Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, February 19, 2019

"Pluralism in a Polarized Age"

You can watch/listen to Prof. John Inazu and Eboo Patel discussing "Pluralism in a Polarized Age: Navigating Our Deepest Differences Together", at the Lumen Christi Institute, here.

February 19, 2019 in Garnett, Rick | Permalink

Thursday, February 14, 2019

Chapman, "Money for Missionaries"

Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN.  It's called "Money for Missionaries:  Rethinking Establishment Clause History."  (He workshopped this paper a while back, at Notre Dame, and I learned a lot.)  Here's the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

February 14, 2019 in Garnett, Rick | Permalink

Wednesday, February 13, 2019

Lumen Christi Summer Seminars

Many MOJ readers will likely be interested in the various Summer Seminars run by the Lumen Christi Institute.  Check them out -- great line-ups of topics and speakers/presenters, and some cool destinations, too:  "Business and Catholic Social Thought", "Economics and Catholic Social Thought", "The Thought of John Henry Newman", "The Thought of Rene Girard", "Augustine on God, Self, and Society", "Catholic Social Thought:  A Critical Investigation".

February 13, 2019 in Garnett, Rick | Permalink

Sunday, February 10, 2019

Why MoJ Has Mattered: Live at the Dubliner!

In early 2004, I remember sitting in my office at St. John's and getting a call from Mark Sargent asking if I wanted to participate in a new blog that he and Rick Garnett were putting together.  I was not entirely sure what a "blog" was, but as a junior law prof looking for any platform that would have me, I readily accepted his invitation.  My primary objective in my early posts was to come across as knowledgeable enough about Catholic legal theory to belong on a blog dedicated to Catholic legal theory.  As the years went by, I'm not sure my grasp of what we mean by "Catholic legal theory" became a whole lot clearer.  My favorite post of the last fifteen years ("Catholic Legal Thought: Live at the Dubliner!"), though, reflects what is undoubtedly the central legacy of MoJ in my own life: relationships. 

Since I composed that post ten years ago, law schools have gone through some tumultuous times, prompted by legitimate skepticism about the value proposition of legal education, causing us to focus on student outcomes to an extent not seen in many years, if ever.  Does that mean that the broader Catholic legal theory project from which MoJ emerged has lost some energy?  Perhaps, if measured by the number of conferences and colloquia dedicated to the field.  But not if we take a broader view to ask how and why Catholic legal education matters - a question that can only be answered comprehensively and coherently with at least some resort to Catholic legal theory, as lived out in the context of academic and professional communities.  What are we offering to prospective students and other stakeholders, and why should they care that we're Catholic?  In that sense, MoJ has been a remarkable incubator of the type of conversations - and resulting relationships - that both aim at, and reflect, the heart of the project.  Whether that continues in the form we've enjoyed for the past fifteen years or proceeds into new venues, the relationships must remain central to the work.

February 10, 2019 in Vischer, Rob | Permalink

Saturday, February 9, 2019

MOJ at 15: The end of the beginning?

Several weeks ago, I began drafting a 15-year anniversary post that I never brought myself to finish. It was fairly negative in outlook, and I found ways to avoid attempting either to make the necessary arguments or to abandon them. Here's what I wrote:

We are fast approaching the fifteenth anniversary of the first post at Mirror of Justice.

It feels very different from the tenth anniversary. Then, there were many anniversary-reflection posts from MOJers old and new. These reflections varied in orientation but were largely hopeful.

Now, I expect there will be fewer. And the hope they have to offer will probably not be for the future of this particular group blog. 

* * *

Is it time for Mirror of Justice to give up the ghost?

I ask explicitly and publicly in order to provoke honest answers from our contributors. 

My answer is yes, for reasons that I aim to elaborate over my next few posts. But perhaps I am wrong.

Not completely inaccurate predictively, I suppose. There have been fewer anniversary posts at 15 than at 10, and they express appropriate uncertainty about the future. But while the posts have been less than confident about the best path forward for this particular blog, they have been more hopeful than I expected about the worth of continuing the undertaking.

I am particularly grateful for the anniversary posts by Greg Sisk and Susan Stabile. Greg writes, "As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years." Susan "remain[s] convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.

Howard Wasserman's gracious post at PrawfsBlawg was also most welcome."MoJ serves a particular and special message that is not easily replaced," he writes, "and so should continue."

These observations make me think I might have been wrong in my earlier private musings about the practical wisdom of ending this collective project any time soon.

Instead of speculating about the end of MOJ, then, I'll conclude this anniversary-week post with a few thoughts on the blog's beginning.

(1) From today's perspective, the inaugural MOJ post radiates an anticipatory defensiveness of a sort that now seems quaint: "The members of this blog group represent a broad spectrum of Catholic opinion." How nice.

(2) The group members all believe that "faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation." Too bad that needed to be said; perhaps we can better realize now how fragile were the foundations of the consensus position we were challenging even while we were accepting it as obviously legitimate in some way.

(3) "We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking." Probably not as true now, which is all to the good.

February 9, 2019 in Walsh, Kevin | Permalink

Friday, February 8, 2019

Alabama execution without requested imam

Story here.  It's not as obvious to me as it seems to be to some in the Twitter-verse that the Court's 5-4 split on the stay shows hypocrisy regarding religious freedom (because there are questions about procedure, timing, etc., and a general policy regulating who can be present in the execution chamber is reasonable) but, given what I know at the moment, it seems to me that the Court should have left the stay in place (and that Alabama and other death-penalty states should anticipate the need for chaplains of multiple faiths). 

February 8, 2019 in Garnett, Rick | Permalink

Thursday, February 7, 2019

What We Can See in Law (and a Conditional Valediction)

I began teaching law about 10 years ago, at a time when blogging was relatively new, but already old enough to seem only a partially, rather than a totally, suspect and outré activity. For new law professors, blogging represented a way--comparatively low-cost and easy--to begin to make connections and meet other people. Before blogging, I had always considered myself a (proud) luddite but unlike some of my junior colleagues, I made use of blogging fairly liberally in those days for networking. Dan Markel invited me to guest blog over at Prawfsblawg, and as far as I can reconstruct it, my first blog was this one "against novelty" in May 2009. 

After a few repeat stints at Prawfs, Rick asked me over to Mirror of Justice in the fall of 2010, where my first post was about my review of what was then a new book by MOJ denizen, Steve Shiffrin. At that time, a lot of my scholarly focus was in criminal law, and I was especially interested in the idea that there was something distinctive about criminal law that differentiated it from other disciplines. This old post from back in those days--on the smoldering core of criminal law--was in that vein.

One nice thing about retrospective moments like this is that they allow one to think about themes that bind together one's work in a very general way. That post and several others from the earlier days reflect a much broader issue that has interested me over the years: namely, what multifarious sets of values and principles we can glean about the law from the way in which it actually exists and is practiced in our world. From the bottom up, as it were. In criminal law, law and religion, free speech, constitutional adjudication, and (now) constitutional interpretation (in a new article on the Supreme Court's use of tradition to inform constitutional meaning...more soon), I often find myself drawn to the theme of taking the practices immanent in law as reflecting a set of views, or even a mood about, or perhaps a general orientation toward, the legal and political world that is worth investigating and studying. To see what we can squeeze out of what it is now, rather than of what it might or ought to be. At Mirror of Justice, I've sometimes tried to think about how those practical realities about law, as I perceive them, inform and are informed by Catholic ideas. 

But enough of this tedious navel-gazing. Mostly what I want to say now is that Mirror of Justice has been a place of true scholarly community for me. I have met some of my closest friends in the legal academy through this blog. It has been a source of fellowship and friendship for me over the years. If it has run its course, I will miss it. Ave atque vale!

February 7, 2019 in DeGirolami, Marc | Permalink

Tuesday, February 5, 2019

Mirror of Justice -- 15th Anniversay: The More Things Change, the More They Remain the Same

“The more things change the more they remain the same.” This familiar aphorism is a translation from a sarcastic epigram by French writer Jean-Baptiste Alphonse Karr, dating back more than 150 years. Alphonse_Karr_Nadar

When I look back to my earliest posts, the second one being "The Shameful Role of Lawyers in the Church Sex Abuse Scandal" (which I've reposted below the fold), the world-weary dimension of the saying is poweful. I think it was Richard John Neuhaus who referred to the Catholic Church sex abuse scandals as the "original sin" of the American Catholic Church, something for which we must regularly renew our baptismal pledge and seek forgiveness. Re-reading that early post reminded me again of how important it will be as I teach Professional Responsibility this semester to remind future lawyers that they need to encourage their clients to be authentic and consider their deepest values in a legal representation.

And yet I think my early post on that still unfolding and draining subject also reflects the mission of the Mirror of Justice.  I've written (sometimes in multiple post bursts and sometimes irregularity after months of quiescence) on a wide range of topics, from personal stories of faith to general cultural trends to politics. But I agree with Rick Garnett that the most important of our contributions have been at the intersection of Catholic teaching and the law, whether the role of judges and lawyers, the importance of scholarly writing in a Catholic law school, the faith mission of the Catholic law school, etc.

As we celebrate our 15th anniversary, I encourage many of us to select from our favorite posts in the past for re-posting along with an update as appropriate. The richness of those 15,300 posts should not be lost in the past.

The future of blogging is like the future of many things in this life -- uncertain.  I do think it remains an important venture, much more important than my neglect in blogging might indicate. As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years.

Continue reading

February 5, 2019 | Permalink

Fifteen Years of Mirror of Justice

When Rick Garnett reminded us all that this is the fifteenth anniversary of Mirror of Justice, I went back and looked at the post I wrote on our tenth anniversary.  

I referenced in that post Pope Francis' then-recent Apostolic Exhortation, Evangelii Gaudium, in which he spoke of solidarity as presuming "the creation of a new mindset which thinks in terms of community and the priority of the life of all over the appropriation of goods by a few.” I wrote of Francis' belief that  because Christian conversion “demands reviewing especially those areas and aspects of life related to the social order and the pursuit of the common good,…no one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions, without a right to offer an opinion on events affecting society.”

In the last fifteen years, those involved in the MOJ project have disagreed with each other about all sorts of questions  -  whether particular laws and policy positions are consistent with principles of Catholic Social Thought, whether a good Catholic can vote for a particular candidate, and so on.  Those disagreements will inevitably continue - and they foster healthy dialogue.  (And I think one of the contributions to this enterprise is precisely to model that we can have disagreements - sometimes heated ones - while still maintaining respect and fraternal love for each other.)

Whatever differences there have been, there is no disputing that everyone involved in Mirror of Justice proceeds from the premise that we have a duty to help to create “a new mindset which thinks in terms of community and the priority of life of all” and that  we cannot make decisions about law and public policy divorced from the teachings of our faith.   

To call me an infrequent MOJ blogger of late would be generous; this is my first post in a very long time.  Notwithstanding that, I remain convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.

I don't have an answer to Rick's question about the future of blogs in general.  But if not here, there needs to be some forum for the exchange of ideas we have had on Mirror of Justice.

 

 

February 5, 2019 in Stabile, Susan | Permalink

15 Years at Mirror of Justice

This week marks the 15th anniversary of the Mirror of Justice blog.  Tempus fugit, and all that.  I dug up my first substantive post, and I suppose I should not have been surprised that it was, like a lot of the things I've put up on this blog, about Christian "moral anthropology" and its implications for law and the legal enterprise:

One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). 

We've covered a lot of ground these past 15 years - and not just, although it sometimes might have seemed like it, four presidential elections.  We've had about 15,300 posts and (I estimate) about 5 million page-views.  Bloggers have come and gone -- although more than a few of us have been on board the whole time -- and engagement and activity have waxed and waned with current events, the life of the Church, and the academic calendar.  We've talked about current events and politics, sure, but at our best the blog was not another "blog about current events and politics (by people who happen to be Catholic law professors)."  We've argued some, and thrown some elbows, but I like to hope that, all things considered, we've shed some light and not just "thrown some shade."

I continue to think it is the case -- it just has to be -- that the Christian proposal and story have something to say about law -- again, about the purpose and nature of law and the legal enterprise, not just the substantive content of particular enactments.  There needs to be, I think -- and we should want there to be -- a meaningfully, interestingly "Catholic legal theory."  Such a theory is -- or, at least, should be -- of interest and value to Catholics and non-Catholics alike.  That we are Catholic should make a difference for how we teach, practice, study, understand, and craft law.

The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years.  Twitter wasn't around.  Facebook, believe it or not, was launched on the same day as Mirror of Justice.  (Arguably, we've done better at our mission than they have at theirs!)  Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything.  A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.

It's not clear to me what the future holds for this blog-venture, or for blogging generally.  I'd welcome others' thoughts!  In the meantime, I want to say "thank you" to the many thousands of people who have checked in with MOJ over the years and to my co-blogging colleagues and friends.  Let's all pray for the Church, for our vocation, and for each other.  

February 5, 2019 in Garnett, Rick | Permalink

Monday, January 28, 2019

Herbert McCabe on Thomas Aquinas and Sanctity of Mind

For this Feast of St. Thomas Aquinas, I am reposting a bit from a homily delivered for this occasion at Blackfriars (Oxford) by my late friend Fr. Herbert McCabe, O.P.:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

“What is God?” It was the intellectual sanctity of Thomas that he here accepted defeat. Unlike so many  theologians before and since, he could in no way answer this most important of questions. Right through his life he accepted this crucifixion of the mind; his whole life was devoted to talking about God, to theology, and yet he was intensely conscious that he knew nothing, that God is the ultimate mystery, that we are peering into the dark. In Christ, he says, we are joined to God as to the utterly unknown. The most we can do is peer in the right direction; and all theology is about doing that. But we can never answer our basic question with any use of language, by any thought. We will understand what is God only when we have been taken even beyond language and thinking, and God brings us to share in his own self-understanding. Thomas was not making a new discovery when, at the end of his life, he said that all his writings seemed like straw. He had lived with this knowledge all the time he was writing.

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

God Matters (1987), pp. 236-37.

January 28, 2019 in Moreland, Michael | Permalink

Happy Feast of St. Thomas Aquinas

Here's a short video from Fr./Bishop Robert Barron on the Angelic Doctor, and if you haven't read Chesterton's Dumb Ox or Joseph Pieper's Guide, why not fix that?

January 28, 2019 in Garnett, Rick | Permalink

Tuesday, January 22, 2019

The new attacks on school choice (in Indiana and, soon, elsewhere)

As I suggested a few days ago -- it seems like forever, since it was before this weekend's Twitter-mob-unpleasantness regarding Catholic high school students from Kentucky at the March for Life -- the attacks on the school (and on schools like it) where Mrs. Pence teaches should be seen as part of a well-funded and coordinated effort to (a) pre-emptively back-foot judicial nominees and (b) weaken school-choice programs.  A news story here in Indiana provides some confirmation for point (b).  Some lawmakers (who oppose Indiana's pathbreaking school-choice program) have seized on a recent discrimination lawsuit in which a teacher at a Catholic high school was fired after it became known that she had legally married her longtime partner of the same sex.  As the story notes:

The school and Archdiocese have said in public statements that employees must support the teachings of the Catholic Church, including marriage being “between a man and a woman,” and that the expectation is clearly defined in employee contracts.

Some lawmakers have announced their plan to exclude from participation in the school choice program schools that "discriminate" -- whether or not this discrimination takes the form of enforcing contractual provisions that reflect the schools' understanding of their religious mission.  Such exclusion would (as it is intended to do) dramatically reduce the number of high-performing schools that participate in the choice program.

This ("Confusion About Discrimination"), from 7 (!) years ago, appears to continue to be relevant.  Stay tuned. 

January 22, 2019 in Garnett, Rick | Permalink | Comments (0)

Monday, January 21, 2019

Supreme Court review of Indiana law prohibiting abortion based on race, sex, or diagnosis of disability

In case you missed it in the haze of the New Year celebrations, here's an excellent analysis (by Notre Dame's Carter Snead and Mary O'Callaghan) of the case argued before the Supreme Court on Jan. 2, challenging Indiana's law prohibiting abortions based on a child's "race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of . . . Down syndrome or any other disability." (See 7th Circuit opinion in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health striking down the law here.)  Snead and O'Callaghan point out that the 7th Circuit's denial of the petition for an en banc rehearing of the case includes a strong dissent by Judge Easterbrook, who argues:  "Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered."
Snead and O'Callaghan argue: 

Judge Easterbrook is correct as a legal matter about the meaning of Casey. More importantly, the ramifications of leaving this narrow question unsettled far outstrip those associated with interpretation of the Medicaid Act. Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics. The Seventh Circuit’s erroneous decision gets this basic legal question wrong, and leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a “moral duty” to eradicate them, that we are “better off” without them, and that their value can be calculated in dollars and cents.
 
ra
 

January 21, 2019 in Schiltz, Elizabeth | Permalink

Thursday, January 17, 2019

Karen Pence's new school, Catholic school closings, social trust, and how we got Trump

Rick's post about the sexual morality rules at the school where Karen Pence teaches brought to mind this TAC piece by Tim Carney in which Nicole Stelle Garnett's co-authored book with Margaret Brinig plays an important role. Read all three together. Here's an excerpt from Carney: 

Sure enough, low trust helped to predict Trump support in the early primaries. The core group of Trump voters in the GOP primary ... were by far the mostly likely to say people mostly just look out for themselves.

In elite family-filled suburbs where most people have college degrees, trust actually tends to be high, regardless of stereotypes about gated driveways. Where do we find trusting middle-class or working-class communities? Where most people go to church.

And when the churches start emptying, the trust starts shrinking. Researchers Margaret Brinig and Nicole Stelle Garnett looked into what happened where Catholic schools shut down for reasons that didn’t appear to be low attendance. Maybe the pastor was transferred and not replaced. Maybe the building had to be demolished. These neighborhoods, shortly after the school shut down, saw increases in public drinking, drug dealing, and drug use. Graffiti, litter, and abandoned buildings became more prevalent.

January 17, 2019 in Walsh, Kevin | Permalink

Regarding the controversy surrounding Mrs. Pence's new Christian School employer

The news cycle being what it is, there is a story going around -- and being much remarked upon by Blue-Check-Twitter types -- the theme of which is surprise/shock/horror that the Christian school at which Mrs. Karen Pence has a policy of requiring staff and students to act in accord with a variety of familiar, traditional Christian norms regarding sexuality.  (The story to which I linked, like most stories I've seen, says -- incorrectly -- that the school "bans" gay students and employees.)

Two things (at least) are worth noting about this:  First, this story (and others like it) are tactical moves in an effort to "condition the environment" for situations when nominees to federal courts are revealed to have been involved with/sent their children to schools that have policies in place that reflect the abovementioned norms.  Second, this story (and others like it) are tactical moves in an effort by opponents of school choice to -- having largely lost the battle over the "statist monopoly or parental choice?" debate -- cripple voucher and other school-choice programs by pushing legislatures (and enlisting business boycotts and pressure to push legislatures) to exclude from voucher programs those schools that "discriminate."   

January 17, 2019 in Garnett, Rick | Permalink

Legal Spirits Podcast: Prayer in a School Board Meeting

Mark Movsesian and I have this podcast as part of our Legal Spirits series, concerning a prayer practice at school board meetings in Chino Valley, California. The 9th Circuit panel struck down the practice, holding it as outside the ambit of Town of Greece v. Galloway. In connection with the en banc court's refusal to rehear the case, there was a subsequent statement by Judge O'Scannlain (and joined by 7 active judges on the 9th Circuit) severely criticizing the panel's decision and discussing the definition and scope of the tradition of legislative prayer marked out by Town of Greece.

We talk all about it in the podcast.

January 17, 2019 in DeGirolami, Marc | Permalink

Saturday, January 12, 2019

Elly Brown on Viewpoint Diversity, Civil Dialogue, and Conversion

I recently posted here at Mirror of Justice remarks offered by Allison Berger in connection with Princeton University's "She Roars!" alumnae reunion. I am now posting remarks at the same event by Elly Brown, another Princeton alumna. Elly was one of the top students of her year, graduating summa cum laude in Politics and earning various other awards and distinctions. As an undergraduate, she was a leader in Princeton Pro-Life and the Anscombe Society (Princeton's student group advocating chastity and sexual integrity). In her remarks, Elly discusses her efforts to promote civil dialogue with supporters of abortion and others with whom she disagrees and makes some valuable points about truth-seeking and conversion--including her own conversion to Catholicism. 

Remarks of Elly Brown

I would like to begin with a poll. I’m sure that all of us are aware of online comment sections under articles or posts on social media. I am curious: how many of you think that these comment sections are a reflection of the liberal arts ideal of thought diversity and the free exchange of ideas? Why do we not find this to be the case? After all, comment sections often represent a diverse array of viewpoints. Still, it seems that something is missing, and that mere viewpoint diversity is not enough. I argue that comment sections do not live up to the liberal arts ideal because they do not view persons as truly persons – that is, those having an intellect and a will, who are more than the summation of whatever views they are currently expressing. Comment sections dehumanize, reducing interlocutors to the views of the “enemy,” to someone who must be taken down. I further argue that if a University does not have a fuller picture of the human person in addition to viewpoint diversity, the University is nothing more than a real-life comment section, with the “enemy” mindset that we so often find online.

Thankfully, Princeton in many ways has overcome this comment section, enemy mindset, though there are certainly areas for improvement as well. For the remainder of my talk, then, I would like to lay out some of the specific ways – taken from my own experience as a Princeton student – that Princeton has indeed lived up to the liberal arts ideal, and then draw from these experiences concrete proposals that could lead to more improvement.

First, I have witnessed many successes at Princeton regarding thought diversity on women’s issues. In the larger public sphere, the comment section mentality is often experienced most acutely surrounding women’s issues. Often, women are dehumanized and expected to hold a specific predetermined set of beliefs on social and political issues, with little regard to their underlying humanity and the fact that they have intellects that can guide them to their own conclusions. Furthermore, women who disagree with this predetermined set of beliefs are too often viewed as the enemy to be taken down. The tendency for this mindset is perhaps greatest when it comes to the issue of abortion. As president of Princeton Pro-Life my first through third years at Princeton, I felt the consequences of this mindset to a certain degree. Many expressed confusion about why I would take up such a role, since being a pro-life woman leader seemed to be an inherent contradiction working within the comment section framework, anyway.

One of my main projects as president was overcoming this mindset of viewing others – especially other women – as the enemy for holding differing viewpoints on these hot button issues. To do so, Princeton Pro-Life began collaborating with the Women's Center, which generously accepted multiple offers to host and co-sponsor our events. My first year, the Women's Center co-sponsored a lecture on the ethics of abortion and women’s rights. My sophomore year, the Women*s Center co-hosted a “Pro-Life, Pro-Woman” open house to discuss pro-life feminism with the broader campus community and find points of agreement among students with diverse viewpoints. Later, Princeton Pro-Life and the Women's Center jointly hosted a screening of the documentary “Pro-Life Feminist” featuring Destiny Herndon-De La Rosa – the president of New Wave Feminists, which was kicked out of the Women’s March for being pro-life. After the film screening, the Women's Center held a discussion about the film and how those of differing viewpoints can collaborate to improve women’s lives and uphold human dignity. All of these efforts brought together segments of campus that may have otherwise viewed each other as enemies for having different views. By having these conversations, participants saw each other not as enemies, but as human beings mutually seeking the good.

These successes notwithstanding, there are ways the University could do more to encourage more of these humanizing discussions. Primarily, the University could encourage centers (such as the Women*s Center and Carl A. Fields Center) to intentionally and more often host discussion with the aim of bringing together diverse viewpoints in order to similarly overcome the enemy mentality. Doing so would reduce campus discord surrounding contentious issues and foster fruitful and productive discussion beyond the comment section practice of merely trying to defeat the other side.

Another encouraging feature of Princeton that is a testament to its viewpoint diversity is the ubiquity of conversions – including my own. By conversion, I refer not only to religious conversion, but also philosophical and political conversion, as well as more small-scale changes in perspective. Conversion can be a scary word, but in practice, it really amounts to a receptivity to the truth and whatever destination to which it takes you. I myself converted to Catholicism, as well as changed my mind on a number of contentious political and social issues. At Princeton, though, my convert status made me the norm, not the exception. I witnessed the conversions – big and small – of many if not most of my friends and classmates, which indicates the receptivity on the part of others to hearing arguments and an openness to being persuaded by good ones. The openness to conversion on the part of my peers is the antithesis of the comment section mentality, because it displays a willingness to move beyond the category of enemy when considering views other than one’s own.

To further encourage this culture of conversion, I propose that professors and preceptors should more explicitly teach their students the importance of charity – a willingness to consider an argument in the best light and fully understand it before attacking or critiquing it. I admit, being a charitable student and scholar is not always easy. My own natural scholarly tendency is to locate the enemy and attack. However, explicitly encouraging students to be charitable in the classroom will certainly translate into a greater respect for the diverse viewpoints of others.

In short, based on my experiences as a student, there is much to celebrate at Princeton. In many ways, Princeton successfully fights the comment section mentality and fosters a culture that not only tolerates but respects diverse views. And with a more intentional focus on fostering humanizing campus-wide discussions as well as the virtue of charity, Princeton can do even better.

January 12, 2019 | Permalink

Friday, January 11, 2019

Pappin on Rosenblatt, "Liberalism Against the Church"

Add to the conversation on liberalism, Catholicism, integralism, etc., this First Things review, by Gladden Pappin, of Helena Rosenblatt's The Lost History of Liberalism.  He concludes with this:

The political development of Europe,” Pierre Manent once wrote, “is understandable only as the history of answers to problems posed by the Church.” The Lost History of Liberalism reinforces Manent’s observation even while Helena Rosenblatt colors the goals of early liberalism in golden hues. However noble early liberalism’s project of moral improvement may have been, its self-perception always included the specific aim of overthrowing the Church. As that institution has suffered under liberal advances, so has the morality and liberality that liberals claim they want to secure.

Though this is hardly its intention, The Lost History of Liberalism offers a counterpoint to the hopes of Catholics seeking rapprochement with liberalism. In spite of her best efforts to make liberalism’s interest in public morality stand on its own two feet, Rosenblatt shows that liberal public morality is always in opposition to the accounts of morality and public life offered by the Church. Liberals have never been seriously interested in the ways Catholics have sought to make peace with liberalism. The more liberals return to their roots, the more apparently shared ground will give way. The future lies in anti-­ecclesiastical liberal ressourcement on the one hand, and anti-liberal ­ecclesiastical ressourcement on the other. 

As one of those who continues to resist some aspects of the current Catholic (and other) critiques of liberalism (properly understood, which is to say, as I understand it!), I have to say this is bracing stuff. Stay tuned!

January 11, 2019 in Garnett, Rick | Permalink

The Peter Steinfels article on the PA grand-jury report

I am very glad that Commonweal published this piece by Peter Steinfels ("The PA Grand-Jury Report:  Not What It Seems").  The article should be required reading for Catholics and non-Catholics, journalists and citizens.  Peter makes, among other things, some of the points I tried to make (but he makes them better) in this post ("Disentangling the Crisis") a few months ago.  It's a long read, but -- again -- a must-read nevertheless.

My sense is that many Catholics are reluctant to take issue with reports and news stories about clerical abuse and episcopal cover-ups, for fear of seeming to minimize or excuse the grave wrongs committed by some. This reluctance is understandable. And yet, it is very important that Catholics and others be told the truth and understand what did, and what did not (or, what might not have) happen.  Here's a bit, from near the end:

What does the report document? It documents decades of stomach-churning violations of the physical, psychological, and spiritual integrity of children and young people. It documents that many of these atrocities could have been prevented by promptly removing the credibly suspected perpetrators from all priestly roles and ministry. It documents that some, although far from all, of those failures were due to an overriding concern for protecting the reputation of the church and the clergy and a reckless disregard for the safety and well-being of children. It also documents that a good portion of these crimes, perhaps a third or more, only came to the knowledge of church authorities in 2002 or after, when the Dallas Charter mandated automatic removal from ministry. It documents, well before 2002, many conscientious attempts to determine the truth of accusations and prevent any further abuse, often successful though sometimes poorly executed or tragically misinformed. It documents significant differences between dioceses and bishops and time periods in the response to allegation of abuse. It documents major changes in vigilance and response in some dioceses during the 1990s and, as far as the evidence shows, dramatic changes after 2002.

What does the report not document? It does not document the sensational charges contained in its introduction—namely, that over seven decades Catholic authorities, in virtual lockstep, supposedly brushed aside all victims and did absolutely nothing in the face of terrible crimes against boys and girls—except to conceal them. This ugly, indiscriminate, and inflammatory charge, unsubstantiated by the report’s own evidence, to say nothing of the evidence the report ignores, is truly unworthy of a judicial body responsible for impartial justice.

Why the media were so amenable to uncritically echoing this story without investigation, and why Catholics in particular were so eager to seize on it to settle their internal differences, are important topics for further discussion.

January 11, 2019 in Garnett, Rick | Permalink

Thursday, January 10, 2019

Prof. Marcus Cole to be Dean of Notre Dame Law School

Announcement here. This is a great "get" for Notre Dame, and a testament, I think, to the importance of our aspiration, mission, and calling to be a meaningfully and interestingly great Catholic law school.  Stay tuned!  

January 10, 2019 in Garnett, Rick | Permalink

Wednesday, January 9, 2019

Allison Berger on Princeton, the Madison Program, and Viewpoint Diversity at Princeton and Beyond

When Allison Berger was graduated from Princeton, she was honored by the University with a "Spirit of Princeton" award for her outstanding contributions to campus life. Ms. Berger returned to Princeton recently to participate in a panel discussion hosted by the James Madison Program in connection with the University's "She Roars!" alumnae reunion. Other speakers at the reunion included Supreme Court Justices Sonia Sotomayor and Elena Kagan. I am posting Allison's remarks here because I believe she makes important points that are relevant to campus life everywhere--not just at Princeton. -- Robert George

Remarks of Allison Berger

    I was not planning to attend "She Roars!" until the Madison Program stepped in to make this weekend representative and inclusive of Princeton women of all political beliefs, so the Madison Program’s efforts to host this morning's events are already one example of why Princeton is so special.

And this is really a very special treat for me personally - the Madison Program was a primary reason that I applied to Princeton as my first choice college, remarkably now five years ago, and the first “out of class” lecture that I attended my freshman fall was a lecture hosted by the Madison Program with Philip Hamburger asking whether administrative law is unlawful. So I feel like things have really come full circle with being here today.

I want to start by talking about a few ways in which Princeton is not special when it comes to viewpoint diversity. Figure it is best to get the bad news out of the way first and I also think these shortcomings serve to highlight just how impressive and important the strengths Princeton does have are.

The fact of the matter is that on a social and interpersonal level among students, it is not easy to be an outspoken conservative. There are many people who will not be very nice to you at all. A few examples.

My freshman spring, I wrote an opinion piece for our campus conservative magazine, The Princeton Tory. It happened to be about the importance of open and civil discourse on college campuses. A few days after the magazines were distributed to every dorm room on campus, I came back to my room on the third floor of Forbes College and found a copy of the Tory shoved through and hanging off the handle of my doorknob. I pulled it off the knob and found that it was open to the article I had written. To be clear about what happened here, someone read or saw my article in the Tory and in response decided to look up where I lived on campus and send some sort of message to me by piercing my article through my door handle.

Two years later, during my junior spring, I was confronted by a belligerent, intoxicated male student while standing on Prospect Avenue outside my eating club. He looked at me and said “hey, you’re that girl who does all the conservative bleep,” and in a further expletive ridden tirade, yelled at me about how everyone hates me and all the conservatives on campus and that we should just shut up and go away. Substitute any other identity for “conservative” in that stream of abuse and that individual could very well have found himself the subject of a diversity and equity investigation.

In the Princeton ‘meme’ Facebook group, which is a collection of student-generated images captioned with inside jokes about campus life, conservative events and groups I was involved with were the subject of ridicule on at least four occasions, two times of which my full name appeared in the post.

Sometimes students would get into big Facebook political debates, spanning hundreds of comments, typically prompted by a conservative student posting an opinion noncontroversial to at least 50% of America but that was wildly disturbing to most students in the Orange Bubble. On more than one occasion during these online debates, students from the campus left wrote that they were going to screenshot and save the comments that conservatives posted with the threat they would forward the comments to future employers or reporters if anyone ran for or was nominated for public office. So don’t be surprised if 36 years from now, scribbles in high school yearbooks have been replaced by the Facebook comment wars waged by procrastinating Princetonians.

And the disturbing examples continue, from concerted and coordinated efforts by progressive upperclassmen to hose [exclude, black ball] conservative underclassmen from their eating clubs simply for the sin of speaking openly about their views to the vicious ad hominem attacks and accusations of racism or sexism hurled against students who publish conservative articles in campus publications. And there are many more examples but which are not my story to tell.

These things get to you. It is very upsetting to be called a racist or a sexist, or in my case as a woman, a traitor to my gender. The result is that there were many instances during my time at Princeton when my conservative friends and I would be discussing issues and someone would say they wanted to post something on Facebook or write an article or make a certain point at dinner, but in the next breath add that it was not worth dealing with the outrage that would follow or the risk to their campus reputation as simply a good person.

This is bad. And by the way - many people in the broader conservative mediasphere often dismiss campus leftists as “snowflakes” who cannot handle engaging with opposing views. But I don’t think this gives these students enough credit for what their goals are. Yes many demonstrate an inability to engage substantively and respectfully with different opinions, but many also demonstrate zero interest in doing so. Their goal is rather to intimidate conservatives into staying quiet and not adding their voices to the marketplace of ideas, where they could very well change some hearts and minds.

The Princeton administration and all University stakeholders should care about fixing this. The University is fundamentally failing in fostering free and open discourse if the learning that is meant to take place here in and out of the classroom is not as diverse and robust as it could be because some conservatives are too intimidated by the social repercussions that result from voicing their opinions.

After the 2016 presidential election, this campus went into a state of shock, like most campuses around the country did. My classmates could not believe that Donald Trump had won, most likely because they had never talked to or heard of anyone planning to vote for Trump. I never heard students who voted for Trump tell anyone other than a handful of like-minded friends that they had done so, let alone have a full and robust discussion about why. So it is no wonder that students were so shocked when Trump won. And no wonder it was so easy for many of them to respond by characterizing all Trump voters as white supremacist deplorables, rather than including the guy or girl who lives on your floor, brushes his or her teeth next to you each morning in the hall bathroom, and is also concerned about lowering taxes, protecting the unborn, and nominating originalists to the Supreme Court.

Now here’s the good news. The situation I just described could be worse. A lot worse. And it is a lot worse at most other universities around the country. While the treatment of Princeton conservatives is not fair, not right, and not pleasant, to my knowledge it has never turned violent. That seems like a low bar but it is a bar that Middlebury Professor Allison Stanger, still suffering the effects of injuries sustained when Charles Murray spoke at Middlebury in March 2017, would wish her campus had met. To my knowledge there has never been a speaker prevented from speaking on Princeton’s campus or shouted down when they arrived. Berkeley and Brown are among the institutions that have had such incidents.

So despite all of the social challenges I mentioned, there is a strong and vibrant conservative minority at Princeton and there is a strong and vibrant contingent of liberal students who engage respectfully and substantively with conservatives and maintain the basic assumption that we are decent people of goodwill.

Why is it that Princeton has succeeded in this regard when so many of our peers have failed?

One of the answers is Professor George and the James Madison Program. Professor George and the scholars he brings to campus through the Visiting Fellows program serve as excellent role models to campus conservatives of the best way to discuss our views in a respectful and courteous way. Professor George was always available as a mentor and guide to offer advice about the best way to respond to difficult campus events, which helped Princeton conservatives raise our game and go high when the progressives went low.

The lectures that the Madison Program hosts always feature robust Q&A sessions and provide an example to all students, conservative and liberal alike, for how to grapple with difficult issues in a thoughtful way. These lectures on American ideals and institutions also serve as an important reminder that celebrating the achievements of oft-vilified “dead white men” like Madison, Jefferson, and Hamilton is still a worthy and indeed essential academic pursuit.

The Madison Program also serves a social and community building function. Some of my favorite afternoons and evenings as an undergraduate were spent attending one of the teas or dinners that the Madison Program hosted with visiting speakers or scholars. These were attended by students of all backgrounds, class years and political beliefs and were another way for students to connect and engage. I am not one to believe in so-called “safe spaces,” but this campus should be welcoming and respectful of all students, and the work of the Madison Program is essential to ensuring that Princeton ‘be made safe for discourse,’ to borrow the phrasing of the also vilified Woodrow Wilson.

The example the Madison Program sets has been spreading around campus and is best exemplified in the book selection that Professor Eisgruber made for this year’s “pre-read,” a tradition he began of assigning each incoming freshman to read a book over the summer that would be discussed during Orientation. This year’s book, titled “Speak Freely,” is by Princeton Professor Keith Whittington and argues for the importance of open discourse. For the first time, the pre-read was distributed to all Princeton students, not just the incoming freshmen, which reflects that President Eisgruber understands how important this is to the lifeblood of the University. In my opinion, this should be the pre-read book every year. If tradition dictates that a new book be chosen each year, it should be replaced by a session during Orientation on the importance of campus discourse. I have to say, I was a Peer Academic Advisor for 3 years and so was involved with Orientation each of those years. It is a busy week but if the school can set aside time for all students, including religious and abstinent students, to learn how to respectfully ‘exile’ their roommate for the night, it can also set aside time for all students to learn how to respectfully engage their peers in discourse for the rest of their lives.

In closing, I would sum up my time as an outspoken Princeton conservative by saying what doesn’t kill you makes you stronger. There were some very unpleasant times, but many more incredibly rewarding ones, like one day last year when a freshman came up to me while I was walking to class, introduced himself, and told me that I was the reason he had decided to attend Princeton, because he had heard me speak at a debate our campus political union, Whig-Clio, held during visiting weekend and wanted to attend a school where people felt free to speak their minds like I had.

I left college as conservative as I was when I arrived but now even more confident in why I hold the opinions I do and in my ability to defend and articulate those beliefs. I learned so much from constantly being challenged by people who disagree with me. I can only conclude that it is a real shame that many of my liberal classmates were so successful in preventing themselves from having the same learning experience I did.

January 9, 2019 | Permalink

Tuesday, January 8, 2019

The Achievement of John Finnis

The Achievement of John Finnis

(from John Keown and Robert P. George, editors, Reason, Morality, and Law: The Philosophy of John Finnis)

Robert P. George

 

“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy.”

 

With these words, John Finnis, while still in his late 30s, began his masterwork, Natural Law and Natural Rights—the book that would not only revive scholarly interest in the venerable, but deeply misunderstood, idea of natural law and natural rights, but also powerfully challenge dominant ways of thinking among philosophers of law and moral and political philosophers in the analytic tradition.[1]

Future intellectual historians will no doubt present the book, together with Professor Finnis’ other philosophical writings, as part of the broad revival in more or less Aristotelian approaches to moral and political thinking that gained prominence beginning in the late 1970s.  And they will be right to do so.  Like Elizabeth Anscombe, David Wiggins, Philippa Foot, Alasdair MacIntyre, and many others, Finnis adopted or adapted Aristotelian methods to overcome the defects of utilitarian and other consequentialist approaches to ethics, on the one side, and Kantian or purely “deontological” approaches, on the other.

Like utilitarians, and unlike Kantians, these thinkers (who can be called neo-Aristotelians) hold that ethical thinking must be deeply linked to considerations of human well-being or flourishing—Aristotle’s eudaimonia.  But such thinking, they maintain, cannot treat the human good as subject to aggregation and calculation in a way that could somehow render coherent and workable a norm directing people to choose the option (or act on the rule) that will, for example, produce the “greatest happiness of the greatest number” or the “net best proportion of benefit to harm overall and in the long run.”  So, like Kantians, they reject the belief that ethics is a matter of technical reasoning (or “cost-benefit analysis”) aimed purely and simply at producing the best possible consequences.  Unlike Kantians, however, they also reject the idea of a purely deontological ethics, with its reduction of moral thinking to the domain of logic.  To be sure, they accept the idea of morality as a matter of rectitude in willing, but they argue that morally wrongful choosing is not merely a matter of inconsistency in thought.  Rather, immorality consists in choosing (and thus willing) in ways that are contrary to the good of human persons.

A critical moment—one might say the critical moment—in Finnis’ intellectual biography occurred when, nearly fifteen years before the publication of Natural Law and Natural Rights, he encountered the work of Germain Grisez.  It was Grisez’s “re-presentation and very substantial development” of Aquinas’ understanding of the first principles of practical thinking, the understanding articulated in the ‘treatise on law’ of the Summa Theologiae, that made it possible for Finnis to deploy with the rigor rightly demanded in the analytical tradition of philosophy an Aristotelian approach to problems in philosophy of law and moral and political philosophy.[2]  According to Grisez and Finnis, Aquinas correctly understood that the underived (per se nota and indemonstrabilia) first and most basic principles of practical reason direct human choosing and acting towards intelligible human goods—the various irreducible aspects of human well-being and fulfillment which provide more-than-merely-instrumental reasons for action—and away from their privations.  These first principles (and the basic human goods to which they refer in directing our choosing and acting—friendship, knowledge, critical aesthetic appreciation, skillful performances of various types, etc.) are not themselves moral norms.  (Knowledge of them is moral knowledge incipiently, but only incipiently.)  Rather, they guide and govern all coherent practical thinking, whether it results in morally upright action (e.g., visiting an ailing colleague in the hospital simply as an act of friendship) or immoral action (e.g., telling a lie to protect the reputation of a friend who has done something disgraceful).

Moral norms, whether general ones, such as the Golden Rule (“do unto others as you would have them do unto you”), or more specific ones, such as the prohibition of lying even to protect the reputation of a friend, are specifications of the obligation to honor the dignity of all human persons (including oneself) by respecting human well-being in its fullness—i.e., the basic goods of human persons considered integrally.  And so what Grisez and Finnis, who (together with Joseph M. Boyle, Jr.) would later collaborate extensively in developing the moral theory pioneered by Grisez, call “the first principle of morality” enjoins us to choose and otherwise will in ways that are compatible with a will towards integral human fulfillment.[3] And just as the various “basic human goods” are specifications of the first and most general principle of practical reason, which Aquinas formulates as “good (bonum) is to be done and pursued and bad (malum) is to be avoided,” the various moral norms which we strive to live by and transmit to our children are specifications of the first and most general principle of morality. These norms of morality governing human choosing are not mere projections of feeling or emotion, nor are they imposed upon reason extrinsically; rather, they are the fruit of reasoning about the human good and its integral directiveness, and are, in that sense, as Finnis says, requirements of (practical) reasonableness

When Finnis arrived in Oxford in the early 1960s as an Australian Rhodes scholar holding an LL.B. from the University of Adelaide, he was fortunate to be able to write his doctoral dissertation (on the idea of judicial power) under the supervision of Herbert Hart, holder of the University of Oxford’s Professorship of Jurisprudence and the preeminent Anglophone legal philosopher of his time.  Hart had recently published his own masterwork, The Concept of Law.[4]  Much of what Finnis would go on to achieve in legal and political philosophy would be rooted in critical engagement with Hart’s thought.  This was an engagement that Hart welcomed.  Indeed, in his role as editor of the prestigious Clarendon Law Series of Oxford University Press, Hart would commission Finnis (who in the mid-60s became his colleague on the Oxford law faculty) to write Natural Law and Natural Rights, even specifying the title.  While resisting most of Finnis’ criticisms of his work, Hart had a keen appreciation of the power of his young colleague’s intellect and the force of his arguments.

Although Hart’s sympathies tended to run in a moderate empiricist and to some extent utilitarian direction, there is a sense in which his work (especially The Concept of Law) prefigured the Aristotelian revival.  Despite his firm commitment to what he regarded as “legal positivism”—which he understood as a strict commitment to the “conceptual separation of law and morality”—Hart was a severe critic of Jeremy Bentham’s externalist and reductionist view of law (or the concept of law).  Bentham supposed that the social phenomenon (or set of phenomena) we know as “law” is best understood on the model of “orders backed by threats”—orders issued by a sovereign who is habitually obeyed, but who obeys no one.  On this understanding, laws function as causes of human behavior. They do not create obligation, at least in the normal, normatively flavored sense of that word.  Rather, they merely oblige—by way of threats of punishment for non-compliance.  They oblige in the way that an armed bandit obliges a victim to turn over his wallet when villain points a loaded pistol at victim’s head and says “your money or your life.”

Now, Hart’s objection to Bentham’s account was not moralistic; rather, he argued that it failed descriptively—it did not “fit the facts.”[5]  In particular, it did not account for the ways in which laws characteristically function in the lives of citizens and officials as frequently providing certain types of intelligible reasons for action, what he would later describe as “content-independent peremptory reasons.”[6]  To “fit the facts” an account of law must pay attention to the practical point of laws and legal institutions, and draw the distinctions between various types of laws and their various functions.  But this, in turn, required the legal theorist, or descriptive sociologist[7] of law and legal systems, to adopt what Hart called “the internal point of view,” that is, the practical viewpoint of citizens and officials for whom the laws provide reasons for acting by, among other things, enabling them individually and/or collectively to pursue certain objectives and accomplish certain goals (e.g., transporting themselves on the highways, getting married, creating a binding commercial contract, establishing a charitable trust).[8]

Thus, Hart’s “concept” (and philosophy) of law, having identified and adopted the internal point of view, begins to move away from the voluntarism (law as will) that lies at the heart of Benthamite legal positivism, and toward a recognition of law as rationally grounded—that is, as providing reasons that guide choosing.  Law (and laws), according to Hart, cannot be reduced to causes of human behavior, nor can it accurately be described as the sheer imposition of (the) will (of a sovereign).  It is characteristically (though not always) reasoned and reasonable.  At least, it is capable of being so, and will be so in the central or “focal” cases in which law functions in the ways that make it intelligible as a product of human deliberation and judgment in the first place.  And yet, Hart himself drew short of committing himself to any such conclusion.  He wished to retain the core of legal positivism even while jettisoning Bentham’s externalism (and strict voluntarism) and reductionism.  It was precisely for this drawing short, this refusal to identify fully reasonable (i.e., just) law as the focal case of law, and the point of view of the morally motivated legal official and citizen as the focal case of the internal point of view, that Finnis criticized the otherwise powerfully compelling philosophy of his teacher.

For Finnis, the focal case of a legal system is one in which legal rules and principles function as practical reasons for citizens as well as judges and other officials because of people's appreciation of their virtue and value, i.e., their point.  Aquinas's famous practical definition of law as an ordinance of reason directed to the common good by the persons and institutions having responsibility for the care of the community here has its significance in descriptive legal theory.  As Finnis observes,

"if we consider the reasons people have for establishing systems of positive law (with power to override immemorial custom), and for maintaining them (against the pull of strong passions and individual self-interest), and for reforming and restoring them when they decay or collapse, we find that only the moral reasons on which many of those people often act suffice to explain why such people's undertaking takes the shape it does, giving legal systems the many features they have—features which a careful descriptive account such as H.L.A. Hart's identifies as characteristic of the central case of positive law and the focal meaning of "law," and which therefore have a place in an adequate concept (understanding and account) of positive law."[9]

Yet, as I have noted, Hart himself, in The Concept of Law and elsewhere, refused to distinguish central from peripheral cases of the internal point of view.  Thus, he treated cases of obedience to law by virtue of "unreflecting inherited attitudes" and even the "mere wish to do as others do" as indistinguishable from morally motivated fidelity to law.[10]  These "considerations and attitudes," like those which boil down to mere self-interest or the avoidance of punishment, are, Finnis argues, "diluted or watered-down instances of the practical viewpoint that brings law into being as a significantly differentiated type of social order and maintains it as such.  Indeed, they are parasitic upon that viewpoint."[11]

Now, this is not to suggest that Finnis denies any valid sense to Hart’s insistence on the "conceptual separation" of law and morality.[12] It is merely to highlight the ambiguity of the assertion of such a separation and the need to distinguish, even more carefully and clearly than Hart did, between the respects in which such a separation obtains and those in which it does not.  Still less is it to suggest that belief in natural law or other forms of moral realism entail the proposition that law and morality are connected in such a way as to confer upon judges as such plenary authority to enforce the requirements of natural law or to legally invalidate provisions of positive law they judge to be in conflict with these requirements.  The scope and limits of judicial power is a separate issue—one that has been the focus of criticism of Hart’s jurisprudence by another of his eminent former students, Ronald Dworkin, who has faulted Hart’s positivism for excessively narrowing the authority of judges and other officials to bring moral judgments to bear in the enterprise of legal interpretation.[13]  Finnis has not signed on to Dworkin’s critique of Hart’s jurisprudence—a critique that is sometimes regarded as proceeding from a natural-law vantage point of its own—and parts of Finnis work suggest reasons for believing that Dworkin’s critique is in important ways misguided.  For Finnis, the truth of the proposition lex iniusta non est lex is a moral truth, namely, that the moral obligation created by authoritative legal enactment—that is to say, by positive law—is conditional, rather than absolute.  The prima facie moral obligation to obey the law is defeasible.  Finnis does not claim that unjust laws are in no legitimate sense laws,[14] nor does he argue that judges enjoy as a matter of natural law some sort of plenary authority to invalidate or even to subvert or ignore laws that they regard (even reasonably regard) as unjust.

We see, then, that Finnis takes on board Hart’s key insights deriving from his critical engagement with Benthamite legal positivism and pushes them to their logical conclusions—conclusions that move legal philosophy beyond legal positivism, even in its comparatively modest Hartian iteration, into a recognition of law as, in a meaningful sense, connected with reason’s quest for justice and the common good (law as reason and not merely will).  In the process, he strikes a blow against a familiar caricature of natural law whose wide acceptance (including, incidentally, by Hart himself as well as by Hans Kelsen and others) had provided apparent grounds for its quick dismissal by serious scholars and students of jurisprudence.

The achievement of John Finnis goes well beyond his signal contributions to philosophy of law.  It certainly includes his work with Grisez and Boyle in developing the understanding of practical reasoning and moral judgment that has come to be known, problematically, as the “new”[15] natural law theory and (not unrelatedly) his critical writings against moral skepticism, utilitarianism and other forms of consequentialism in ethics, and ethical theories that purport to lay aside considerations of human well-being in identifying norms of conduct for the moral life.[16] It also includes significant work in political philosophy, some of it directed to pulling the rug out from under the most influential forms of “liberal” political theory of our time, namely, those “anti-perfectionist” theories (often underwriting an ideology of expressive and/or possessive individualism), such as the theory of justice and “political liberalism” advanced by the late John Rawls, proposing that political decisions may not legitimately be based on controversial ideas of what makes for or detracts from a valuable and morally worthy way of life, or that in decisions pertaining to constitutional essentials and matters of basic justice, liberty may not legitimately be limited except on the basis of “public reasons” (where the concept of a public reason strictly excludes reasons drawn from “comprehensive” philosophical and religious views—however reasonable those “comprehensive views” may be).[17]

Finnis’ contributions in political philosophy go beyond the criticism of major works by influential contemporary liberal thinkers, such as Rawls, Dworkin, and the late Robert Nozick.  Natural Law and Natural Rights, especially chapters VI-XI, constitutes a major affirmative contribution to thought about (1) justice and its requirements, (2) the content (and scope) of the political common good; (3) rights, including human rights, and their identification; (4) the rational grounds for honoring legal and political authority and recognizing legal and political obligation; and (5) the nature and social functions of law.  In all of these areas, his analysis and prescriptions are notable not only for their analytical rigor and precision, but for their attention to the complexities of the subject matter.  (For example, Finnis carefully explores, in Natural Law and Natural Rights VII.4, the relevance of (a) need, (b) function, (c) capacity, (d) desert, and (e) consideration of who may have created or at least foreseen and accepted a risk of loss or harm, in analyzing problems of distributive justice.)  In all of these areas, what was originally presented in Natural Law and Natural Rights has been expanded, deepened, and in various ways enriched by papers Finnis subsequently published, most of which are included in the five volumes of Collected Essays of John Finnis published in 2011 by Oxford University Press.  Taken together, the chapters of the book and the various essays represent an important and distinctive contribution to the contemporary debate about the selection of political principles and the proper design and healthy functioning of political institutions.

In normative ethics and political theory, Finnis has been a force second to none in defending the moral inviolability of human life in all stages and conditions and the norm against making the death or injury of a human being the precise object of one’s choosing.  And so he has written powerfully against abortion, infanticide, euthanasia, and the intentional (including the conditional) willingness to kill or maim noncombatants (including captured or subdued enemy soldiers) even in justified wars (whether the weapons used are nuclear or conventional).  Similarly, he has been a leading voice in defense of the historic understanding of marriage as a conjugal partnership—the union of husband and wife.  In many cases, his views have put him at odds with the socially liberal orthodoxy prevailing in the universities and other intellectual sectors of the culture; in a few, they have placed him in dissent from what are regarded today as conservative positions. Like his hero Socrates, in an analogy his commendable humility would cause him vehemently to reject, he has followed arguments wherever they lead, and has never hesitated to state and defend a view because it flies in the face of the intellectual, moral, or political dogmas of the day.  The accolades and honors that have come his way were not purchased by conformity to allegedly enlightened opinion or by silence in regard to what he judges to be its grave defects.  His powerful and very public dissent could hardly have been contrived to gain him a personal chair in Oxford or election as a Fellow of the British Academy.    In this, as in so many other ways, he has always been an inspiration to those of us fortunate enough to have been his students and to young scholars in the various fields of his interest and influence who know his work and the witness to the unconditional pursuit of truth it represents.

And this takes us to one last area of his interest and influence, an area in which the truths pursued are truths about ultimate things.  While still a young philosopher, in a milieu dominated by the secularism he had hitherto shared—and one that was already showing signs of hostility to dissent—he made the move from secularism to (Catholic) Christianity, under the influence of classic philosophers as well as Christian saints. It was not that he came to faith and therefore saw the world differently.  If anything, the reverse was true.  The closed horizon of secularism artificially constrained the questions which, pursued with Socratic relentlessness, undermine secularism itself and inaugurate a journey of faith that might well lead to the rational affirmation of spiritual realities and an openness to entering into some form of communication and friendship with a transcendent source of meaning, value, and indeed all that there is. It was, in other words, reflection on the world—and the manifold orders of intelligibility (the natural, the logical, the moral, the technical) in which it presents itself to us and yields to our questioning and investigating—that led John Finnis to conclude that there are more things to be understood (and engaged) than can be immediately perceived with the senses or accounted for by empirical inquiry or technical analysis.  Like so many other notable modern philosophers who have made the journey from secularism to Catholicism—Jacques Maritain, Gabriel Marcel, Elizabeth Anscombe, Alasdair MacIntyre, Michael Dummett, Peter Geach, Nicholas Rescher—it was reason and reasoning that brought him to faith.

Faith was not to be, for Finnis, purely a matter of personal piety detached from his exertions as a philosopher.  It could not be, since the lines of questioning that must be pursued in practical philosophical disciplines—ethics, political philosophy, philosophy of law—will, unless for no adequate reason we choose to cut them off, take us to the deepest questions of meaning and value.  Reason itself—if it is anything more than a computational power—is a spiritual capacity, one that is not reducible solely to material and efficient causes. And reason cannot be a merely computational power if it is indeed capable of grasping more-than-merely-instrumental reasons for action (and their integral directiveness)—reasons (including moral norms) that are capable of guiding choices that are truly free.  And if we are indeed rational and free creatures—i.e., persons, beings whose fundamental makeup (nature) is oriented to deliberation, judgment, and choice—then we are not merely material, but also spiritual creatures—creatures whose integral good includes not only our bodily (biological) health, but our intellectual, moral, and spiritual well-being as well.  Obviously, these anthropological facts, if facts indeed they are, cannot but be highly relevant to questions of ethics, political philosophy, and philosophy of law, as well as to theology (including, centrally though not exclusively, of course, moral theology).

Finnis’ work in moral theology prompted the highest authorities of the Catholic Church to summon him to service on its most important theological council, the International Theological Commission.  There he worked especially on the philosophical and theological currents that were washing away the concept of intrinsically morally wrongful acts.  In his own voice, and not purporting to speak for the Commission, he published a small but lastingly valuable book on the subject entitled Moral Absolutes.[18] Here, in my view, we have a supreme example of the value of rigorous philosophical work marshaled in the cause of understanding the data of revelation and illuminating and enriching the teachings of faith. The work vindicates the claim famously advanced by Pope John Paul II in the opening sentence of his encyclical letter Fides et Ratio:  “Faith and reason are like two wings on which the human spirit ascends to contemplation of truth.”  The truth-seeking achievements of John Finnis have been made possible by his willingness to use both wings.

 

[1] John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2nd edition published in 2011).

[2] Germain Grisez, “The First Principle of Practical Reason:  A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2,” Natural Law Forum, Vol., 10 (1965), pp. 168-196.  In the Preface to NLNR, on p. vii, Finnis acknowledges his intellectual debt to Grisez, noting that “[t]he ethical theory advanced in Chapters III-IV and the theoretical arguments in sections VI.2 and XIII.2 are squarely based on my understanding of his vigorous re-presentation and very substantial development of the classical arguments on these matters.”

[3] This development is discussed intensively in Joseph Boyle’s essay herein, in Finnis’ response to it, and Grisez’s essay too.   In NLNR, Finnis did not formally articulate the first principle of morality—something he accounts as a “failure” in the post-script to the book’s 2nd edition (see p. 419).  This was, however, soon rectified in his writing, as a result of collaboration with Grisez and Boyle in the refinement and development of their “new” natural law theory.  As Finnis points out, in 1983 “openness to integral fulfillment” is accorded the status of the “master principle of morality” in Finnis’ Fundamentals of Ethics (Oxford and Washington, DC:  Oxford University Press and Georgetown University Press, 1983), pp. 70-74, 120-124, and 1511-152.  A more formal articulation of the principle first appears in Germain Grisez, Joseph M. Boyle, Jr., and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence, Vol. 32 (1987), at pp. 126-129.

[4] H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961); 2nd edition published in 1994.

[5] Hart, Concept of Law, p. 78.

[6] H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), Ch. 10.

[7] On the very first page of The Concept of Law Hart invites the reader to regard the book as an exercise in “descriptive sociology.”

[8] As Finnis points out, Hart in The Concept of Law, “gives descriptive explanatory priority to those who do not ‘merely record and predict behavior conforming to rules’, or attend to rules ‘only from the external point of view as a sign of possible punishment’, but rather ‘use the rules as standards for appraisal of their own and others’ behavior’.”  NLNR, p. 12, quoting Concept of Law, pp. 95-96.

[9]  John Finnis, “The Truth in Legal Positivism” in Robert P. George (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 195-214, at 204.

[10] Hart, Concept of Law, p. 198.

[11] Finnis, NLNR, p. 14.

[12] See generally Finnis, “The Truth in Legal Positivism.”

[13] Finnis comments on Dworkin’s critique, in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), of the “positivism” of Hart and Joseph Raz in an illuminating end note to Chapter Two of NLNR, arguing that the debate “miscarries” because Dworkin “fails to acknowledge that their theoretical interest is not, like his, to identify a fundamental ‘test for law’, in order to identify (even in the most disputed ‘hard cases’) where a judge’s legal (moral and political) duty really lies, in a given community at a given time. Rather, their interest is in describing what is treated (i.e., accepted and effective) as law in a given community at a given time, and in generating concepts that will allow such descriptions to be clear and explanatory, but without intent to offer solutions (whether ‘right answers’ or standards which if properly applied would yield right answers) to questions disputed among competent lawyers.”

[14] Ibid.

[15] The substance of the account of natural law offered by Finnis et al. is hardly new.  Its core can be found in Aquinas, and much of that, in turn, Aquinas draws from Aristotle.  It is true that Finnis, Grisez, and others have developed the Thomistic theory of natural law in various ways, and articulated the theory in a modern philosophical idiom.  But to develop a theory is not to reject it.  It is, rather, to accept its substance and draw out its further implications.  That is what they have done by, for example, showing how reflection on the integral directiveness or prescriptivity of the principles of practical reason that are presented by Aquinas enables us to identify moral principles and norms that distinguish options for choice that are fully in line with all that reasonableness demands from options that, in one way or another, fall short or afoul of the full demands of practical reasonableness.

[16] See especially Finnis, Fundamentals of Ethics.

[17] See John Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971); John Rawls, Political Liberalism (New York: Columbia University Press, 1993); Robert Nozick, Anarchy, State, and Utopia (Oxford: Oxford University Press, 1974); Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).

[18] John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, DC:  Catholic University of America Press, 1991).

January 8, 2019 | Permalink

Monday, January 7, 2019

The Supreme Judge for the Catholic World

"To judge" is a term used in many ways, and, as a result of that lack of univocity, we need to be careful when assessing the merits or demerits of particular examples of judging (or judgment).  It is fashionable in some quarters to posture as eschewing all judging or judgment, but the anti-judging posture simpliciter is unsustainable.  Judgment of various kinds is obviously a necessary achievement on a regular basis for a life of tranquil order or even the avoidance of the edge of chaos.

Judges, as in courts of law, do judge, but legislators and private persons also judge.  For example, I, a private person, judge that torture of the innocent is always and everywhere wrong; no legal consequences attach to my private judgment but it is nonetheless what we refer to as a judgment.  A judge acting as a judge, however, judges, for example, not only that the defendant did a legally proscribed act (actus reus) but also that he did it with the requisite fault (mens rea), and, under certain specified circumstances, the consequence called punishment will by judicial action (sentencing) attach to that legal judgment.  Unless our whole system of penal law were unthinkably to be transmuted into a regime of strict or absolute liability, its operation depends upon judgments of both acts and, to my present point, persons and, specifically, their fault vel non.  I would just add that a system of penal law that eliminated structured and limited judgment of the fault of duly accused persons in favor, instead, of universal strict liability would present its own, profound moral problems.  

The preceding, about the necessity of judgment to civilized living, is background to our present, real-life predicament.  On the one hand, the line for which Pope Francis is most likely most well known is "Who am I to judge?" On the other hand, however,

the Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.

 CIC 1442.  The person who as Pope publicly undermined his own capacity "to judge" is at the same time (as long as he remains Pope) unalienably the supreme judge for the Catholic world:  "Romanus Pontifex pro toto orbe Catholico iudex est supremus."

Before proceeding, let me anticipate the objection that it is canon law and the Roman-legal way of thinking, not the tension I have identified between the role of the "supreme judge" and the particular supreme judge who ponders "Who am I to judge?" that constitutes the problem.  But it is canon law, duly articulated and justly enforced, that constitutes the problem?  I submit that it is not, something Raymond of Penafort (whose feast the Church celebrates today) very much appreciated.   A worthy system of law, such as the canon law of the Church over the centuries, is vital to the just and effective, not to mention virtuous, functioning of a (complete) society.  The opposing point of view usually says that love is be preferred to law in the Church.  Indeed, but the priority of love in the Church rather calls for law than displaces law.

It is well known and easily documented that many of the active minds behind what we call "Vatican II" wished to divest the Church of the inheritance of Roman law in the canon law.  These tended, by the way, to be the same minds, such as Marie-Dominique Chenu OP, who wished to eliminate Latin as the liturgical language and also sought to downplay in Catholic theology the treasure of Greco-Roman discovery of the logos.   As I have commented here before, however, if the Church had not been functionally talked out of her own system of law and its just enforcement, the incidence of crime and other wrongdoing in within the Church herself in recent decades would surely have been orders of magnitude lower.  The canon law has remained on the books (though of course much weakened in relevant respects between the Code of 1917 and the Code of 1983), which is why  my saying "talked out of her own system of law" is somewhat hyperbolic, but the evidence is irrefutable that canonical crimes by prelates, for example, have gone by and large un-prosecuted.  

But enter a gaping exception.  This week includes what is to-date the most famous, indeed epochal, exception to the don't-prosecute prelates rule.  The Wall Street Journal and other sources are reporting that this very week, at long last, Archbishop McCarrick is finally getting the canoncial trial Pope Francis promised would be held when he accepted Archbishop McCarrick's resignation from the College of Cardinals this past June.  I have no competence, let alone any wish, to try to prejudge (sic) the result of the ongoing trial.

What I do wish to underscore is that the man who very successfully adopted the anti-judging stance for all the world to see and celebrate is the man who nonetheless will be, will-nilly, the "supreme judge" in McCarrick's case. It does not matter to the exercise of that supreme jurisdiction that McCarrick seems to have found personal favor with Cardinal Bergoglio and then Pope Francis.  Francis cannot recuse himself from being the supreme judge in McCarrick's case because, just as the Pope is the supreme legislator in the Church (which of course does not mean that his power is absolute), so, too, is he the supreme judge, irrespective of any bias of which he cannot rid himself.   This perhaps startling claim is the consequence of the theological doctrine summarized as follows in Canon 331, a canon Pope Francis himself has not been shy about formally invoking (e.g., with respect to his own role in ratifying the results of the 2015 Synod (cf. Can. 343)):

The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth.  By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise.  (emphasis added)

We should pray for Theodore McCarrick and for his supreme earthly judge.  It is to be hoped that McCarrick will receive a just trial and, if he is justly found guilty under canon law, a just penalty.  These will depend upon judgments of his acts but also of his culpability.  And thereafter there remains also the possibility of mercy.

Now enter the "Pope of Mercy."  People who are likely to be reading these words will know that this Pope has made his mark on the media and the world, including many Catholic faithful, by styling himself as more merciful than others, including his predecessors.  The most recent example of Francis's unique mercy came with his revision of the Catechism of the Catholic Church to declare that the Church now considers capital punishment to be always and everywhere "inadmissible," a topic I recently discussed here. Pope Francis seems to have judged (sic) all previous popes to be deficiently merciful on the question of capital punishment (and, for that matter, related penological policies and practices).

The rub, however, is as follows.  Even the "Who am I to judge?" and uniquely merciful Francis cannot help acknowledge the necessity of judgment.  Consider this from Francis's less-than-merry "Christmas Greetings" to the Roman Curia during Advent (sic) 2018: "To those who abuse minors I would say this: convert and hand yourself over to human justice, and prepare for divine justice."  Justice, both human and divine, presupposes and depends upon judgment.  

So far, to the best of my knowledge, not one man among the hierarchy has responded to the Pope's ominous Christmas imperatives to hand themselves over to the police.  In fact, the very recent news is that Pope Francis did not know that he had just a few months ago given (and continues to give) cover in the Vatican (as an "Assessor" in high Vatican finances) to one of his protege bishops from Argentina who is publicly accused of sexual abuse of his seminarians.  It sometimes seems that Pope Francis has very bad prudential judgment about whom to bring close to himself in exercising his ministry, thereby unintentionally multiplying the consequences of the "Who am I to judge?" policy.

We all await the divine judgment: Pope Francis got that right.  And we should await that judgment with the "fear and trembling" that the Catholic tradition always until recently taught and preached.  But Pope Francis also got right that he himself has a ministerial role that concerns judgment that, subject to ultimate and assured eschatological rectification, must be made in the here and now, sometimes by civil authorities but sometimes by ecclesiastical authorities.  We must not forget, come what may in the McCarrick trial and otherwise, that Pope Francis is the supreme judge "pro toto orbe Catholico."  Even the "God of Surprises,"a favorite of Pope Francis's, seems at this point unlikely to make the McCarrick problem go away.  We therefore await the judgment of this Pope as the supreme judge for the Catholic world, including Archbishop McCarrick, keeping in mind that the Code of Canon Law (1983) concludes by reminding those called to judge under its force that "the salvation of souls . . . must always be the supreme law in the Church."  CIC 1752.     

January 7, 2019 in Brennan, Patrick | Permalink

Sunday, December 30, 2018

2018 Heritage Foundation "President's Essay"

Each year, the President of the Heritage Foundation invites a thinker in the conservative tradition to write an essay to be published under Heritage's auspices as the "President's Essay." Past essayists include Whittaker Chambers, Michael Novak, Russell Kirk, Friedrich Hayek, Midge Decter, William F. Buckley, Jeane Kirkpatrick, Norman Podhoretz, James Q. Wilson, and Ryan T. Anderson. I'm grateful to Heritage's President Kay Coles James for inviting me to write the 2018 essay. It has now been published. Here is the text.

 

Returning to Our Principles

2018 Heritage Foundation President’s Essay

Robert P. George

The United States of America is a great country. It has achieved remarkable things. It has proven that republican government--government not only of the people (which all government is) and for the people (which all decent government is, even that of a benign despot) but by the people--can indeed "long endure." Our nation's record is not perfect and should not be whitewashed. Slavery and racial and other injustices are, alas, part of our story. But they are not the whole story. The efforts of our people--acting in deeper fidelity to our founding principles--to right historical wrongs and secure "liberty and justice for all" are also part of the story. And there is more.

The United States has created hitherto unimaginable prosperity and provided millions upon millions of people with unprecedented opportunities for economic and social advancement. It has welcomed immigrants--in astonishing numbers--and enabled them to become Americans--as truly and fully American as the descendants of those who came to North America on The Mayflower. It has defeated tyrants and tyrannies that have credibly sought nothing short of world domination.

And yet Americans are uneasy, unhappy, worried. Many are disaffected. At the extremes, small radicalized factions embrace violence against political opponents. Some stop short of endorsing violence but deploy a rhetoric of demonization that if unchecked will surely corrode the civic friendship--what Lincoln in his first inaugural address called "the bonds of affection"--on which the success of republican democracy vitally depends. Incivility in politics is scarcely something new, but some today regard it as a virtue. That is new. Even some who claim the mantle of conservatism seem to have been lured into an attitude of tribalism and identity politics. How should true conservatives understand our problems, and what should we propose to do about them?

As a conservative, I believe that at the heart of our woes is what has so often been at the heart of our woes whenever we have had woes, going all the way back to the original sin of slavery: infidelity to our nation's founding principles. Those principles include our formal constitutional commitments as well as the moral and cultural norms, practices, and understandings upon which those commitments depend. America is great. And the promise of America remains great. But in many crucial areas we have indeed gone astray. If America is to be true to herself, and if she is to fulfill her promise, things must be turned around.

Because our founding principles are true and good, they are demanding. It is not easy to live up to them, and we will never do so perfectly. Temptations to infidelity will always be with us. All the unsavory qualities of human nature that James Madison identified in the 10th Federalist Paper--and more--make it a challenge for us frail, fallen, fallible human beings to "hold fast to the right," in the words of the old hymn. We must summon the best in ourselves to overcome the weakest and worst in us if we are to resist temptations to sacrifice justice, virtue, honorable liberties, and the authentic demands of the common good for the sake of this or that shiny object: security, comfort, ease, being looked after, being protected from the possibility of failure, having special or dominant status--you name it.

If we are to overcome our woes, if we are to renew our great nation in the only way that our nation ever can be renewed--by returning to our first principles--then labor and sacrifice will be required of all of us. We must restore our national commitment to limited government and the rule of law. This will include the restoration of the constitutional separation of powers and the recovery of the principles of federalism. In particular, our national government must be returned to its constitutional status--to which even liberal jurists and constitutional scholars pay lip-service, even today--as a government of delegated and enumerated (and thus limited) powers.

More broadly, we must demand respect for what political philosophers call "the principle of subsidiarity." This principle of justice demands that government and other higher associations avoid taking over tasks that can be performed well by individuals and small associations, beginning with families, religious communities, and other institutions of civil society. If liberty and justice are to prevail, if the common good is to be realized, it is these "mediating" associations--Edmund Burke's "little platoons," which Alexis de Tocqueville celebrated for their crucial role in undergirding American democracy--that must bear primary responsibility for the health, education, and welfare of our people and for transmitting to each new generation the values, virtues, and skills necessary for individuals to lead successful lives and function as citizens in a free, democratic political order.

Government, especially central government, must stop usurping the authority, violating the autonomy, and damaging the integrity of these mediating structures. For example, government needs to respect the right of parents to direct the upbringing and education of their children, including their education on matters of sexuality and sexual morality. We cannot tolerate sex education programs--especially ones from which parents are forbidden to withdraw their children--that expressly or implicitly promote secular progressive dogmas about sexuality, morality, and marriage in defiance of the beliefs of parents and families. It is similarly intolerable when government--in hiring, licensing, contracting, or accreditation--discriminates against religious or other individuals and institutions because of their "traditional" beliefs about, for example, marriage, sexual morality, and the sanctity of human life.

Of course, there are legitimate roles for government to play. Often public health, safety, and morals and other aspects of the common good, including the protection of basic rights, require state action--laws, policies, or programs. But here the principle of subsidiarity demands that power must be exercised by the level of government closest, most responsive, and most accountable to the people over whom it is exercised. What can be done well by local government should be done by local government, not by the states. And what cannot be done well by local government, but can be done by the states, should not be done by the federal government.

We must also restore the democratic element of our republican constitutional system by reversing the outrageous usurpations of legislative authority routinely committed by the executive and by the courts. That reform would be right because it would make our government more faithful to the Constitution. It would also enable us to make critically needed gains in the direction of restoring in law and culture even more fundamental principles, beginning with the sanctity of human life in all stages and conditions; marriage as the conjugal union of husband and wife; and respect for religious freedom and the rights of conscience--including the rights of parents and families.

Social liberalism is riding high, having established itself as the dominant ideology in the elite sectors of the culture--in the media, in academia, in the entertainment industry and the corporate world, and in many professions. Social liberalism also benefited massively from eight years of aggressive promotion by a president who was willing to breach the constitutional limits of executive power at every turn in order to weave his socially "progressive" values into the fabric of our law and public institutions, including the military. But what was done can--albeit with difficulty--be undone. It is a matter of political will: The willingness to "pay any price and bear any burden" to do what is needed for moral-cultural renewal.

Conservatives must banish the thought that we can surrender on moral and cultural issues, letting the Left secure and consolidate its victories--even on the question of marriage--even while we achieve lasting victories of our own on limited government, economic reform, and national security. To give a sense of why that is the case, let me quote Jasper Williams, the fiery preacher who spoke at Aretha Franklin's funeral. Speaking of the importance of the marriage-based family and of the fundamental moral values that must be in place if families are to form, flourish, and play their critical role in the transmission of competency and virtue, Pastor Williams said:

As the home goes, so goes the street. As the street goes, so goes the neighborhood. As the neighborhood goes, so goes the city. As the city goes, so goes the state. As the state goes, so goes the nation.

His highly "politically incorrect" comments threw the Left into apoplexy. But what he said was true. The success of everything else in society--the educational system, the legal system, the political system, the private sector, the economy--rests vitally on moral foundations.

Conservatives understand that John Adams was right when he said that "our Constitution was made for a moral and religious people and is wholly inadequate to the government of any other." And the reason Adams was right is that our Constitution is, to borrow a phrase from Hayek, "a constitution of liberty," and liberty can never be sustained where immorality flourishes. A licentious people, a people given to appetite and vice, a people who come to accept or even tolerate the "if it feels good, do it" pseudo-principle of "Me Generation" social liberalism, a people who lose their sense of the need for virtue and the soul-shaping importance of the institutions of civil society--beginning with the family--will rapidly become a people no longer fit for freedom or capable of governing itself.

Now, none of this is to gainsay the importance of economic policy. Economic and moral reform must go hand in hand--indeed, the economic reforms we need have profound moral dimensions. Corporate welfare and crony capitalism (in the form of, for example, regulations preventing upstarts from competing with large firms that can more easily absorb compliance costs) undermine the proper functioning of the market-based economy and are blights on the honor of our nation. Moreover, there is a problem of plutocracy, which the Left derides while frequently taking advantage of, and the Right sometimes denies and more often ignores, supposing that the cultural and political power of big business is just the free market doing its thing.

Donald Trump's victories in the 2016 Republican primaries and in the presidential election--like Bernie Sanders' remarkably strong challenge to Hillary Clinton in the Democratic primaries--were driven to a considerable extent by legitimate economic grievances. Economic inequality is not in itself unjust, and any truly effective effort to eliminate it would give us tyranny in no time flat. But justice does require that we maintain fair terms of competition and cultivate conditions for large-scale upward economic and social mobility. A sound truly market-based system will be one in which upstart firms can compete fairly with the big dogs, and hard work, initiative, and the willingness to take investment risks are rewarded. Sound economic policies, by generating prosperity, redound to the benefit of the entire nation--including the poor. This remains true if we break things down into fiscal, monetary, tax, and regulatory policies. Everyone is made better off when money is sound, taxes are reasonably low, inflation is restrained, employment opportunities expand, capital is available, there is genuine market competition, government spending is reasonable, and there is decent wage growth. Everyone is made better off when environmental and other regulatory policies are sensible and evidence-based, and not driven by fads, junk science, alarmism, or corruption.

An urgent matter that most politicians wish to ignore but conservatives know can no longer be ignored is entitlement reform. The federal government's obligations under Medicare and Social Security threaten to bankrupt the nation unless we put them on firmer financial footing. Doing that will require courage--a virtue that is always in short supply among politicians. A true conservative, however, will exemplify it and provide the leadership in this area that America desperately needs.

In the area of national security, a renewed sense of American exceptionalism--one that would be massively advanced by moral reform and re-dedication to our constitutional principles--would serve us well. American exceptionalism is often misunderstood. It is not a claim that we, as Americans, are superior people. Rather, it is a claim that the principles of our founding are unique and valuable principles. It is an affirmation that the American people are not bound together as a nation by blood or soil but rather by a shared commitment to a moral-political creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life liberty and the pursuit of happiness." This creed is what has rallied Americans in the past to the defense of our country. It can once again strengthen us to stand up to the evildoers who threaten us, and it can inspire us to make the sacrifices that--make no mistake--will have to be made if we are to defeat them.

Despite the successes of General James Mattis and his forces, too often unjustly overlooked, "Islamic State" extremists have confidence that they will ultimately prevail over us, despite our overwhelming military power, because they believe in something and we believe in nothing; because they are spiritually and morally rigorous and we are soft and self-indulgent; because they are willing to fight and die and we are not. Our survival against them depends entirely on whether these beliefs about us are true or false. If they are true, then we are doomed, and doomed with us is the noble experiment in morally ordered liberty bequeathed to us by those who, at the beginning, pledged their lives, fortunes, and sacred honor to establish the regime of republican government that is our precious patrimony. The conservative movement in our time must prove them false.

About the Author

Robert P. George holds Princeton University's celebrated McCormick Professorship of Jurisprudence and is Director of the James Madison Program in American Ideals and Institutions. He is also a Visiting Professor at Harvard Law School. He has served as Chairman of the U.S. Commission on International Religious Freedom and on the U.S. Commission on Civil Rights and the President's Council on Bioethics. He was a Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. A Phi Beta Kappa graduate of Swarthmore College, he holds the degrees of J.D. and M.T.S. from Harvard University and the degrees of D.Phil., B.C.L., and D.C.L. from Oxford University, in addition to twenty honorary degrees. He is a recipient of the U.S. Presidential Citizens Medal, the Honorific Medal for the Defense of Human Rights of the Republic of Poland, and the Canterbury Medal of the Becket Fund for Religious Liberty. His most recent book is Conscience and Its Enemies.

December 30, 2018 | Permalink