Mirror of Justice

Smith on "Christians and/as Liberals?"

Friend of the Show Prof. Steve Smith (San Diego) has posted the article-version of a talk he gave at a Notre Dame conference last fall on "Liberalism, Christianity, and Constitutionalism." (Here is an op-ed version of the remarks I delivered at the same event.)  Here is Steve's abstract:

Recently, as part of a more general examination and criticism of liberalism, the relation between Christianity and liberalism has been much discussed. Some critics, sometimes associated with the label “integralism,” argue that Christianity and liberalism are fundamentally incompatible. Examining both consistencies and inconsistencies, this article argues to the contrary that liberalism may be, for now, for us, in our historical circumstances, the alternative that prudent Christians should prefer.

In the paper, Smith engages, inter alia, the versions of liberalism-criticism offered in recent years by Adrian Vermeule, Patrick Deneen, etc.  Here's something from the concluding pages (which, FWIW, seems right to me):

From this point of view, a properly governed and genuinely liberal regime might indeed be the best that a Christian should hope for, short of the end time when (Christians believe) the true King and Prince of Peace will rule. Liberalism might be, to borrow from Winston Churchill, the worst form of government except for all the others. In a genuinely liberal regime, people would be governed by ideals that at least derive from basic Christian beliefs, and by a regime that adopts as its central purpose protecting and promoting the ability of people (including Christians) to live and even to proselytize in accordance with their beliefs. At the same time, such a regime would not adopt the un-Christian and self-defeating tactics of using force and violence to enforce Christian beliefs that are efficacious only if sincerely and voluntarily embraced. The novelist Walker Percy, when asked why he was a Catholic, used to answer “What else is there?” Asked why he or she is a liberal, a Christian today might respond with the same question.

2009 Letter to Ugandan Christian Leaders

The following letter from Charles Colson, Robert George, and Timothy George was sent to Christian leaders in Uganda in 2009 in response to the introduction in parliament of legislation harshly punishing homosexual conduct. Such legislation has now, according to news reports, been enacted. It is being criticized by some American Christian leaders and defended by others. I continue to think that what the late Mr. Colson, Dr. Timothy George, and I said nearly a decade-and-a-half ago is correct.

 

Letter to Uganda Christian Leaders (December 5, 2009)

Beloved Christian Brothers and Sisters of Uganda,

We greet you in the name of our Lord Jesus Christ, and embrace you in the spirit of his love.  As we seek to follow his path, we are inspired by your fidelity to the Gospel and by the example you provide the world of courageous discipleship.

We especially commend your witness to the timeless moral truths that are of the essence of man’s dignity as a creature fashioned by God in his own image and likeness. In the West, many of these truths are under severe attack from those who believe them to be unwarranted impositions on the freedom of the individual to seek his own satisfactions and fulfillment in his own way.  Nowhere is this clearer than in the domain of sexual morality, where actions condemned by divine authority and natural law as contrary to the dignity of the human person are celebrated as expressions of individual autonomy and even personal identity.

We know that it is with dismay that you have observed these attacks and with them a cultural erosion of moral understanding, and we are grateful to you for standing in solidarity with us as we have sought to bear witness to the truths of the Gospel and the dignity of man.  We especially appreciate your support for our work to protect and defend marriage as the life-long, exclusive, and faithful covenant uniting husband and wife.

Brothers and Sisters, we approach you today about a development in your country that is a source of grave concern for us.   We have learned that a bill has been introduced in your parliament that would penalize even a single act of homosexual conduct with life in prison.   Repeated homosexual acts and certain other specified behaviors would be punishable by death.  The harshness of these proposals is, we believe, inconsistent with a Christian spirit of love and mercy.  We urge our brothers and sisters in Uganda to follow the example of Jesus when he was presented with the woman caught in the very act of adultery.   He did not hesitate to call the woman’s offense what it was, namely, a sin; but by his powerful words our Lord prevented her life from being taken by the men who were preparing to stone her to death.  “Go,” he said to her “and sin no more.”

In a spirit of Christ-like love, let us recall that many men and women who experience same-sex attraction struggle to live chaste and holy lives.  Many succeed; yet many sometimes falter.  Is the same not true of all of us?  We are all tempted by the lure of sin, be it in the domain of sexuality or in other areas of our lives.  And none of us is perfect in resisting temptation.  All of us from time to time fall short of fulfilling God’s intention for us, and we therefore stand in need of the Lord’s mercy and forgiveness.  Surely, no one guilty of a single act of homosexual conduct (or fornication, adultery, or other sexual offense) should spend the remainder of his life in prison as a consequence of his sin.  Such harshness, such lack of mercy, is manifestly contrary to the example of our Lord and cannot be given the support of those who seek to follow Christ.  In response to a proposal to punish consensual sexual crimes with such extreme penalties the Christian must surely echo the words of Jesus:  “Let the one who is without sin cast the first stone.”

We recognize that the scourge of AIDS has been devastating to the people of Uganda.   Measures must be taken to encourage faithful marital love and to discourage sexual immorality of every type.   It is critical, however, that these measures be shaped in a just and Christian manner, and not in a punitive spirit.  Harshness and excess must be avoided.  Those who experience homosexual desire and yield to it should not be singled out for extreme measures or for revulsion.  Persons who experience same-sex attraction, whether they struggle to live chastely or, alas, do not, are human beings.  They are children of God made in His very image and likeness.  They are our brothers and sisters.   Christ loves them as he loves all of us.  We must love them, too, even as we encourage them and all men and women—precisely because of our love for them and concern for their well-being—to avoid sexual sins and lead lives of virtue and dignity.

Brothers and sisters, we do not reproach you or hold ourselves out as your teachers.  In so many ways today, you are our teachers.  We recognize that in view of the moral crisis of the West, we are scarcely in a position to lecture to people in Africa and other parts of the world.  We are ashamed of the pornography, promiscuity, and other manifestations of licentiousness that you (and we) find shocking and appalling.  We applaud your desire to prevent such unrighteousness from gaining a foothold in your culture.  You are right to care about the protection of public morals.  You are right to call sin by its name, just as Jesus did.  Our message is simply that the Lord’s example of gentleness and love, of mercy and forgiveness, must be followed, too.  Let all of us, as his disciples strive to be Christ-like in all things.

Yours faithfully,

Charles Colson

Robert P. George

Timothy George 

Higher Education and Institutional Pluralism

Here are some thoughts of mine ("True Campus Diversity") on higher education and institutional pluralism, which might have some relevance to conversations about Catholic higher education in particular.  A bit:

Arguments about diversity in higher education are, of course, both unavoidable and highly charged. Generally, these debates have to do with the use of race in the admissions practices of elite institutions or with the dramatically one-sided make-up of these institutions’ faculty, administration, and leadership. A crucial dimension of the diversity problem, however, is less noticed: In a nutshell, we should be concerned about not only intellectual diversity within institutions, but also meaningful diversity among institutions, that is, what John Garvey, the President Emeritus of the Catholic University of America, called “institutional pluralism.”

Steve Shiffrin, Rest in Peace

I'm very sorry to note that Professor Steve Shiffrin has died. Steve was the author of some wonderful work in law and religion and the freedom of speech, well known to many of us at Mirror of Justice and from which I learned a great deal. He was also a kind and generous man. He was, as my colleague Mark Movsesian writes, "a scholar of the first rank who remained humble and helpful to everyone. A rare combination of virtues. May he rest in peace."

My intro to "When Professions Go Woke, Can Dissenters Survive?"

As its contribution to Princeton University's 2023 reunions, the James Madison Program in American Ideals and Institutions hosted a panel discussion entitled "When professions go Woke, can dissenters survive?" Our panelists were Kristen Collier of the University of Michigan Medical School; J. Joel Alicea of the Columbus School of Law of the Catholic University of America; Ramesh Ponnuru of National Review magazine, the American Enterprise Institute, and the Washington Post; and Ryan T. Anderson of the Ethics and Public Policy Center.

In my introduction to the discussion, I addressed the origins and meaning of the word "Woke."  

---------------------

Introduction

Is there a word to describe the attitude of a person who regards his or her opinions as so obviously correct—and so profoundly enlightened—that they may not legitimately be challenged or questioned, and that only hate or bigotry can explain others' holding different beliefs?

Sure there is. That word is “woke”?

Of course, it’s a contested word. And the word, even as a slang term, didn’t always have those connotations. These days the connotations of the term are mainly negative; it is now mostly used pejoratively. But it didn’t begin that way. The word began with people who believed in racial justice and prioritizing the elimination of racial discrimination and other forms of injustice applying it to themselves and those who shared their beliefs and priorities. It was broadened, however, to be a term that applied to those who held ultraprogressive and, especially, identitarian ideas about race and, especially, sexuality and gender.

For the Woke, “anti-racism” is not the philosophy of Dr. Martin Luther King. It is the ideology of Professor Ibrahim X. Kendi. And gender ideology of the sort that constructs and sacralizes innumerable gender identities is unquestionable dogma. Those holding these beliefs themselves embraced the term “woke” until their critics—a coalition of conservatives like me and old school liberals like the comedian Bill Mahr—began following their linguistic practice and referring to them and their ideology as “woke.” Soon the term had become almost an epithet—and nobody wanted to be “labeled” as “woke.” Mind you, their views didn’t change, nor their aggressiveness in asserting them and in labeling people who don’t share them as “racists,” “homophobes,” “bigots,” etc., etc., etc. But they no longer accepted the term, and began charging anyone who used it in referring to them as … yes, you guessed it:  “racists,” “homophobes,” “bigots,” etc.

Now it’s a free country. You’re free not to use the term "woke." But others are free to use it. You’re free to criticize those who use it. But they’re free to criticize you. We’re using it for this panel—it’s right there in the title—because we’re interested in the phenomenon for which it has become the label: an ideology, a set of beliefs, that its partisans regard as so enlightened that it may not legitimately be questioned, and as so obviously correct that dissent from it can only be explained as a manifestation of hatred and bigotry.

What do you do if you are a dissenter, and your profession or institution has gone woke? In the face of intolerance of your opinions, is it possible to survive without either capitulating or going silent? That is the question we’ve asked our distinguished panelists to address.

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!

 

Moreland on Liberalism and Christianity

Our own Michael Moreland has posted on SSRN a new paper, which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Friend of the Blog John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I, along with MOJ-er Lisa Schiltz, participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:

 

 

An interview on the future of the pro-life movement

Here is an interview I gave to the Trenton Monitor, the diocesan newspaper of my home diocese of Trenton, New Jersey, after receiving Notre Dame's Evangelium Vitae medal.

A conversation with Professor Robert George

The Monitor caught up with Professor George following the Notre Dame University event to discuss the pro-life movement and his particular affinity for defending the unborn.

The Monitor: Over the course of your career, what led you to champion the pro-life cause in particular?

RG: I have devoted myself to the pro-life cause for a very simple reason:  My parents taught me that each and every member of the human family, from the newly conceived child in the womb to the frailest elderly person, as a creature made in the very image and likeness of God, is inestimably precious and is therefore to be honored, protected, and loved. They taught me that, despite the many respects in which people are different and unequal – in, say, strength, beauty, intelligence, talents of various sorts, wealth, power, social status – everyone is equal in fundamental worth and dignity. All, therefore, must enjoy the equal protection of the laws. We may not treat some people as inferior in worth, or others as superior, based on race, sex, ethnicity and so forth; nor may we treat some as inferior or others as superior based on age, size, location, disability, stage of development or condition of dependency.

TM: What do you believe needs to happen in order for society to change its outlook and behavior toward abortion?

RG: Those of us who recognize the profound, inherent and equal dignity of everyone, beginning with the precious child in the womb, must speak out courageously, and work with unflagging determination, to persuade our fellow citizens that killing is not the answer; the “solution” to a challenging pregnancy can never be to offer a woman the ghoulish pseudo-compassion of the abortionist’s knife. Rather, we must “love them both,” reaching out with genuine compassion and loving care to mother and child alike. As we work to reform the law – something we absolutely must do – we must also attend lovingly to the real needs of women for whom pregnancy and motherhood do bring serious difficulties and challenges. The pro-life movement has always done this, though the media refuses to give our movement credit for it, but we must redouble our efforts as we work in the political and legal spheres, now that Roe v. Wade is gone, to extend the mantle of the law’s protection to our tiny brothers and sisters at the dawn of their lives.

TM: How does having these public discussions, particularly in the wake of the Dobbs decision, help bring about change in society? 

RG: I believe that the truth has luminosity and power. St. Pope John Paul the Great spoke of “the splendor of truth.” And truth does have a splendor! But truth must be spoken; truth does not speak itself. People will not perceive its luminosity – its splendor – unless people speak it. It is up to us to have the courage to speak the truth about the sanctity of human life, the inherent dignity and equal worth of every member of the human family. Every single one of us is called to bear witness to truth, and today there is no truth more in need of being boldly spoken than the truth about the precious child in the womb.

TM: Do you often speak with people who disagree with the pro-life stance, and if so, have you been able to convince them of the validity of the pro-life perspective?

RG: Well, doing what I do, working where I work, you won’t be surprised by the answer to this question! Yes, I spend a great deal of my time speaking with people who disagree with the pro-life stance. What I try to do is speak the truth in love, just as St. Paul instructs us to do. (Sometimes, as you can imagine, the love is not reciprocated, but that’s OK.) I also try to listen – and learn. I know I’m not infallible. (That’s one thing I’m absolutely certain about.) So, if I’m wrong about something, I want to be corrected. But, honestly, the arguments for abortion (and euthanasia) are weak – they cannot survive sustained, rigorous rational scrutiny. Now that doesn’t mean my interlocutors are always persuaded, but usually I can at least get them to worry about clinging to the pro-abortion (or pro-euthanasia) position. And I have had many gratifying experiences of people coming to embrace the pro-life cause on the basis of rational reflection and discussion. Many of today’s most determined and effective pro-life advocates were, earlier in their lives, supporters of abortion.

Bray on the Catholic tradition (or is it the catholic tradition?) and the Common Law

Permit me to flag a very interesting article by Professor Samuel Bray: The Influence of the Catholic Tradition on the Common Law.The piece (drawn, I believe, from a talk on the same subject that Sam gave at Catholic University of America, Columbus School of Law, at the Center directed by Kevin Walsh and Joel Alicea) discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little on-the-fly reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the "anachronistic narrowness" point quoted above in the abstract. On what he calls the "generative" influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law--the Western Christian or Christian apostolic tradition unbound by today's anachronistic divisions.

There are some comparatively small questions I had about some of Sam's more specific claims. He says, for example, that each "side"--"Roman" and "non-Roman"--argued in "Newmanesque" fashion that "whoever did not change or augment the deposit of faith was the truly catholic side." But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist (perhaps Sam is one). But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman's own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam's perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). "[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters," Sam contends, "it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time." As I say, just when that "later time" began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive. Check out this very fine piece.

Henry Garnet, S.J., R.I.P.

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. 

Statius On What Authors Hope and Fear

Authors hope and fear for their work. Will it endure? Will it be forgotten? Will it be read and considered, or crumble away as if it never had been written?

Here is the Roman poet, Statius--a magnificent writer in his own right, but today largely forgotten--at the conclusion of his masterpiece, the Thebaid (concerning the travails of the Seven Against Thebes), with a lovely reflection on these perennial anxieties:

Wilt thou endure in the time to come, O my Thebaid, for twelve years object of my wakeful toil, wilt thou survive thy master and be read? Of a truth already present Fame hath paved thee a friendly road, and begun to hold thee up, young as thou art, to future ages. Already great-hearted Caesar deigns to know thee, and the youth of Italy eagerly learns and recounts thy verse. O live, I pray! nor rival the divine Aeneid, but follow afar and ever venerate its footsteps. Soon, if any envy as yet o’erclouds thee, it shall pass away, and, after I am gone, thy well-won honours shall be duly paid.

Congratulations to Robby George!

This past weekend, the DeNicola Center for Ethics and Culture at the University of Notre Dame presented our own Prof. Robert George with its 2023 Evangelium Vitae medal, "the nation’s most important lifetime achievement award for heroes of the pro-life movement, honoring individuals whose efforts have advanced the Gospel of Life by steadfastly affirming and defending the sanctity of human life from its earliest stages."  (Learn more about the medal and its history here.)  Here is the really nice video that the Center put together, as part of the evening's program.  Congratulations, Robby!

Article Posted on the Respect for Marriage Act

Doug Laycock, Carl Esbeck, Robin Wilson, and I have posted "The Respect for Marriage Act: Living Together Despite Our Deepest Differences," on SSRN (forthcoming in the University of Illinois Law Review). First paragraph of the abstract:

The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.

During the RMA's consideration, the four of us provided an analysis to senators arguing that the religious-liberty protections in the Act were substantial and that the Act offered a chance, even a model, for a pluralistic approach that, by protecting both sides, can help put at least some limit on fear and the attendant political-cultural polarization. This Article expands greatly on that analysis.

"The horror of the Same Old Thing"

From Chapter 25 of Lewis's The Screwtape Letters:

The horror of the Same Old Thing is one of the most valuable passions we have produced in the human heart--an endless source of heresies in religion, folly in counsel, infidelity in marriage, and inconstancy in friendship. The humans live in time and experience reality successively. To experience much of it, therefore, they must experience many different things; in other words, they must experience change. And since they need change, the Enemy (being a hedonist at heart) has made change pleasurable to them, just as He has made eating pleasurable. But since He does not wish to make change, any more than eating, an end in itself, He has balanced the love change in them by a love of permanence. He has contrived to gratify both tastes in them in the very world He has made, by that union of change and permanence which we call Rhythm. He gives them the seasons, each season different yet every year the same, so that spring is always felt as a novelty yet always as the recurrence of an immemorial theme. He gives them in His Church a spiritual year; they change from a fast to a feast, but it is the same feast as before.

Now, just as we pick out and exaggerate the pleasure of eating to produce gluttony, so we pick out this natural pleasantness of change and twist it into a demand for absolute novelty...The demand is valuable in various ways. In the first place it diminishes pleasure while increasing desire. The pleasure of novelty is by its very nature more subject than any other to the law of diminishing returns. And continued novelty costs money, so that the desire for it spells avarice or unhappiness or both. And again, the more rapacious this desire, the sooner it must eat up all the innocent sources of pleasure and pass on to those the Enemy forbids. Thus by inflaming the horror of the Same Old Thing we have recently made the Arts, for example, less dangerous to us than, perhaps, they have ever been, 'low-brow' and "high-brow' artists alike now being daily drawn into fresh, and still fresh excesses of lasciviousness, unreason, cruelty, and pride...

But the greatest triumph of all is to elevate this horror of the Same Old Thing into a philosophy so that nonsense in the intellect may reinforce corruption in the will. It is here that the general Evolutionary or Historical character of modern European thought (partly our work) comes in so useful. The Enemy loves platitudes. Of a proposed course of action He wants men, so far as I can see, to ask very simple questions; is it righteous? is it prudent? is it possible? Now if we can keep men asking 'Is it in accordance with the general movement of our time? Is it progressive or reactionary? Is this the way that History is going?' they will neglect the relevant questions. And the questions they do ask are, of course, unanswerable; for they do not know the future, and what the future will be depends very largely on just those choices which they now invoke the future to help them make. As a result, while their minds are buzzing in this vacuum, we have the better chance to slip in and bend them to the action we have decided on. And great work has already been done. Once they knew that some changes were for the better, and others for the worse, and others again indifferent. We have largely removed this knowledge. For the descriptive adjective 'unchanged' we have substituted the emotional adjective 'stagnant.' We have trained them to think of the Future as a promised land which favoured heroes attain--not as something which everyone reaches at the rate of sixty minutes an hour, whatever he does, whoever he is.

Prof. Dan Philpott on a "Christian Case for Reparations."

Here is the abstract from a new paper by my friend and colleague Dan Philpott:

National healing for the persistent wounds of racism, America’s original sin, can be advanced through a national apology, reparations and forgiveness. The frequent practice of apologies and reparations around the world in the past generation provide precedent for such measures. Christianity’s teaching of reconciliation and accompanying notions of sin, repentance, forgiveness, and atonement provide a strong moral basis for these measures and resonate with the rationales through which the United States’s greatest champions of civil rights and equality have fought against racism and slavery. Because racism and slavery were supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body. Questions of who pays, who receives, and what form reparations take are important ones and can be answered adequately. Through collective apology, reparations, and forgiveness, the United States would enact and renew its national covenant, acting in the tradition of Abraham Lincoln, Frederick Douglass, and Martin Luther King, Jr.

I'm inclined to agree with Prof. Philpott that, in some cases, when wrongs were "supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body."  I am not convinced, though, that the "important" "[q]uestions of who pays, who receives, and what form reparations take" are "answered adequately" in the piece.  See for yourself!

Into God: An Intellectual Retreat with St. Bonaventure

I have not posted here much as I've been getting settled with the CIT Project at CUA's Columbus School of Law, but I would like to extend an invitation to those in the MOJ community (in one way or another, read on) to an intellectual retreat in June:

Into God: An Intellectual Retreat
for Catholic Law Professors and Fellow Wayfarers

2 p.m. Thursday, June 22, 2023 to 12:30 p.m. Saturday, June 24, 2023
Columbus School of Law, The Catholic University of America, Washington DC 

What is this gathering?  This is an initiative for theological formation and good old-fashioned fellowship in faith.

Who is invited? The plan is for most of those attending to be law professors and most to be Catholics, but not all participants will be both, and some will be neither. If you are interested in coming, email me at [email protected]. So ... if you are a law professor, but not Catholic ... or if you are Catholic, but not a law professor ... or if you are neither Catholic nor a law professor (for example, if you are an aspiring law professor of a sort who would like to learn more about St. Bonaventure's theology and spirituality and meet people with a similar interest), please do not hesitate to email me about your interest in attending. I am trying to maintain a nucleus of Catholic law professors, but I am also hoping for a broader gathering. 

Where?  This intellectual retreat will take place at Columbus School of Law, The Catholic University of America, Washington, D.C. We will provide meals and other refreshments. As needed for out-of-town guests, we can also coordinate accommodations  near campus and transportation back-and-forth between accommodations and campus.   

What will we be doing? All registered participants will receive a copy of Into God: Itinerarium Mentis in Deum of St. Bonaventure, translated and annotated by Fr. Regis Armstrong, OFM Cap. (CUA Press 2020) (see excerpts of reviews below). You will read before our gathering. When we come together as a group, Fr. Regis Armstrong (Emeritus Professor, CUA, Theology and Religious Studies) and Dr. Joshua Benson (CUA, Theology & Religious Studies) will lead sessions guiding us through St. Bonaventure's Itinerarium. We will have time for discussions, free time, meals, individual prayer, and communal worship

What should I do next? If you are interested in attending, please email me at [email protected] Please email also if you are interested in something like this but can't make it this year and want to be in the loop for similar things in the future. 

Ciao e buona ventura,

Kevin 

 

***

Reviews of Into God: Itinerarium Mentis in Deum of Saint Bonaventure

 

"This is the work of a mature scholar who is arguably the most eminent contemporary scholar of matters Franciscan in the English speaking world...will be an essential reference point for the explication of this text."―Lawrence S. Cunningham, University of Notre Dame

"At a time when many are striving to find hope in the midst of uncertainty, Fr. Regis Armstrong's brilliant translation of Into God allows us to share in St. Bonaventure's closeness to the Lord. I recommend this book to scholars and all who seek the confidence and consolation of the Lord's promise to be with us always."―Cardinal Sean O'Malley, OFM, Cap., Archbishop of Boston

"Established on the author's lifetime study of patristic and Franciscan sources, Regis Armstrong's Into God capitalizes on his erudition, his skill in contemporary translation equivalency, and his heartfelt penetration of one of the world's greatest spiritual classics. Into God, through close textual and word analysis and commentary with extensive references, opens up the vista of Bonaventure's inheritance in Augustine, Pseudo-Dionysius, Gregory the Great, monastic theology, the Victorines, and Alexander of Hales. This pathway breaks from the dominance of the philosophical straightjacket that had confined the Itinerarium to subsidiary patterns of thought and reveals the Franciscan master in the breadth and depth of his learning as he adopted his biblical and theological inheritance to the search for meaning in the religious and lay followers of St. Francis of Assisi. Anyone who desires to integrate a deep spirituality with the best of the Christian tradition in scripture, theology, and philosophy can do no better than to start with this accessible, classic, and seminal exposition."―Joseph P. Chinnici, OFM, Franciscan School of Theology at the University of San Diego

"A feat! A translation in real English so the everyday reader may enjoy this difficult text. But, also in endnotes a detailed spiritual and theological commentary. A breakthrough on Bonaventure's sources and his use of them."―Therese-Anne Drurart, The Catholic University of America

"Bonaventure's Itinerarium Mentis in Deum is universally recognized as one of the classics of mystical literature. In it the Franciscan master distilled a wide variety of strands of Western mysticism ―Augustinian, Cistercian, Victorine―into a new form of spiritual teaching shaped by the life and example of St. Francis and the early Franciscans. The Itinerarium has been read, translated, and studied for centuries, but Regis Armstrong's new translation and extensive commentary makes this masterpiece available to the contemporary reader in a new and exciting form. This book is a splendid gift to everyone interested in the mystical life."―Bernard McGinn, University of Chicago Divinity School

"Fr. Regis Armstrong has given us the new standard reference for Bonaventure's Itinerarium Mentis in Deum in English. Impressively, Armstrong achieves his hope 'to address three diverse audiences; average readers, including undergraduate and graduate students; religious women and men eager to cultivate their contemplative lives; and scholars.' The arrangement of the text, the clarity of the translation, and the usefulness of the annotations mean that a wide range of readers can pick up Into God and learn from the seraphic doctor's classic text."―Review for Religious

"This translation and commentary will be especially helpful in the classroom and, as already suggested, scholars too can benefit from Armstrong's careful attention to the text and its meaning. This translation of a classic text is destined to become a classic in its own right. We owe a great debt of thanks to Regis Armstrong for all that he has accomplished for Franciscan scholarship over the years."―Archivum Fraciscanum Historicum

 

"The Rise of the Nones"

I had the distinct pleasure of traveling to St. John's University School of Law a couple of weeks ago to participate in the spring symposium sponsored by the Center for Law & Religion, the St. John's Law Review, and the Journal of Catholic Legal Studies. The topic was the role of the so-called "Nones," that is, those without a religious affiliation, in religious liberty cases and debates.

Together with Michael Heise at Cornell, our empirical study of religious liberty decisions, including decisions by judges without a religious affiliation on Establishment Clause cases, will later be published in the St. John's Law Review (for which an earlier draft is now available on SSRN here.)

For those who could not attend and are interested, the Center at St. John's has now published a podcast with Mark Movsesian, Steve Collis, and I. You can access it below:

https://lawandreligionforum.org/2023/04/04/legal-spirits-048-the-rise-of-the-nones-and-american-law/

Prof. Gerard Bradley on Prosecutorial Discretion and Judgment in the Trump Case

My friend and colleague, Prof. Gerard Bradley -- a former Manhattan prosecutor, as it happens -- shared with me a short essay on the recent indictment in New York of Donald Trump.  Here it is:

Abuse of Discretion: The Trump Indictment

• • Gerard V. Bradley*

It’s now official: Donald Trump is the first ex-President to face criminal charges.  The People of New York, by a majority vote of twenty-three residents randomly summoned for grand jury duty, lodged a thirty-four count indictment against him.  The misconduct alleged consists of falsified records of ten or so payments, made throughout 2017 by Trump entities to Michael Cohen.  All of them were apparently reimbursements to Cohen for “hush money” he gave Stormy Daniels to keep her quiet about a sexual tryst that Mr. Trump says never happened.  Paying the money is no crime.  Entering the payment on the Trump company’s books as a business or legal expense, could be.  The grand jurors accused Mr. Trump of doing just that, “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof”.

Many politicians and pundits denounce the charges as “politically motivated”.

My worry is that the denunciations are “politically motivated”. Although there is a circumstantial case suggesting that the Manhattan District Attorney Alvin Bragg might have a political agenda, the simple fact is that there is no evidence of what his motivations actually are.  Denunciations of him are meant to fan political conflict. They do. They also further divide, and more bitterly, an already rent body politic.

The politicized criticism is not only mischievous.  It is unnecessary. The Trump indictment is a grave abuse of a prosecutor’s discretion. It should be denounced for that reason. The partisan gamesmanship can stop.

Now, one plausible motive for charging Trump could be that Mr. Bragg believes that Trump’s willingness to falsify records to cover-up an adulterous affair renders him unfit to serve (again) as this nation’s chief law enforcement officer.  Let’s suppose for a moment that this judgment is sound. It still should play no role in Bragg’s decision to prosecute Trump. Bragg’s overall opinion about Trump’s fitness to be the nation’s top cop is entitled to no more authority or amplification than anyone else’s opinion.  Bragg should never use the powers of his office to handicap the next Presidential election.    

One could ask whether Mr. Bragg would seek to indict any other businessman who falsified records for the same amount or any amount for the same tawdry reason, that Trump allegedly did. One could ask as well whether the Manhattan District Attorney’s Office does typically prosecute cases similar to Trump’s.

The problem with this thought experiment is that there are no true comparators.  Donald Trump is not singularly rich or famous, though he is both. But no grand jury target could be more prominent than he is.  None has a more vociferous constituency.  And Trump is, well, Trump: he has relentlessly tried to intimidate the District Attorney and to discredit his investigation – in colorful and often crass terms. 

This mix of factors rightly makes Trump a priority target of law enforcement.  The prominence of any individual should be considered when a prosecutor decides who to charge. It is imperative that prosecutors not only believe that no one is above the law.  They must try to make that truth evident to all. The central ethical justification for prosecuting Trump is the same as for prosecuting anyone: to vindicate the rule of law by imposing just punishment. But the main practical effects are two. One is to hold this powerful man accountable, so that rest of us do not conclude that we are suckers for following the law, to show that playing by the rules is not just for chumps. This is especially true for crimes like those for which Trump was indicted, matters involving the integrity of business records.  Many are tempted to play fast-and-loose with those laws from time to time. The other effect is deterrence; when the rest of us see that the rich get their deserved comeuppance, we are more likely to fall in line too.

Even so: the Trump indictment is a gross abuse of the DA’s awesome but necessary power of prosecutorial discretion.

First, the alleged criminal behavior at the heart of the Trump indictment – falsified invoices and vouchers and checks issued to make good on them – amounts to a misdemeanor in New York, punishable at the same level of severity as shoplifting.  Considered in itself, even someone exemplary (like Trump) would not be prosecuted for falsifying these records.  And Trump was not: the statute of limitations ran out years ago on the misdemeanor charge because the DA did not pursue it. The business records at stake are, moreover, those of a privately held, family company. No one within the company made money off the scheme either; there was no skimming or side-payments to insiders. The public interest in prosecuting this false business entry is slight, at most.

Second. Trump is charged with thirty-four felonies.  The enhancement from misdemeanor is based on a novel legal theory that evades the statutory limitations bar.  That theory is not only untested.  It is unsound. To date, New York prosecutors have upgraded misdemeanor business records frauds into felonies by linking them to acts which are crimes under New York law.  The indictment ties each of the thirty-four specific misdeeds to Trump’s (alleged) attempts to aid in the commission or conceal the commission, of another crime. Nowhere does the indictment say what those further crimes are. But it is almost certain that the proof at trial will reveal them to be federal offenses.

The animating public harms in the indictment are thus not peculiar to New York.  They have to do with the federal election of 2016 and campaign finance laws. Those laws and the common goods they protect are serious matters.  Federal prosecutors should and do enforce those laws. In Trump’s case, Bragg is prosecuting a misdemeanor as a felony when the actor intended (by hypothesis) to conceal the commission of an act that New York does not regard as a crime.  

A case of this magnitude and political consequence is not the occasion to field-test creative interpretations of the criminal law.

Third.  The experimental legal theory coupled with the cratered credibility of the state’s chief witness – Trump “fixer” Michael Cohen – calls into question whether he could properly be convicted on the constitutional standard – proof beyond a reasonable doubt.   This is not mainly a question about whether Manhattan jurors will in fact convict Trump.  Many potential jurors would probably convict hm on no evidence at all.  It is instead a question of honest professional judgment about the quality and quantity of the People’s proof.  It is a question to be answered in one’s best professional judgment ex ante; that is, before proceeding to the grand jury or at least before asking the grand jurors to vote for an indictment. 

As a matter of ethics, a conscientious prosecutor must seriously consider, even in the case of a repulsive defendant, the risk that a jury will convict on less than the quantum of evidence that the Constitution requires.  Persuading a majority of twenty-three grand jurors on the basis of a non-adversarial presentation that there is reasonable cause to accuse someone of a crime is easy. Getting a conviction by the unanimous vote of a jury after a contested trial where the burden of proof is “beyond a reasonable doubt” is hard.

It is almost unfathomable that Bragg’s prosecutors could be sure of their proof.  Combining the second and third factors makes for an especially adventurous prosecution, one that has succeeded in obtaining an indictment without the requisite professional confidence that a conviction is warranted.

Here the titanic political repercussions of indicting an ex-President running to regain the office come into play.  Any prosecutor charging Donald Trump should be all the more confident about the proof and that the legal theory being used are beyond reproach.  Alvin Bragg appears to think it works the other way around: take your best shot at the big game when you get it, even if your best shot is not professionally a sound one.

Fourth. Bragg’s is not the only game in town. There are several other potential Trump prosecutions in the pipeline. They all concern acts which more directly reflect Trump’s fitness to be President. Georgia authorities are investigating whether President Trump criminally interfered in that state’s electoral college returns in 2020.  Specially appointed federal prosecutor Jack Smith (who, coincidentally, began his career as a Manhattan ADA), is looking at possible criminal wrongdoing in Trump’s retention of presidential papers at Mar-a-Lago and, more importantly, in his involvement in the January 6 riot.  The simultaneous pursuit of criminal charges in other jurisdictions is a sound, everyday consideration for prosecutors deliberating about pursuing an investigation and indictment. Usually, local prosecutors like Alvin Bragg stand down when the federal government is so seriously pursuing more serious charges against someone the local DA is targeting.

 “Politically motivated” turns out to be a red herring.  If the Manhattan DA had solid proof that Donald Trump had committed almost any other felony – say, possession of child pornography or selling drugs or defrauding investors of millions – few would criticize his politics, even though he would be the same progressive Democrat that he is today.   The “politically motivated” charge arises precisely because so many people sense that this prosecution of Donald Trump is dubious. It is dubious, an abuse of discretion that ought to be redressed.  That criticism stands on its ground.  It does not need incendiary ballast, which boils our already hot politics.

What then is to be done?

If Trump’s were a more typical defendant and his case an ordinary one of gross unprofessional judgement, the answer might conclude right here: criticism. One would make the case that the prosecutor made a serious error and that the indictment should be dismissed -- and move on. But Trump’s case is not typical.  This abuse of discretion has ignited a political firestorm, one which threatens to seriously damage our country’s common good.  For that reason, in this extraordinary case, all lawful avenues of correction should be considered.

Trump has been indicted in the name of the People of New York.  In reality, the charges are the production of one man, the District Attorney of one county – Alvin Bragg.  One remedial avenue is set out in New York’s Executive Law, section 63(2).  It introduces the entire population if New York into the picture.  This law authorizes Governor Kathy Hochul is to “supersede” Alvin Bragg, to take the Trump case away from him and to assign it to the office of the state Attorney General.  Both Hochul and the Attorney General (Letitia James) are Democrats, of course.  But we should not indulge without evidence the temptation to conclude that their actions in taking over Trump’s case, would be “politically motivated”.

Scholars' Comment Opposing Rescission of Education Dept.'s Student-Religious-Group Protection

(I'm returning to post on the blog after a significant hiatus caused by a bunch of other commitments!)

       The U.S. Department of Education has proposed to rescind a provision it adopted in the Trump Administration protecting student religious groups at public universities from being denied access to facilities and other benefits available to other student groups. For the notice-and-comment process, I took the lead in drafting a comment letter from a blue-ribbon group of scholars*/ opposing the rescission. The rescission would leave student religious groups protected under another (but more uncertain) regulation that applies to nonreligious groups as well. But we argue that the distinctive protection for religious groups is fully justified by the First Amendment. Summary quote:

The religious-group protection categorically prohibits a public IHE [institution of higher education] from denying a group access because of its sincerely held beliefs or practices, including leadership and membership criteria. But that categorical protection has strong support in First Amendment principles and current Supreme Court case law, for two major reasons. First, unconstitutional discrimination against religion comes in many different forms, and litigation has shown that almost any public IHE policy that denies a student religious group access discriminates in one of these ways. Second, the First Amendment also categorically guarantees religious organizations autonomy to set criteria for leadership and membership, and public IHE policies denying religious groups access regularly violate that guarantee.

 

*/ Doug Laycock, Michael McConnell, Rick Garnett, John Inazu, Michael Paulsen, Asma Uddin, and yours truly. 

"Do You Wish To Know? Notes on a New Humanism in Legal Education"

Here is the text [UPDATE: and the video] of a talk I was delighted to give a few weeks ago for the inaugural conference of the Center for Law and the Human Person at Catholic University School of Law, ably directed by Elizabeth Kirk. A bit of a manifesto, I'm afraid, which I offer here now on the 19th anniversary of Mirror of Justice, a forum that has meant a great deal to me.

 

Do You Wish to Know? Notes on a New Humanism in Legal Education

March 14, 2023

A center for law and the human person is a center devoted to considering questions about humanity, about human nature, about what is good and bad for human beings. About what their ultimate ends are. About who humans are and what they should do.

Such a center, I will claim, is not only about these central questions concerning humanity, but also about the disciplines that have come to be known as the humanities, and the way that the humanities contribute to the formation of fully human beings—in the case of the center, fully human beings who also happen to be lawyers.

What would such a center pursue as part of its core humanistic mission?

Here there are some major challenges that such a fledgling center would confront. There is some bad news. Familiar bad news, perhaps, but bad news nonetheless worth reviewing. The humanities—the study of language (ancient and modern), history, philosophy, literature, the arts, and, on some understandings, religion and theology—are in free fall. The numbers of undergraduates majoring in these fields is shrinking dramatically. Dramatically, in fact, does not do the shrinking the barest justice.

Such is the lack of interest in the humanities that many colleges are eliminating humanistic study altogether. These include Catholic colleges, like Marymount University in Virginia, which recently announced the cutting out of humanistic learning. But not only Catholic colleges. Colleges, religious and secular, are doing away entirely with majors in these subjects, and they are also reducing humanistic study drastically. If these reports are credited, there simply is no longer even the minimal student interest in them necessary to sustain departments or self-standing courses.

And this is not an issue only for what are regarded as less elite institutions. An article in The New Yorker just a few weeks ago observed that over the last decade, humanities majors have dropped at an average rate of 50% at schools like Ohio State, Arizona State, Tufts, Notre Dame, Columbia, and Harvard. In fact, Harvard’s numbers are particularly striking. In 2012, the number of humanities majors at Harvard was 20%. In 2022, it was 7%. The numbers are forecasted to fall even more after that. Good economic times, bad economic times, and everywhere in between, the numbers continue to decline.

The explanations are many and sufficiently plentiful that one can insist on whichever reason one might prefer. Some say that the advent of technology like iPhones and social media (Twitter, TikTok, Instagram, and so on) has made the activity of the reading of humanistic books superfluous or uninteresting. There is surely some truth to this, a truth from which I do not exempt myself. I know (to my shame) that I am reading fewer books today than I read even ten years ago. I am consumed with my own phone. As a recent NY Times piece on what is wrong with the humanities put it, “The answer to any question, ‘What is Wrong…” is or ought to be, ‘I am wrong.’” The line was Chesterton’s, actually.

It has also been claimed that the language of centuries past is increasingly inaccessible or impenetrable to today’s generations of students, who prefer and are accustomed to a different way of communicating more suited to current circumstance. Again, there is also some truth here. I have found that a good meme can do as much to make, say, Marbury v. Madison memorable as can close attention to its elegant but difficult text.

Others say that economic concerns predominate. College is extremely expensive, and only becoming more so. Most students are required to take on crushing loans. Those loans put great pressure on students to find employments that are immediately remunerative, so that they can then proceed to even more well-paying work later.  The humanities are not seen as safe bets in an environment of such pressure. Employers are not looking for history or language majors. The skills taught by history professors in history departments are not seen as marketable. They do not distinguish a candidate as desirable, as they once did.

In a related development, witness the meteoric ascent of STEM fields. At Princeton University, where I am visiting this semester, a gigantic new engineering program is being constructed—a colossus that will dwarf the existing educational structures and that will, I am told, drive a massive expansion in Princeton’s student admissions in the coming years. Just as humanities majors have precipitously declined, so, too, have Computer Science majors and other applied science majors exponentially grown. The current Secretary of Education, Miguel Cardona, has emphasized repeatedly that colleges and universities must “meet the needs of the economy,” and those needs are connected overwhelmingly to education in STEM fields, not the humanities.

And universities, here and abroad, have become, as Adrian Pabst puts it in a recent piece in the New Statesman, “managerially controlled and market driven.” College and university administrators (some of whom, I hasten to add, are lovely, lovely people, Dean Payne), whose rise in numbers and power within the universities has often been remarked, tend to see the function of the university in these terms as well. They are liable to ask questions like (as one administrator did recently ask me), “Why are you assigning Plato in your free speech and free inquiry class? What does that offer the students?” What, indeed, when a STEM-exclusive education can produce marvels such as ChatGPT, which, some say, makes humanistic study even more useless and anachronistic than it was already.

And, of course, a final explanation for the collapse of humanistic learning is internal. Humanities professors themselves increasingly disdain or even are ashamed of the learning and the knowledge that form the core of their own disciplines. Classical languages departments at the most elite universities have begun to do away with requirements in the very languages that constitute their discipline. A Latin major with no Latin. English departments rename themselves something else—anything else—mortified by the learning that constitutes their own field. As one Harvard English professor put it in the New Yorker piece, “One of the tragedies of the British Empire is that everyone read Dickens, so we must read him too.” Not exactly a ringing endorsement of Dickens, though that is about the best that one can hope for in the way of defense. Small wonder that large numbers of students flee such disciplines. This is the death of learning, as the title of a recent book by John Agresto puts it, “not by murder, but by suicide.”

I do not intend to pick among these explanations or spend much more time surveying reasons. Probably they all have some explanatory role. I want instead to think about effects. About what this collapse means. After all, one might reasonably ask, so what? What difference does it make that many fewer students are interested in these subjects? Disciplines come and go in the history of human thought. Astrology was once studied in universities. Alchemy was, too.

Academic disciplines can become extinct, and there need not be any regret at their dying. Or they can transform themselves into something else. Psychiatrists today are trained to be chemists where once they were trained to be psychoanalysts. English departments can become social media studies departments. And, at any rate, the appetite for the study of Assyrian or Linear B or even the Romance Languages probably never was all that high to begin with. Perhaps it should not be.

The death spasms of the humanities are only to be regretted, and efforts to resuscitate them undertaken, if we can conclude that there is something of worth in them, that they continue to contribute something of value. That requires a defense of some kind. An apology, one might say, for the humanities. So…do they? The author of the New Yorker article that I mentioned observed: “scholars have begun to wonder what it might mean to graduate a college generation with less education in the human past than any that has come before.”

That author might have consulted a law professor or two for answers. After all, we get lots of undergraduates right after their college years, so that if there are effects of the moribund humanities to see, we might be likely to see them.

Continue reading

"The Role of Tradition in Constitutional Law"

Here's the video of a panel with Professors Ernie Young, Kevin Walsh, and me, discussing what I think of as a long-existing, though now emerging, method of constitutional interpretation and law. We all brought different perspectives to the matter, and it was fun to talk together. The program is part of Professor Joel Alicea and Professor Walsh's Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University, Columbus School of Law. I enjoyed the conversation and questions very much.

 

 

Inaugural Conference of the Center for Law and the Human Person at CUA

I am delighted to be participating in this conference at Catholic University of America, Columbus School of Law, next Tuesday, together with fellow MOJ-ers Profs. Mary Leary  and Lisa Schiltz, as well as Prof. Carter Snead. The conference inaugurates the new Center for Law and the Human Person, directed by Elizabeth Kirk. The theme of the conference is "Rightly Ordered Law and the Flourishing of the Human Person."

The title of my talk is "Notes on a New Humanism in Legal Education." I'm told the conference will be recorded, but if you are in DC, please register at the link and do stop by and say hello! I'll have more to say about the substance of my talk soon.

An important religious mission / freedom of association decision

The United States Court of Appeals for the Second Circuit has handed down an important decision, vindicating the First Amendment right of a pro-life pregnancy-resource center to hire-for-mission.  You can get the opinion in Slattery v. Hochul here.  I was pleased that the court cited, quoted, and relied upon a paper of mine, from a while back, which was written as a tribute to my former boss, Judge Richard S. Arnold.  That paper relied, in turn, on an earlier one, called "The Story of Henry Adams's Soul: Education and the Expression of Associations."  Here's the abstract:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.

Garnett on "Why Liberalism and Constitutionalism Need Christianity"

Here's a short essay, based on a talk at Notre Dame Law School a few weeks ago, on Liberalism, Constitutionalism, and Christianity.  A bit:

[T]he suggestion is that “liberalism” and “constitutionalism” rely for their success, both in theory and in fact, not only on the separation and limitation of the powers of the political authority, but also on the existence and the health of authorities and associations outside, and meaningfully independent of, the state. As I and many others have argued, our tradition of constitutionalism was made possible, and might still depend today, on the independence of the church from secular control, an independence that it is fair to say Christianity first proposed and insisted upon.

The “distinction,” as Pope Benedict XVI put it, “between what belongs to Caesar and what belongs to God (cf. Mt 22:21)” is “fundamental to Christianity.” It is this core tenet of Christian political theology—the differentiation between “church” and “state,” along with the freedom of the former and the limits on the latter—on which, it seems to me, both liberalism and constitutionalism depend. This differentiation, the late pope contended, “came into the world first through Christianity. Until then,” he observed, “the political constitution and religion were always united. It was the norm in all cultures for the state to have sacrality in itself and be the supreme protector of sacrality.” Christianity, however, “deprived the state of its sacral nature.”

Again: constitutionalism and liberalism—and liberal constitutionalism—need Christianity. Indeed, the “separation” between church and state that has long been treated, with more or less care, as a foundation of the American law of church and state is better regarded as a limit imposed by the former on the latter than vice-versa. Correctly understood—and, to be sure, it often is not—this “separation” stands as a safeguard against governments tempted to assume for themselves the power to direct religious life. It is a limit on government and such limits, again, are essential to liberal constitutionalism. Our Constitution separates church and state to curb the ambitions and reach of governments. In and through our constitutionalism, “Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God’s.” The differentiation between religious and political authority means that Christianity is not merely a recipient of constitutional protection; it is a safeguard for the enterprise of constitutionalism.