Monday, October 19, 2020
Notre Dame Law School's Program on Church, State & Society is pleased to welcome Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit as a guest lecturer the week of October 26.
Judge Thapar will teach alongside Program Faculty Director and Paul J. Schierl/Fort Howard Corporation Professor of Law Richard Garnett in a Freedom of Religion seminar course offered to a select number of Notre Dame Law students. Thapar will also meet in small groups throughout the week with first-year law students affiliated with the Program on Church, State & Society.
October 19, 2020 | Permalink
Friday, October 16, 2020
In my professional life, I have not been reticent to express my opinions on matters of the law and legal reform, taking clear and I believe well-informed public positions on matter of public policy. In my personal life, I have not been quiet in expressing my political views, including judgments about candidates. (And in expressing political opinions here, I of course do so in my personal, academic, and professional capacity, not on behalf of my Mirror of Justice colleagues or speaking for the University of St. Thomas.). My colleagues, professional associates, family, and friends know where I stand on major issues:
- I believe in robust protection of religious liberty, including the right of individuals, religious schools, and churches, mosques, and synagogues to express religious views and exercise religious practices that may not be in vogue with the cultural elite.
- I believe that educational choice — including (especially including) religious schools — is one of the most powerful engines for progress, equal opportunity, and racial equity.
- I believe that the right to life of the unborn should be recognized as a compelling civil rights cause.
- I believe that people in urban areas, as well as suburban or rural, have a right to be safe from violence, whether safety is endangered by racist police subcultures and unnecessarily militaristic practices or by foolish calls to defund and abolish the police.
- I believe that law-abiding citizens have a constitutional right to own a gun for self-defense or sport and am a gun owner myself.
- I believe in freedom of speech and defend it against threats by self-righteous intolerant persons in the cultural elite of academia, media, and government or elsewhere in society.
- I believe that socialism is a dangerous ideology with a long history of destroying economic prosperity and undermining liberty throughout the world.
- And I believe that government and politicians are as often the problem as the solution, so that we often (not always, but often) are better advised to look for community-based partnerships for the common good.
I understand and respect that most people who share all or most of the beliefs that I have just articulated will find it difficult or impossible to support Joe Biden for president. They instead find themselves, even with grave misgivings, forced to the conclusion that President Trump is the lesser evil in this election. I love many people and know and appreciate others who, while acknowledging the grave flaws in this disordered man and saddened by the choice, will reluctantly cast a vote for Donald Trump. And I know others who conclude the only alternative is not to vote for president or cast a protest vote for a write-in or third-party candidate.
I do not think that religious liberty, free enterprise, educational opportunity, public safety, or the right to life of the unborn are at all safe in the insecure hands of this president. Indeed, I fear that the principles that I hold most dear are endangered in the long run (and not so long run) by being so closely associated with this toxic figure.
Tuesday, October 13, 2020
In today's New York Times, Wajahat Ali wrote a column titled, If Amy Coney Barrett Were Muslim. Drawing parallels with Judge Barrett's Catholic background and experiences, Ali points to the scurrilous and bigoted comments made by many on the right about Muslims in public life. While I am disappointed that he compromised the strength of his argument by ending with a political attack on Judge Barrett's judicial philosophy (confirming leftist bona fides is apparently obligatory these days at the New York Times), Ali's column strikes me as a sadly fair description of hypocrisy and anti-Muslim antipathy among many Americans, including those who claim to care about protecting religious faith. Ali's column should be read by every faithful Catholic, both to be reminded of the importance of a robust understanding of religious liberty and to stand in solidarity with our Muslim brothers and sisters when they suffer bigoted attacks and ignorant attitudes.
Yesterday, I had the opportunity to discuss what I call "dignitarian" feminism on NPR's On Point with host Meghna Chakrabarti and Fatima Goss Graves of the National Women's Law Center. Here's the audio. I spoke about a similar topic with the Catholic Association's lovely Grazie Christie on their podcast, Conversations with Consequences. Grazie and I also gushed for a bit about the brilliance, generosity, and humility of Judge Barrett. (By the way, if you haven't listened to the episode with Adrian Vermeule and Patrick Deneen, I'd highly recommend it.)
And here's a very short piece I have up at CNN this AM on the first day of the hearings: "One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let's face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge."
Monday, October 12, 2020
I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett's view in her scholarly work. A bit:
Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means.
For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.”
As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it.
Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.”
This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.
Thursday, October 8, 2020
Braver Angels, a diverse group of people of different backgrounds and political beliefs, strives to bring America together and help move us in a united way toward the common good.
"What We Will Do to Hold American Together" is a public letter speaking to unity in these divided times.
You can read -- and sign -- the letter here.
Wednesday, October 7, 2020
My Letter to Michael K. Young, President of Texas A&M, in support of the Academic Freedom Rights of Professor Wendy Leo Moore
Dear President Young:
I am a professor of jurisprudence at Princeton University and a scholar who has devoted a great deal of effort to the cause of protecting academic freedom. I myself happen to be a political conservative—an outspoken one. I believe that principles of academic freedom, properly understood, equally protect members of college and university communities (faculty and students alike) irrespective of their political stances or commitments.
My purpose in writing is to urge that the academic freedom rights of Professor Wendy Leo Moore be strictly respected and that no disciplinary action be taken against her for participating in the so-called scholars strike for racial justice. I understand that a memo was circulated in advance of that activity informing faculty that their participation would be deemed a violation of a Texas laws prohibiting strikes by state employees. It seems to me, however, that the so-called strike (with which I myself was not in sympathy) was not the sort of work stoppage contemplated by the laws, or the sort of action that laws could prohibit without running afoul of basic principles of academic freedom. On this score, some of the points made by Jonathan Friedman of PEN America’s campus free speech program seem valid—and compelling—to me.
We live at a time when the academic freedom rights of politically conservative students and professors are frequently violated, or are improperly narrowly interpreted, on campuses around the country. In Professor Moore’s case, however, it is a person on the left end of the ideological spectrum whose rights are under threat. Just as progressives should be speaking out in defense of the rights of conservatives when they are dishonored, conservatives should join in defending the rights of people on the left when their rights are in jeopardy. As I noted, principles of academic freedom, correctly understood and applied, equally protect people of any and all political persuasions. Hence I am writing to add my voice to those asking you to honor fully Professor Moore’s rights to academic freedom.
Robert P. George
October 7, 2020 | Permalink
Monday, October 5, 2020
Letter of Gratitude to Most Rev. Charles E. Blake, Presiding Bishop, Church of God in Christ, Rev. Eugene F. Rivers, and others
October 5, 2020
Dear Bishop Blake, Pastor Rivers, and other esteemed clergy and Christian leaders:
We are Catholic scholars who write as your brothers and sisters in the Christian faith to express our gratitude for your bold and compelling defense of Amy Coney Barrett against the bigotry directed toward her because of her Catholic faith, and her family’s membership in an ecumenical Christian charismatic community: https://110c6a4e-4c9f-4c15-bc98-ca4791e6331d.filesusr.com/ugd/f15948_f95ac6406c23439aa5470941a6029767.pdf
The moral witness of the historic Black churches, notably including the Pentecostal-Charismatic and Full Gospel churches you lead and serve, is always powerful. Like the grace of Almighty God, which is bestowed abundantly, your witness is generously given on behalf of any and every person who is subjected to or threatened with injustice. You understand, as Dr. King understood, that “a threat to justice anywhere is a threat to justice everywhere.”
Bigotry has raised its ugly head against Judge Barrett because she is the “wrong kind of Catholic”—a faithful Catholic. Yet as disturbing as it is to see the revival of anti-Catholic prejudice, it is even more heartening and inspiring to witness the prophetic stand you have taken against it. It is most impressive that you did not wait to be asked to speak out, but rather acted on your own initiative the moment you saw a faithful Catholic woman being threatened with discrimination and exclusion based on her faith.
Reflecting on the example you have set for us and for all men and women of goodwill, we recall Our Lord’s teaching: “Blessed are those who hunger and thirst for righteousness, for they shall have their fill.”
With the highest respect and esteem,
Robert P. George
McCormick Professor of Jurisprudence
Mary Ann Glendon
Learned Hand Professor of Law emerita
Edward N. Ney Professor of Jurisprudence and American Institutions emeritus
Founder and Director, James Wilson Institute on Natural Rights & the American Founding
J. Joel Alicea
Assistant Professor of Law
The Catholic University of America Columbus School of Law
Rev. Nicanor Pier Giorgio Austriaco, O.P.
Professor of Biology and of Theology, Providence College
Visiting Professor of Biological Sciences, University of Santo Tomas, Philippines
Francis J. Beckwith
Professor of Philosophy & Church-State Studies
Rev. Stephen L. Brock
Professor of Medieval Philosophy
Pontifical University of the Holy Cross
Gerard V. Bradley
Professor of Law
University of Notre Dame
John M. Breen
Georgia Reithal Professor of Law
Loyola University Chicago
Professor of Moral Theology
St. Vincent de Paul Regional Seminary
Teresa S. Collett
Professor of Law
University of St. Thomas School of Law (MN)
Patrick J. Deneen
Professor of Political Science
David A. Potenziani Memorial College Chair of Constitutional Studies
University of Notre Dame
Graduate School of Theology
Sacred Heart Major Seminary
Kevin L. Flannery, S.J.
Emeritus Professor of Philosophy
Pontifical Gregorian University
David F. Forte
Professor of Law
Cleveland-Marshall College of Law
Cleveland State University
James Madison Program in American Ideals and Institutions
Lecturer in Politics
Professor of Law
University of Notre Dame
Mary Rice Hasson
Director, Catholic Women’s Forum
Ethics and Public Policy Center
Professor of Scripture
Sacred Heart Major Seminary
Professor of Political Science
University of Nebraska at Omaha
Professor of Philosophy
Loyola Marymount University
John N. and Jamie D. McAleer Professor of Bioethics
Franciscan University of Steubenville
Matthew J. Levering
James N. and Mary D. Perry Jr. Chair of Theology
Director of Graduate Theology Programs in the New Evangelization
Sacred Heart Major Seminary
Monica Migliorino Miller
Director of Citizens for a Pro-Life Society
Teacher- Sacred Heart Major Seminary
Michael P. Moreland
University Professor of Law and Religion
Director, Eleanor H. McCullen Center for Law, Religion, and Public Policy
Associate Professor of Philosophy
The Catholic University of America
Vincent Phillip Muñoz
Tocqueville Associate Professor of Religion & Public Life
Department of Political Science
University of Notre Dame
Jeffrey A. Pojanowski
Professor of Law
University of Notre Dame
Professor of History
Seton Hall University
Professor of Sociology
University of Texas at Austin
Senior Fellow, Austin Institute for the Study of Family and Culture
Michael A. Reynolds
Associate Professor, Near Eastern Studies
Director, Program in Russian, East European and Eurasian Studies
Ronald J. Rychlak
Distinguished Professor of Law
Jamie L. Whitten Chair of Law & Government
University of Mississippi, School of Law
William L. Saunders
Fellow and Director of the Program in Human Rights, Institute for Human Ecology;
Professor and Director of the Center for Human Rights, School of Arts & Sciences; and
Co-Director, Center for Religious Liberty, Columbus School of Law,
Catholic University of America
Michael A. Scaperlanda
Gene and Elaine Edwards Family Chair in Law emeritus
University of Oklahoma
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
Professor of Law
Director, de Nicola Center for Ethics and Culture
University of Notre Dame
Director of Academic Programs
The Witherspoon Institute
College of Arts and Sciences Distinguished Professor of Philosophy
University of South Carolina
Distinguished Senior Fellow and Chair of Catholic Studies
Ethics and Public Policy Center
Ethics and Public Policy Center
James Madison Program in American Ideals and Institutions
(Affiliations are for identification purposes.)
October 5, 2020 | Permalink
Sunday, October 4, 2020
Yesterday Pope Francis published the third encyclical (i.e., a papal letter) of his pontificate, “Fratelli Tutti,” on the theme of “fraternity and social friendship.” He explains that, though he wrote it “from the Christian convictions that inspire and sustain me, I have sought to make this reflection an invitation to dialogue among all people of good will.” At a time when COVID, racial injustice, economic uncertainty, and growing political tribalism have strained our social ties, the letter could not be more timely. Several insights are of direct relevance to our work in legal education, including how we build and steward a concept of meaningful community:
Dialogue is difficult but essential: Pope Francis writes that dialogue “calls for perseverance; it entails moments of silence and suffering, yet it can patiently embrace the broader experience of individuals and peoples. . . . [when our conversations] revolve only around the latest data; they become merely horizontal and cumulative. We fail to keep our attention focused, to penetrate to the heart of matters, and to recognize what is essential to give meaning to our lives. Freedom thus becomes an illusion that we are peddled, easily confused with the ability to navigate the internet. The process of building fraternity, be it local or universal, can only be undertaken by spirits that are free and open to authentic encounters.”
The parable of the Good Samaritan reminds us to “shoulder the inevitable responsibilities of life as it is.” Faced with “so much pain and suffering, our only course is to imitate the Good Samaritan,” as to do otherwise “would make us either one of the robbers or one of those who walked by without showing compassion for the sufferings of the man on the roadside.” We must remember that “a community can be rebuilt by men and women who identify with the vulnerability of others, who reject the creation of a society of exclusion, and act instead as neighbours, lifting up and rehabilitating the fallen for the sake of the common good.”
We are all responsible for keeping real people at the center of our work: “Solidarity finds concrete expression in service, which can take a variety of forms in an effort to care for others. . . . In offering such service, individuals learn to ‘set aside their own wishes and desires, their pursuit of power, before the concrete gaze of those who are most vulnerable . . . . Service always looks to their faces, touches their flesh, senses their closeness and even, in some cases, ‘suffers’ that closeness and tries to help them. Service is never ideological, for we do not serve ideas, we serve people,’” [and] “the scandal of poverty cannot be addressed by promoting strategies of containment that only tranquilize the poor and render them tame and inoffensive.”
Our respect for the dignity of others must be unconditional: “At a time when various forms of fundamentalist intolerance are damaging relationships between individuals, groups and peoples, let us be committed to living and teaching the value of respect for others, a love capable of welcoming differences, and the priority of the dignity of every human being over his or her ideas, opinions, practices and even sins” despite the “forms of fanaticism, closedmindedness and social and cultural fragmentation [that] proliferate in present-day society.”
Do our ambitions distract us from the needs of others? Pope Francis puts it simply: “loving the most insignificant of human beings as a brother, as if there were no one else in the world but him, cannot be considered a waste of time.” We must realize “that what is important is not constantly achieving great results, since these are not always possible. . . . it is truly noble to place our hope in the hidden power of the seeds of goodness we sow, and thus to initiate processes whose fruits will be reaped by others. Good politics [and good legal education!] combines love with hope and with confidence in the reserves of goodness present in human hearts.”
Kindness, kindness, kindness: “Saint Paul describes kindness as a fruit of the Holy Spirit (Gal 5:22). He uses the Greek word chrestótes, which describes an attitude that is gentle, pleasant and supportive, not rude or coarse. Individuals who possess this quality help make other people’s lives more bearable, especially by sharing the weight of their problems, needs and fears. This way of treating others can take different forms: an act of kindness, a concern not to offend by word or deed, a readiness to alleviate their burdens. It involves ‘speaking words of comfort, strength, consolation and encouragement’ and not ‘words that demean, sadden, anger or show scorn.’ . . . Kindness frees us from the cruelty that at times infects human relationships, from the anxiety that prevents us from thinking of others, from the frantic flurry of activity that forgets that others also have a right to be happy. . . . Kindness ought to be cultivated; it is no superficial bourgeois virtue. Precisely because it entails esteem and respect for others, once kindness becomes a culture within society it transforms lifestyles, relationships and the ways ideas are discussed and compared. Kindness facilitates the quest for consensus; it opens new paths where hostility and conflict would burn all bridges.”
As lawyers and legal educators, what simple steps might we take to integrate the Pope’s reminders with the work we have before us? This year has been shaped powerfully by disappointment and loss. How could we reframe the experience of this year with a renewed “openness that allows us to acknowledge, appreciate and love each person, regardless of physical proximity?”
Saturday, October 3, 2020
Jeannie Gaffigan, wife of my favorite comedian Jim Gaffigan and, as the link shows, a talented writer, devout Catholic, and thoughtful Catholic citizen, has a piece in America titled: “My loved ones told me ‘real’ Catholics vote for Trump. Here’s my response.”
Friday, October 2, 2020
In Commonweal, Matthew Sitman has a misguided piece that (among other things) engages egregiously in what the kids today call "gaslighting" and displays a disappointing lack of concern with accuracy and context when it comes to Judge Barrett's record on the Seventh Circuit. Michael Sean Winters calls it "great writing and great analysis", and while the prose is fine, the "analysis" is quite unsatisfactory.
For starters, Sitman dismisses the nasty (indeed, loathesome) character of some of the attacks on Barrett (both three years ago and now) as a "handful of regrettable articles" and "the inevitable awfulness of social media." Social media is awful, true, but for Sitman or anyone else to pretend that the nature of the attacks on Barrett have not reflected hostility to Catholicism (that is, hostility to Catholicism unpurged of those features that are uncongenial to contemporary progressivism) is, to use his words, to inhabit an "alternate reality." In that reality, it is those who are clear-eyed about this fact -- rather than those who post memes of Judge Barrett in goofy red "handmaid" costumes or who attack her as a racist for adopting children from Haiti -- who are engaging in "culture war theatrics."
The gaslighting section of the piece is followed with some cut-and-paste-and-link paragraphs to others' hackish pieces containing what purport to be, but are not, descriptions of Barrett's legal views and decisions that, it is said, are examples of her "appalling" record. It does not appear that Sitman has read (or, if he has, it is clear that he either does not care, or does not understand, the content of) Barrett's scholarly articles and judicial opinions. He repeats the allegation that Barrett poses a "threat . . . to the Affordable Care Act" but never actually engages (or even mentions) the question presented in the upcoming ACA case, which has to do with "severability" (and not with the congressional-power question that was at issue in Chief Justice Roberts's Sebelius opinion, 8 years ago, which Barrett (quite reasonably) criticized. Almost no legal expert believes there is a real chance that a majority of the justices (if any of the justices) will conclude that the ACA is, in its entirety, now unconstitutional. This is a made-up threat, designed to give Judge Barrett's opponents something to talk about besides her children and her religion. He links to an overheated critique of an article that Barrett wrote on stare decisis, but does not appreciate that, in fact, Barrett holds the unremarkable view, shared by pretty much everyone, that stare decisis is an important principle, but not an "inexorable command."
Then, there are a series of mentions of Court of Appeals decisions -- one involving immigration, another involving prison guards' excessive force, another involving GrubHub drivers, another involving felons' gun-possession rights -- in which, it appears, Barrett failed to vote for the litigation position of the party with whom Sitman (or those whose descriptions and summaries he links to) sympathizes. Of course, this is not how judging, or law, is supposed to work. There's no consideration of the content of the duly enacted (whether wisely or not) laws that are being interpreted or applied, no discussion of the cases' procedural histories and posture or of the precise questions presented, and no interest in what the correct legal answer to those questions might be. Judge Barrett has written about 100 opinions, and voted in many, many more. It would have been quite a thing if, in every one of those cases, the legal conclusion that lines up with Sitman's sympathies and priors had been the right one. If he were to examine three years' worth of appellate-court votes by the Seventh Circuit's most "liberal" member -- say, Judge Diane Wood -- or of Judge Merrick Garland, or of the late Justice Ruth Bader Ginsburg, Sitman would find, I can assure him, some cases where a sympathetic immigrant, worker, or prisoner lost, because his or her legal position was incorrect.
Sitman concludes that "[n]o one should object to Barrett joining the Supreme Court because she is a conservative Catholic[.]" But, it is difficult to avoid the conclusion that this is precisely why he, like many of Barrett's other detractors, objects.
Very interesting essay by Charles Capps in Notre Dame Law Review here.
This term, the Supreme Court will revisit the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of free-exercise exemptions. But no one has discussed the implications of two lines of cases in which the Court has applied strict scrutiny to incidental burdens on speech—NAACP v. Alabama ex rel. Patterson and its progeny, and Roberts v. U.S. Jaycees and its progeny—for the problem of free-exercise exemptions. This Essay argues that, together with O’Brien, these two lines of cases support a regime in which incidental burdens on religious exercise trigger intermediate scrutiny, unless they take the form of interference with a religious institution’s selection of its ministers (the “ministerial exception”) or pressures on a person to violate her religious conscience (the “conscience exception”), in which case they trigger strict scrutiny.
October 2, 2020 | Permalink
Wednesday, September 30, 2020
Here is the latest over at the Liberty Fund in my small efforts to play with what a fusionist interpretive approach to constitutional interpretation--integrating originalism and what I have called traditionalism--might look like and require. The occasion is a reply to some fine essays by Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who were responding to this piece on stare decisis.
I find these more extended exchanges useful. You get a chance to really talk to people a bit more, so to speak. Here's a little bit:
Originalists moved by Professor Barnett’s imperative [to align doctrine with original meaning] would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.
First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.
Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.
Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.
Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in Gamble, Mesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.
In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.
Tuesday, September 29, 2020
MOJ readers: please nominate a law-and-religion paper, and/or tell others about nominating!
The Association of American Law Schools (AALS) Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2019 and July 15, 2020. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award.
Nominations should be sent to Thomas C. Berg (tcberg at stthomas dot edu), Chair of the Berman Prize Committee, by October 9, 2020. The winner will receive an award plaque and be recognized at the section’s program at the AALS annual meeting in January 2021.
Sunday, September 27, 2020
I have a piece at Politico today in which I argue that Judge Barrett embodies a new kind of feminism, one that builds upon, while remaking, RBG-style feminism. Read it all here.
Happy to announce that I have a book-length version of the historical, philosophical, and legal argument for this new feminism (which I take to have some old roots), coming out in 2021 from Notre Dame University Press.
Friday, September 25, 2020
My Villanova University colleague Massimo Faggioli has an online contribution at Politico about Judge Amy Coney Barrett arguing that as “a Catholic scholar” he thinks it is fine “to ask questions about Barrett’s religious beliefs.” Along the way, he sets up and knocks down a series of strawman arguments, engages in pernicious dual-loyalty arguments that are a longstanding staple of anti-Catholic (and anti-Semitic) bigotry in American public life, and asserts gratuitously that “Amy Coney Barrett is not Catholic like John F. Kennedy was Catholic.”
Thursday, September 24, 2020
As Justice Ginsburg's lies in repose at the Supreme Court this week, I've published some reflections on her legacy at America. Here's a bit:
Well-intentioned interlocutors on both sides of the abortion debate often argue that women would not need to access abortion so frequently were our society more hospitable to children, our workplaces more accommodating, our government more generous in its support of families, our available housing and health care system more affordable. And it is true: These sorts of culture-wide changes would be transformative in the lives of women who find themselves unintentionally pregnant. As such, I support them, too.
But these arguments tend to neglect an essential reality about the pedagogical nature of law, well known to classical jurists and philosophers but widely forgotten today. The law shapes a culture, explicitly teaching it not only goods to be pursued and evils to avoid but even more subtly creating incentives and disincentives to action, channeling individuals to behave in certain ways. As Alexis de Tocqueville observed, American law “[works] in secret upon its unconscious patient, till in the end it has molded it to its desire.”
When abortion is constitutionally protected, easily accessible and, in some jurisdictions, free of charge, as it has been in our country for nearly 50 years, that reality shapes individual and institutional behavior. Sexual partners take more sexual risks, leading to more unintentional pregnancies, more nonmarital births and more abortion; employers think less about how to accommodate caregiving and discriminate against pregnant women instead; the health care and pharmaceutical industries fail to make an investment in really understanding women’s fertility, preferring pharmaceutical quick fixes; and, perhaps most perniciously, governments fund private abortion while still making little allowance for the public good of caregiving. [visit article for active links]
Finally, and most relevant for our reflections, relatively easy abortion access too often relieves men of the mutual responsibilities that accompany sex and so has tended to upend the duties of care for dependent children that fathers ought to share equally. More than a third of children in the United States live without their fathers, even as social science has begun to isolate the essential contributions these men make to their children’s development. For although the connection between sexual intercourse and potential motherhood remains an unshakable biological reality, the connection between sexual intercourse and potential fatherhood—the connection that irresponsible men have always sought to avoid—has withered even further since Roe....
Of course, legal and cultural pressures like these are overcome by individual men and women all the time. But a culture-wide orientation in this direction harms far too many people, most especially poor women and children. Single mothers, who are disproportionately more likely to live with their children in poverty than anyone else, are hardly experiencing anything approaching “gender equality.” Rather, men who are deeply engaged in their marriages and the rearing of their children open up for their children’s mothers a whole range of possibilities and privileges unknown to mothers raising children without such paternal support. Without the investment and engagement of her husband in their children’s lives, it is hard to imagine Ms. Ginsburg achieving all that she did. Indeed, I think she would be the first to acknowledge that.
Massimo Faggioli, of Villanova University, has a habit, and makes it a practice, of importing into Catholic matters, questions, discussions, etc., the standard (tired?) political/tribal categories and characterizations of "left", "right", "culture warrior", "progressive," etc. Because, according to his map, the lay movement "People of Praise" is "conservative", it follows, apparently, that (like all political things "conservative") it is worrisome.
This mapping is, I suspect, what explains his Politico piece defending the ongoing attacks on/criticisms of Judge Amy Barrett's affiliation with "People of Praise" and his repeated defenses of those senators who asked clumsy (at best) and bigoted (worse) questions about Barrett's Catholicism during her confirmation several years ago. (It should be noted, and regretted, that Politico -- an often valuable outlet -- has been trafficking recently in the completely silly insinuations about some imagined connection between Margaret Atwood's "Handmaid's Tale" and the (utterly innocuous) use, in the past, by "People of Praise" of the scripturally inspired term "handmaid" (See Luke 1:38).
In any event, the piece is misguided. Now, it is true (quoting the headline) that politicians' and nominees' "religious beliefs" are not "off limits" to voters and senators. (If a candidate for office sincerely held a religious belief that some persons did not possess equal human dignity as other persons, that would be a good reason to vote against such a candidate.) What should be off-limits are (a) misrepresenting or wilfully misunderstanding a nominee's or candidate's religious beliefs and (b) applying, without justification or warrant, greater suspicion and skepticism to a candidate's or nominee's sworn testimony because of disagreement with that candidate's or nominee's religous beliefs or affilitations. Several Democratic senators did these things during Barrett's hearings on her Court of Appeals nomination, and too many commentators and activists are doing these things now.
All political leaders, judges, candidates, and nominees have views, commitments, ideals, attachments, loyalties, etc. We can (and do) ask them, "if you come to occupy a position of public trust and responsibility in our political community, will you exercise your responsibility, and fulfil your role, in a way that respects our political community's laws and norms?" If they say, under oath, "yes"; it is wrong -- it is just bigotry -- to say, "well, because you are a 'conservative' Catholic, we don't believe you. 'The dogma lives loudly,' and all that."
It is also, by the way, highly misleading for Faggioli to enlist Pope Francis in support of his anti-"People of Praise" and anti-Barrett insinuations. The Holy Father has praised charismatic renewal as a “current of grace” in the Catholic Church. And, in 2014, he appointed one member of People of Praise as an auxiliary bishop in Portland, Oregon.
A few years ago, a suspiciously timed and oddly sourced piece appeared in the New York Times, which also tried to hamstring Barrett's nomination with various allegations, rumors, and insinuations about "People of Praise." It's too bad that we are already seeing a reprise.
Wednesday, September 23, 2020
October 2, 2020 11:00 am ET
Brett G. Scharffs and Jane Wise, BYU Law School
John Bernau, Shlomo Pill, and Justin Latterell, Emory Law School
Stephanie Barclay, Notre Dame Law School
Mark Movsesian, St John’s University School of Law
Michael Moreland, Villanova University
International Center for Law and Religion Studies, Brigham Young University Law School
Center for the Study of Law and Religion, Emory University Law School
Notre Dame Program on Church, State & Society, Notre Dame Law School
Center for Law and Religion, St. Johns University School of Law
Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law
September 23, 2020 | Permalink
Monday, September 21, 2020
Happy to announce that Angela Franks and I will teach our intensive Abigail Adams summer seminar on (bi-monthly) Saturdays starting in early October. Here's a short video about the seminar and here's more info. Applications are being accepted until September 28th.
The seminar is part of the new Wollstonecraft Project at AAI. The Wollstonecraft Project aims to guide, facilitate, and support scholarly engagement in questions of sexual equality and freedom, as philosophically informed by realist metaphysics, virtue-based ethics, and a Wollstonecraftian understanding of women’s rights. We will also be awarding a $20,000 fellowship for research and scholarship in this area.
After President Trump nominated Brett Kavanaugh to fill Justice Kennedy's seat, CNN asked me to offer a few thoughts for their roundup, In Trump's Court Pick, Who Won? Not sure I answered the question, but my contribution -- "Amy Coney Barrett Would Have Been a Better Choice" -- seems particularly relevant this week.
I don't know Judge Barrett personally (as many MOJers do), but to me she represents a powerful rejoinder to the autonomy feminism that predominates the women's movement today. I do hope she is nominated this week -- and swiftly confirmed.
Here's my short CNN contribution (omitting much of the paragraph on Kavanaugh):
I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest — in her very person — the central pro-choice feminist assumption that bearing and raising children impedes women’s serious engagement in professional and public life.
She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women’s rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.
Comparatively, President Trump played it safe: Judge Brett Kavanaugh... [well, in retrospect, that wasn't a very good take]
Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.
A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent — in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.
Friday, September 18, 2020
On Sep. 30, I'll be moderating a Murphy Institute program on the legalization of physician-assisted suicide that was originally scheduled for this past March. So much about our world has changed since then, including the social context and political landscape of debate on this topic. Please join us as we explore these issues, in a Covid-era, user friendly, free and travel-less webinar.
Hot Topics: Cool Talk - Physician Assisted Suicide
Wednesday, September 30
This is the rescheduled date for the program, originally planned for March 18.
Assisted suicide is currently legal in ten jurisdiction in the United States: California, Colorado, District of Columbia, Hawaii, Montana, Maine (starting January 1, 2020), New Jersey, Oregon, Vermont, and Washington. Efforts are underway in many other states (including Minnesota) to enact similar laws. Join us in this extended edition of our Hot Topics: Cool Talk event series for a spirited but civil conversation about such laws between two advocates who take opposing views on this issue.
Following up on Marc's post, I was very sorry to learn of the passing of Prof. Jeffrie Murphy. He was a wonderful scholar, deeply engaged with moral questions, and -- to me -- a kind and generous mentor when I started teaching Criminal Law (and since). For several years now, I've been concluding my course with his "Law Like Love" essay. Take a look. Here's the SSRN abstract:
This is a transcript of the Kharas Distinguished Lecture that was delivered in March of 2004 at Syracuse University College of Law. John Rawls has famously said that justice is the first virtue of social and legal institutions. This lecture seeks to open a discussion of the question: What would law - particularly criminal law - be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment - including capital punishment - in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.
Jeffrie Murphy, a wonderful philosopher of criminal law and ethics, has died. One of the many things about which he wrote insightfully and with penetration concerned the relationship of retributivism and Christianity, as in his excellent book, Getting Even: Forgiveness and Its Limits (see the final Chapter 9) (2003).
Here is a little something from his book chapter, "Some Second Thoughts on Retributivism," in the collected volume of essays, Retributivism: Essays on Theory and Policy (Mark D. White, ed. 2011), which shows both the power and the danger of Murphy's distinctive (and, to my mind, highly persuasive) account of retributivism:
I moved away from regarding desert merely as legal guilt and also from regarding it as merely owing a debt. But I still had very strong retributivist intuitions--and was even prepared to defend some degree of vengeance and, in the book Forgiveness and Mercy that I joint authored with Jean Hampton, to defend an emotion that I called "retributive hatred." Gradually I began to realize that what had always really drawn me to retributivism was some version of Kant's idea of punishing not just wrongdoing, but human evil--vile deeds performed by people of "inner viciousness." I learned that such a notion had even found its way into American homicide law where phrases such as "cruel, heinous, and depraved" and "flowing from a hardened, abandoned, and malignant heart" occurred in statutes and in sentencing guidelines. This appealed to me.
Such a strong notion of just deserts is, of course, in some ways a secular analogue to traditional notions of divine justice--the judgment that God will administer in the Last Assizes. Indeed, Michael S. Moore (the legal philosopher, not the maker of propaganda films) defends a robust version of retributivism very like the one that I am sketching here but claims that if he believed in God, he would not be so concerned to organize secular systems of criminal law around retributive values. As an atheist, however, he sees no other way to target moral desert in punishment and regards this value as too important to leave unrealized. This analogy with divine punishment is interesting; but it should, I now believe, alert us to some dangers in thinking of secular punishment along these lines. It is not for nothing that we often find ourselves condemning people who--as we put it--"play God," and even Scripture famously teaches, "Judge not that ye be not judged."
The Living Bible, that wonderful source of unintended theological humor, once rendered (if I recall correctly) that biblical recommendation as, "Don't criticize, and then you won't be criticized." But the true point of the passage is surely not a prohibition against making any critical moral judgments at all, but is rather a caution against making final judgments of deep character to declare any fellow human being as simply vermin or disposable garbage--evil all the way down--and a legitimate object of our hatred.