Mirror of Justice

Gun Ownership for Self-Defense: Murphy Institute Program on "Hot Topics, Cool Talk"

One of the hats that I wear is that of co-director of the Murphy Institute for Catholic Thought, Law & Public Policy at the University of St. Thomas. A key mission of our institute is to encourage civil discussion of controversial topics modeled by those who disagree on a "hot topic." Last month, I spoke at one of our programs, along with my colleague Julie Jonas, on whether it is right to own a gun for self-defense. The program is now available on video at this link.

 

 

Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"

Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond."  (I should note that, unlike far too many University presidents, our own president, Fr. John Jenkins, was a lead signatory on a strong statement condemning the 10/7 terror-murders by Hamas and supporting Israel's right to exist and to defend itself.) (The event will be live-streamed.)

n November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.

The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.

The panelists include:

Ken Marcus, Esq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey Veidlinger, Joseph Brodsky Collegiate Professor of History and Judaic Studies at the University of Michigan

The event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.

The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.

Attendees will be asked to present their Notre Dame ID card. Backpacks and bags will not be allowed in the courtroom.

1140 Eck Hall will be reserved as the overflow room where the livestream of the event will be playing.

Viva Cristo Rey!

In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

Pushaw on "Defending Dobbs"

Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.

The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.

Remarks of Donald Landry, MD, PhD, President of the American Academy of Sciences and Letters at the Library of Congress

The following remarks were given by Donald Landry, MD, PhD, of Columbia University, President of the American Academy of Sciences and Letters, at the Academy’s 2023 Investiture held at the Library of Congress in Washington, D.C. on Wednesday, November 8, 2023. This was the Academy's launch event. Its inaugural Robert J. Zimmer Medal for Intellectual Freedom was conferred upon Sir Salman Rushdie. In addition, Barry Prizes for Distinguished Intellectual Achievement were conferred upon ten scholars representing a spectrum of academic disciplines: Orlando Patterson of Harvard (sociology and African-American Studies); Josiah Ober of Stanford (classics); Svetlana Jitomaskaya of the University of California (mathematics); Steve Koonin of NYU (engineering); Anna Krylov of the University of Southern California (chemistry); Robert George of Princeton (politics); Ruth Okediji of Harvard (law); Candace Vogler of the University of Chicago (philosophy); Jonathan Haidt of NYU (psychology); and Jon Levenson of Harvard (Jewish Studies).

********

Dr. Landry

The modern university, whose origins date back almost a millennium, reflects and indeed embodies the truth-seeking spirit of humanity, when we human beings are at our best. It is in our nature as rational creatures to want to understand our world and ourselves. We are curious and inquisitive. We seek knowledge, and that special kind of knowledge we call wisdom. We desire to move from ignorance to truth. From partial knowledge to greater, deeper, richer understanding.

“E Tenebris ad Lucem” – “from darkness into light.”

Of course, we value what is sometimes called “useful knowledge,” and honor its tenacious pursuit across a wide range of disciplines. Yet, we also value knowledge for its own sake, for its inherent enrichments of ourselves as human beings. And we especially encourage the pursuit of what may legitimately claim to be the highest form of knowledge, namely, the deeper understanding of what it means to be human.

The determined pursuit of truth, especially of the deepest and most consequential truths, is not for the faint-hearted. On the contrary, it requires boldness. It requires independence of mind. And—let us here speak plainly—it requires courage.

Learned academies date to the 15^th Century. On this continent they antedate the founding of the United States. Such academies were and are born at particular times in particular places to respond to the circumstances of their times and places. And yet, they are motivated by a perennial ambition: to encourage, to support, to recognize, and to honor courageous truth seeking and bold truth speaking.

The American Academy of Sciences and Letters was founded to honor distinguished scholarly achievement across the disciplines of the university and in that fashion promote scholarship and learning—a common thread among such academies, to be sure. Responding to the circumstances and exigencies of our own time and place, this Academy places a special accent on lifting up for the highest recognition eminent scholars whose exceptional achievements are the fruit of independence of mind and intellectual courage.

Members of the American Academy of Sciences and Letters are scholars who have made extraordinary contributions in the humanities, social sciences, natural sciences, mathematics, engineering, the arts, and the learned professions. Later in tonight’s program, we will add new members to the Academy as we award to each a prize that expresses our gratitude for their advancement of knowledge and the example they have set of independence of mind and intellectual courage.

Now, as a prelude to our keynote event, it is a special privilege this evening to confer upon a most worthy recipient, Sir Salman Rushdie, the inaugural Robert J. Zimmer Medal for Intellectual Freedom.

The Medal recognizes the work and profound witness of the late Robert Zimmer, who served from 2006 to 2021 as President of the University of Chicago. President Zimmer was an acclaimed mathematician whose commitment to intellectual excellence and academic freedom became the stuff of legend. It was his inspirational leadership and direction that bequeathed to the academic world the Chicago Principles of academic freedom, principles that he applied courageously and even-handedly, thus further burnishing his institution’s reputation and standing as a beacon of freedom of thought, inquiry, and discussion.

President Zimmer passed away earlier this year, a terrible loss for his family, his university, and the entire academic community. When, on behalf of the board of the Academy, I approached President Zimmer’s widow, Chicago Professor Shadi Bartsch-Zimmer, and related how deeply we revere him for his inspired support of academic freedom and integrity and how we sought through the Zimmer Medal to honor President Zimmer—with her permission—in order that his memory and contributions might endure, she responded: “Bob would have been delighted and I am too. I hope that the Robert J. Zimmer Medal for Intellectual Freedom will be a beacon for many as we go forward, as Bob was himself.” 

This is our shared hope. And I am delighted that Professor Shadi Bartsch-Zimmer is here with us tonight.

Thank you, Shadi, for the honor of your presence.

Who could merit such an award for intellectual freedom, intellectual courage? In the last century, perhaps it would have been the great writer and Soviet dissident Aleksandr Solzhenitsyn, who stood in bold relief, risking life and limb, speaking truth to power.

For us today, as the board of the Academy unanimously agreed, it is Sir Salman Rushdie.

Sir Salman’s challenging and transformative novels have been recognized as among the greatest literature of our era. Midnight’s Children not only won the 1981 Booker Prize, the top honor for a novel; it was twice selected as the best novel ever to win the Booker. Sir Salman was knighted by Her Majesty Queen Elizabeth for his services to literature in 2007. His richly deserved prizes and awards are too numerous to list.

For thirty-five years, Sir Salman has served as a global beacon for intellectual freedom. You are all familiar with the decades of death threats and violence he has faced with resolute courage. His refusal to be silenced or deflected has inspired millions around the world, providing a model for us all. His example reminds us that the only thing more costly than standing up for intellectual freedom would be failing to make that stand.

"Anchors Aweigh" (reviewing Hadley Arkes, "Mere Natural Law")

I have review with that title that is both appreciative and critical of Professor Hadley Arkes' book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month's issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law...

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.

Disappointing results in Ohio

In Ohio, "Issue 1" -- which adds to Ohio's state constitution an expansive (I would characterize it as radically permissive) right to abortion -- passed by a wide margin yesterday, marking yet another post-Dobbs loss for the pro-life side.  This piece, in National Review, explains well how far-reaching (and deceptive) the Issue is.

The Supreme Court was wrong -- by which I mean, the justices badly misinterpreted the Constitution's text -- in Roe; the Court was wrong to affirm (or, re-make) Roe in Casey; and the Court was right, in Dobbs, to jettison Roe and Casey as "grievously wrong" (as I and some co-authors argued here).

That said, in the wake of the Ohio vote (and of other electoral setbacks), at least two things seem, unfortunately, clear:  First, the media overwhelmingly mischaracterizes / lies about abortion, about its regulation, and about the content and implications of abortion-rights proposals.  This is not going to change, and it would seem to follow that pro-life activists simply must do better in terms of communication and education.  Second, it is, for now, a fact about the United States that -- even in many "red" states -- most voters/citizens want most abortions (i.e., "first trimester" abortions) to be legal. That these voters / citizens are mistaken about the demands of justice is, for present purposes, not relevant.  This could change (but, see the first point) -- we should pray that it does, and do what we can to bring such a change about -- but, until it does, pro-life activists can expect that, in most places, returning abortion-regulation to the democratic process is not going to result in pro-life abortion-regulation regimes (although, we should not forget, in some places it will and has).

In my view, given the two points above, it is both morally permissible and prudent to propose and support incremental measures -- not, to be clear, as principled or permanent resolutions but as the best that can be enacted -- at a particular time, and in a particular place -- until citizens' and voters' consciences are better formed.  As MOJ-er Robby George wrote, a while back, regarding Evangelium vitae,

When it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects (no. 73).

Although there are dedicated pro-life people who continue to believe otherwise, it seems clear to me that the Holy Father is saying that a person who makes manifest his commitment to continue working for the full legal protection of the unborn, may, as a matter of prudence, support and vote for laws that, though not perfectly just, are less unjust than the existing law or any currently politically attainable alternative.

At the same time, as the Pope makes clear, there is never a legitimate excuse for failing to work toward the goal of full equal protection for the unborn and other victims of the culture of death. It is not enough merely to attempt to ameliorate the extent or gravity of unjust laws. The universal and unconditional pro-life imperative demands that we work unceasingly—even if, by necessity, incrementally—toward the ultimate goal of bringing our laws fully into line with the requirements of true justice.

In the words of Fr. Richard John Neuhaus, taken from "the greatest pro-life speech ever given," 

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along the way of life, bearing witness in word and deed to the dignity of the human person—of every human person.

 

Misguided Moral Equivalence from the Kroc Institute

A few days ago, Notre Dame's Kroc Institute's published an"Open Letter for Peace" in the student newspaper, The Observer (October 30, 2023), stating that "[w]e are horrified by Hamas’ recent attack on Israel and the taking of hostages. We are appalled by Israel’s bombing of Gaza, which is killing, injuring, and displacing Palestinian civilians[.]" The Letter also noted, correctly, that "[i]nternational law prohibits the targeting of civilians."

 

More clarity and care were needed in the open letter.  No comparison can plausibly be drawn between, on the one hand, the gruesome October 7 terror-murders, rapes, and kidnappings by Hamas and, and on the other, Israel's lawful actions against the leaders and assets of a genocidal terrorist organization. Nothing -- nothing -- can justify or excuse the former. Hamas illegally and immorally targets civilians and uses human shields for propaganda purposes; Israel does not. The responsibility for the suffering of civilians in Gaza, and for the rape and torture of civilians in Israel, lies with Hamas, its sponsors, and its supporters.  It is very troubling to see -- especially on our campuses -- expressions not only of solidarity with Gazan civilians who are victimized by Hamas -- Hamas snipers are shooting civilians who try to evacuate -- but of support for Hamas itself, and its genocidal ambitions.

 

I was pleased, though, that the University's president, Fr. Jenkins, was a "founding supporter" of this strong letter about "moral clarity" in the war against Hamas.

 

"Dust of the Earth: On Persons" / The annual Fall Conference at Notre Dame

For over 20 years, a highlight of the academic year has been the annual Fall Conference, put on by the DeNicola Center for Ethics and Culture, which is led by my good friend Prof. Carter Snead.  This year's theme is "Dust of Earth:  On Persons."  Here is the full schedule; the line-up looks amazing!

Garnett on 303 Creative and Public Accommodations Laws

I have an essay up -- "Protecting Equality or Correcting Thoughts?" -- at Law & Liberty on the 303 Creative case and some broader questions about the reach and aims of public-accommodations laws.  Here is a bit:

This is not the place for a detailed history of public-accommodations laws (a task which has been ably undertaken by Law & Liberty contributor, Prof. Adam MacLeod). It is worth emphasizing, though, that, over time, the aims and justifications of these rules have also evolved and expanded. At first, these laws’ focus and concern seemed to have been monopoly power, or the obligations that were thought to accompany a publicly conferred license, or business operations that occupied a kind of choke-point in the marketplace. When the availability of a room at the inn could make the difference between life and death, or cold and warmth, the right of the innkeeper to arbitrarily choose his clientele was expected, reasonably, to give way. Later, the Heart of Atlanta Court built on, and above, these earlier foundations, and emphasized that these laws, in addition to ensuring Black citizens’ access to interstate commerce and ability to travel freely throughout the country, “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

Given the pervasive, persistent, and systemic nature of racial prejudice and discrimination, and the demeaning, insistent efforts of so many to resist the equality guarantees of the Civil War amendments, the Heart of Atlanta justices’ invocation of “personal dignity,” as well as market access, was welcome and warranted. In cases like Masterpiece Cakeshop and 303 Creative, though, the public-accommodations-enforcement project seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.

Justice John Paul Stevens, dissenting in Boy Scouts v. Dale, a case where the Court concluded that it would violate the First Amendment to use a public-accommodations law to require the Scouts to take on a “gay rights activist” as a scoutmaster, did not focus on Mr. Dale’s ability to access volunteer opportunities. Instead, he warned of the “atavistic opinions,” “nourished by sectarian doctrine,” that the Scouts’ policy was thought to reflect. He was confident that such opinions, which cause “serious and tangible harm,” could and should be changed through assiduous application of the state’s public-accommodation regulation. The assertedly reformative, rehabilitative effects of vigorous enforcement have also been invoked by Jack Phillips’s current opponents, who have as a stated aim “correct[ing] the errors of his thinking.”

This way of thinking about the ends of and warrant for public-accommodations laws is both deformed and dangerous. It is a dramatic overreach, and an unwelcome departure, for these laws to be used not to facilitate equal access to commerce and civil society but to punitively re-educate those with traditional, or now-disfavored, views about controversial questions.

A Tribute to Alan Charles Kors, recipient of the 2023 Philip Merrill Award of the ACTA

Here is the text of my tribute to Alan Charles Kors, Professor of History, Emeritus at the University of Pennsylvania, delivered at the 2023 Philip Merrill Award dinner of the American Council of Trustees and Alumni. -- Robert P. George

        Alan Charles Kors is our Moses.

         For forty years—more than forty years—we have been wandering in the desert, trying to make our way to the promised land—a land of free inquiry, truth-seeking scholarship, and non-indoctrinating teaching. Alan has led us. Inspired us. Encouraged us. Exhorted us. Supported us. And, when we have been a stiff-necked people, reproved us and rebuked us.

         He has led us and inspired us by example as well as by precept. Was there ever a more truly independent thinker? A more determined truth-seeker? A bolder or more courageous truth-speaker? A more dedicated and honest teacher?

         Certainly not in our time.

         And where would the higher education reform movement be without our Moses? Although we have not—yet—made our way to the promised land, without Alan’s work and witness—without his willingness to sacrifice and even make himself an object of anger and animosity—we would likely not be making our way at all. We probably would have been drowned in the all-too-red sea of toxic ideologies that have afflicted academia since the hostile takeover of much of it several decades ago.

         No one in this room needs reminding that those ideologies are more toxic today than they ever have been. Academia and the broader intellectual culture are full of ideas (or what pass in these sad times for ideas) so inane, so obviously irrational, that they would have been regarded as the stuff of low comedy as recently as five years ago. But there is a strong, vital movement fighting back. They—we—are building valuable infrastructure within existing institutions and building new academic and para-academic institutions to replace those that are too far gone to save and reform. Organizations like ACTA, the NAS, FIRE, Heterodox Academy, and the Academic Freedom Alliance are doing the Lord’s work. They will be joined soon by the new American Academy of Sciences and Letters. Programs and institutes and whole schools dedicated to academic freedom, integrity, and excellence are springing up all over the country at institutions large and small, religiously-affiliated and non-sectarian, private and public.

         Although it remains distant, we are, finally, beginning to glimpse the promised land.

        I doubt that Alan or I or perhaps anyone in the room here tonight will have the blessing of actually entering the promised land. If anyone deserves to live long enough to enter it, it is Alan; but I will leave that question between God and him, the two of them having a rather complicated relationship. But I thank God that Alan and I and all of you are getting a glimpse. We know that over the horizon there is indeed a promised land, and it can and will be reached and entered. A Joshua of our movement will finally lay siege to the decadent Jericho that is contemporary academia. Although its ramparts seem robust, its walls are, in truth, thin and weak. The trumpets will sound, and those walls will come tumbling down.

         And when our intellectual descendants enter that land flowing with the milk of intellectual freedom and the honey of scholarly excellence and academic integrity, they will shout and sing of Alan Charles Kors, the visionary, tenacious Moses who led his people through the grimmest of deserts, never abandoning faith in the highest intellectual standards and noblest moral ideals, never giving up hope, even when our little band of reformers seemed weakest and most vulnerable. “For,” if I may quote Deuteronomy, “no one has ever shown the mighty power or performed the awesome deeds that he did in the sight of all Israel.”

"The Death and New Life of Law and Religion" at St. Thomas

I'll be giving a talk tomorrow with this title at the University of St. Thomas's Murphy Center, organized and directed by Prof. Greg Sisk. Please stop in if you are in town. I'll post the text of the talk sometime next week. Further details at the link.

"Establishment as Tradition"

I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its "establishments," apart from whatever "establishments of religion" may be forbidden in our polity; and traditionalism's civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

Lepanto

 

 

Some good news in a sacred-sites case

The Becket Fund has the news, here, that the federal government has agreed to settle a sacred-sites case and "make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site." Some church-state law professors filed an amicus brief in support of the tribes' position, which you can read here.

Podcast on Tom Berg's "Religious Liberty in a Polarized Age"

Mark Movsesian and I have a new podcast, part of our Legal Spirits series, on Tom Berg's new book, Religious Liberty in a Polarized Age (Eerdmans). Congratulations to Tom on the book! In the podcast, we ask Tom a few questions about the thesis and argument, but also (in my case, at least) review some old disagreements that first emerged at Mirror of Justice about a decade ago concerning the difference in perspective between irony and tragedy. Thanks to Tom for doing it. Listen in!

Garnett on Baylor, Title IX, institutional pluralism, and religious freedom

Along with Nathan Berkeley, I have a short piece up at National Review, about the ongoing campaign of some members of Congress against Baylor University.  Here, in a nutshell, is what's going on:

In a September 5 letter to the U.S. Department of Education, five members of Congress led by Representative Adam Schiff (along with Representatives Greg Casar, Joaquin Castro, Mark Takano, and Veronica Escobar) objected to “Baylor University’s claim to an exemption from Title IX’s regulations prohibiting sexual harassment . . .” and urged “the Department to clarify the narrow scope of this exemption.” Title IX prohibits discrimination based on sex in education programs that receive federal financial assistance.

In addition to calling for greater scrutiny of the scope of Baylor’s religious exemption, they also challenged the school’s fundamental eligibility for a Title IX exemption in light of allegations that “[Baylor] is no longer controlled by a religious organization.” The ideology driving this inquiry threatens Baylor’s religious freedom and that of many other religious institutions in America.

And, here is a bit of our take:

While showing genuine respect across differences must be a commitment we all make in our pluralistic society, people should not be able to use their identity to impose moral demands on the religious institutions they voluntarily enter into. And yet, that is precisely what Congressman Schiff and his colleagues are demanding on behalf of dissenting students.

Like so many American elites, these congressional representatives are so preoccupied with ensuring diversity within institutions that they fail to see the immense value in safeguarding diversity among institutions. Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity in this vital sector. In numerous ways, as one of us argued recently, our highly diverse society needs a diverse array of colleges and universities.

The mission of Baylor University is “to educate men and women for worldwide leadership and service by integrating academic excellence and Christian commitment within a caring community.” In a world increasingly awash with identity claims, Baylor’s identity matters, too.

On the likely impact of the Supreme Court's rulings on race-conscious admissions

Christopher Connell, a writer for the Princeton Alumni Weekly, recently interviewed me for a story on the likely impact on Princeton University of the Supreme Court's rulings on race-conscious admissions policy in the Harvard and University of North Carolina cases. Some quotations from me appeared in the story, but (quite reasonably) he was unable to include everything I said. I'm therefore reproducing here his questions and my complete answers:

1. What do you think will be the impact of the Supreme Court’s ruling against explicit use of race in admissions decisions on the composition of Princeton’s student body and those at other highly selective U.S. colleges and universities? Will that be for good or ill?
   
   I suspect that Princeton and other universities will revise their practices to comply with the Supreme Court’s ruling that an applicant’s race or ethnicity, as such, may not be counted for or against him or her. These institutions will, however, continue to seek to admit classes in which students come from a wide variety of backgrounds and bring a diversity of experiences. I expect that Princeton will redouble its efforts to admit more students from less affluent backgrounds, especially those who have attained high levels of academic and other forms of achievement despite their comparatively modest family circumstances. The Supreme Court’s rulings in the Harvard and University of North Carolina cases forbid giving preferences to applicants based on race or ethnicity, but do not forbid preferences based on, for example, socio-economic class. To the extent that these rulings push universities to assess applicants as individuals, and not treat them as members of groups (be they so-called “overrepresented” or “underrepresented” groups), I think they are for the good. They won’t prevent Princeton or other colleges and universities from having diverse student bodies.

2. Virtually all colleges embrace efforts to increase the diversity of their students, faculty and staff. Do you think that this ruling will undercut that? Do you foresee a Princeton that is less racially and ethnically diverse?
   
   As I said, I do not expect the rulings in the Harvard and University of North Carolina cases to result in a less diverse student body. Indeed, more individualized assessments of candidates, especially taking into account the challenges they have faced (which could be the result of social class, race or ethnicity, disability, religion, or a range of other factors), is likely to result in what will be in important ways a more diverse student body. Among the respects in which the student body might be more diverse, is that there could be a broader mix of political, moral, religious, and cultural viewpoints than we currently have. You note that colleges are seeking more diversity of faculty as well as students. The Supreme Court decisions, though the cases directly concerned the admission of students, by their logic do apply to faculty and staff hiring. An area in which Princeton, like most other prominent private and public universities, needs improvement is the area of faculty viewpoint diversity. This was stressed by Dr. Cecilia Rouse, writing in the Princeton Alumni Weekly, when she was Dean of the Woodrow Wilson School. I hope it will be very much in our minds as we move forward in light of the Supreme Court’s rulings.

3. Should Princeton keep giving legacy applicants an advantage? Last year, 12.5 percent of undergraduates were legacy admits [presumably mostly with strong academic credentials, not marginal ones].
   
   The Supreme Court’s rulings do not forbid giving legacy applicants an advantage. My sense, however, is that the days of giving the children or grandchildren of alumni a leg up in admissions are numbered. Although it is not hard in the abstract to make the case for giving a small advantage to “legacies” in the admissions process, it’s harder to make the case in the concrete historical circumstances we have here, given the fact that Princeton (like virtually all of what the University regards as its “peer” institutions) has in its record certain forms of invidious discrimination (not only against racial minorities, but also against Jews, Catholics, and others). Will abandoning the legacy preference make a big difference? I doubt it. Princeton alumni are deeply devoted to their alma mater, and strongly encourage their children to aspire to attend Princeton and make it their first choice. Many, many alumni children are super high achievers and are going to do extremely well in the admissions process, even without a legacy preference. Most alumni children who are admitted will elect to attend. Frankly, I doubt that the legacy preference makes much of a concrete difference these days in admissions decisions; so its abolition, which I suspect is coming, will not dramatically alter the make-up of the student body. We’ll still have plenty of alumni children with strong family ties to Princeton.

4. Princeton today admits twice as many Pell Grant-eligible students (~20 percent) as it did 15 years ago. Is enrolling more students from lower-income families sufficient to maintain the current enrollment levels of students from underrepresented racial and ethnic groups?
   
   I don’t think or speak in terms of “overrepresented” and “underrepresented” groups. Our students are not here to represent groups. Sometimes I’ll hear people say that Jews, for example, or Asians are “overrepresented” at Princeton. I find that kind of talk deeply troubling. There’s simply no such thing as “too many Jews” or “too many Asians.” Yet it really isn’t possible to embrace the concept of “underrepresented” groups without validating the idea that some “groups” are “overrepresented.” Our policy should, therefore, be one that eschews this way of thinking. High achieving students come in all colors and from every ethnicity. We need to find them, encourage them to apply, assess them on an individualized basis (taking into account the challenges they’ve faced), select among them in a strictly non-discriminatory way, and do everything we can to encourage those we admit to enroll.

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new book, All the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

A Conference on Robert George's "Making Men Moral at 30"

I'm delighted to announce a conference on Robert George's groundbreaking book, Making Men Moral: Civil Liberties and Public Morality, on the 30th anniversary of its publication. The conference will be held November 30-December 1, and is being jointly organized by AEI, the Ethics & Public Policy Center, Pepperdine University, and the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Catholic University. You can see the terrific program at the link.

I'm particularly pleased to contribute something to this conference, as Robby's book was a major influence on me as I thought about an academic career many years ago, shaping the way I thought about so-called "legal moralism" and many other questions in constitutional law and theory that came to occupy me in later years. And I continue to use the book to this day in my own classes as a model to introduce some of the foundational questions of governance that it discusses.

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.

Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.

"Aquinas at 800": Call for Papers

The University of Notre Dame is hosting what is shaping up to be an amazing academic conference:  "Aquinas at 800:  Ad multos annos."  Check it out!