Mirror of Justice

Additional Thoughts on the Catholic Bishops of Minnesota and Their Decision to Reopen Churches in Defiance of Minnesota’s Emergency Executive Order

In his recent piece in Law & Liberty, Mark Movsesian made the following observation: “For the moment ... there is this striking fact: churches’ opposition to state-ordered closings seems to turn, not so much on the particulars of worship itself, but on attitudes about hierarchy and government authority more generally.”  In other words, more hierarchical religions appeared to be less willing to defy (or even challenge) state orders.  This statement was observably true just a week ago.  However, it left me wondering just how momentary this “moment” might be. Yesterday, we received some clarity.

On May 20th, the Catholic Bishops of Minnesota formally announced their intent to defy Governor Walz’s Emergency Executive Order.  Their letter states in part:

We are blessed to live in a nation that guarantees the free exercise of religion.  This right can only be abridged for a compelling governmental interest, and only in a way that is narrowly tailored to be the least restrictive means of achieving the desired end.  That is why a large majority of states now allow in-person religious services, including many states that had previously suspended in-person religious services.  We think that the executive order issued last Wednesday fails this test.  An order that sweeps so broadly that it prohibits, for example, a gathering of 11 people in a Cathedral with a seating capacity of several thousand defies reason.  Therefore, we have chosen to move forward in the absence of any specific timeline laid out by Governor Walz and his Administration.  We cannot allow an indefinite suspension of the public celebration of the Mass.

The bishops’ decision follows their attempts to work alongside the Governor’s administration to find a suitable alternative to the current policy.  All six bishops have also announced that they will continue their dispensation of Sunday Mass, so parishioners need not attend if they feel unsafe.  The state-wide unity of the bishops is particularly notable, and in this regard, similar to the protests made by the Italian Bishops Conference.

Of course, the vast majority of Catholic dioceses continue to comply with state orders, even going to great lengths to do so.  For example, in the Diocese of Arlington (my own diocese in Northern Virginia), Bishop Burbidge has begun reintegrating half of his diocese as part of Governor Northam’s “Phase 1” plan, while continuing to comply with the Governor’s prolonged Stay-at-Home Order in the other half.  Other bishops have publicly voiced their support for state authorities.  Archbishop Lori, the Archbishop of the Baltimore Archdiocese and former head of the Ad Hoc Committee for Religious Liberty of the United States Conference of Catholic Bishops (USCCB), stated—“I have no sense whatsoever that the authorities, especially here in Maryland, have any animus against our faith.  I do have a sense from my personal conversations with those who have to make these decisions … that they want to keep people safe.”

A general trend seems to be to give local pastors discretion in the reintegration of their church, consistent with diocesan guidance.  However, to put it lightly, this guidance is often less than clear—individual bishops frequently provide their own recommendations and requirements, but also defer to outside guidance.  Additional guidelines for local pastors can include mandatory (but often changing) state orders, guidance from the USCCB, and CDC guidance (although notably these most recent CDC guidelines did not include any recommendations for faith-based groups).

All of this is to say that reopening won’t be simple.  Professor Movsesian’s observation was true just a week ago; religions more inclined towards hierarchy did indeed appear to be less opposed to state orders.  Now, that moment looks as if it may be beginning to pass.  While it obviously remains unlikely that Catholic dioceses will oppose state orders en masse, it seems increasingly likely that select dioceses will.  In fact, the complexity of the Church’s structure may itself begin to contribute to the likelihood of opposition within.

Minnesota bishops tell governor worship will resume; cite lack of ‘clear roadmap’

Minnesota’s Catholic bishops have informed the state’s governor that they will return to in-person Church services later this month in defiance of an executive order imposing strict limits on houses of worship. 

In a letter sent to Governor Tim Walz on May 20, Archbishop Bernard Hebda of Saint Paul and Minneapolis said that services would resume on May 26, two months after they were first voluntarily suspended due to the COVID-19 pandemic. 

Full article at Crux.

"Religious Freedom and Polarization: A Cause--and a Cure?"

That's the title of a short piece I did some weeks back for the Berkley Center at Georgetown (and somehow forgot to hawk here on MOJ at the time). It talks about polarization during the Reformation and then today:

[V]igorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them....

       Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement [in Obergefell, refusing to rule out conservative institutions being stripped of tax exemptions] and the [2016] California college bill [which would have stripped modest-income students at conservative religious colleges of their state grants] received extensive evangelical attention.

       Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status.

Two Video Programs on Religious Liberty

1. The Murphy Institute at St. Thomas has posted video from Asma Uddin's excellent presentation, "When Islam is Not a Religion: Inside America's Fight for Religious Freedom." I was glad to moderate the session, which concerns respecting religious liberty for Muslim Americans and for everyone and is based on Asma's book of the same title. A variety of good questions from a large online audience (going online creates real possibilities for increasing outreach for organizations that are outside the Beltway hothouse). My own recent thoughts on religious freedom for Muslims, evangelical Christians, and everyone are here.

2. The Berkley Center at Georgetown sponsored a video discussion of the issues concerning  COVID-19 and religious worship and other gatherings, with Marty Lederman, Asma Uddin, Robin Fretwell Wilson, and me. Thank you to Michael Kessler for arranging and leading the discussion, to the Berkley Center for sponsoring it, and to my friends and co-panelists for a lively, productive discussion.

Church Closings During the Spanish Flu

Religion scholar David Bains, a former colleague of mine, has linked on his excellent blog ("Chasing Churches") to this article about the public-health orders closing DC churches during October 1918, the deadliest spell of the 1918-19 pandemic. 

 

When churches were ordered closed, after several other categories of entities had been closed, the association of mainline Protestant clergy adopted a resolution "cheerfully complying with the request of the Commissioners." The tone of that resolution, I suspect, reflects that that particular group of churches in that era was less suspicious of civil government, because more comfortable with their own place in the culture, than a number of Protestant churches are today (although today too, the vast majority of houses of worship have not only compiled with but have refrained from criticizing closing orders).

 

Churches did, however, move to outdoor services, although there was some controversy about that. And once the deaths began to decline, and the authorities began allowing other entities to open, clergy began to protest that they should be too, for various reasons: 

• the closings were "a certain infringement in spirit and effect of the free exercise of religious liberty";
• "[b]ecause the purposes of church assemblages are such as to entitle them to be the very last to be absolutely forbidden by the civil authorities"; and
• "In the influence of the churches upon the minds and souls of men, in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers, fit to co-operate helpfully with our doctors and our nurses."

The arguments have a more Protestant-Establishment vibe to them, as you might expect, but they overlap in concrete ways with arguments being made today.

 

Oregon Supreme Court puts hold on judge’s ruling declaring governor’s coronavirus orders ‘null and void’

In a late Monday ruling, the Oregon Supreme Court stepped in to put a hold on a dramatic decision by an eastern Oregon judge that declared not only Gov. Kate Brown’s restrictions on church gatherings “null and void” but all her “Stay Home Save Lives’’ coronavirus emergency orders.

 

A Plea for Philosophy at Liberty U.

Liberty University has shuttered its department of philosophy. This is a mistake. I implore the University's administration and trustees to reverse course.

Liberty, of course, is a controversial school. It is a proudly and unabashedly evangelical Christian institution. Its founder, Rev. Jerry Falwell, was controversial. Its current president, Jerry Falwell, Jr. is controversial. The moral values it upholds and stands for are, today, alas, controversial. But it has provided many young people with an excellent liberal arts education. I know this to be true because I have met a number of them and even taught or informally advised a few as graduate students. I also know it to be true because I have visited the University and talked with students.

My visit was last year, together with my beloved friend and teaching partner Cornel West. We spent a day-and-a-half meeting faculty, staff, and students. We did not meet President Falwell--he was not on campus--though we were assured that far from opposing our visit he enthusiastically endorsed it. (Falwell is best known as a supporter and confidante of President Trump. Both Cornel and I, from our different perspectives, have been critical of the President.) We did a formal presentation before a massive audience but then had opportunities to talk with students individually and in small groups. These conversations were unsupervised by faculty or administrators. The students could speak freely to us, and they certainly availed themselves of that freedom. We were, to say the least, impressed.

We were impressed by the desire of these young men and women to explore the deepest questions, and to explore them in a critical, unconditional way. They wanted to know the best that has been thought and said by the greatest minds--from the pagan Greek and Roman thinkers, to the Islamic and Jewish as well as Christian philosophers and theologians of the Middle Ages, to the grand figures of Enlightenment and modern thought. And it was clear from our discussions with these students that their professors in philosophy and the other humanities disciplines had indeed exposed them to the ideas of many of these thinkers--to their considerable intellectual benefit.

Cornel and I came away from our visit to Liberty with esteem for its students and faculty and respect for the University. We said so publicly--even though that is, to say the least, an unfashionable thing for professors at Harvard and Princeton to say. (We're expected to disdain institutions like Liberty University, pity the students, and hold the faculty in something not too distant from contempt.) And we came away thinking of ourselves as having a relationship with the folks at Liberty--a bond. We want Liberty to flourish. We want it to be the best it can be. We want it to continue to provide a true and fine liberal arts education for students who are attracted to the religious and moral environment it offers.

And so I hope that the administration and trustees of Liberty will hear my plea as coming from a friend--someone who wishes you well and believes in your mission. Humanities are central to liberal arts learning and philosophy is the heart of the humanities. You cannot have a true liberal arts college or university that does not have a vibrant philosophy department or some equivalent institutional way of teaching students what is taught in departments of philosophy. Indeed, philosophy is where it all began--in Plato's Academy. Philosophy gives us the tools and motivation and rational justification for asking and seeking by proper methods honestly to answer all the questions that we categorize in other disciplines, from history and economics to chemistry and astronomy.

I know that some people do not regard philosophy as "practical" (though in truth it is the most practical of all academic disciplines). And I am aware that the need to cut costs often tempts people to cut things that seem "impractical." But far from abolishing philosophy as a course of study at Liberty, you should be strengthening the department (which was already a good one) and encouraging more students to enroll in its courses and even major in the field.

I am not condemning or scolding. We're all human and we all make mistakes and misjudgments. I've made plenty, believe me. But mistakes can often be rectified. And this one is in that category. There is no shame in saying, "well, we've given the matter some more thought and concluded that for Liberty to be the best Christian university it can be, we need to retain our philosophy department. The questions that philosophy explores are questions our students need to be wrestling with." Far from being embarrassing, such a decision would be applauded by everyone who understands the value and importance of liberal arts learning and who believes that Liberty should be a great Christian liberal arts university.

Webinar on Disability-Based Rationing of Health Care

Hot Topics: Cool Talk

Who Matters? Who Cares? Disability-Based Rationing of Health Care Friday, May 22, 11am-12pm CST Livestream Webinar

Register

Join us for a conversation between a disability advocate and a medical ethicist exploring the legal and ethical implications of policies for allocating scarce medical resources during the COVID-19 pandemic, focusing on their impact on the elderly and persons with disabilities. Registration is required.  A link to join the webinar will be emailed to registrants on Friday, May 22 at 9am CST. 1.0 Elimination of Bias CLE credit has been applied for.  Please include an Attorney Number with registration to claim CLE credit. Speakers Charlie Camosy grew up in the cornfields of Wisconsin, but he is now an Associate Professor of Theology at Fordham University in the Bronx, where he has taught since finishing his PhD in theology at Notre Dame in 2008. Among other places, his published articles have appeared in the American Journal of Bioethics, the Journal of Medicine and Philosophy, the Journal of the Catholic Health Association, the New York Times, the Washington Post, the Los Angeles Times, the New York Daily News and America magazine. He is the author of five books. Too Expensive to Treat? (Eerdmans) was a 2011 award-winner with the Catholic Media Association, Peter Singer and Christian Ethics (Cambridge) was named a 2012 "best book" with ABC Religion and Ethics, and For Love of Animals (Franciscan) was featured in the New York Times. Beyond the Abortion Wars (Eerdmans), was also a 2015 award-winner with the Catholic Media Association. His most recent book, Resisting Throwaway Culture (New City), was published in May of 2019. In addition to advising the Faith Outreach office of the Humane Society of the United States and the Children's Hospital of New York, Camosy received the Robert Bryne award from the Fordham Respect Life Club and received the 2018 St. Jerome Award for scholarly excellence from the Catholic Library Association. He has four children, three of whom he and his wife Paulyn adopted from a Filipino orphanage in June of 2016.        Barnett (Bud) Rosenfield is a supervising attorney with the Minnesota Disability Law Center and Mid-Minnesota Legal Aid.  For most of the past 22+ years, he has focused on individual and systems advocacy on Medical Assistance, social services, and civil rights issues for persons with disabilities.  He currently oversees the Disability Law Center's Community Services & Integration and Policy teams.  Prior to joining Legal Aid, Bud represented individuals in employment discrimination and civil rights cases.  An avid baseball fan, he is trying to patiently await for the games to, once again, begin...

651-962-4842 [email protected] https://www.stthomas.edu/murphyinstitute

Religious Liberty in COVID-19’s Wake

In the past few weeks, a handful of churches—almost all of them Evangelical—have filed lawsuits challenging the constitutionality of state and local bans on religious gatherings. More lawsuits will likely follow in the weeks ahead. Full article by Mark Movsesian here.

Philanthropy & the Common Good

MOJ readers know me as one of the blog editors, and as the Program Director of Notre Dame Law School’s Program on Church, State & Society. It’s a great job, and it’s thrilling to be a part of NDLS during a time when so many exciting things are happening.

I also have the pleasure of serving in a concurrent role with Notre Dame’s political science department where I teach an undergraduate course called Philanthropy & the Common Good. Teaching the course is a true privilege. We explore the common good from multiple viewpoints and get to put our theory to practice by making real grant awards to deserving nonprofits in greater South Bend.

For those interested, I published a brief article in Notre Dame Magazine today.

Created Equal: Clarence Thomas In His Own Words Airs on PBS May 18, 2020

CREATED EQUAL: CLARENCE THOMAS IN HIS OWN WORDS, a new film tracing the life story of Associate Justice of the Supreme Court, airs on PBS on Monday, May 18 at 9:00 p.m. ET (check local listings). The film, produced and directed by Michael Pack, is the product of over 30 hours of interviews with Justice Thomas and his wife, Virginia Thomas —unprecedented access from a Supreme Court justice. The PBS broadcast follows a limited theatrical release that began in January 2020.

“Justice Thomas’ life is a remarkable journey, the quintessential American success story,” said executive producer Gina Cappo Pack. “He began life in Gullah-speaking Pin Point, Georgia, suffered poverty and privation in Savannah, dealt with the vicious iniquities of segregation, and yet rose to serve on the highest court in the land.”

“His intellectual journey is just as remarkable,” said producer/director Michael Pack. “He was raised by his grandfather with strict discipline, taught by Catholic nuns in parochial schools, yet he rebelled and became a ’60s radical who supported the Black Panthers, only to rethink his way back to his traditional beginnings. He went to work for Ronald Reagan as a rare African American conservative, and now serves as one of the most influential justices on the Supreme Court. We offer viewers a chance to hear Thomas’ story directly from the man himself, a unique opportunity.”

“This film gives fascinating insight into one of the most important and yet enigmatic public figures in the country,” said Perry Simon, Chief Programming Executive and General Manager, General Audience Programming at PBS. “Michael Pack’s latest film continues PBS’s long tradition of airing point-of-view, biographical documentaries that empower audiences with new information and points of discussion that are both insightful and relevant.”

The film has garnered positive responses from the press.The Washington Post said that the film “is a marvel of filmmaking that two hours pass so quickly. At the end of a screening I recently attended, there weren’t many dry eyes in the room.” Time Magazine said it "offers viewers rare insight into the mind of a justice known for his reticence on the public stage.”

Beginning May 18, CREATED EQUAL: CLARENCE THOMAS IN HIS OWN WORDS will be available to stream for 14 days on all station-branded PBS platforms, including PBS.org and the PBS Video App, available on iOS, Android, Roku, Apple TV, Amazon Fire TV and Chromecast. For an additional 14 days immediately thereafter, members of PBS stations will be able to view the film via Passport (contact your local PBS station for details).

Keeping an Eye on Holt v. Kelley

As recent posts have noted, there is no shortage of religious freedom cases at the Supreme Court this May.  However, another significant religious freedom case continues its fight in the Eastern District of Arkansas.

Gregory Holt has returned to federal court after his historic success in Holt v. Hobbs, now more than five years ago.  Once again, he is represented by Professor Doug Laycock.  Holt now claims that the Arkansas Department of Corrections failed to accommodate his Islamic religious practices by unlawfully preventing its Muslim inmates from observing separate prayer services according to their faith and movement.  Instead, prisoners are effectively forced to choose between combining their religious services with other Islamic groups or abstaining from group services altogether.

Specifically, Holt claims that the Department of Corrections violated RLUIPA, as well as the First and Fourteenth Amendments, by prohibiting separate Jumu’ah services for its inmates.  Practitioners of various Islamic groups must pray together as one group, or not at all.  Furthermore, the prison prohibits its Muslim prisoners from wearing kufis outside of their religious worship.

At its core, this case raises questions about religious accommodation, the extent of deference to prison officials, and the need to distinguish between sincerely held beliefs.  It has the potential to address some of the most fundamental religious protections for prisoners.  For now, the case fights on in federal district court.  It is worth keeping an eye on “Holt II,” even with the Supreme Court’s busy docket and live oral arguments.

See Holt v. Kelley, No. 5:19-cv-00081 (E.D. Ark. filed Mar. 1, 2019).

Common-Good Constitutionalism: Collected Links

This post collects links to my writings on and around the theme of common-good constitutionalism, some of which respond to the debate sparked by the original piece. I’ll update the post at intervals as the writings accumulate. 

 

1. “Common-Good Constitutionalism” 

 

https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/

 

2. Interview with Le Grand Continent (English version) 

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/common-good-constitutionalism-interview-english-translation.html

 

3. “Deference and the Common Good”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/a-confusion-about-deference.html

 

4. “Abuses of Power”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/abuses-of-power.html

 

5. “Common-Good Originalism”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/common-good-originalism.html

 

6. “A Series of Unfortunate Events” 

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/a-series-of-unfortunate-events.html

 

7. “The Guardian of Life”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/the-guardian-of-life.html

 

8. “Bureaucracy and Mystery”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2019/03/bureaucracy-and-mystery-.html

 

9. “Natural Law, Welfare Economics, and Administrative Law: Comments on Helmholz”

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/natural-law-welfare-economics-and-adminstrative-law-comments-on-helmholz.html

 

Live from the Supreme Court Podcast

Bloomberg Supreme Court Reporter Greg Stohr discusses the first day of live arguments at the Supreme Court. Richard Garnett, a professor at Notre Dame Law School, discusses the Supreme Court oral arguments on the Trump administration’s broad expansion of the employers and universities who can opt-out from the Obamacare contraceptive mandate. Christine Reilly, a partner at Manatt, Phelps & Phillips, discusses the Supreme Court arguments over a challenge to the ban on robocalls. They speak to host June Grasso.

Listen here.

On “Common-Good Originalism”

Josh Hammer has written a characteristically thoughtful and engaging response to Common-Good Constitutionalism, arguing for an approach he calls “Common-Good Originalism.” I see Hammer’s approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common  good (however defined) will prescribe an interpretation that cannot be justified in originalist terms. Towards the end of the discussion, I will examine some other ways of attempting to combine the two approaches, none of which is particularly convincing.

To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn’t be wholly shocked to see a position like Hammer’s become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.

Hammer’s main substantive argument is an appeal to the importance of oath-keeping, and to the associated clauses of the Constitution. But the argument from oath-keeping begs the question; it is necessarily parasitic on some independent account of constitutional interpretation, an account whose validity is itself the contested issue. The current debate isn’t over the question whether to respect the oath of constitutional fidelity, rightly understood; all concerned agree on that aim. Rather the whole debate is over what the Constitution is best taken to say, and how to decide what it says. What is at issue are rival conceptions of what counts as fidelity, rival interpretive approaches that all claim to embody fidelity. If the oath argument were valid at all, it would be valid for all sides, and each could accuse the others of violating fidelity by taking the wrong approach to interpretation. Their disagreement does not of course mean that there is no right answer to the question they are debating, but it does mean that an appeal to oath-keeping contributes nothing to finding that answer.

Hammer writes that “[t]o solemnly vow to support the Constitution, so help you God, is to make an unbreakable commitment to faithfully interpret and dutifully execute the Constitution’s commands. Unless we accept the Marxist-inspired ‘critical legal studies’ thesis that all text is hopelessly indeterminate, furthermore, we must accept that words maintain generally durable meanings over time.” The first sentence merely poses, rather than answers, the question of how to determine what the constitutional commands are. As for the second sentence, the core problem under debate isn’t whether “words maintain generally durable meanings over time,” but the antecedent question of how to determine those (durable) meanings in the first place. As Ronald Dworkin pointed out any number of times, most devastatingly in a review of Judge Bork’s jurisprudence, the level of generality at which to interpret “the meaning of the words” is the main problem in and for originalist interpretation, even if we attend solely to the meaning of the words as of the time of enactment. When self-described “living originalists” argue that the founding generation enacted texts whose original meaning embodies very general principles of political morality (“ordered liberty,” “antisubordination,” or what have you), from which these originalists proceed to deduce all sorts of rights that would make the founding generation stare in horror, and that Hammer would quite likely find objectionable, they aren’t somehow arguing against the durability of meaning, nor are they stepping outside the boundaries of the originalist method — as evidenced by their participation in the community of professional originalists.

Beyond the circular argument from oath-breaking, it isn’t clear what the case for common-good originalism is; the rest of the piece is mainly taxonomic and genealogical. Hammer says that common-good originalism is a species in the genus “Anglo-American conservatism,” which he associates with Burke, Hamilton, Story and other figures. There are any number of problems with this. I’m skeptical, for example, that Hamilton counts as any sort of “originalist,” unless we distend the word so widely that it has almost no outside. An entirely separate problem (presented here as a delightful troll with a grimly serious point) is that the Anglo-American conservative legal tradition is full to bursting with principles and practices one very much doubts that Hammer wants to defend.

But in any event nothing in this exercise in taxonomy and genealogy speaks to the critical question: how exactly does the originalism part of Hammer’s account relate to the common good part of the account? What happens if and when the original understanding and the common good diverge? (After all, the Constitution of 1789, even viewed in the best possible light, was shot through with grievous moral compromises, as were the later amendments in their own ways). Is the idea that somehow originalism is necessarily ordered to the common good, or conversely that the common good necessarily entails originalism? Or is the relationship contingent, such that originalism usually or sufficiently often yields the common good, or that the common good implies an originalist approach to interpretation, given specified empirical conditions? What exactly are those conditions, and what is the evidence for such claims, given various specifications of originalism and of the common good?

This is not a problem of “hard cases” or unusual boundary situations; it’s a problem about the intrinsic incompatibility between the two parts of Hammer’s enterprise. Roughly speaking, and bracketing whole forests of theoretical epicycles and curlicues, originalism is a positivist enterprise, one that (at least in a pure form) takes the meaning of the law to be solely determined by historical facts about what designated actors said and did, regardless of whether the resulting outputs happen to track or not to track the common good, however defined. By contrast, reading the Constitution to promote the common good is an interpretivist rather than a positivist enterprise. It reads our law and legal practices and institutional history in light of background principles of political morality, which are themselves understood to be legal principles.

For common-good constitutionalism (although not of course for Dworkin), the relevant background principles are those of the classical legal tradition, heavily influential in America until a surprisingly recent point in our history. Of course the classical legal tradition recognizes the legitimate authority of rulers to promulgate ius civile, positive law, as a determination or specification of background principles of natural law and the general law of nations (ius gentium) where those principles admit of multiple reasonable specifications. In this sense part of the law is a positive ordinance of the ruler, and indeed the classical legal tradition says that the text of the law and the intentions of the lawmaker are central considerations in the interpretation of positive enactments. (Respect for enacted texts is hardly unique to originalism). But on the classical approach, it is defined into the nature of law that law is not merely whatever ordinance the incumbent authority happens to create, but is rather an ordinance of reason, promulgated to promote the common good; and it is defined into the nature of the ius civile that it derives from higher law that it determines and specifies. Thus the ius civile is always interpreted in light of background principles of higher law. In the extreme limit the classical tradition holds that an unjust law is no law at all.

Nothing in originalism even purports to guarantee this concordance between civil positive law and background legal principles that embody commitments of political morality. (Hence originalism struggles to justify the decisions made at Nuremberg on the basis of higher law, as a critic of Justice Scalia’s positivism observed in a famous encounter). For theories such as Hammer’s, then, there is always a looming possibility that the original understanding will happen to diverge from the dictates of the common good. What then? Which prevails? In the end one has to choose, or at least one faces a standing threat of having to choose.

This is not the place for a comprehensive review of possible responses to this problem. Suffice it to say that some theories attempt to cope with it by grounding the common good in originalism, and others by grounding originalism in the common good. In the first category are theories that claim that in the United States the content of the original understanding just turns out to strongly track the natural law, so that originalism itself incorporates the natural law. Even if this is true — and I don’t for a minute think it is always or even usually true, under a Constitution as morally compromised as our own — it still leaves the natural law entirely dependent upon the grace and favor of the original understanding; it is all still just (a variant of) positivism. If the original understanding had been different, then on this view “the law” would have been different regardless of the claims of the natural law. As I said in Common-Good Constitutionalism, “th[is] approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing.”

A corollary is that this view yields only an ersatz form of respect for the natural law. On this view, one obeys the natural law only insofar as it happens to be picked up by an originalist command, not because it has binding force as natural law in its own right. But it is intrinsic to the natural law that it should be followed for its own binding force, not merely because some incumbent ruler commanded that it be followed. The natural law isn’t truly followed at all if it isn’t followed as natural law.

The converse view, which is more subtle and plausible, attempts to ground originalism in the common good. It argues, in second-order fashion, that the common good requires that society coordinate on a settled, stable and adequately just constitutional framework for common life, and that originalism provides the durability of legal meanings that allows such a framework to operate over time. Many things that might be said about this argument; I will merely gesture towards a few of them.

First, as mentioned above, durability is something of a red herring. The living originalists cheerfully deny, with a straight face and with real plausibility, that they argue for a “change in meaning” or any such thing. Rather they argue for reading the original and enduring meaning at a sufficiently high level of generality to encompass whatever moral novelties later generations have dreamt up. No amount of insistence that meaning must endure over time comes to grips with their argument.

Second, the argument that grounds originalism in the common good supposes that originalism conduces to stability and durability over time, but there is little reason to think this is true. It is an entirely contingent question whether originalism does or does not, in fact, promote systemic goods of settlement, stability and coordination; and the evidence from our world hardly suggests that it does. In our world, originalism is quite often practiced as a disruptive method, a Protestant method that, taken to its logical extreme, invokes sola scriptura to unsettle doctrines long established in the law. Now the method need not be taken to that extreme — the fainthearted interpreter may flinch from the logical consequences of originalist premises, or claim that the original understanding itself licenses the doctrine of precedent — but the potential for radicalism creates a kind of threatening overhang for any long-standing body of legal doctrine. (Consider the disruptive role of originalism in the spate of recent proposals, judicial and academic, to overturn longstanding doctrines of administrative law). Originalism’s disruptive quality should be unsurprising once we reflect that the original idea of originalism, as it were, was to oppose and unsettle the progressive law made during the Warren and Burger Courts. As with the Protestantism it instantiates, originalism is at bottom a mode of rebellion against an established order and its developing doctrine. This is not, of course, to say that disruption is necessarily bad — it depends on what is being disrupted, and why — but it does make it difficult to defend originalism as a guarantor of stability.

Third, and relatedly, the view we are considering needs to distinguish two very different questions: (1) whether the common good underwrites originalism as of 1789 or 1868; (2) whether the common good underwrites originalism as of, say, 1980 or 2020. These two situations turn out to be very different because in 2020 it is just true that much or most of our law, as practiced since 1789 or 1868, has been profoundly non-originalist. In the second situation, introducing originalism into a (largely) nonoriginalist system threatens the very kind of disruption and discoordination that the view aims to prevent through originalism.

Fourth, while settlement and coordination are important goods, they are hardly the only goods. Second-order considerations are important, but so are first-order ones. The classical tradition emphasizes that justice is the aim of law, and that peace without justice is no true peace at all. If the originalist regime supposedly underwritten by the common good produces a steady, predictable stream of morally horrid first-order results, or merely fails to prevent such results, then the common good condemns rather than supports originalism. At a minimum there should be some reflective equilibrium between the second-order goods of settlement and durability, on the one hand, and evaluation of the justice of first-order outcomes. Otherwise the praise of second-order goods threatens to become a kind of fetish, overriding all first-order considerations in the name of a partial and myopic account of what justice requires.

I have only briefly sketched my objections to the views that attempt to ground the common good in originalism or to ground originalism in the common good. The point of mentioning those views is merely to show that the combination Hammer wants to promote, however appealing it may seem at a political level, is intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water and in the end Hammer, like the rest of us, will have to choose.

There is much to admire in Hammer’s argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia’s modus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer’s piece, internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects “pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia,” one can almost feel the winds of change freshening.

Definition of "Minister" Cases and Historical Background

In anticipation of the "ministerial exception" cases being argued on Monday, a reminder about our brief from the St. Thomas Religious Liberty Appellate Clinic, which shows that colonies' narrow definitions of minister, including required education credentials, helped spur founding-era religious-liberty protests by Baptists and others, ultimately contributing to adoption of the First Amendment. There is a little more scholarly detail in this article by my students, Nathaniel Fouch and Erik Money, and me.

Religious-school teachers who have significant functions in teaching religion classes or religious approaches to other subjects, or in planning, leading, or overseeing religious exercises, fit within the proper definition of "minister"--regardless of whether they have a ministerial training or formal title as the 9th Circuit required in these cases. Founding-era religious-liberty objections ran specifically against  credentialing requirements that prevented organizations from extending leadership to laypersons with the gifts and commitment to teach or lead in religious matters.

In his "Appeal to the Public for Religious Liberty" (1773),Isaac Backus, leader of the Massachusetts Baptists, attacked New England colonial laws that required “each parish to settle a minister” but then disqualified teachers who lacked the government’s preferred training: a college degree. The laws, Backus said, violated the principle that God “gives gifts unto men in a sovereign way as seems good unto him." Religious groups, not the civil judiciary, should determine the relevant gifts, talents, and credentials for their teachers and leaders.

Deference and the Common Good

Just a brief note to clarify a point about the relationship between common-good constitutionalism and judicial deference. Implausible as it may seem, there is an assumption floating about that common-good constitutionalism entails that judges should decide everything. This isn’t right; it confuses two distinct issues, one of interpretive method and one of institutional allocation. It is one thing to say that the right interpretive method for all officials, not merely judges, is common-good constitutionalism. (I was explicit that legislators as well as judges ought to interpret constitutional principles in light of the common good). But the allocation, across different officials, of authority to ascertain the content of the common good is a separate question. In other words, the common good may itself suggest that judges should defer to other actors under various circumstances, as when those other actors are engaged in reasonable specifications of legal principles — what the classical tradition calls “determinations.”

In fact, as I argued here, and here, and here, and mentioned in a recent interview, the best interpretation of our constitutional practices is that judges do and should broadly defer to the administrative state, within reasonable boundaries, when legislative and executive officials engage in such specifications. (Yet another question is the allocation of authority between legislators and the executive, also addressed in those works; the same idea of authority to engage in reasonable specification or determination is the key to that question as well). This is why I mentioned, as aspects of common-good constitutionalism, giving rulers authority of sufficient scope to allow them to promote the common good, and judicial respect for the legitimate roles of other public bodies.

Supreme Court likely to agree with schools in closely watched religious freedom cases

On May 11, the Supreme Court of the United States will hear oral arguments, using its new telephonic procedure, in two closely watched religious freedom cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, on whether courts can hear employee discrimination cases brought by teachers at Catholic schools.

Both “very important” cases involve the First Amendment right of religious institutions, including schools, to select their own leaders, teachers and ministers, and the justices are likely to agree with the schools, according to Notre Dame Law SchoolProfessor Richard Garnett, director of the University of Notre Dame’s Program on Church, State & Society.

Full story.

Oral Argument this Morning in Little Sisters of the Poor Act II: A RFRA Runs Through It

The Supreme Court will hear oral argument this morning in the consolidated cases of The Little Sisters of the Poor Saints. Peter and Paul Home v. Pennsylvania and United States v. Pennsylvania. I am cautiously optimistic that a Court majority will ultimately endorse some version of the interpretation of RFRA advanced by Michael Stokes Paulsen twenty-five years ago in A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249 (1995). I teamed up with him and a group of excellent attorneys here in Richmond (John P. O'Herron, John D. Adams, and Brian D. Schmalzbach) to submit a brief amici curiae applying "A RFRA Runs Through It" to this case. In something of a preview for oral argument, I discussed some of the key issues in the case with Marc DeGirolami and Mark Movsesian in a Legal Spirits podcast. 

On a personal note, the unusual circumstances of today's telephonic oral arguments bring me back to the somber, sad circumstances of oral argument in the first Little Sisters of the Poor case at the Supreme Court. That argument took place March 23, 2016, approximately six weeks after Justice Scalia's February 13 death. His absence hovered over the proceedings. Curiously enough, the primary effect of Justice Scalia's absence was to transform a likely 5-4 win for the religious nonprofits into an 8-0 punt back to the lower courts. 

On another personal note, I cannot help but think of the juxtaposition of the austere legalism of Supreme Court oral arguments with the gritty fight against COVID-19 that is happening right now in the Little Sisters' homes for the elderly poor across the country. Let us pray for the residents, the staff, and the Sisters. May the Holy Spirit accompany them and bring them peace and happiness.

-- "What happiness for us, to be a Little Sister of the Poor! Making the poor happy is everything …” (St. Jeanne Jugan)

Recent developments in Lighthouse Fellowship Church v. Northam, a fast-moving challenge to the application of Virginia's ban on gatherings over 10

National media recently began reporting on Lighthouse Fellowship Church v. Northam (E.D. Va.) after the U.S. Department of Justice filed a statement of interest supporting the church's challenge to the application of Governor Northam's orders banning gatherings of more than ten persons. The issue will be fully joined on Thursday, when Virginia will file its first detailed response. I'm still working my way through the filings, which should be of interest to anyone thinking hard about the way the issues raised by Marc's recent post about equality and church-closure issues. Here's a quick timeline with links:

April 5: Chesapeake Police issue criminal summons against Pastor Kevin Wilson in connection with 16-person worship service at Fellowship Baptist Church (seating capacity > 290 persons).

April 24: Fellowship Baptist Church files a complaint and motion for TRO and PI in Eastern District of Virginia.

May 1: Judge Wright Allen denies motion for TRO and preliminary injunction with 33-page opinion and order. 

May 2: Fellowship Baptist Church files a motion for emergency injunction pending appeal.

May 3: Department of Justice files a Statement of Interest supporting Fellowship Baptist Church's motion for injunction pending appeal.

May 3: Virginia files notice of intent to respond by Thursday, May 7.

May 4: Judge Wright Allen takes motion for emergency injunction under advisement. Orders Virginia to respond by Thursday, May 7.

Little Sisters of the Poor dragged back to the Supreme Court

It’s the case of the never-ending case.

This Wednesday, the Little Sisters of the Poor will be back at the Supreme Court after nearly 10 years of litigation over whether or not the group is required to include contraceptives in its healthcare plans. The group has already been to the court once over the same issue, which the court threw back to the states, and the Trump administration attempted to put it to rest in 2018. But after Pennsylvania and New Jersey sued President Trump for executive overreach, the Little Sisters are facing round two.

 

Making students think ...

I find in teaching my Civil Liberties course that students generally sympathize with the Amish community in the case of Yoder v. Wisconsin. They tend to think the case--interpreting the Free Exercise Clause of the First Amendment to require conduct exemptions from truancy laws to enable Amish families to end the formal schooling of their children before high school--was rightly decided. When they then encounter the case of Employment Division of Oregon v. Smith, which undermines the theoretical basis of Yoder and severely limits its scope and precedential value, they are usually sure that Justice Scalia and those joining him in the majority were wrong. They think the constitutional standard, at least for religious minority communities such as the Amish, is that conduct exemptions from neutral laws of general applicability are required unless the laws can be shown to be necessary (and narrowly tailored) to advance a "compelling" state interest.

At the same time, most students these days are sympathetic to the LGBT movement and its beliefs and goals. While there are certainly some dissenters--even some who are courageous enough to express their dissent--students tend to arrive at the university with these sympathies and then have them reinforced in myriad ways.

So this suggests to me, as a professor--someone whose professional and moral obligation is to provoke students to think about civil liberties questions and not just rely on their feelings and sympathies--a (hypothetical) question along the lines of the one I am posting here. (It is a question I set for the final exam in the course a few years ago.)

Diltz v. Solanco Board of Education

     Ezra Diltz is a member of the Amish community in the Township of Solanco, which is in Lancaster County, Pennsylvania.  The particular Amish community of which he is a member allows its children to be educated in the local public schools all the way through to high school graduation.  The Amish students then take up their lives as Amish men and women engaged in dairy farming and various crafts.  This particular group of Amish has never sought any sort of exemption from the law requiring the education of children through their sixteenth birthdays.

     Mr. Diltz and his wife have eight children, six of whom have already graduated from high school and are working the land the Amish have farmed for generations.  Their youngest two are a sophomore and junior at the local high school.  Mr. Diltz has never had a problem with the education his children have received in the public schools, but in the past few years he has become increasingly concerned with what he views as the homosexual and transgender propaganda that permeates the curriculum.  Teachers and assembly speakers frequently speak of same-sex partnerships and transgender identity as things to be affirmed and treated as valid lifestyle choices, and on several occasions teachers and speakers have spoken of moral and religious opposition to these things as “bigotry” and “hate.”  No teacher or speaker in many years has spoken in defense of traditional Judaeo-Christian beliefs about marriage and sexual morality, and requests by Amish parents for the school to bring in Ryan Anderson or someone like him to explain and defend moral precepts more in line with their faith have been flatly rejected by the school’s administration.  “Our task,” school principal Herbert Villard wrote in reply to one request, “is to teach children to be open-minded and inclusive; it is not to expose them to out-of-date ideas that fuel prejudice, discrimination, and exclusion.”

     After failing to persuade school officials of the need to give what he called “a fair hearing” to alternatives to the viewpoint that is dominant in the school, and concerned that the result was the indoctrination of Amish children in an ideology that is hostile to their faith, Mr. Diltz convinced his Amish community of the need to withdraw their children from the school system at the high-school level.  Advised that the Commonwealth of Pennsylvania has no version of Religious Freedom Restoration Act [which is not true but to be assumed in this problem] but confident in the enduring strength of Wisconsin v. Yoder, Diltz files suit in state court seeking an exemption from the matriculation requirement at the high-school level, the violation of which is punishable as a criminal matter.  (Mr. Diltz has in fact been fined for removing his two children from the high school.) The trial court denies the exemption, and the appellate court and state supreme court affirm this denial, holding that the Commonwealth has a compelling interest in educating students to be accepting of same-sex sexual relationships and transgender identity.

    Pennsylvania and Mr. Diltz have stipulated that the Amish community is too small to support a private school and that parents themselves lack sufficient education to home school their children in a way that would meet the state’s educational standards for home schooled children.  If Diltz prevails in the litigation, the Amish children will not continue with formal education, but will remain at home with their parents working and learning in their family businesses.

     The United States Supreme Court has granted certiorari. You are the law clerk to Justice Owen Roberts, III, and he has asked you to prepare a memorandum analyzing the case.  Justice Roberts is respectful of precedent, but is always willing to consider departing from it when he believes previous decisions were incorrect as a matter of constitutional law. Where he relies on controversial precedents, he believes it his duty to say why he believes the precedent should be reaffirmed.

Understanding Cornel West

In an article published in the Wall Street Journal a few weeks ago, Martin Peretz attributed to Cornel West the view that every social encounter can be reduced to identity and power. Having not only read Professor West's writings, but also having taught with him at Princeton and discussed social, moral, and political issues with him countless times, both publicly and privately, I can say with certainty that this understanding of  his views is a misunderstanding--a gross misunderstanding. So I sent a letter correcting Mr. Peretz to the WSJ. I've been waiting for it to be published, but it is now clear that the editors have decided not to publish it. So I am posting my letter here:

There is a form of leftism that “reduces every social encounter to identity and power,” but Martin Peretz (April 15, 2020, “Bookshelf”) is wrong in attributing that form to Cornel West.  In fact, West’s deeply-held Christian faith, and his devotion to non-reductionist thinkers from Plato and St. Augustine to Martin Buber, Dorothy Day, and Abraham Joshua Heschel, precludes his embracing it. Although he does not hesitate to criticize what he regards as the unjust distribution or use of political and economic power, he is a critic, not a proponent, of the idea that human relationships are inevitably and decisively shaped by power--or identity. He is no disciple of Marx or Foucault. -- Robert P. George, Princeton University

Cornel West is a rich, complex, and fascinating thinker--one that people across the political and ideological spectrum can learn from. He is also a widely misunderstood figure. His critics, and sometimes even his allies, mistakenly think he is a conventional sort of leftist. He is certainly a man of the left. But he is certainly not conventional.

An example: West (like his left-wing Harvard colleague and teaching partner Roberto Unger) utterly rejects the "progressive view of history" that has been leftist orthodoxy at least since the time of Marx and which is conventional leftist thinking today. How many times have you heard Barack Obama, for example, claim that people who disagree with him about this or that issue are on "the wrong side of history"? How often have you heard other progressives invoke the "judgment" of history, as if history possessed deific powers to decide, and even define, what is good and bad, right and wrong, just and unjust? West has no patience with this nonsense. He has no belief--in fact he rejects the belief--that history inevitably (or even likely) moves in the direction of greater justice, equality, freedom, respect for human dignity, or anything of the kind. And yet sometimes--as with the case of a television interviewer I saw a while back talking with West on a left-leaning news and opinion show--people assume that, as a leftist, he must believe it.

Why doesn't he believe it? Well, West's rejection of historical determinism, like his rejection of materialism and his rejection of the reduction of all social relations to identity and power, are grounded in his Christian commitments. This distinguishes him not only from secular progressives but also from many self-identified religious (including Christian) progressives who, whatever their personal devotional practices and self-identification, have abandoned the substance of Christian faith in favor of precisely the views of human nature, the human good, human dignity, human destiny, and history that divide secular progressivism, at the root, from Christianity. West is a socialist--though one that allows more room for the private sector and for civil society than is typical among contemporary socialists--but not a Marxist, not even an inchoate Marxist (or neo-Marxist), as many self-described "Christian socialists" are. Marx's materialism, historicism, and reduction of social relations to the class struggle ("identity and power"), as well, of course, as his atheism, are rejected, not embraced, by Cornel West. 

Henry Garnet, S.J., RIP

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

 

The rejection and unmasking of an uncreated order of values, together with "management technique at the service of the strongest"

In his essay, The Dead End of the Left: Augusto Del Noce’s Critique of Modern Politics, Carlo Lancelloti describes Del Noce's intervention into a debate between two well-known Catholic intellectuals of the time, one a representative of the "right" and another of the "left." Lancelloti includes an extended quotation from Del Noce, which I reproduce here not so much for the specific purposes that Del Noce or Lancelloti had in their writings, but because it arrestingly captures what has been happening at elite and not-so-elite universities in the United States for at least the last few decades:

If by “right” we mean faithfulness to the spirit of tradition, meaning the tradition that talks about an uncreated order of values, which are grasped though intellectual intuition and are independent of any arbitrary will, not even the divine one; and if by “left” we mean, on the contrary, the rejection not merely of certain historical superstructures but of those very values, which are “unmasked” to show their true nature as oppressive ideologies, imposed by the dominant classes in order to protect themselves, well, then it seems that in no other historical period has the left advanced so dramatically as during the last quarter of a century…. And yet, one has to say that Domenach is right: if by “right” we mean “management technique at the service of the strongest,” regardless of what ideologies are used to justify this management, we have to say that its victory has never been so complete, because it has been able to turn completely the culture of the left into its own tool.