Mirror of Justice

"Giving Our Better Angels a Chance"

Alan Brownstein (UC-Davis) and I have published the above-titled article, subtitled "A Dialogue on Religious Liberty and Equality." You can download it here. I've respected Alan's work--its carefulness, clarity, and honesty--for a long time and am very happy we've been able to do this together. From the abstract:

This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we plan to discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church-state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground and provide opportunities for compromise.

It's forthcoming in The Journal of Appellate Practice and Process, a publication provided to every federal and state appellate judge in the nation. The dialogue format--each of us writing specific sections with responses from the other, rather than trying to homogenize our views in a singe text--allows us, we hope, to present disagreements clearly while also suggesting places of common ground and potential solutions.

Teaching in Person at a Catholic Law School During the Pandemic (Part Three: Fostering Community)

This is the third and final in a series of posts about my experiences teaching in person last semester during the pandemic at a Catholic law school. The first post was about health and safety for teaching in person despite the contagion. The second post was about educational quality given the accommodations necessary to teach in person during a pandemic. This post is about fostering community in challenging times with social distancing.

Community as a Hallmark Value at the University of St. Thomas School of Law

Fostering community among students, faculty, and staff is a hallmark at the University of St. Thomas School of Law. It is one of the visible attributes that draws prospective students and that is frequently emphasized by our current students and alumni. As more than one person has said, community is simply baked into our DNA at St. Thomas. If you ask a typical St. Thomas law student what stands out about the law school experience, he or she is quite likely to speak to a positive atmosphere that nurtures students and draws people together.

Now many law schools tell prospective students that they have a strong community and portray images of community in publicity brochures and alumni magazines. Assertions of a supportive community are easily uttered. For the University of St. Thomas, we fortunately have considerable concrete evidence that our community is genuine and distinctive.

First, in national surveys of law student engagement, law students at the University of St. Thomas consistently report they are happier and feel more supported.  UST law students are much more positive about their law school experience than is generally reported at other law schools.

Second, I take an anonymous survey of students in my Professional Responsibility class each spring when they are more than half-way through their legal education. Substantial majorities of our students report  each year that they are more committed to and even happier about their choice to become lawyers than when they began their legal education. By contrast, across the country, many law students become disenchanted by the end of their first year, and upper-level students often express regret about their decision to go to law school.

Third, in yet another survey, which is publicly available, our students vote regularly in the Princeton Review to include us among the top ten law schools for “Best Quality of Life.”

Now some law deans and professors would openly or quietly disclaim that community should be a signature characteristic of legal education. The purpose of law school, they would say, is to effectively prepare students to pass the bar and competently engage in the practice of law. Others might say that a law school as part of a university should be first and foremost about demanding critical thinking and challenging students with new ideas, rather than seeking to flatten out student experience into an anodyne good feeling. And in public law schools, there are constitutional free expression expectations that restrict efforts to vigorously press a particular theme, which in the legal academy can become ideologically rigid.

I believe that the University of St. Thomas has generated a sense of community that is neither heavy-handed in approach nor indifferent to differences in viewpoints. To be sure, as a private and faith-based law school, we would have the freedom to choose a motivating theme, even if it trespassed on freedom of thought or excluded contrary points of view. But that is not our path. We do not assume that any human institution, including the Catholic Church, has a monopoly on truth. Especially when it comes to law and public policy, the Church encourages prudential judgment and respects the expertise of others in translating values into policy. Moreover, we embrace ideals of academic freedom in our encouragement of intellectual exploration. As I say when describing our Catholic identity to students, we are always Catholic, but we are not only Catholic. We welcome the expression of values and the sharing of insights from all traditions, while not neglecting the Catholic Intellectual Tradition.

Rather, at the University of St. Thomas, we seek to foster a community that is diverse in every way, that consists of people who disagree passionately about matters of values and who draw their most deeply-cherished beliefs from a variety of backgrounds and traditions. What is distinctive for us is to celebrate this diversity and see it as an entry point to draw everyone together. As our Vision Statement defines community, “[w]e foster a diverse environment in which each student feels supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collective learning community.”

The crucial link that brings us together is a very intentional attempt to talk across the political, cultural, and religious divisions that plague our country. Our sense of community is a bridge, a search for common ground. In so doing, we discourage the demonization of different viewpoints or the presumption that those who disagree with us are acting in bad faith. At the same time, we encourage speaking truth to power and shedding light on uncomfortable realities and damaging attitudes that others might wish to avoid. Far more than is true at most other law schools, UST law students who espouse quite conflicting positions on legal and political issues are in conversation with each, attend programs sponsored by groups with a different perspective, and collaborate on ventures to to better understand alternative viewpoints and find a common ground if possible.

Continue reading

Setting the Record Straight: Fulton v. City of Philadelphia

This guest post was written by Professor David Smolin from Samford University’s Cumberland School of Law. Smolin is the Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law and Ethics.

Setting the Record Straight: Fulton v. City of Philadelphia

By David Smolin

As an academic who studies adoption, foster care, and children’s rights—and an adoptive parent myself—I am a bit surprised by some of the rhetoric surrounding Fulton v. City of Philadelphia. Understandably, lawyers have to make legal arguments—but often what gets lost are important facts that provide the context necessary to understand and evaluate these legal arguments. This is an important Supreme Court case, but not for the reason that some seem to think. This case will not affect the ability of same-sex couples to foster or adopt anywhere in the Country(same-sex foster care is legal in all 50 states). But it will have an important impact on the number of agencies and foster families available to care for foster children nationwide. Here are the three biggest misconceptions I have seen in how this case is discussed.

#1: Foster care is primarily about the recruitment and certification of foster parents.

Philadelphia has tried to keep the focus on certification, but that’s only one part of a more complex puzzle. Lost in today’s  discussion is the fact that foster agencies provide ongoing support for the families that choose to partner with them—and that many families choose a particular agency because its services and support system are different from that of other agencies. Some agencies hire staff with language and cultural competences to better serve Latino communities. Some agencies participate in training programs and certifications to better serve LGBTQ couples, youth, and families. Some agencies recruit through churches and can provide emotional and spiritual support to foster families who want an agency that understands and affirms their deep religious commitments. Fostering in partnership with a private agencies is not “one and done”—it is an ongoing process. Burnout is high for foster parents; it’s an arduous and emotionally-draining undertaking. But families will stick with it longer if they have the training, support, options for respite care, and help they need. Agencies matter. They are not simply identical widgets churning out foster parents. They each play a unique role in a diverse, healthy child welfare system.

#2: Home studies require mere pro forma box-checking.

At oral argument in Fulton, the Supreme Court asked a few questions suggesting a misunderstanding of a foster care home study (the process by which families become certified to care for a foster child in partnership with a specific agency). For example, one Justice asked whether Catholic Social Services could certify foster parents without evaluating their marriage, while another asked whether Catholic Social Services could perform a same-sex home study but include a disclaimer expressing their disapproval of the relationship. I see several problems with this line of thinking.

First, home studies are far more personal, intimate, and invasive than most imagine. Social workers conducting home studies go far beyond inspecting the physical residence. Home studies focus on the relational aspects of a prospective foster or adoptive family, including the marriage or intimate partnership, relationships with children, extended family, community, friends—potentially even aspects of a couple’s sex life. “Sexual orientation cannot be ignored in the assessment process, because an individual’s sexuality is an aspect of who they are as a total person and will impact on their life as a parent.” (https://www.researchgate.net/publication/6301781_Assessing_lesbian_and_gay_prospective_foster_and_adoptive_families_A_focus_on_the_home_study_process)

Because foster children typically come from a background of trauma, a foster or adoptive home must be relationally solid enough to absorb the difficult behaviors common with traumatized children An in-depth evaluation is necessary to ensure that agencies are entrusting vulnerable children only to stable, safe, and emotionally healthy foster families. Anything less than a thorough evaluation could endanger foster children, and could put an agency’s license at risk—when a private agency approves a foster parent, it is “vouching” for that parent’s home, and adverse outcomes call the agency’s abilities and judgment into doubt.

For this same reason, the belief that if the government shuts down a faith-affirming foster agency, all its foster families would simply “transfer” agencies is misguided. There is potential loss and disruption to foster families in losing a trusted partner in their foster care journey and adjusting to a new social worker who doesn’t understand their case or their foster care history. The recognition that their agency has lost its role precisely because it adheres to a faith shared by the foster parents would create a disincentive to continue as a foster parent.

The process of recertification (by which a foster family may, in some cases, partner with a new agency) may also serve as an additional disincentive to continuing, even more so if foster parents fear that the same criteria applied to excluding their former agency will eventually be applied to them as foster parents. Hence, one cannot assume that all existing foster parents would go through this process of transferring and being recertified by a different agency. Losing any qualified foster parents would lead to placement disruptions and would harm the foster children in their care.

Second, asking objecting faith-based agencies to perform home studies for same-sex couples with a “disclaimer” stating that the agency doesn’t endorse the couple’s relationship is a non-starter.As explained in #1 above, when foster parents partner with a foster agency, this results in an ongoing relationship between the agency and the foster parents. Many agencies will regularly check in with their foster parents. It is crucial that this is a relationship of trust and support. Foster parents must feel comfortable talking frankly with their agency, flagging any potential problems, and asking for help when it is (inevitably) needed.

The idea that a couple would want to engage in a partnership with an agency that cannot affirm their marriage defies logic.Philadelphia even seems to understand this, telling prospective foster parents to find an agency that is the “best fit” for them.

#3: Alleged dignitary harms to adults are more important than the best interests of children.

Let me say this first: regardless of the outcome in Fulton, same-sex couples will still be allowed to—and encouraged to—foster and adopt in all 50 states. With that said, an undue focus on dignitary harms for foster parent applicants obscures what is in the best interest of foster children.

Philadelphia and the ACLU argue that the hypothetical referral of a same-sex couple from Catholic Social Services to another nearby foster agency (there are close to 30 private agencies in the City) justifies completely excluding this agency from the foster care system. This means that all foster families whopartner with Catholic Social Services will have to be recertified (see #2) and that Catholic Social Services’ decades of experience and unique ability to recruit foster families from Philadelphia’s Catholic community will be lost.

I see at least two problems with this argument. First, there are adult dignitary harm on both sides. The dignitary harm a same-sex couple might face from potentially being referred to another agency (remember, no same-sex couple had actually approached Catholic Social Services seeking to foster), or which occurs simply from knowing that Catholic Social Services is allowed to continue its historical role, is countered by the dignitary harm women like plaintiff Sharonell Fulton experienced when the city government told her that it was closing down the foster agency with which she has partnered for over 25 years. Knowing your agency was shut down because it shares your faith is also a dignitary harm.

Second, the government is placing these dignitary harms to adults above what is in the best interest of children—namely, to maximize the number of foster parents available to serve children in need. This misses the point of who a foster care program is meant to serve: children in need, not potential foster parents.

On this last point, I have not seen any convincing evidence that excluding faith-based foster care agencies increases the number of homes available for foster children in need. In fact, some evidence indicates that faith-based agencies can recruit families that others can’t and provide wrap-around support services which help foster parents serve longer. Much of this evidence is outlined in several Supreme Court amicus briefs, including my own.

What is more, result-orientated attempts to argue otherwise miss the mark. For example, two professors purport to find, based on “preliminary” analysis of data, and interviews with professionals perhaps selected or self-selected for sympathetic viewpoints,that excluding a faith-based agency in Boston did not have any negative effect on the child welfare system. Their eagerness to come to conclusions based on their admittedly “preliminary” analysis suggests that they began with a preferred conclusion and then went looking for data in support.

For example, as evidence they claim that the number of “days in care” (i.e. the total number of days a foster children spends in a foster home) “slightly decreases” after the agency was shutdown. Even assuming the numbers are accurate, a decrease in the number of “days in care” may be either a positive or a negative child welfare outcome. The number of “days in care”could drop because of a shortage of foster care parents to provide such care, because children are being returned inappropriately to abusive and neglectful homes, or because children “aged out” of foster care. It could also result from unrelated changes in the community, particularly because the result is one of “slightly” decreasing. Simply put, a decrease in “days in care” without more doesn’t tell us much of anything about the health of a child welfare system. No wonder this analysis was presented as “preliminary” by the authors. It is incomplete.

Even if one credited the authors’ conclusions, it is telling that they admit: “None of this is to say that things could not turn out differently in another context where a transition is managed less well.” This is quite an admission in a context where child welfare systems notoriously are not managed well, with the majority of states having experienced a federal court consent decree due to chronic mismanagement. One cannot count on a seamless and well-organized transition in child welfare systems which have been known to literally lose track of the location of children in care, with one study finding more than 60,000 children listed as missing in America’s child welfare system since 2000.

*  *  *

Looking at Fulton from the perspective of what is best for current and prospective future foster children, it is easy to see why excluding faith-based agencies from the foster care systemsolely because of their religious objections to same-sex marriage is a bad idea. The child welfare systems in the United States arechronically overwhelmed and frequently mismanaged and need all the help available from diverse elements of society, including the religious agencies and persons who have throughout the history of the system provided critically important services and homes for children. In this context of constant crisis for America’s foster care children, valuing the dignitary interests of some (but not all) impacted adults, above the needs of traumatized, abused, abandoned, and vulnerable children, would be a tragically unjust choice.

​I would add, as I stated in the Statement of Interest in a Fulton amicus brief, that I support “both the inclusion of LGBTQ persons as foster and adoptive parents, and also … the inclusion of religious agencies and religious adoptive and foster parents, including those whose religious beliefs do not accept same-gender marriage.” America’s children really do need all of us, and the adults have to figure out a way to work together toward that end.

Big Tech is a problem - Amazon's termination of service to Parler is not

Like many Americans, I'm concerned about the power Big Tech wields over our economy, over the ways we obtain (and are influenced by) information, and over our personal data. That said, Amazon’s termination of Parler from its web-hosting service after the attack on the U.S. Capitol appears to have been sensible and legal. Yesterday a federal district court judge rejected Parler’s request for a preliminary injunction, and it may be helpful to summarize the judge’s decision before the legal merits get spun beyond recognition in the never-ending tumult of our culture wars.

The facts: starting in mid-November, Amazon began notifying Parler of problematic content on its platform. (I won't offer examples of the many posts encouraging violence against specific individuals, but you can see for yourself if you search for Amazon's response brief to Parler.) After the U.S. Capitol attack on January 6, content encouraging violence continued to grow on Parler. The Parler CEO acknowledged a backlog of 26,000 posts that violated its community standards yet remained on its service. On January 9, Amazon announced that it would suspend Parler’s account, and Parler sued.

Note that this case has nothing to do with the First Amendment, which applies only against the government, not against a private company like Amazon. Parler did not even allege a First Amendment violation. So what did Parler claim?

First, Parler alleged that Amazon’s termination of service violated the Sherman Act because it was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” To prove a violation of the relevant portion of the Sherman Act, Parler needed to show 1) the existence of an agreement; and 2) that the agreement was an unreasonable restraint of trade. Unfortunately for Parler, there was no evidence of an agreement between Amazon and Twitter to harm Parler in order to help Twitter. Contrary to Parler’s allegation, Amazon does not currently provide online hosting services to Twitter. According to the court, Parler has provided “only faint and factually inaccurate speculation.”

Second, Parler alleged that Amazon breached their contract by failing to give Parler 30 days’ notice before terminating services. Parler did not deny that content on its platform violated Amazon’s Acceptable Use Policy, and Parler failed to note that the contract permits Amazon to terminate immediately in the event of a breach.

Third, Parler alleged that Amazon intentionally interfered with its business expectancy, which requires evidence of interference with its business “for an improper purpose or [using] improper means.” The court ruled that Parler raised no “more than the scantest speculation” of improper purpose, and the evidence suggests that Amazon’s action “was in response to Parler’s material breach.”

The court concluded that “the likelihood of Parler prevailing on its claims is not a close call,” as Parler’s allegations “are both inaccurate and unsupported.” Further, the court “rejects any suggestion that the public interest favors requiring [Amazon] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” Parler’s motion for a preliminary injunction was accordingly denied.

We need to sort through difficult issues regarding the power that a few large technology companies have accumulated, and we need to try to do so without reflexively grabbing for the familiar lenses provided by our highly partisan political environment.  Catholic legal theory should have something to say about all this. Amazon's decision to stop hosting Parler is not the proper vehicle for that conversation – based on the evidence offered, the decision appears to have been morally prudent and legally justified.

Open Letter to Pope Francis on Prenatal Justice

A moral theologian urges Pope Francis to bring his forceful defense of prenatal children into a more central place of his pontificate. It is time to stand up firmly and forcefully for their dignity in a culture which increasingly seems them as disposable thing that can be violently discarded.

https://www.thepublicdiscourse.com/2021/01/73754/

"What Joe Biden . . . owe[s] John Courtney Murray."

I don't think this piece, in America, is actually about what is in the title.   I am, to be sure, a fan of John Courtney Murray's work, and I agree with the piece's author, Prof. Massimo Faggioli (Villanova) that:

One of Murray’s most important contributions . . . is the principle of the distinction between state and society, and the conviction that the state is limited in its role toward society. “State is distinct from society,” he asserted, and “government submits itself to judgment by the truth of society; it is not itself a judge of the truth in society.”

Faggioli goes on to say that "[i]n the present moment, Murray’s assumption must be revised: Our societies have become more pluralistic and more secular, while political identities have often become more strongly linked to religious belief." I'm not sure what this means.  That is, it's not clear to me why these observations about our "societies" and "identifies" have any implications for Murray's emphasis on the aforementioned "distinction." 

In any event, the distinction matters.  Faggioli, strangely, seems to think that the threat to this distinction is (again) "the culture wars" or the asserted emphasis by "culture war[riors]" on "non-negotiables."  In fact, though, the most potent challenges to this distinction, and all that it protects and facilitates, are coming (and will increasingly come) from "progressives" who believe that the state should insist on, and use its various tools to bring about, congruence between (a) the egalitarian rules that constrain state action and (b) the practices, norms, and commitments of non-state communities and institutions.  In other words, the "healthy secularity" that Murray supported never meant, for Murray, that the Church should welcome being re-made by licensing and funding conditions.

How should Christian faith shape our political engagement?

Whether today’s inauguration causes you to feel more hopeful about our nation’s future or more anxious, I hope Christians can pause for a moment to reflect on the role that our faith plays in our political engagement. If we’re not happy with the voices that loudly proclaim direct knowledge of God’s will for American politics (often arising on the right), and we’re not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what’s the path forward?

 

My favorite line from Abraham Lincoln’s second inaugural address – delivered near the end of a brutal and bloody war – was his observation that both sides “read the same Bible and pray to the same God and each invokes His aid against the other.” It was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the conflict. Instead, he recognized that those on the other side were just as sincere in their faith as he was.

 

Did that humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict.

 

The answer today is not, as some insist, to exclude commitments grounded in faith from our political discourse. The answer is to articulate the public relevance of our faith commitments in terms that reflect humility and empathy. Three helpful questions emerge from the powerful example provided by Martin Luther King Jr.

 

First, is faith being invoked as a conversation-stopper? Dr. King’s faith was inseparable from his public witness. Faith was not out of bounds for him, but his faith was not invoked to shut down dissent or signal an us-versus-them worldview. His opposition to segregation was grounded in his belief that “a just law is a man-made code that squares with the moral law, or the law of God.” However, he went on to explain that “an unjust law is a code that a majority inflicts on a minority that is not binding on itself.” King did not ask his listeners to embrace the religious foundations of his truth-telling (though many did); he asked them to embrace the resulting moral claims, regardless of how one arrived at them. He brought his faith into the public square without a trace of embarrassment, but it was the beginning of the conversation, not the end of it.

 

Second, is faith being invoked as a rationale for self-righteousness? Dr. King’s practice of Christian love did not always make even his own followers comfortable. He challenged his followers to overcome their fears and refused the easy path of telling them what they wanted to hear. Even within the black community of his own city, Dr. King showed that love is not passive – it pushes, it stretches. Dr. King worked to motivate the community to organize and persist in the Montgomery bus boycott, and he encountered significant resistance to his efforts initially. In loving others – friend or foe, black or white – Dr. King did the work that allowed him to see the world through others’ eyes, but he insisted that they expand their view to encompass a truer, less isolated vision of their own well-being.

 

Third, is faith being invoked in ways that foster hatred of our opponents? Dr. King preached and practiced love for his enemies. Loving the white man, according to King, was in part a response to the white man’s needs, for the white man’s personhood was greatly distorted by segregation, and “his soul greatly scarred.” Dr. King’s advocacy was always a call to restore the relationships that were only possible when black Americans and white Americans stood equal before the law. His invocation of faith made clear that even white segregationists were worthy of the beloved community.

 

If we seek to build the beloved community over the next four years, how should Christian faith shape our political engagement? If we aspire to follow the examples of Lincoln and Dr. King, we cannot accept the reflexive demonization that increasingly seems to shape Americans’ struggle for justice. Political conflict is inescapable, but authentically Christian engagement must recognize that justice is not ultimately about power – it’s about relationship.

The Crown and the Courts

David Flatto joined the First Things podcast to discuss his recent book The Crown and the Courts: Separation of Powers in the Early Jewish Imagination.

https://www.firstthings.com/blogs/firstthoughts/2021/01/laws-kings-judges

Journal of Law and Religion Volume 35, Issue 3

https://www.cambridge.org/core/journals/journal-of-law-and-religion/latest-issue

Are we willing to walk with Dr. King past 1964?

Today are we willing to celebrate the Martin Luther King Jr. of 1966, or are we unwilling to walk with him past 1964?

Dr. King offers powerful lessons for today, but those lessons may recede from view as we gradually construct a tamer, less offensive vision of him. Since his assassination, he has become almost universally admired in American society as a model of courage and dignity. Not coincidentally, he is now seen as much less threatening and disruptive to the status quo than he was in reality. We tend to focus on the Dr. King of 1964 rather than the Dr. King of 1966. By way of illustration, I’ll share a personal story.

 

I went to college in the south, and my roommate was from a small town in Louisiana. With the self-righteousness of an 18-year-old who had grown up in the “enlightened” north, I once started to lecture him about racial injustice in his state. He listened for a while, then he asked how many black students were in my graduating class at a large public high school in Chicago’s suburbs. I was able to count them on one hand. I knew that black people lived on the south side of Chicago, not in my suburb. So? That’s just the way it is. Now let’s get back to talking about racism in the south.

 

My own obliviousness to the full legacy of American racism reflects the reality that also limited the long-term impact of Dr. King’s work. As with many areas of moral judgment, we’re much quicker to point fingers than we are to engage in deep soul-searching and corrective action. Indeed, when the critical gaze turns to us, we push back powerfully.

 

Witness the changing public reaction to King himself. From August 1964 to August 1966, Gallup surveys showed that the percentage of Americans who viewed King unfavorably jumped from 38% to 63%.

 

In the years leading up to 1964, King had led the Montgomery bus boycott, spoke at the funerals of the girls killed in the Birmingham church bombing, wrote his Letter from a Birmingham Jail, brought worldwide attention to Bull Connor’s regime attacking peaceful protestors with police dogs and firehoses, and gave his “I Have a Dream” speech in which he envisioned a day when his children would one day be judged not by the color of their skin, but by the content of their character, and called out in particular the states of Georgia, Alabama, and Mississippi.

 

So what happened between 1964 and 1966? King publicly opposed the Vietnam War for the first time, which could explain part of the shift in public opinion against him. I think the bigger change, though, was that King shifted his gaze to northern cities. He moved to Chicago and launched his first civil rights campaign outside the deep south. I grew up hearing quite a bit about the civil rights struggle in Selma, Birmingham, Montgomery, and other southern cities.

 

I was an adult before I learned about the marches King led in Chicago, where he encountered what he described as the most hostile crowds of his life. Rather than target a southern society that advertised its segregation policies for all to see, he now protested deeply embedded real estate practices, such as steering and redlining, that kept blacks locked in northern ghettos. In 1965, he predicted, “If we can break the system in Chicago, it can be broken any place in the country.” He didn’t break the system, and we still haven’t broken the system.

 

It’s easier to like King when he helps me feel morally righteous and confident in my place on the right side of history. I would never refuse service to someone based on the color of their skin. I would never turn the dogs loose on peaceful protesters.

 

We’re less comfortable with King – I’m less comfortable with King – when he starts asking what I’m doing about the inequality in my own community.

 

I encourage us to reflect on Dr. King’s most powerfully persistent question: How will we use our gifts to help bind our nation’s wounds and build the beloved community?

In reckoning with race, history, hard questions, and our own stories matter

As we reflect on the life and ministry of Martin Luther King Jr., my friend Yohuru Williams and I have published an op-ed in today's St. Paul Pioneer-Press about how insights from our experience teaching "Race, Law & U.S. History" may help guide difficult conversations in the days ahead. An excerpt:

When we portray progress on racial justice as a simplistic good-versus-evil battle, we are setting ourselves up for disappointment. Progress requires us to recognize the scourge of racism, but it also requires our best thinking to discern what will prove most effective in addressing it in a complicated world. Cartoonish renderings of complex issues only serve to further divide rather than create the opportunity for constructive engagement around important issues that deserve not only our full attention but the best of our energies.

Teaching in Person at a Catholic Law School During the Pandemic (Part Two: Educational Quality)

This is the second in a series of three posts about my experiences teaching at a Catholic law school in person during the pandemic. The first post was about safety for teaching in person. This second post is about educational quality. And the third and final post next week will be about fostering community in challenging times.

Premise of Superior Quality of In-Person Teaching:

I begin this post by forthrightly stating my premise that teaching in a classroom to students who are physically present to each other and to the professor is superior. I genuinely believe that this is the ideal setting for legal education. Of course, a pandemic can make a mockery of the ideal.

Even in normal times, I acknowledge exceptions to this premise, such as a special unit of one or two credits for subject that by its nature requires less of a synchronous dialogue. And there is value in an online course designed for students who are unavoidably remote, such as during a summer session for students working elsewhere. For a fully online course, assuring educational quality requires precise organization, development of asynchronous online elements to engage students, use of technology with video and interchange elements, etc. As the experts and those who teach online regularly know, a fully online class demands intense prior planning and rigorous attention to best practices.

But for the typical doctrinal law school course, in-person instruction is better. And for the course that primarily involves a back-and-forth dialogue between the professor and students, in-person instruction is essential to keep the entire class engaged.

And we have good evidence for these conclusions from this past spring. A survey conducted by Thomson Reuters, “Law Schools and the Global Pandemic,” found that a large majority of law students found it difficult to stay engaged with fully online courses, with 39 percent finding it very difficult and 23 percent agreeing it was difficult. Unfortunately, the same survey showed that only about as third as many professors, 14 percent, recognized this as a serious problem. From the professor’s perspective, he or she may have had a satisfying discussion online with the students who were called on for that day and then subjectively judge the day’s class to be a success. But the professor didn’t realize that a larger group of students were tuning out.

As one student told me, online classes during the pandemic have been “prime territory for distraction.” We have to remember that our students who are accessing a class at home, rather than being situated in a classroom designed for instruction, have multiple distractions that are calling constantly to them.

But our ideals cannot always be realized. We now are struggling with the Covid pandemic, which demands creative accommodations and empathy for the difficulties so many face. The hard reality is that not everyone can be in person, whether a professor or a student, even if that state, city, or university permits in-person instruction. We must remember that many of us simply do not have such a choice, either by reason of their own health risks or those of loved ones. And if anyone has to be online, there are reasonable arguments that being fully online avoids some of the complications of dividing between those students who are in-person and those who are remote. We all long for the return of normalcy, where these questions are not before us.

I focus here on those of us who are fortunate to have a choice and who thus are able to teach in person to students who can attend in person. I contend here that the complications can be overcome and that high quality education can still be achieved. In other words, I believe if you can do it safely, then it is worth the candle.

For those of us able and dedicated to continuing in person instruction, we had to make two key accommodations: (1) a hybrid setting in which some students were in person and others online, and (2) social distancing and mask-wearing for those in person. Let me speak to each.

Challenges of the Hybrid Combination of In-Person and Online:

I know of at least one law school that told incoming first-year students they must be in person for the fall or accept a deferral to the following year. But of the law schools that offered any in-person instruction, most allowed students to choose whether to attend in person or simultaneously attend remotely. What then of the quality of instruction for those who are in person, while the professor is juggling responses to online students as well? And what of the quality of instruction for the remote students who are listening in on the in-person class? For the first question, the impact on those in-person by the hybrid format proved to be minimal. For the students online, the situation was definitely more complicated, but in the end I think the question whether educational quality was maintained received a qualified “yes.”

For my each of my two Civil Procedure sections (that is, with the main section broken into two during the pandemic), we began the semester with approximately 38 students in person and 6 online. For those 38 attending in person, the simultaneous participation of a small number online did not appear to have any impact. So for in-person students, the quality question goes to the impact of social distancing and mask wearing (discussed below), rather than how they received instruction. Since instruction was directly from the professor, with participation by others students who were also physically present, things were much the same as usual. As I noted in the first post, students repeatedly commented how much they appreciated the opportunity to attend law school in person, despite the accommodations that had to be made to make it possible during the pandemic.

For the smaller number of students who were online (because they could not safely attend in person), a hybrid setting was more of a challenge. The university sought to address this by setting up a second monitor for the professor in the classroom on which would appear the online students. For me with my approach, that proved unworkable and so I quickly abandoned it (although I understand other colleagues found it helpful). I had all students — both those in the classroom and those who were remote — sign in to Zoom so that we could all participate in polling questions. As a consequence, the second monitor showed everyone, not just the online students. Moreover, the second monitor was set in front of me so that I could see it, which meant that its placement physically blocked my view of several students in the classroom. In addition, having two monitors awkwardly affected how the cursor moved, jerking between the two monitors. So I turned it the second monitor off and moved it away.

Another technological problem was that online students had difficulty hearing what the in-person students were saying. For the most part, online students had no difficulty hearing me, as long as I stayed behind the podium (which during the pandemic was expected anyway). But early on, it was nearly impossible for online students to hear the students in the classroom. The university adjusted the microphones in the classroom, which helped but remained imperfect. I tried to remember to restate the questions or frame my answer for the benefit of the online students, which online students indicated got better as the semester wore on.

Two technology features also enhanced educational quality for online students especially, but also for in-person students:

Continue reading

Stare Decisis, Justice, and the Rule of Law

I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.

I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.

So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.

But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.

Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.

 

Continue reading

A question for our polarized age: which riots should upset us more?

The most frequent objection I’ve seen to expressions of concern about last week’s attack on the U.S. Capitol is some version of, “Why weren’t you so outraged about all the riots last summer?” The insinuation is that those who were upset by last week’s events don’t want to talk about the riots because they are associated with a cause they support (racial justice), while the U.S. Capitol attack is associated with a cause they dislike (Donald Trump). It’s a fair question – here’s my answer.

 

To begin, I would not endorse a blanket assertion that the U.S. Capitol attack was “worse” or “more harmful” than last summer’s riots. If you are an immigrant who had worked for years to build a small business on Lake Street in Minneapolis, only to see it destroyed in one night by arsonists, and you then come to learn that insurance won’t come anywhere close to covering the cost of rebuilding, the U.S. Capitol attack sure doesn’t feel worse. In the Twin Cities, more than 1,000 buildings were damaged or destroyed after George Floyd’s death. The bulk of these losses occurred in neighborhoods inhabited by working-class people of color and recent immigrants. Many residents who do not own cars were left without easy access to grocery stores and pharmacies. Rioting and property destruction are wrong and should be condemned, period.

 

That said, the attack on the U.S. Capitol was dramatically worse in one important respect: it was the culmination of a weeks-long challenge to the rule of law by the President of the United States. I reach this conclusion for four reasons:

 

First, no one is above the law. The rule of law prohibits arbitrary power, which means that the lawgiver also must be subject to the law. That’s why the peaceful transfer of power is so important: by willingly stepping down from power and cooperating in the transition to his successor, the President honors the duly enacted procedure for deciding elections, thereby showing that he is also subject to the law. Yes, it’s fine to challenge the election in court, but President Trump did more than that, working to discredit our institutions in the eyes of the public in order to benefit himself. Months before the election, President Trump was already signaling that he was not going to give up power without a fight. To the surprise of no one, he is not going to concede the election or attend the inauguration. That’s not just bad manners – it’s in significant tension with the rule of law.

 

Second, we cannot change laws retroactively in order to maintain power. The rule of law requires that laws are prospective and consistent, which allows laws to guide conduct. (E.g., the legislature can’t punish you by passing a law criminalizing something you did two weeks after you did it.) Many of the President’s “stolen election” claims challenged practices that had been explicitly authorized by state legislatures and election commissions in order to facilitate voting during the pandemic, long before November 3. As courts pointed out, the Trump campaign had plenty of time to challenge those procedures before the election but chose to wait until after he lost. Trying to change the election rules after the results are known is not just being a poor sport, it’s violating a fundamental premise of the rule of law.

 

Third, words matter. The rule of law’s viability is never guaranteed; it requires the support of each generation of Americans. As such, symbolism and rhetoric matter a great deal. President Trump and his team have been claiming that our election system is corrupt, that everyone who disagrees with his fraud claims is either a coward or dishonest, and that true patriots will “fight” to keep him in office. Rallying his supporters as Congress was (literally) engaged in the peaceful transfer of power, and telling the crowd to march to the Capitol to continue the fight, that “we will never concede,” and that if they give up, the “country will be destroyed,” is dangerously irresponsible rhetoric for a leader tasked with stewarding the rule of law.

 

Finally, the rule of law will not last long in a country where willful ignorance is a successful political strategy. Since November 3, President Trump has let loose with a steady stream of falsehoods about the election. The “stump speech” he developed about election fraud was filled with claims that had already been disproven repeatedly. Even at the January 6 rally, he criticized Vice President Pence for not rejecting the electoral votes from several swing states. The Vice President does not have that power, and no reasonable person who understands the Constitution believes he does. Even Pence recognized that he did not have that authority (which then led people at the Capitol to chant, “Hang Mike Pence!”). If we care about the rule of law, we have to care enough to spend time learning about our system of government. The ease with which our President misled his followers is deeply concerning.

 

And the riots in Minneapolis this summer? Yes, they did horrendous damage to our city and the livelihoods of many residents. They did not threaten the rule of law. Our elected leaders repeatedly condemned the rioters. Hundreds of people were arrested. Law enforcement officials have spent thousands of hours scouring surveillance video, and serious charges for arson and destruction of property are still being filed. The criticism of our leaders in Minnesota is that they waited too long before intervening with significant force (criticism that I find reasonable), not that they encouraged – much less invited – the rioting.

 

So.

 

Last summer’s riots were heartbreaking, especially to the extent that they distracted Americans’ attention from the hundreds of totally peaceful protests that urged us to take racial injustice seriously.

 

Last week’s attack on the U.S. Capitol was heartbreaking, especially to the extent that it is a harbinger of dark days to come for a country that may not recognize the rule of law's fragility.

 

In our broken world, both are unmistakably true.

Whither Dialogue After the Capitol Riot?

My love letter to my country in the form of a brief essay: "Whither Dialogue After the Capitol Riot?" has just been posted on Emory University's Center for the Study of Law & Religion Canopy Forum.  It includes a few practical ideas for building a conversational bridge in the midst of the currently intense political polarization.  Suggestions include focusing our efforts on "listening to understanding", and cultivating a relationship of trust with a "buddy" who can help us to hear how we might sound in the ears of someone on the "other side."   

 

Fifth Annual NDLS Religious Freedom Moot Court Tournament

Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021.

Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

Tournament takes place: Friday, April 9, 2021 through Sunday, April 11, 2021 Formal registration opens: January 21, 2021

Tournament Fee: $300 per team Prompt released: February 1, 2021 Briefs due: March 27, 2021

If you have any questions or would like to reserve space for your team(s) before formal registration opens, please contact Natalie Piazza, Tournament Director, at [email protected]

We need to talk about QAnon

It may be lost in the tumult over a second impeachment, but don’t miss this news item: a new poll shows that 30% of Republicans have a favorable view of QAnon. This is a serious problem. In fact, last week’s insurrection would almost certainly not have happened absent the rise of QAnon. It's an easy punch line, but it’s no joke – we have to talk about QAnon.

 

QAnon is an internet-driven movement that traffics in wild conspiracy theories, centered on a belief that Donald Trump is working to bring down a global pedophile ring run by Hollywood stars, Democratic politicians, and government officials. The pedophile ring has been trying to undermine Trump with the help of media and “the deep state,” and QAnon followers view Trump as a messianic figure who might be the “Q” figure responsible for the anonymous information drops that drive the group. A wave of arrests to bring the pedophile ring down and reveal a massive trove of secrets – i.e., “the storm” – is always predicted to be just around the corner, but it never arrives. None of Q’s predictions have come true. (If you’re aware of one that has, please let me know.)

 

Given how widespread it has become, QAnon has a shockingly short history. In a 2016 precursor, a man was arrested with a gun inside a Washington D.C. pizza place that was the center of an online conspiracy theory known as Pizzagate – the restaurant was supposed to be the site of a child-abuse ring run by Hillary Clinton. (Turns out it wasn’t.) QAnon itself originated the following year on the anonymous message board platform 4chan.

 

After a few years on the political margins, QAnon burst into the mainstream this year. During the pandemic, the popularity of its websites and social media accounts exploded. The conspiracy theories expanded beyond the global pedophile ring to encompass conspiracies about COVID, vaccines, election fraud, and anti-Semitic accusations regarding government control.

 

Several GOP candidates openly embraced QAnon during their campaigns, and two were elected to Congress. Q signs were popular at Trump rallies this fall, and among those who attacked the U.S. Capitol last week. The two women who died during the attack were QAnon followers. The man who led rioters into the Senate wore a shirt with a giant red, white and blue Q. As the Washington Post reports today, “the fervent online organizing seen ahead of last week's assault has begun building again,” and a “QAnon group on Gab has grown by more than 40,000 members since the failed insurrection.“

 

If you’re a Republican, the rise of QAnon is a serious problem. There is nothing remotely conservative about the conspiracy theories espoused by the group, and they discredit the party, much to the chagrin of rational Republicans. Many GOP stalwarts have tried to discredit the movement. After President Trump refused to criticize QAnon, Senator Ben Sasse said, “QAnon is nuts.” Jeb Bush suggested that “nut jobs” should have “no place in either party.” George W. Bush’s press secretary and Fox News contributor Ari Fleischer called QAnon supporters “a bunch of wackadoodles.”

 

If you’re a Democrat, the rise of QAnon is a serious problem. Even though only 5% of Democrats have a favorable view of QAnon, now is not the time for those on the left to feel self-righteous. In all likelihood, Republicans are more prone to the lure of QAnon because they feel marginalized from an increasingly left-leaning American elite (including corporations, entertainment, media, and academia), and conspiracy theories help us feel significant and in control. There is nothing to prevent similar dynamics from developing on the left in the future. This is a human problem, not a partisan one.

 

If you’re a Christian, the rise of QAnon is a serious problem. Though many Christian organizations such as the Gospel Coalition have denounced QAnon, calling it “a satanic movement infiltrating our churches,” the infiltration continues. A few days ago, a friend sent me a video of the pastor at an evangelical church in Minnesota talking publicly about the fact that President Trump will declare martial law this week, and that the pastor will be ready to join the coming war against Antifa, rifle at the ready. This is pure Q Anon conspiracy craziness. What struck me was the pastor's comfort spouting this nonsense in a publicly accessible video -- no effort to hide, to be anonymous; just a pastor purporting to guide his flock about what the Christian life entails. Though statistics are hard to come by, anecdotal evidence abounds that many Christians are being sucked into QAnon, which represents a betrayal of our faith’s commitment to minister to the world as it is, not as it exists in conspiracy fantasies.

 

If you’re an American, the rise of QAnon is a serious problem. The fact that a significant number of us have embraced conspiracy fantasies that are a stark disconnect from reality poses challenges on (at least) two fronts.

 

First, the most pressing issues we face in this world not only require collaboration across political boundaries, they also require a deep understanding of, and willingness to confront, reality. If many Americans are willing to believe that Tom Hanks is helping lead a global pedophile ring, we’re going to be hard-pressed to convince them that climate change or global pandemics are real.

 

Second, QAnon accelerates our growing tendency to view political disagreement in apocalyptic terms. Through the QAnon lens, our opponents do not simply disagree with us on tax rates or immigration policy – they are sexually abusing and selling children, then murdering witnesses to hide their crimes! What lengths would you go to in order to protect young children from being raped? As QAnon ratchets up the stakes of our good-versus-evil political battles, we will do anything to stop our enemies. That was painfully obvious last week at the Capitol.

 

QAnon is built on lies. It has and will continue to ruin lives. For it to have taken root in America does not speak well of our capacity for critical thinking. For Christians to be playing a central role in its rise is shameful. This is a challenge that will continue long past the Trump presidency, and we have to meet the challenge with clear vision and an unshakeable commitment to reality.

Teaching in Person at a Catholic Law School During the Pandemic (Part One: Safety)

Over the next week, I plan to post three observations from my personal experiences teaching — and teaching in person — at a Catholic law school during the pandemic. In today’s post, I’ll address the question of health and safety for faculty and students in an in-person classroom environment, while a virulent disease rampages through our society. In the next post, I’ll discuss effectiveness of education given the constraints of a hybrid in-person/online format and social distancing with masks. In the third post, I’ll discuss the unprecedented challenges during the pandemic of fostering a sense of community, which is a central part of our mission as a Catholic law school.

The bottom-line to this first post on the health and safety concerns is that we appear to have succeeded without exception in keeping the virus at bay in the classroom.

Like other universities and law schools, we deferred to each professor’s (and student’s) judgment as to whether appearing in the classroom was safe. For the law school, we ended up (for first-year students) with more than 80 percent of our course sessions being offered in person, through the voluntary choices of teaching faculty, including myself. Our mostly in-person availability for first-year classes proved to be very popular with incoming students, several of whom told me that it influenced their final choice among schools, especially as the other two law schools in the Twin Cities had moved almost entirely online.

The University of St. Thomas, and the law school, devoted the months since the pandemic lock-down in March to plan for returning to in-person teaching in the fall. The dedication of the administration, information technology experts, and support staff cannot be praised enough. They made sure that we had the necessary technology to simultaneously provide in-person instruction and include students who had to remain online. They prepared each classroom for the necessary social distancing and essential sanitation.

Continue reading

Have courts been avoiding the merits of Trump's "stolen election" claims?

Non-lawyers do not routinely read or understand court opinions, and that – I fear – has contributed to Americans’ embrace of baseless conspiracy theories regarding the election. I keep seeing “Stop the Steal” proponents assert that our courts have refused to address the merits of the Trump campaign’s claims. This is nonsense. Let’s look at what courts have actually done.

 

Take, for example, Trump v. Wisconsin Elections Commission, a ruling issued by federal district court judge Brett Ludwig. Judge Ludwig squarely addressed the merits of the claims, though the claims may be a bit less earth-shaking than you’d anticipate given the President’s rhetoric. The opinion makes plain that the wild conspiracy claims raised by Trump at rallies and on social media are quite different than the claims raised in court filings. The reason for this is not hard to grasp: when lawyers knowingly raise false claims in court, judges sanction them.

 

So what were the claims alleged in the suit? Trump argued that the court should “declare the election a failure, with the results discarded,” because the Wisconsin Elections Commission [WEC] violated his rights under the Electors Clause in Article II of the Constitution. That clause directs state legislatures to appoint presidential electors in a “manner” of their choosing. In Trump’s view, the WEC failed to appoint electors in the “manner” directed by the legislature because the WEC offered guidance on 3 issues: indefinitely confined voters (i.e. voters who use absentee ballots due to age, illness, infirmity, or disability), the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots.

 

The court found that this argument “confuses and conflates the ‘Manner’ of appointing presidential electors – popular election – with underlying rules of election administration.” Trump’s objections, according to Judge Ludwig, represent “disagreements over election administration,” not challenges to the “manner” of the state’s appointment of electors. If Trump’s reading of “manner” was correct, “any disappointed loser” could cast doubt on the election results simply by objecting to one of the many administrative rules necessary to carry out an election with millions of voters.

 

But the court did not stop there. Judge Ludwig ruled that, even if “manner” is interpreted to include election administration, Trump still loses. All the issues that Trump raises “are ones the Wisconsin Legislature has expressly entrusted” to the WEC by statute. In fact, “far from defying the will of the Wisconsin Legislature in issuing the challenged guidance, the WEC was in fact acting pursuant to the legislature’s express directive.” Further, if the issues were as significant as Trump claims, the court points out that “he has only himself to blame for not raising them before the election.”

 

But wait! Might this simply be evidence of a judge conspiring to steal the election? Not likely. Judge Ludwig clerked for a Reagan-appointed judge after law school, practiced law at a big firm in Milwaukee, was appointed by President Trump as a bankruptcy judge, and then was appointed by President Trump to the district court bench. Not exactly a leading candidate to join a global conspiracy to steal the election for Joe Biden.

 

This is just one of more than 60 election lawsuits that Donald Trump lost after his lawyers made their best arguments before judges from across the ideological spectrum. His claims of a stolen election were litigated fully and fairly – and they were rejected every time. If our democracy is going to remain viable, we have to pay attention to court rulings, not to nonsense spouted at a rally or on a You Tube video. When Trump's lawyers insisted that the rule of law must be followed, Judge Ludwig responded succinctly: "It has been.”

Notre Dame President Father John Jenkins calls on President Trump to commute upcoming executions

Citing the teachings of the Catholic Church, University of Notre Dame President Rev. John I. Jenkins, C.S.C., called today on President Donald J. Trump to commute the scheduled executions of death row inmates next week, including a woman on Tuesday, at the federal penitentiary in Terre Haute, Indiana.

Full article here: https://news.nd.edu/news/notre-dame-president-father-john-jenkins-calls-on-president-trump-to-commute-upcoming-executions/

Originalism and Its Discontents

I participated in this panel at the Federalist Society's annual academic conference last Friday. The discontent sampled here came largely from the non-standard direction, though not entirely. Perhaps of special interest for MOJ: I'm coming to think that Kevin Walsh and Jeff Pojanowski (among others) have hit on a correct insight that a crucial inflection point on the issue of discontent concerns the necessary relationship (or not) between originalism and legal positivism, something I touched on in my comments. Other discontent, raised by other commenters, involved the relationship of originalism and legal conservatism, and I thought it interesting to hear how other speakers conceived the former and the latter.

Christian realism and "Stop the Steal"

Because so much of the “Stop the Steal” movement – which culminated in Wednesday’s deadly attack on the U.S. Capitol – has been covered with a veneer of Christianity, I think our response has to include a dimension grounded in an authentic Christian understanding of the world. Among the many heart-breaking images emerging from this week were the “Jesus Saves” banners being held by rioters entering the Capitol, right alongside the confederate flags, nooses, and Holocaust sweatshirts. This followed weeks of “Jericho marches,” prayer meetings, and rallies premised on the idea that God ordained Donald Trump to serve eight years as President, and that those who stood in the way were attempting to thwart God’s will. So let’s talk theology for a moment.

 

Reinhold Niebuhr was a very influential 20th century theologian whose legacy needs to be reclaimed and relearned. Niebuhr was a leading figure in a tradition known as “Christian realism,” and his work aimed at recapturing the reality and relevance of original sin. He lamented modern society’s failure to recognize that, no matter how impressive its achievements, “there is no level of human moral or social achievement in which there is not some corruption of inordinate self-love.” We all have “a darkly unconscious sense” of our “insignificance in the total scheme of things,” and we perpetually strive to compensate for that insignificance. Human conflicts are thus not simply about survival; they are, according to Niebuhr, “conflicts in which each man or group seeks to guard its power and prestige against the peril of competing expressions of power and pride.”

 

Niebuhr was a significant influence on Martin Luther King. In King’s words, “Niebuhr made me aware of the complexity of human motives and the reality of sin on every level of man’s existence,” including “the glaring reality of collective evil.” King was optimistic about the arc of history, but his optimism was not the sort that allowed him to sit back and watch society’s natural tendencies work themselves out over time. King credited Niebuhr’s work for helping him see liberalism’s sentimentality and false idealism. He saw that humans have an uncanny ability to “use our minds to rationalize our actions,” and he worked to keep the capacities for both good and evil in clear view. King knew that the capacity for good made his struggle for civil rights possible, but the capacity for evil made the struggle necessary.

 

So what insights does this hold for us today?

 

First, if we refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. If our initial response to news of Wednesday’s atrocities was to conclude, “Antifa must have dressed up as Trump supporters and infiltrated the protest,” we have lost sight of what the Bible teaches us about human nature. This was not a problem that just emerged out of the blue on Wednesday. When Donald Trump observed, at a campaign stop in 2016, that “I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose any voters,” he was tapping into a human tendency seen clearly by Niebuhr and King: the willingness to overlook our own tribe’s evil because we seek to maintain our significance.

 

Second, Christians should be as committed to grasping reality as anyone. We are not called to escape to a fantasy of the world as we wish it would be; we are called to engage and minister to the world as it is. That requires us to invest time and effort in understanding reality, not a tribal narrative presented in You Tube videos and anonymous internet messages. The fact that Christians have a leading role in Q Anon and other outrageous conspiracy theory movements is a scandalous departure from the dictates of our faith.

 

Finally, when Christians stand up to oppose the rhetoric and behavior of “Stop the Steal” proponents, we are not being partisan. We are attempting to reclaim the real-world relevance of the Gospel. The pitfalls warned about by Niebuhr and King apply to liberals and conservatives alike. Indeed, when King wrote his “Letter from a Birmingham Jail,” he was not writing to conservatives – he was writing to moderate liberal pastors. Those pastors supported many of the goals of King’s movement, but they had urged King to be patient, to stop being disruptive, and to give white residents time to embrace the movement’s goals gradually, over time. King called out the liberals for being unwilling to recognize reality: that white people would not change the deeply unjust system without disruption. Sin is a human issue, not a partisan one. When Christians avoid speaking out about this for fear that they’ll be accused of partisanship, we are forsaking a noble tradition of speaking truth to power.

From Four Years Ago: With Donald Trump, The Wolf Comes as a Wolf

https://mirrorofjustice.blogs.com/mirrorofjustice/2016/02/with-donald-trump-the-wolf-comes-as-a-wolf.html

Standing up for the rule of law

I'm sharing a message I sent to our law students tonight -- this is a crucial time to stand up for the rule of law.

***************************************

Dear students,

 

The scenes from Washington D.C. today have been distressing, to say the least. The U.S. Capitol building was overrun for the first time since the War of 1812. Crowds have been whipped into a frenzy by leaders spreading disinformation and baseless conspiracy theories in order to disrupt the peaceful transition of power. These tactics are direct assaults on our democracy, and as the leader of a law school dedicated to the “search for truth through a focus on morality and social justice,” I condemn them unequivocally. We are an academic community committed to the free and robust exchange of ideas – from all political perspectives – but we are also committed to championing and defending the rule of law, and we must not hesitate to speak out when it is under attack.

 

As we navigate this unbelievably tumultuous time in our history, I think about you. I wonder how I would feel to be embarking on my legal career as our country is convulsed by a pandemic, racial injustice, political turmoil, and rampant anxiety about the future. I’d probably feel pretty stressed. I might have a hard time concentrating on my reading. I might be angry about the behavior of some of the lawyers and leaders I’m supposed to look up to.

 

Words of encouragement may seem hard to come by tonight, but I do know this: as difficult as the road ahead appears, our work has never been more important than it is right now. As our Model Rules of Professional Conduct remind us, “lawyers play a vital role in the preservation of society.” Whether I’m talking to seasoned lawyers or undergrads contemplating law school, when I ask what draws them to law, one answer I hear consistently is a desire to do work that matters. As disturbing as today’s events have been, I hope they also serve as a stark reminder: our work matters. As lawyers, we are called to be faithful stewards of a noble tradition. I urge you to remain hopeful, engaged, and confident in our shared vocation.

 

With warm regard,

Dean Vischer

Reminder: Notre Dame Program on Church, State & Society Writing Competition

A reminder that papers for our new writing competition must be submitted by February 15th, 2021.

Full details here: https://churchstate.nd.edu/home/notre-dame-program-on-church-state-society-writing-competition/