates' explanation.  If you're interested, you can read a fuller explanation of my reservations with Wendel's approach here.

March 10, 2017 in Vischer, Rob | Permalink

Sunday, March 5, 2017

How can we revive political trust?

I've been thinking about the challenges presented by Americans' diminishing trust in institutions - a trend that has been accelerated by our President's troubling brand of conspiracy-fueled populist narcissism.  As The Economist observed in December, Trump succeeded as a candidate by "systematically undermining trust in any figure or institution that seemed to stand in his way," and as President, his best chance for political survival is to keep fomenting cynicism on a "destructive mission to make America less like Sweden and more like Sicily."

But the decline of trust goes much deeper than Trump's rise. Bill Bishop makes this point in today's Washington Post, arguing that there isn't much that can be done to reverse course:

Everything about modern life works against community and trust. Globalization and urbanization put people in touch with the different and the novel. Our economy rewards initiative over conformity, so that the weight of convention and tradition doesn’t squelch the latest gizmo from coming to the attention of the next Bill Gates. Whereas parents in the 1920s said it was most important for their children to be obedient, that quality has declined in importance, replaced by a desire for independence and autonomy. Widespread education gives people the tools to make up their own minds. And technology offers everyone the chance to be one’s own reporter, broadcaster and commentator.


We have become, in Polish sociologist Zygmunt Bauman’s description, “artists of our own lives,” ignoring authorities and booting traditions while turning power over to the self. The shift in outlook has been all-encompassing. It has changed the purpose of marriage (once a practical arrangement, now a means of personal fulfillment). It has altered the relationship between citizens and the state (an all-volunteer fighting force replacing the military draft). It has transformed the understanding of art (craftsmanship and assessment are out; free-range creativity and self-promotion are in). It has even inverted the orders of humanity and divinity (instead of obeying a god, now we choose one).

Like my MoJ colleagues and other advocates of Catholic social teaching, my reflex is to jump in and supplement Bishop's gloomy analysis with a reference to civil society. My own work in the area has been premised, at least in part, on civil society's importance as a wellspring of the type of trust on which our political community depends.  But what if we're wrong?

Calvin College prof Kevn den Dulk offers a provocative essay in the current issue of Comment in which he argues that we cannot assume "that political trust will flow inevitably out of the ordinary work of churches and soccer leagues." He explains:

[T]he empirical evidence that social trust breeds trust in government is largely non-existent. Some studies even suggest the influence might flow more clearly in the other direction: Political trust—confidence in the reliability, openness, responsiveness, and fairness of government— often acts as a precondition for social trust, not the other way around.

The revival of political trust is a separate challenge from the revival of civil society, in his account.  So what does Catholic social teaching have to offer as a path forward for restoring trust among citizens as citizens?  What do we as Catholic legal theorists have to offer?

March 5, 2017 in Vischer, Rob | Permalink

Saturday, March 4, 2017

Should a Catholic university honor President Trump?

Notre Dame has decided to invite Vice President Pence to speak at the university’s commencement ceremony and receive an honorary degree. I agree with Rick that extending this honor is appropriate for a Catholic university.

Honoring President Trump would present a much thornier dilemma. I don’t believe that Trump’s stated policy positions necessarily preclude an honor even though some positions conflict directly with Church teaching.  The concern surrounding the bestowal of these widely publicized honors is that they create muddled institutional messages.  The potential harm stems from confusion caused by the honor.  As the Catechism puts it, the sin of scandal refers to “an attitude or behavior which leads another to do evil,” and typically “operates by giving a bad example.”

If muddled messages are the concern, then the analysis has to be contextual, as I argued in an essay I wrote after Notre Dame’s decision to honor President Obama. Checking a box on a particular issue does not, standing alone, determine the appropriateness of the honor.  The university must weigh whether the honor “would amount to a surrendering of [its] public witness.”  It may not be enough to point to the honoree’s views on a single issue.  Even when an honoree rejects Church teaching on an essential matter such as abortion, “there are many instances where the honor is unlikely to amount to ‘scandal’ because the honoree is overwhelmingly associated with work through which the Gospel is proclaimed.”  Context matters.

Context makes it more difficult for a Catholic university to honor President Trump without creating muddled institutional messages, but not because he espouses more positions that are contrary to Church teaching than past Presidents have. (Reasonable Catholics can argue about that.)  Rather, the more dangerous confusion arises from the fact that his words and actions reflect an absence – indeed, a deliberate rejection – of the virtues that Catholic universities seek to impart to their students.  While we all fall short, we have not witnessed a President in recent memory who so enthusiastically celebrates what Catholics (and previous generations of Americans) would have viewed as personal shortcomings; President Trump appears not to see them as shortcomings at all. 

Consider the cardinal virtues: prudence, justice, fortitude, and temperance. Or recall the fruits of the Spirit: charity, joy, peace, patience, kindness, goodness, generosity, gentleness, faithfulness, modesty, self-control, and chastity. Now consider the qualities that our President seeks to cultivate in himself and others.  Even in his visit to a Catholic elementary school yesterday, President Trump encouraged one young student to get rich and two others to become famous (by getting their photos taken with the President).  Minor episodes, to be sure, but part of a consistent pattern over the decades.  Even the President’s supporters defended a widely perceived lack of “character” on the part of their chosen candidate by insisting that the country needs a strong leader, “not a Sunday school teacher.”  Very few defend our President as virtuous, of strong character, or exhibiting “the fruits of the Spirit.”  For some supporters, it is this absence of virtue that makes him appealing – the ability to do what needs to be done without worrying about social niceties.  His rejection of traditional virtues is not an afterthought -- it was core to his candidacy, and it is an inescapable dimension of his public reputation as President.

Is this something that a Catholic university can overlook? I recommend, to cite but one of many illuminating examples, Catholic University President John Garvey’s remarks on the dangers of separating the cultivation of intellect from the cultivation of moral virtue in the mission of Catholic higher education. If Catholic universities are called to guard their public witness by avoiding muddled institutional messages, an honoree’s publicly known indications of character are as relevant as the honoree’s publicly known policy positions.  As such, Catholic universities should think twice before honoring President Trump.

March 4, 2017 in Vischer, Rob | Permalink

Wednesday, March 1, 2017

Why should Catholics care about the LSC's fate?

As you may know, current drafts of the Trump administration's budget proposal call for the elimination of the Legal Services Corporation, the primary funding agency for civil legal aid in this country.  Here's an excerpt from an op-ed I published in yesterday's Minneapolis Star-Tribune making the case for why President Trump should be a champion of civil legal aid:

The working poor who voted for Donald Trump weren’t looking for a handout — they were looking for a voice. Legal aid attorneys have been a voice for the voiceless for decades, enabling those on society’s margins to stay in their homes, with their kids, and in their jobs. In upending the establishment, Trump voters asked for a champion. Working with Congress to maintain support for legal aid is one way for our new president to show that he was listening.

The future of the LSC should be of particular concern to those who take Catholic social teaching seriously. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58)  Closing our nation's justice gap depends on support from state and local governments, law firms, law schools, foundations, and a broad spectrum of private philanthropy.  The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s properly formed priorities. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system, the LSC empowers individuals and families to contribute to the common good. 

Now is the time to speak up on behalf of the LSC's vital contributions to our society. 

March 1, 2017 in Vischer, Rob | Permalink

Tuesday, February 28, 2017

The Washington florist case: is Jim Crow the best analogy?

I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony.  I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired.  For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."  Here's a responsive excerpt from my essay:

Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.

Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.

February 28, 2017 in Vischer, Rob | Permalink

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