Friday, September 18, 2020
On Sep. 30, I'll be moderating a Murphy Institute program on the legalization of physician-assisted suicide that was originally scheduled for this past March. So much about our world has changed since then, including the social context and political landscape of debate on this topic. Please join us as we explore these issues, in a Covid-era, user friendly, free and travel-less webinar.
Hot Topics: Cool Talk - Physician Assisted Suicide
Wednesday, September 30
This is the rescheduled date for the program, originally planned for March 18.
Assisted suicide is currently legal in ten jurisdiction in the United States: California, Colorado, District of Columbia, Hawaii, Montana, Maine (starting January 1, 2020), New Jersey, Oregon, Vermont, and Washington. Efforts are underway in many other states (including Minnesota) to enact similar laws. Join us in this extended edition of our Hot Topics: Cool Talk event series for a spirited but civil conversation about such laws between two advocates who take opposing views on this issue.
Following up on Marc's post, I was very sorry to learn of the passing of Prof. Jeffrie Murphy. He was a wonderful scholar, deeply engaged with moral questions, and -- to me -- a kind and generous mentor when I started teaching Criminal Law (and since). For several years now, I've been concluding my course with his "Law Like Love" essay. Take a look. Here's the SSRN abstract:
This is a transcript of the Kharas Distinguished Lecture that was delivered in March of 2004 at Syracuse University College of Law. John Rawls has famously said that justice is the first virtue of social and legal institutions. This lecture seeks to open a discussion of the question: What would law - particularly criminal law - be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment - including capital punishment - in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.
Jeffrie Murphy, a wonderful philosopher of criminal law and ethics, has died. One of the many things about which he wrote insightfully and with penetration concerned the relationship of retributivism and Christianity, as in his excellent book, Getting Even: Forgiveness and Its Limits (see the final Chapter 9) (2003).
Here is a little something from his book chapter, "Some Second Thoughts on Retributivism," in the collected volume of essays, Retributivism: Essays on Theory and Policy (Mark D. White, ed. 2011), which shows both the power and the danger of Murphy's distinctive (and, to my mind, highly persuasive) account of retributivism:
I moved away from regarding desert merely as legal guilt and also from regarding it as merely owing a debt. But I still had very strong retributivist intuitions--and was even prepared to defend some degree of vengeance and, in the book Forgiveness and Mercy that I joint authored with Jean Hampton, to defend an emotion that I called "retributive hatred." Gradually I began to realize that what had always really drawn me to retributivism was some version of Kant's idea of punishing not just wrongdoing, but human evil--vile deeds performed by people of "inner viciousness." I learned that such a notion had even found its way into American homicide law where phrases such as "cruel, heinous, and depraved" and "flowing from a hardened, abandoned, and malignant heart" occurred in statutes and in sentencing guidelines. This appealed to me.
Such a strong notion of just deserts is, of course, in some ways a secular analogue to traditional notions of divine justice--the judgment that God will administer in the Last Assizes. Indeed, Michael S. Moore (the legal philosopher, not the maker of propaganda films) defends a robust version of retributivism very like the one that I am sketching here but claims that if he believed in God, he would not be so concerned to organize secular systems of criminal law around retributive values. As an atheist, however, he sees no other way to target moral desert in punishment and regards this value as too important to leave unrealized. This analogy with divine punishment is interesting; but it should, I now believe, alert us to some dangers in thinking of secular punishment along these lines. It is not for nothing that we often find ourselves condemning people who--as we put it--"play God," and even Scripture famously teaches, "Judge not that ye be not judged."
The Living Bible, that wonderful source of unintended theological humor, once rendered (if I recall correctly) that biblical recommendation as, "Don't criticize, and then you won't be criticized." But the true point of the passage is surely not a prohibition against making any critical moral judgments at all, but is rather a caution against making final judgments of deep character to declare any fellow human being as simply vermin or disposable garbage--evil all the way down--and a legitimate object of our hatred.
Thursday, September 17, 2020
In today's Washington Post, Bishop of the San Francisco Archdiocese calls out the government of the City of San Francisco for its discrimination against religious worship, including the Catholic Mass, in its Covid-related restrictions. The full piece is here.
Bishop strikes just the right balance, in my estimation, noting the legitimate role of government in establishing health regulations to protect the public during the pandemic, including safety rules for churches and worship services. But he rightly objects to the city's heavier restrictions on churches and worship than on shopping and other economic activities. And he reminds of our need for spiritual nourishment in the Mass, which cannot be fully obtained virtually. As he quotes one parishioner, “Why can I spend three hours indoors shopping for shoes at Nordstrom’s but can’t go to Mass?”
Bishop recognizes that the reason for this constitutionally invalid mistreatment of churches is less likely to be malice toward religion and more likely to result from the apathy of a secular elite that increasingly dominates in governments. Because they do not share a robust faith, they simply do not think of or regard religious worship as something important. We must strongly resist that unlawful attitude.
He concludes with this:
All we are seeking is access to worship in our own churches, following reasonable safety protocols — the same freedoms now extended to customers of nail salons, massage services and gyms. It’s only fair, it’s only compassionate, and, unlike with these other activities, it’s what the First Amendment demands.
September 17, 2020 | Permalink
Here is a reprise of a post of mine from a few years ago about St. Robert Bellarmine on his memorial day, including a mention of the striking fact that Thomas Hobbes encountered Bellarmine from afar in Rome in 1614:
A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:
Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.
My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:
In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”
Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.
Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.
Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).
And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:
An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.
"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.
John Carr has an essay in America called "I helped write the bishops' first document on Catholics and voting. Here's why I'm voting Biden, not Trump."
I have great respect for Carr, his work, and his consistent practice of thoughtful, charitable engagement. And, I have no interest in litigating his bottom-line conclusion, which I am entirely confident was reached after careful reflection, regarding his voting choice. (I'll be voting, again, for Mitch Daniels, who would -- were it not for that narcissistic dunderhead Jon Huntsman -- be wrapping up an outstanding 8-year run as President. Sigh.)
I will note (I cannot help it) that, having followed Mr. Biden's career for many years, and recalling well -- among other things -- his craven position-changes, his plagiarism habits, and the serious damage he has done to the judicial-confirmation process, I see no evidence to support Carr's view that Biden "has the character, integrity and competence to serve" (unless, perhaps, he is judged against the pretty low standard of his opponent's "character, integrity, and competence").
Four quick things, though, regarding Carr's essay: First, Carr appears to endorse the suggestion in Faithful Citizenship that there is at least a prima facie moral obligation to vote, in a presidential election, for one of the candidates on the ballot. (Faithful Citizenship calls not voting an "extraordinary step.") But, this suggestion is misplaced; indeed, with all due respect to the bishops, it seems clearly incorrect. There is no obligation to vote, or even a presumption that one ought to, in any particular election. Engagement in the life of the political community, and prudent efforts to cooperate with others for the common good, may and does take many forms. See, e.g., my "Neither of the Above", from four years ago.
Second, Carr appears to endorse the (common) frame, or narrative, that, when it comes to issues that faithful and engaged Catholics should care about, it's only with respect to abortion that the Democrats currently fall short. We should all be clear-eyed: A Biden-Harris administration (that is, an administration staffed by the people whom that administration will appoint) will produce very bad policy on religious freedom, educational choice, higher-education regulation, a range of "cultural"/"moral" questions, etc. Again, the point here is not to challenge Carr's bottom line. But the "Catholics are not single-issue voters" observation is too often invoked in a way that neglects the fact (and it is a fact) that more than one Republican position (or, at least, the positions of "normal" Republicans) is better, from a Catholic point of view, than the Democratic one.
Third, Carr states that "we vote for candidates, not issues." I agree, to be sure, that the character of our political leaders matters. (This is one of the many reasons why Sen. Dole seemed so obviously preferable, to me, to Pres. Clinton in 1996.) But, in terms of the bottom line, Carr is wrong. We do not have a king. In fact, we vote -- or, at least we should -- for administrations, appointees, congressional majorities, committee chairs, agendas, and policy outputs, not (simply) "candidates."
Finally, with respect to judges. For me, and I suspect for others, among the most welcome outputs of the Trump administration has been the nomination and confirmation to the federal bench of judicial conservatives. In my view, Catholics have good "Catholic" reasons for wanting judges who at least aspire to avoid legislating or policy-making and who, instead, confine themselves to (as best they can) interpreting and applying the laws and regulations that are enacted and promulgated by others. Carr complains that these judges -- even if they vote to uphold abortion regulations -- "vote against voting rights, immigrant rights, workers’ rights, affirmative action and environmental justice" but, as I see it, this complaint is misplaced. Even if Carr were right (and, about some, he might be) about the best policy answers in these areas, it is not the place of judges to vote "for" these various matters as such, but instead to interpret and apply the relevant positive law, which may, or may not, have the content Carr likes.
All that said, and again: Our public life would be better if we had more John Carrs.
Tuesday, September 15, 2020
Friday, September 11, 2020
In our current politically polarized terrain, when it comes to cross-party dialogue about the upcoming election, many people I know - on both sides of the aisle - are close to despair about having fruitful conversation with "the other side." What if we change the frame - to ask how we might help each other to grow in charity in the way that we communicate our ideas? This very short Catholic News Service piece offers a few ideas for how to implement a buddy system for political dialogue.
Notre Dame Law School is hitting the ground running with our Religious Liberty Initiative. We’ve already assembled the first cohort of five students, who will be helping write a Supreme Court amicus brief this semester and providing research to lay the foundation for the strategic vision for the Religious Liberty Clinic.
Meet the first group of outstanding students participating in the Religious Liberty Initiative this year.
September 11, 2020 | Permalink
Thursday, September 10, 2020
With the new academic year now underway, I repeat my annual pledge to my students, their parents, and my fellow professors:
1) I will educate my students, never indoctrinate them.
2) When addressing controversial moral, political, and other questions, I will ensure that my students are exposed to the strongest arguments that have been advanced on the competing sides.
3) When it comes to such questions, my reading lists will include writings by the best scholars representing various perspectives.
4) When I advocate a particular view in class, I will acknowledge that there are reasonable people of goodwill who disagree and encourage students to consider their arguments before resolving the question in their own minds.
5) I will bear in mind that my role as a teacher is not to tell my students WHAT to think, but to encourage and help them to think more deeply, critically, and for themselves.
September 10, 2020 | Permalink
Father Richard John Neuhaus put two Big Ideas into play in American public life. The first was that the pro-life movement (of which Neuhaus was an intellectual leader) was the natural heir to the moral convictions that had animated the classic civil rights movement (in which Neuhaus was also deeply involved). The second was that the First Amendment to the Constitution did not contain two “religions clauses” but one religion clause, in which “no establishment” (i.e., no official, state-sanctioned Church) was intended to serve the “free exercise” of religion. Neither of those Big Ideas is welcome in today’s Democratic Party, in which Neuhaus (then a Lutheran pastor) was once a congressional candidate, and of which he remained a registered member until his death in January 2009.
Full essay by George Weigel at First Things.
September 10, 2020 | Permalink
Wednesday, September 9, 2020
I've just posted a new paper, "How Distinctive Should Catholic Law Schools Be?," which is my contribution to the St. John's symposium exploring the forthcoming new book by John Breen and Lee Strang, "A Light Unseen: A History of Catholic Legal Education." From the abstract:
In what ways should a Catholic law school be distinctive? To what extent should Catholic and non-Catholic law schools share similar criteria for judging institutional success? Are there circumstances under which a preoccupation with distinctiveness might distract a Catholic law school from focusing on its mission? While Catholic law schools will approach these questions from a diversity of perspectives, we should be careful neither to ignore the importance of distinctiveness nor to equate worthy manifestations of Catholic identity with only those qualities that are not also exhibited by non-Catholic law schools.
The entire symposium was first-rate, though I'm pretty sure my paper was the only one to draw lessons from the artistic merits of Metallica versus Stryper.
Tuesday, September 8, 2020
Kenneth Craycraft at First Things has provided a timely and troubling reminder of Senator Kamala Harris’s narrow views on religious liberty, her legislative proposal to weaken the protections of the Religious Freedom Restoration Act, and her past suggestions that belonging to a Catholic organization may disqualify someone from public office.
Please understand, and my Mirror of Justice colleagues may recall some of my past posts to confirm as much, I do not offer this link to un-endorse Joe Biden, much less indirectly endorse Donald Trump. Rather, I think it important that those of us who cherish religious liberty and rightly condemn anti-Catholic statements have our eyes wide open as we go into this election and anticipate a possible transition of power. If Joe Biden is elected President, we may hope that Vice President Harris will come to a more inclusive attitude toward Catholics and a more robust view of religious liberty. And it will remain important for us to remain vigilant and speak out when necessary. Joe Biden has insisted that he wants to unit Americans and will resist attempts to divide us. His support for religious liberty, for Catholics and others, may be a test for him as to whether that promise holds true.
Monday, September 7, 2020
This semester, I'm teaching Princeton's undergraduate course "Constitutional Interpretation." It's a course that has been offered at the University for more than a hundred years, including by my predecessors as McCormick Professor of Jurisprudence, Walter F. Murphy, Alpheus T. Mason, and Edward S. Corwin. Many students who have taken the course over the years have gone on to illustrious careers, including in law (a couple of those are sitting on the Supreme Court). I've had the honor of teaching it since Professor Murphy's retirement in the mic-1990s. This time I've placed on the syllabus a statement concerning freedom of speech. I intend to place the statement on the syllabus of all courses I teach going forward. I claim no copyright to the statement and encourage others--in courses of any type and in every field--to use it. It can easily be adapted for use at other colleges and universities. Here it is.
As set forth in Princeton University's Rights, Rules, Responsibilities section 1.1.3, this institution strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.
September 7, 2020 | Permalink
Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity. (Get yours here.) I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing. I asked him to supply MOJ with an "extended blurb", to give readers a sense of the argument. Here it is:
Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)
Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.
This argument challenges the increasingly popular liberal egalitarian account of religious liberty. According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity. Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.
Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority. Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.
In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank. Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community. Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.
Saturday, September 5, 2020
I was struck, the other day, by the realization that the upcoming presidential election in the United States is the fifth one since the launch of this blog, back in 2004. Skimming through old posts, I was reminded that the "for whom should Catholics vote?" and "what considerations should guide Catholics' electoral decisions?" and "what are 'prudential' considerations, anyway?" questions were consistently, sometimes energetically, engaged.
This has not been the case this year, and not only because these conversations and arguments migrated to Twitter. And, I'll confess to not missing them very much. Very little seems to change (although, in 2016 and 2020, unlike -- in my view -- 2004, 2008, and 2012, candidates' manifest and deep character defects might add new ingredients to the mix).
There was some controversy, a few days ago, about former V.P. Biden having been referred to as a "fake Catholic." No, he's baptized, and the sacrament, we believe, works. (Questions about scandal, excommunication, etc., are different.) And, there was a published account that, on the contrary, his "Catholic roots have shaped his public life." Interestingly, that account stated that "[Biden's] is . . . a faith that has come into conflict with Democratic policy positions, forcing him to change and evolve along the way to keep up with shifting uniform stances within the party." "Forcing him"?
Pushing back on the "fake Catholic" charge, John Gehring conceded (phew!) that it is "legitimate for Church leaders and others to challenge Biden on his positions, including his support for abortion rights," if it's done with "civility." (Gehring claims that this requirement rules out "distorting Biden's position as “pro-infanticide”, but one suspects that the entirely accurate statement that "Biden believes that American positive law should protect abortion on demand, for any reason, at any time, at public expense" wouldn't make him much happier.)
There's been an interesting contest about how to read the USCCB's "Faithful Citizenship" document , and about that document's explicit emphasis on the immorality and injustice of our abortion regime, and about the significance of Pope Francis's statement in Gaudete et exsultate that "equally sacred [to the lives of the "innocent unborn"] are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection.” Of course, the Holy Father's statement is precisely the heart of the pro-life, anti-abortion position: All human persons, because they are human persons, are radically equal in dignity. It is precisely because of this "equal sacred[ness]" that abortion -- and its legal protection -- is gravely unjust. Nothing about Pope Francis's statement could plausibly be understood as in tension with the bishops' observation that, given the American legal givens, the need to remedy our unjust abortion regime remains "preeminent", and efforts to suggest otherwise seem opportunistic and misplaced. Similarly, efforts to suggest that the regular and longstanding emphasis on "prudence" in the Catholic approach to politics calls into question the immorality of the American abortion-regulation regime are sophistical.
The launch of a "Catholics for Biden" looks to make the case (in Michael O'Loughlin's words) to Catholic voters that, all things considered, the policy-outputs of a Biden-Harris administration would be better, in terms of Catholics' "shared values", than those of another Trump-Pence administration. There's the rub (once again), I guess. Even assuming "shared values" among American Catholics, it is not at all clear that we share a "metric" for identifying better or worse policy outputs. The "Catholics for Biden" effort, for example, probably does not weigh too heavily the clear and negative effects a Biden-Harris administration would be for Catholic schools and school choice. The "Catholics for Trump" analogue (I haven't checked) probably does not put into the balance, say, the downsides of deregulation. And so it goes.
St. Thomas More, patron of statespersons and politicians, pray for us!
Thursday, September 3, 2020
Chinese Communist Party officials say that the Uyghurs, a Turkic minority in the Xinjiang region, are the “happiest Muslims in the world.” The evidence trickling out of western China tells a different story. In July, U.S. customs officials intercepted a 13-ton shipment of beauty products made out of human hair from the region and a video of blindfolded prisoners being led onto train cars went viral. Over the past couple of years, some have compared the human tragedy unfolding there to North Korean totalitarianism and South African apartheid. More recent evidence has inspired comparisons to the Holocaust. “Genocide” is a word that packs a punch, spurring action by connecting “the solemn commitments of the past and a new atrocity unfolding before the world’s eyes,” as a report by the U.S. Holocaust Memorial Museum’s Simon-Skjodt Center put it last year. This word, sadly, is now an apt descriptor for the situation in Xinjiang.
Full article at National Review.
September 3, 2020 | Permalink
Tuesday, September 1, 2020
I have an essay on the difficulty of integrating them at the Liberty Law blog--more an effort to chew over what I take to be a problem than to offer a definitive resolution, though my tentative approach to the issue depends upon other methodological moves that I did not discuss at length in this piece.
There are many others who are more committed to originalism than I am, and even more who have thought much more deeply about the relationship of originalism and stare decisis. Among them are Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who will respond to the essay by and by. A bit from the end:
Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.
Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like Gamble, Mesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.
Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.
Monday, August 31, 2020
I very much enjoyed and appreciated George Weigel's recent-ish book, The Irony of Modern Catholic History. I realize that my liking the work was probably over-determined, given its themes and plot-lines and characters. My sense is that Weigel wrote it as an ecclesiological work -- and it is -- but I also think it (i.e., its helpful presentation of the Catholic engagement with, and proposals to, "modernity") should be incorporated into political-theory courses.
On John Paul II and freedom: "A truly human freedom is one in which we freely choose what can rationally be known to be good, and do so as a matter of habit. Freedom as willfulness is like a child banging on a piano; the freedom that makes for mature individuals and coherent societies is like an artist who has mastered the disciplines that allow him or her to make real music on the piano[.]"
Benedict XVI at Westminster: "Religion . . . is not a problem for legislators to solve, but a vital contributor to the national conversation."
Benedict XVI again, at the Bundestag: "[T]here is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself."
Weigel on the two: "[They] constantly called the late modern world to [the] freedom for excellence. . . . Freedom for excellence, they argued, was humanism in full."
Thursday, August 27, 2020
Notre Dame’s Potenziani Program in Constitutional Studies and the Tocqueville Program will host a lecture by Charles Kesler of Claremont McKenna College. This virtual event is free and open to the public. Recording will be made available.
The event is today at 12:45PM Eastern.
August 27, 2020 | Permalink
Tuesday, August 25, 2020
There was nothing surprising about the [Espinoza] decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down.
But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choice and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government’s interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.
Monday, August 24, 2020
August 25th marks the third anniversary of the Burmese military campaign in Rakhine State that resulted in mass atrocities and displaced hundreds of thousands of Rohingya Muslims.
The U.S. Commission on International Religious Freedom (USCIRF) will host a virtual event to discuss the current situation of Rohingya Muslims in Burma and in refugee camps in Bangladesh, as well as the pending international lawsuits against the Burmese government on August 27th.
August 24, 2020 | Permalink
Sunday, August 23, 2020
Deadline approaching for Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize fo
Saturday, August 22, 2020
As we celebrate the centenary of the ratification of the constitutional amendment that gave women the right to vote, for most it will not be a shock to learn that the Catholic Church was not out front in the movement for women's suffrage. Nonetheless, we can still find ways to celebrate the journey toward increasing appreciation of women's contributions to public life - in this very brief CNS piece, with a little bit of help from Star Wars - The Rise of Skywalker.
A few years ago, as I was checking out my new classroom space prior to the first day of class, I ran into one of my IT colleagues who making sure all systems were go. Something about the way he moved made me realize that he was carrying a heavy weight. When we both pressed pause on our checklist of tasks, he was very relieved to connect beyond “how are you / I’m fine,” and we calendared a lunch to continue the conversation. As I left the classroom that morning, I could feel there was a shift in me. This tiny gesture of attention helped me to feel ready to work in that space to receive a new group of students.
Perhaps because at that moment I was working with Ed Pellegrino’s wonderful 1983 article, Professional Studies and Catholic Universities: The Consecration of Expertise for a book chapter on Catholic education, what came to mind was the image of pouring oil over an altar, as part of consecrating a new sacred space. The altar was ready.
In DC our local regulations are such that I am not starting the semester in a new physical space. What might it mean to “consecrate” a Zoom space to receive a new group of students this Fall? My Religion & the Work of a Lawyer seminar is not tiny, but it is manageable enough (24) to at least offer to meet and begin to get to know each student individually before the official start of classes. So far, to a person the students have been deeply appreciative of the chance for us to “see” each other in almost regular size (rather than as one among many squares) and to have a conversation beyond “how are you / I’m fine.” And with each meeting, I have felt a growing sense of calm with the idea of starting a very interactive discussion-based seminar online.
I have also been exploring new tech options to help the class as a whole process student input after breakout discussions. As part of an online orientation program, I did a test run of “Jamboard,” and made a mess of it. The little post-its rolled into the shared board too fast, and were too many and too small for me to process. But felix colpa: reflecting on exactly what went wrong, I realized that this was the “shift” that I needed. I had been overly focused on the question of how technology could help me to consolidate student input and to communicate that in an efficient and effective way. The shift? To foreground the question of how to honor each person as they give their input – which probably also means slowing down everything (the input and the discussion of the input).
Again, Pellegrino: “For the authentic Christian, no sphere of life can be isolated from faith. All work, however mundane or humble, becomes a ministry, and in that sense, consecrated.” I am not sure how long we will be online. But I am sure that we can continue to find ways not only to humanize the Zoom space, but even to consecrate our work in this platform.