Thursday, July 21, 2016
I've been revisiting some of Justice Scalia's predictions recently. This conclusion to his dissent in United States v. Virginia makes for an interesting juxtaposition with other goings on in American public life today.
In an odd sort of way, it is precisely VMI's attachment to such old fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":
"Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.
A Gentleman . . .
Does not discuss his family affairs in public or with acquaintances.
Does not speak more than casually about his girl friend.
Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.
Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.
Does not hail a lady from a club window.
A gentleman never discusses the merits or demerits of a lady.
Does not mention names exactly as he avoids the mention of what things cost.
Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.
Does not display his wealth, money or possessions.
Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.
Does not slap strangers on the back nor so much as lay a finger on a lady.
Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'
Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.
A Gentleman respects the reserves of others, but demands that others respect those which are his.
A Gentleman can become what he wills to be. . ."
I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
Wednesday, July 20, 2016
Sometimes people wonder why I'm so interested in John Marshall. The short answer is that I have learned a lot about American self-government from studying him and think I still have much to learn in that way. Here's Marshall in his Life of Washington, writing on party politics in the 1790s:
In popular governments, the resentments, the suspicions, and the disgusts, produced in the legislature by warm debate, and the chagrin of defeat; by the desire of gaining, or the fear of losing power; and which are created by personal views among the leaders of parties, will infallibly extend to the body of the nation. Not only will those causes of action be urged which really operate on the minds of intelligent men, but every instrument will be seized which can effect the purpose, and the passions will be inflamed by whatever may serve to irritate them. Among the multiplied evils generated by faction, it is perhaps not the least, that it has a tendency to abolish all distinction between virtue and vice, and to prostrate those barriers which the wise and good have erected for the protection of morals, and which are defended solely by opinion. The victory of the party becomes the great object, and, too often, every thing is deemed right or wrong as it tends to promote or impede it. The attainment of the end is considered as the supreme good, and the detestable doctrine is adopted that the end will justify the means. The mind, habituated to the extenuation of acts of moral turpitude, becomes gradually contaminated, and loses much of its horror for vice, and of its respect for virtue.
Friday, July 1, 2016
The Style section of the Washington Post carries an article this morning with the headline "U.S. district judge strikes down Mississippi's 'religious freedom' law" (scare quotes in original). Buzzfeed is on the case also: "Federal Judge Halts Mississippi Anti-LGBT Law From Going Into Effect."
Thanks to Buzzfeed, the opinion is available here. But, really, do you need to read it? Don't the headlines tell you everything you need to know?
Well, I have read it. Portions of the opinion suggest a judge who understands himself to be operating at the center of a national drama of historically epic proportions. But reality is more prosaic. Judge Reeves has just written another chapter in A Political History of the Establishment Clause. And as for Equal Protection, there is an obvious tension between aggressive enactment of social change through constitutional litigation and judicial impartiality. But we've been living with that for a while.
If there is an appeal, I expect the case to be tossed for lack of standing.
Wednesday, June 29, 2016
What is the contribution of human positive law, fixed as posited, to the common good of a political community?
Until reading the paper, I had not paid sufficient attention to how it proceeds by weaving together an array of insights from a decade of Scarpa Conferences at Villanova Law. Although mention of this enterprise is at the center of the abstract, it is not until I read the paper that I appreciated how it is also at the center of this particular writing project.
The paper has seven parts, aptly titled Parts I through VI, followed by Part VII, Conclusion. As its title indicates, the paper is both about judging and about law. The two are related, of course, but they are also distinct.
For now, I'd like to focus on a single claim about an evil of textualism made at the end of Part VI, right before the beginning of the end of the paper. To understand this claim in context, though, it is useful to consider the three last paragraphs of Part VI together. Patrick writes:
I do not seek a perfect constitution. It would be a fool’s errand, because among us humans the good always is under construction (or destruction). I seek instead a constitution that optimizes legal and thus cultural conditions for constructing the good. Any constitution worthy of its supporters/subjects should assist those it rules by assisting them to perfect both themselves and the common good. (A point more or less clear already with Aristotle, but lost on modernity). To grasp this is to call for a constitution interpreted according to the common law method, with due modification, and this exactly because that method is isomorphic with the method of human intelligence itself, in that it is methodical and therefore potentially progressive and cumulative. Methodism with a small-c must be recovered and sustained if we are to escape McLaw.
Justice Scalia contended that our Constitution once was, and should again be, “rock solid.” Such would be McLaw: rock solid. Dynamic human intelligence, by contrast, is a rock on which to build exactly because it allows knowledge, both theoretical and practical, to “make [its] slow, if not bloody entrance.”
There are no cosmic guarantees that knowledge will make an entrance (we remain at liberty to elect nescience and evil), and meanwhile McWorld through its agent McLaw does violence to human potential, and specifically to our potency for social obedience to divine law, by attempting to stop history by the currently enacted rules (which fallible humans enacted fallibly). Textualism is an antidote that reduplicates but also radicates the evil: arbitrary fixity. One could do worse than the common law judge ridiculed by Scalia as “Mr. Fix-it.” For example, Judge Ronald McDonald, Mayor McCheese, the Hamburglar, and the rest of McWorld at play.
The "evil" here is "arbitrary fixity." Missing from this assessment is an acknowledgment of how some human positive law, fixed as posited, contributes to the common good of a political community. We have, for example, two houses of Congress, not one or three. We have one President, not two consuls. We have judges with life tenure, not fixed terms. Citizens of one state traveling into another are entitled to the privileges and immunities of citizens of that state, not to be treated as complete foreigners. The Constitution is to be amended in some ways, apparently to the exclusion of others. The Constitution is supreme law, not to be treated as foreign law by state judges. And we could add to this list, generated thus far by picking one (arbitrarily fixed?) feature from each of the first six Articles of the Constitution.
There is a sense in which we can describe these as "arbitrary" fixities. We reasonably could have chosen otherwise. But we needed to choose. And we continue to benefit as a political community by legal technology that treats those choices as fixed in place. Reason did not fully specify the choices to be made. But reason required that choices be made. And once made, the result of those choices need to be fixed in place in order to achieve the full benefits of the kind of constitutive choices made and promulgated through the constitutional text.
All of this is part of the straightforward natural law case for a particular kind of human positive law. It appeals is both Catholic and catholic.
I have not said anything yet in this conversation about judging. But I can at least observe that how to judge in accordance with the Constitution as law depends on what kind of law the Constitution is. This is one of the main points of the recent paper, Enduring Originalism, that Jeff Pojanowski and I have written. (Currently at 99 downloads ... free paper about the classical natural law foundations of positive-law originalism for the 100th downloader!)
As in this post, so in that paper, we do not say much about the activity of constitutional adjudication. But as we think through what we can and should say, we will have to think carefully about Patrick's proposed Methodism.
Thursday, June 16, 2016
There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."
One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)
For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version).
Okay, it's 9:59, so off to SCOTUSBlog I go.
Wednesday, June 15, 2016
In updating some slides for a Rotary Club presentation, I didn't see any 5-4 opinions for the Court this entire Term. For obvious reasons, the Term will end that way as well.
(Note: My source is the Supreme Court's "slip opinions" page. I just went through and scanned quickly for the vote spread in the slip opinions released before Justice Scalia's death on February 13. If I missed anything that should count as a 5-4 opinion for the Court, please let me know. The closest I saw was Campbell-Ewald v. Gomez, which was 6-3 on the judgment, but Justice Thomas concurred only in the judgment. Also, is anyone aware what 5-4 action there has been this term on the "shadow docket"?)
The 4-4 and 5-3 cases are the most obvious candidates for cases that took shape originally as 5-4 cases. But you can't estimate just from the resulting vote split, as it is most likely that the 8-0 decision in Zubik v. Burwell took shape before oral argument as a 5-4 case. We may see other examples of this going forward, as well.
Monday, June 13, 2016
The June issue of the Harvard Law Review carries a book review by Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. The book reviewed is by Judge Robert Katzmann of the United States Court of Appeals for the Second Circuit. The Harvard Law Review Forum runs a response by J. Katzmann to J. Kavanaugh. The interchange is stimulating. I particularly appreciate the insights each brings to bear from their appellate adjudication experience. These pieces are the sort of "extrajudicial writings ... in which judges engage in self-reflection and situate their own thought in relation to their peers, past and present" that Marc DeGirolami and I tried to call attention to in our article on Judge Posner & Judge Wilkinson.
Friday, June 10, 2016
Anyone seeking an education in ways of understanding politics should take some time to listen to, watch, or read transcripts of Conversations with Bill Kristol. Earlier today I happened to be listening to the podcast of Kristol's first conversation with James Ceaser, which took place last March, and I thought there was much wisdom to be found in it. Much of the conversation is about constitutionalism in the United States. But near the end the conversation turned to President Obama.
Consider how Professor Ceaser's observations about President Obama might help us to understand the Trump phenomenon. An excerpt:
KRISTOL: You’ve written a fair amount about our current president, President Obama, and I’m just curious from the point of view of a student of American history and of the American constitutionalism broadly, anything striking about him. I mean, what will historians note about the Obama presidency?
CEASER: Well, I think they’ll begin by noting the extraordinary election of 2008, which is partly about Obama but partly about Obama-ism, which was much more than a political phenomenon. It was a cultural phenomena and in way a worldwide phenomenon, something like almost a religious devotion to an individual who was seen as being able to deliver not only to the United States but the whole world from the morass in which it found itself.
And it’s more telling, I think, about the masses, even than Obama, because, after all, he was just the vehicle for this mass movement that emerged. The yearning for someone who could transform the world. That doesn’t speak well for the modern state of the world or democracy. It’s in a way a terrifying – a terrifying event to see so much hope put into one person with the obvious understanding that no person, even if Obama were more than he is, could ever have achieved that. So I think that 2008 is a quasi-religious phenomenon portending something about the character of our world. Maybe it’s just a one-off. Maybe the experience of disappointment will sober people up and make them feel a little embarrassed at how they acted in 2008. But that’s the event that stands out.
Even in the 2012 election, you look at that the campaign in 2012 was so radically different from 2008. It was effectively run in 2012 but there was no high inspiration, no hope and change, it was tough politics. So we’d already passed this curious stage. And I wonder in some ways, not to try and make excuses for Obama, whether he wasn’t the victim of this movement, which probably must have affected his soul in some ways.
When you move from venue to venue and you’re treated with such a degree of adulation, maybe if you’re not a strong personality, you begin to believe it yourself. And I think there are personal reasons, deficiencies in his own character, which I think helped that process along. But I think he was affected by this, began to think that these speeches that he gave, which had these responses could actually change reality. In particular in international affairs, his first speech in Cairo, maybe it was a prudential move, but he seemed to think that he could run foreign policy by his own voice. And that the same thing which brought him success in the election could bring him success in the running of the country and the world. We’ve seen, I think, that that’s not the case. A good solid and simple education, but an education nonetheless.
Since the rise of Trump, others have observed that the Trump movement of 2016 is a kind of funhouse-distorted-mirror version of the Obama movement of 2008. But keep in mind that Ceaser was making these observations about Obama a few months before Trump announced his candidacy and even longer before people began to recognize its potency.
Thursday, June 9, 2016
The Marian apparition mentioned in my preceding post links up in an interesting way with this passage from God and the World:
Q (Seewald): Basically, the message of Fatima is not very complicated at all. It was expressed in this way by the three children who saw the visions: "I am the beloved Lady of the Rosary! ... I have come so that men may become better. They must stop giving such pain to God."
A (Pope Benedict XVI): Indeed, the message itself is quite simple. And Lucia, the only surviving one of the children, has placed more and more emphasis on this simplicity and has said, Don't take notice of all the other things you are told about; it's all just a matter of faith, hope, and love. I too have been able to have a brief conversation with her. She said it then with great emphasis: Tell people that!
What she meant was: the angels we saw at first helped us to learn to practice faith, hope, and love, and the content of the whole message is that we should learn this. That is what the Mother of God wants to make us aware of and, by doing this, to purify us and convert us. Penitence is in fact this inward conversion of our existential attitude, stepping outside of the current trend, which leads away from God and leads us only to ourselves. Penitence is conversion, coming out of oneself, self-giving, which becomes love and which in turn presupposes faith and creates hope.
I believe that all these appearances of Mary, so far as they are authentic, do not bring us something to set beside the gospel. They offer no satisfaction to people's curiosity, no sensations or anything like that, but bring us back to the simple and essential things, which we are so easily inclined to overlook. Nowadays especially, with the complexity of all our problems, Christianity often becomes so complicated for us that we can no longer see the forest for the trees. It is a matter of being led back to the simple heart of it, not to anything else, but to the essentials, to conversion, to faith, hope, and love.
These words were reportedly spoken by Mary when she appeared in Argentina to Gladys Quiroga de Motta on October 13, 1983.