Mirror of Justice

What's the ius in Dobbs v. Jackson Women's Health Organization?

Sometimes the simplest questions are the easiest to answer. All federal judges take an oath to administer justice under the Constitution and laws of the United States. This is their promise, to render to each his or her lawful due. This thing lawfully due to each person in justice is his or her ius. The key question for a judge to ask in deciding any case should be: "What’s the ius?" Asking this question in every case can orient at the outset, channel throughout, and confirm at conclusion. 

“What’s the ius?” is also often a simpler and easier question to answer than “what’s all the potentially applicable law?” or “what are all the material facts?” All of the law and all of the facts may sometimes be necessary to know, but other times it is unnecessary to go into all of that. In the famous case of Marbury v. Madison, for example,  Marbury’s ius was his commission. The Court lacked jurisdiction to order Madison to render this ius to Marbury. It was therefore unnecessary for the Supreme Court to have gone into all that Chief Justice Marshall wrote in his opinion for the Court. 

We Catholics have been invited by our bishops to pray today in a special way for the Justices of the Supreme Court as they continue their deliberations in Dobbs v. Jackson Women’s Health Organization, No. 19-1392. 

My prayers in particular have been drawn to Chief Justice John Roberts, who is a model judge for me and for many others. The Chief Justice of the United States takes the same judicial oath as every other federal judge. I pray that he fulfills this oath. What that requires in this precise case, I do not pretend to know in all its particulars. There are many ways of going wrong, and those are to be avoided. But there are also many ways of doing right, and I pray that he is drawn to those.

I hope that Chief Justice Roberts orients his deliberations with his colleagues around the question: What’s the ius? What is the thing that we are being asked to render as lawfully due?

The ius requested by Jackson Women’s Health Organization and other plaintiffs is an immunity. More precisely, these plaintiffs’ principal prayer for relief is an order allowing them to avoid prosecution in state court for anticipated violations of a state-law prohibition against aborting an unborn baby after fifteen weeks gestational age. They claim this immunity from state law as their due under federal law.

It seems very likely that Chief Justice Roberts has already decided to order denial of the requested relief. Through his questions at oral argument, the Chief Justice signaled that the viability line on which plaintiffs rely was an invention of the Court and not well-founded. The plaintiffs need the Court to hold that line in order to win. The Court will not hold that line and they will therefore lose. That is as it should be.

The harder issue that the Chief Justice seems to be wrestling with is what to say about drawing a new line. Some have noted the Chief Justice’s apparent attraction to articulating a constitutional requirement that individuals be permitted some shorter period of time before viability to seek an abortion in a regulated but otherwise open and legally protected market for abortion services.

The Chief Justice should resist this attraction. Apart from the lack of warrant in the Fourteenth Amendment for drawing such a line, there is no warrant in this case for doing so. The plaintiffs’ claimed injury comes from the inability to perform lawful abortions after fifteen weeks. That claim lacks merit. It would be gratuitous to volunteer a new line in this case. 

Justice Alito’s leaked draft does not volunteer a new line. It applies rational basis review and recognizes the legitimate interests of the state advanced by the law it has enacted. Chief Justice Roberts should do likewise. 

To draw a new temporal line in pregnancy before which federal law purportedly preempts state-law protections against intentional killing would be to continue the federal judiciary’s complicity in the denial of the equal protection of the laws to prenatal persons within the jurisdiction of each state. But the rights of these prenatal persons are not directly before the Court in this case, which pits the authority of the government against the interests of abortion providers. It is enough to decide that the law does not entitle the abortion providers to a federal judicial order shielding them from the consequences of violating the state law at issue.

On the question of line drawing regarding life-and-death protections for prenatal persons more generally, the Chief Justice’s opinion for the Court in Rucho v. Common Cause should be his guide. The federal judiciary may not order relief on any constitutional claim that the government has gone too far in protecting prenatal life unless that claim is grounded in judicially discoverable and manageable standards for resolving it. These standards must rest on a “limited and precise rationale,” and must be “clear, manageable, and politically neutral.” These are the criteria identified by Chief Justice Roberts in his opinion for the Court in Rucho v. Common Cause. They are taken from Justice Kennedy’s concurrence in Vieth v. Jubelirer. These criteria cannot be satisfied when the question is how far along in pregnancy a prenatal person must have developed in order to be protected by the law. My prayer is that Chief Justice Roberts and his colleagues recognize that the federal courts cannot grant abortion providers’ prayers for relief from enforcement of prenatal-person-protecting laws like the one at issue in Dobbs v. Jackson Women’s Health Organization. 

The "Black Legend" (of American constitutional law) returns

Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic.  "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said.  "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.

Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here.  He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"): 

Stone's analysis generated an uproar, but it was correct then, as it would be correct now:  someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).

As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.  

I wrote then (I still cannot get over how long ago that was!):

[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."  What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.

It is interesting, I think, that Professor Stone invokes the example of Justice Brennan.  Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice.  And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith.  Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?

Statement on the leaked Alito draft opinion in Dobbs

On January 22, 1973, I was a high school student working a pro-life information table at the West Virginia University student center when we heard about the Supreme Court’s decision in Roe v. Wade. I recall the horror of learning that the Court had crushed the basic rights of an entire class of precious human beings—our tiny unborn brothers and sisters. I know that the horror I felt that day, and vividly remember to this day, is the horror many people who see the issue differently than I do are feeling today. These include a great many good and honorable people who deeply care about the well-being of women, especially vulnerable women, and believe that their rights are being crushed. Although I disagree with them about the rights and wrongs of abortion, and indeed applaud the reversal of Roe as a victory for justice and constitutional integrity, I feel no temptation to exult.

Roe v. Wade needed to be reversed, as I predicted it would be https://www.firstthings.com/article/2021/10/roe-will-go, not only because it was a grave injustice against the unborn, but also (and in the first place) because it was an unconstitutional decision—an act of “raw judicial power.” The right to abortion it proclaimed lacked any basis in the text, logic, structure, or historical understanding of the Constitution. To say that it was poorly reasoned is an understatement. The truth is that it wasn’t reasoned at all. This left its defenders with an impossible task—defending the literally indefensible.

That does not mean, however, that voting to reverse Roe is an easy thing for justices to do. If, as the draft opinion of Justice Samuel Alito which was leaked yesterday suggests, five or possibly even six justices are voting to reverse Roe, they merit praise for courage and fidelity to principle. The Roe decision lacked intellectual credibility but did not lack influential and powerful supporters. In fact, what sustained Roe for forty-nine years was precisely the prestige, influence, and power of people in academia, journalism, entertainment, key professions and professional associations, the great philanthropies, politics, and the corporate world who were deeply invested in maintaining it, despite its manifest lack of intellectual credibility.

In the beginning, the question of abortion and then the soundness or unsoundness of Roe were not "left" versus "right" issues. There were plenty of prolife liberals or progressives, and lots of prochoice conservatives. Jesse Jackson spoke passionately for the dignity and rights of the child in the womb. As Governor of California, Ronald Reagan supported and signed into law a statute broadly legalizing abortion. In time, though, abortion and support or opposition to Roe began coding as “liberal” and “conservative.”

The conservative legal community developed a critique of Roe that, though commendable and sound in a great many ways, was not fully adequate. That critique, championed by the late Justice Antonin Scalia, supposes that nothing in the Constitution is relevant to the question of abortion prohibition or regulation—hence the matter is left by the Constitution entirely to the judgment of state legislatures. This is incorrect—indeed demonstrably incorrect—and Professor John Finnis of Oxford University and I have demonstrated its incorrectness in among other places, a brief we submitted to the Supreme Court in the Dobbs case. (Published version and supplement here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973183.) Justice Alito’s leaked draft cites that brief and makes excellent, if limited, use of the evidence it provides and arguments it marshals. These establish that the term “person” in the Fourteenth Amendment—an Amendment that, among other things, imposes on States an obligation to afford to persons the equal protection of the laws (including the laws against violent assaults and homicides)—was publicly understood at the time of the framing and ratification of the Amendment as including the child in the womb. The permission by a state of elective abortion, therefore, is a violation of the Constitution and should be declared by the Supreme Court to be so. This is not, however, a claim the state of Mississippi made in defending the constitutionality of its statute and requesting the reversal of Roe, nor is it the outcome the state requested. Understandably, then, the Court did not reach the question. I hope it will do so in later litigation.

As Professor Finnis and I point out in the brief, resolving the matter in the way we argue the Constitution requires does not mean that the Supreme Court should dictate abortion policy tout court. Where pregnancy poses a grave threat to maternal life and health—that is, when we are no longer speaking of elective (or “social indication”) abortions—there are policy and policy-related questions that cannot be resolved by the straightforward application of equal protection principles. These questions are, therefore, properly in the legislative domain and judgments about them should not be imposed by the judiciary.

Two more points.

If, as the leaked draft opinion seems to suggest, the Supreme Court has decided to reverse Roe and return the question of abortion entirely to the legislative domain, then the pro-life movement faces a new set of challenges—challenges even more daunting than overturning Roe. In the face of profound opposition from the wealthiest, most powerful, and most influential forces and institutions in the country, the movement needs to extend the protections of law on terms of fairness and equality to mothers and children alike. Going still further, it needs to work in both the public and private spheres to provide necessary support for mothers and children, never allowing their interests or well-being to be pitted against each other. To its great credit, the pro-life movement has been doing this since before Roe v. Wade—again, in the face of hostility from the most powerful forces. We will need now to do more and better. We can and we will.

What about the leaking of the Alito draft? It is an outrage, of course. Even if the leaker is caught and subjected to appropriate disciplinary proceedings, the damage to the Court will be deep and abiding. Anyone who has worked in the building knows that trust is indispensable to the functioning of the institution. The leak has destroyed trust. Perhaps someday the Court will get it back. But not in my lifetime. Probably not in my students’ lifetimes. For decades—at least—there will be the mere simulacrum, a pretense, of trust; there will not be trust. Trust was shattered in what appears to have been a desperate effort to unleash forces that would bully justices into doing something other than what they regarded as their constitutional duty. In this respect, it is tragically in line with the broader trend in our culture and politics for people to get their way by bullying others. People on the left can think of the examples from the right that stand out in their minds. People on the right can think of the examples from the left that stand out in theirs. It is time—long past time—for decent and honorable people on both sides to say: “Enough! We will not tolerate bullying. We will not tolerate it from our political opponents. But we will be equally and equally vocally intolerant of it when it comes from our political allies.”

 

"Can We Be Human in Meatspace?"

This review essay, in The New Atlantis, connects nicely with the moral-anthropology theme that has been a part of the Mirror of Justice conversation for nearly two decades (!) now.   Here's the opening:

In thinking about technology, three questions are fundamental. What is technology for? What are we for? And how is our answer to the first question related to our answer to the second?

Since the Enlightenment, we have come to take for granted that there really is no relation, because we cannot publicly agree on what humans are for. We can answer that question only privately. But technology is public, not private. We create it for common use, ostensibly in the service of the common good. If we cannot broadly agree on what we are for, then how can we reason together about what our technology is for?

It appears that we cannot.

It's a long piece, and I cannot do justice to it here.  But again:  We've often observed, and reflected on the observation, that one cannot really "do law" without engaging the question, "what are human persons?"  Certainly, a "Catholic legal theory" must be one that gives priority to this question.

Henry Garnet, S.J., RIP

On this day, in 1606, Henry Garnet, S.J. was hanged near St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Garnett & Graziano on the Kennedy case (and "endorsement")

I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things).  A bit:

Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.

There they go again ... Vermeule & Casey on Pryor in Ohio

There they go again. Law professors Adrian Vermeule and Conor Casey have co-authored an impressively lengthy, effectively footnoted, and aptly titled "Argument by Slogan" piece up at Harvard JLPP's Per Curiam. Its rhetorical framing brings to mind a critical and pointedly understated observation that Professor Richard Helmholz recently made in Marching Orders. In his largely positive review at First Things of Vermeule's compact call to arms, Common Good Constitutionalism, Helmholz expressed surprise at "the harshness of debate in this area of the law," and described Vermeule's outlook as that of one engaged in "a no-holds-barred sort of contest."  "It does seem a shame," Helmholz observes, "that the argument about constitutionalism has become as shrill as it has."

Helmholz is likely right about the shrillness being a shame; he is definitely right about the shrillness being shrill. Consider how Vermeule and Casey frame their response to the published version of Judge William Pryor's address to the Federalist Society’s 2022 Ohio Chapters Conference, Against Living Common Goodism:

• "Judge Pryor's advocacy of public meaning originalism is infected by a horror of judgment—a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law." [p. 4]
• "In the end, Judge Pryor's core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory." [p. 4]
• "To understand Judge Pryor's commitments, one must begin with the animus that galvanizes his argument." [p. 5]
• "The consequence of this core enmity is simple: Judge Pryor's argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor's arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism."
• "In the end, Judge Pryor's core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan's style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. ... Enmity is not a theory. Slogans are not arguments." [p. 19]

Just so. 

If one wishes to take seriously the ideas at issue instead of being distracted by the framing and motivational attributions, there's not much one can do about this rhetorical state of affairs in the short term. One can attempt to absorb or deflect, though, and then at some other time put forward a more positive vision. So for now, I'll just gesture toward that famous debater's trick from the Gipper and combine it with the professors’ favored rhetorical technique of repetition: There they go again.

Anyone want to teach Torts? In Minneapolis?

I apologize for bursting in after such a long absence for something with something that someone might argue has only the slightest relationship with Catholic Legal Theory, but this is urgent, and this is an audience I'd like to reach!  As some of you may know, the University of St. Thomas is in the midst of some leadership changes.  Our President is moving to Santa Clara University,  our beloved Law School Dean, Rob Vischer, will be serving as Interim University President, our equally beloved Associate Dean for Academic Affairs, Joel Nichols, will be serving as Interim Dean of the Law School, and I will be serving as Interim Associate Dean.

These rather sudden transitions are complicated by the fact that our first year Torts classes were being taught by Rob and Joel, so we are looking for Torts coverage.   Here's the announcement Joel is posting:  please forward to anyone you think might be interested:

The University of St. Thomas School of Law (MN) is looking to hire a visiting professor for Fall 2022 to teach Torts. The ideal candidate would have experience teaching Torts and be able to teach two sections of Torts in the fall term, due to leadership changes at the school. Torts is a 4 credit, fall-only 1L class. Courses will be taught fully in-person, unless the public health situation changes significantly.

We would consider a full year visit for 22-23 (courses in spring term TBD based on the visitor’s expertise) and would also consider a visitor who can teach one section of Torts plus another course in an area of expertise. Please send inquiries and statements of interest to Joel Nichols, incoming Interim Dean, at [email protected]. Review of applications will begin immediately.

I know the timing means that most faculty are already committed for the fall, but I would appreciate it if you would share with colleagues who might be interested and available. People should feel free to reach out to me directly at [email protected] or by phone at 651-962-4827.

 

Seminar: Competing Visions of the University

I'm posting below the syllabus for a seminar I am teaching this semester with historian Allen Guelzo on competing visions of the university.

PRINCETON UNIVERSITY
Department of Politics

Politics 491:  The Politics & Principles of Higher Education: Competing Visions of the University

Instructors: Robert P. George (Politics) & Allen C. Guelzo (Humanities)

Description/Objective: This course will examine the history, contemporary reality, and likely future of higher education, especially in the United States but also abroad. We will consider the changing and often conflicting ideals and aspirations of parents, students, instructors, and administrators from classical Rome to Christian institutions in the European Middle Ages to American athletic powerhouses today, seeking answers to fundamental practical, economic, and political questions that provoke vigorous contemporary debate.

Free Speech:  As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this seminar and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Texts:

Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (Rowman & Littlefield, 2019)

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019)

Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (Yale University Press, 2007)

John Henry Newman, The Idea of a University, ed. Frank M. Turner (Yale University Press, 1997)

Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)

Digital Reader:

• Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997)
• William Deresiewicz, “Don't Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)
• Plato, Protagoras, 320c-328d
• Aristotle, Politics, 7.13-8
• Quintilian, Institutio oratoria (Book 10)
• Petrarch, “The Ascent of Mt. Ventoux,” ed. Henry Reeve (Edinburgh, 1878), 84-89
• Vergerio, De ingenius moribus (1472)
• John Dewey, Democracy and Education (1916), chs. 6 & 7
• Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963)
• Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920,” in Wechsler, Goodchild & Eisenmann, The History of Higher Education (1997), 473-498
• Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)
• Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)
• Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999)
• William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” University of Dayton Law Review 44 (2018-2019)
• Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999);
• Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998)
• Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021)

Online Readings:

• James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971) - https://www.learningoutcomesassessment.org/wp-content/uploads/2020/01/Axtell-1971.pdf
• Patsy Parker, “The Historical Role of Women in Higher Education” -- https://files.eric.ed.gov/fulltext/EJ1062478.pdf
• AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color” -- https://www.aaup.org/news/data-snapshot-full-time-women-faculty-and-faculty-color#.YZQwRL3MJVo
•  C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018) -- https://www.americanprogress.org/article/neglected-college-race-gap-racial-disparities-among-college-completers/

Weekly Schedule

1. January 26 – What Is the Purpose of a University, and especially the kind of education we call “liberal arts”? This will be a general get-acquainted session, with a detailed review of the syllabus and readings, some preliminary questions about why, exactly, we’re all here at Princeton and what we expect Princeton to be, what Princeton has been in the past, and then the distribution of assignments as per above.

1. February 2 -- The Ancient Model of Learning – What we call ‘higher education’ today takes its earliest form in in classical times. But what was its purpose? To whom was it addressed, and what were its ‘graduates’ expected to do with it?

Readings: Plato, Protagoras, Aristotle, Politics, Quintilian, Institutio oratoria (Book 10)

1. February 9 -- The Renaissance Model of Learning – If the classical education gives us many of the questions we associate with ‘higher education,’ then the Middle Ages and Renaissance gives us its forms, in the monastery schools and then the universities. What did those universities aspire to teach, and how did the emphasis on virtue emerge in the Renaissance?

Readings: Petrarch, “Ascent of Mt. Ventoux”; Vergerio, De in genius moribus (1472)

1. February 16 -- The Victorian Model of Learning – The medieval universities evolved in the 19^th century into models of research, especially in Germany. That emergence was both challenged and accommodated in one of the most famous modern texts ever written on university life.

Readings: John Henry Newman, The Idea of a University (1852/58)

1. February 23 -- The Progressive Model of Learning – By the turn of the 20^th century, government had begin to look to higher education as a source of administrative expertise. How did this change the functioning of higher education, especially in the United States? Modern mass society has changed, not only what is taught, but also how universities are supposed to serve the public interest. It has, however, created serious questions about whether higher education has become purely instrumental.

Readings: John Dewey, Education and Democracy (1916), chs. 6 & 7; James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971); Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963), 1-34

1. March 2 -- Women in the University – Until the later 19^th century, women were almost entirely absent from higher education. How have women challenged and changed university life since then?

Readings: Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920”; Patsy Parker, “The Historical Role of Women in Higher Education;” Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (2019)

Spring break – March 5-13

1. March 16 -- The Color of the University – Higher education in the United States, and at Princeton, was a closed door to people of color. This, too, has changed since the 19^th century. But are its implications different than those posed by the entrance of women at the same time into American colleges and universities? What challenges do race pose today? – AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color;” Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019); C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018); Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)

1. March 23 -- What is a Curriculum?– Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (2007), Chs 1-3; Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)

1. March 30 – What is the Purpose of an Education?  -- Readings: Donald P. Verene, The Art of Humane Education (2002); Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020); Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997) Ch 1; William Deresiewicz, “Don’t Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)

1. April 6 -- Law and the University: Dartmouth, Gott, Dixon, Healy, Furek, Bakke, Grutter -- Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999); Kronman, Education’s End, Ch 4; William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” U. Dayton Law Review 44 (2018-2019)

1. April 13 -- Academic Freedom & Its Purpose -- Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999); Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)

1. April 20 -- How Will Universities Change? -- Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998); Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021); Kronman, Education’s End, Ch 5

Requirements:

In addition to regular, often substantial, reading, there will be a take-home midterm examination and a final 15-20-page paper. Each student will also be responsible for helping lead one class meeting.

Grading: Midterm Exam 20%

Paper In Lieu Of Final Exam 50%

Class/Precept Participation 20%

Oral Presentation(s) 10%

Prerequisites and Restrictions: This seminar is open to all Class years. There are no prerequisites or restrictions

On C.S. Lewis' "Learning in War-Time"

Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of our Reading Society gatherings at the Center for Law and Religion, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below.

One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.

2022-04-01-14-20DOWNLOAD

The Congregation for Catholic Education issues new instruction on Catholic schools

The Pillar has the story, here.  Read the whole thing, but it seems clear that the Congregation is rejecting a notion of Catholic schools according to which they are merely schools like others, but with a sprinkling of religiously themed art or character-focused programming.  At a Catholic school, the "Catholic" must be about more than heritage, tradition, or affiliation; it is about character, charism, mission, and "identity."  And, the relevance to cases in the United States involving the so-called "ministerial exception" (which is neither limited to ministers nor an exception) is clear:

As the document turns to the role of teachers, the congregation lines up behind an argument which has been advanced by several American dioceses in recent years which defines all teachers, regardless of subject, as ministers of religion, for the purposes of U.S. law:

“In a Catholic school, in fact, the service of the teacher is an ecclesiastical munus and office,” it says, which they exercise not only by teaching in the classroom but “also bearing witness through their lives, [through which] they allow the Catholic school to realize its formative project to witness.”

The extent to which teaching is described almost as an ecclesiastical vocation is further emphasized by the instruction, which says they must all be “outstanding in correct doctrine and integrity of life,” and requires the “initial and permanent formation of teachers.”

“Following the doctrine of the Church, it is therefore necessary for the school itself to interpret and establish the necessary criteria for the recruitment of teachers,” the instruction says. “This principle applies to all recruitments, including that of administrative personnel. The relevant authority, therefore, is required to inform prospective recruits of the Catholic identity of the school and its implications, as well as of their responsibility to promote that identity.” 

An Interview with CUA's New President, Peter Kilpatrick

The Catholic University of America has named (my former Notre Dame colleague) Peter Kilpatrick as its next president.  (Kilpatrick will succeed my other former Notre Dame colleague, John Garvey.)  Here, thanks to The Pillar, is an interesting interview with Kilpatrick about (among other things) the nature and importance of a distinctively Catholic university and the challenges that exist to the building and thriving of such an institution.  Here's a bit:

For me, a Catholic university is a unique place of higher learning, where we embrace the fusion — the integration —  of faith and reason, where we celebrate that there is only one truth about the world and about the human person in the world, and that’s that it all flows from God. 

And it's only possible to do that at a university like a Catholic university or another religious university really authentic to its faith principle. 

I think the other important thing about a Catholic university is that you integrate the disciplines because knowledge is not bite-sized pieces. Disciplines, which came about in the late 19th century at the German universities, are not intended to be in isolation. They are intended to be in context of the global society and the society in the culture that you're in. 

And unfortunately, so much of what’s done at many other universities is to silo the disciplines. And that's not what a Catholic university is about. We're about integrating the disciplines and putting it all in context. So my understanding of Catholic universities is that they have this unique role to play integrating faith and reason and integrating the disciplines. 

The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.         

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

Movsesian on Law, Religion & COVID-19

There's a new issue of the Journal of Law & Religion available to read online for free, and it includes an intriguing article by friend of MoJ Mark Movsesian, "Law, Religion, and the COVID-19 Crisis."  From the abstract:

As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

The Australia School

I'm back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I'll have more to say about my paper, "The New Disestablishments," by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I'm only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I'm sure (and apologize preemptively to those I have not discussed). I don't want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank--not identically, but substantially. Indeed, I have a review over here of Harrison's book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I've been thinking about is just why. 

As I say, I'm just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it's a fresh and interesting development in the law and religion world. 

Religious Tests for Public Office

We can all well recall the infamous moment when Senator Dianne Feinstein scolded Amy Coney Barrett, then a nominee for a judgeship on the U.S. Court of Appeals, that "the dogma lives loudly within you."

Many of us took the opportunity to applaud a person's faithful commitment, and, indeed, I still have my own t-shirt that reads: "The Dogma Lives Loudly Within Me."

But we also more soberly recognized this as an expression of anti-Catholic bias and an improper attempt to invoke religiosity as a disqualification for judicial office.

It is just a wrong when it comes from another direction, trying to evaluate whether a person is religious enough for judicial office.

Judge Ketanji Brown Jackson has proven herself to be a person of strong character and patient generosity, illustrating and saying that her faith has been a source of strength for her.

But that apparently was not enough for Senator Lindsey Graham who had the temerity to ask her: "On a scale of 1 to 10, how faithful would you say you are in terms of religion?" (Whether Graham meant the question or instead was posing a negative parallel to the Justice Barrett incident, the question remained way, way out of bounds.)

Judge Jackson answered appropriately in this way: "I am reluctant to talk about my faith in this way... I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views."

I was thinking of the answer of Saint Joan of Arc to a similar hostile question and how apt it would have been here: "If I be not in a state of grace, I pray God place me in it; if I be in it, I pray God keep me so."

Purposive interpretation *as* judicial restraint: The Legal Process School as the end of a long era

Most people today tend to associate purposive interpretation--of statutes, say, but it could be of anything--with "judicial activism" and therefore an absence of judicial restraint. The alignments seem to be: textualist interpretation--->restrained interpretation; purposive interpretation--->activist interpretation.

But I'm learning that it was the view of some legal process theorists (Bickel, Wellington, Jaffe, maybe Fuller) that purposive interpretation promoted and was in the service of judicial restraint. As Neil Duxbury puts it in his article on the Legal Process school (Faith in Reason: The Process Tradition in American Jurisprudence): "As with the articulation of reasons, they [legal process theorists] argued, the purposive interpretation of statutes fosters judicial restraint. For such interpretation allows not the imposition of any old purpose onto a statute, but only 'a purpose which may reasonably be imputed to those who uttered the words.' [citation here to a 1957 piece by Bickel and Wellington]....Judicial discretion in the interpretation of statutes, [Jaffe] argued, should be exercised...where the Court is uncertain of the clear purpose of the statute."

In fact, one can see the view that purposive interpretation is an appropriate judicial function in constitutional adjudication of the 18th and 19th century quite regularly. But I was surprised to see it as still so fully embraced by the Process theorists. As sifting out, through reasoned elaboration, the principles the lawmaker intended for the law. And yet, this way of thinking is so different from the way many think about judicial restraint today. Something like the opposite way.

Agreement on the moral authority of original meaning

Adrian Vermeule and Conor Casey have written an uncharacteristically pugnacious recommendation for a forthcoming article by Joel Alicea, The Moral Authority of Original Meaning. The primary thrust of Alicea's article is to provide "a natural-law justification for originalism grounded in the legitimate authority of the people-as-sovereign, authority that is necessary for achieving the common good." Alicea frames the paper as a response to Vermeule's argument, advanced emphatically here at MOJ, that originalism is "an essentially positivist approach." Judging from Vermeule's and Casey's response, Alicea's arguments have carried the day to the contrary. 

In making his earlier claim about the essentially positivist nature of originalism, Vermuele acknowledged that some had previously defended the compatibility of classical natural law jurisprudence and original-law originalism. But he argued that combining originalism and common-good constitutionalism results in an approach that is "intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water ...."

My initial assessment of this claim about the incompatibility of originalism and common good constitutionalism was that it was wrong. After all, (1) common good constitutionalism just seemed to be another adaptation of the classical natural law tradition that, in comparison with other adaptations' emphasis on law's efficient and material causes (i.e., lawful authority and promulgation), placed greater emphasis on the final cause of law (i.e., for the common good of the community for which it is promulgated); and (2) Jeff Pojanowski and I had already established the compatibility of the classical natural law tradition with what we called original-law-ism, or original-law originalism. Our arguments complemented argumentation in a similar vein by Lee Strang, who had been expounding the compatibility of the classical natural law tradition and constitutional originalism before we published our contribution to this literature. 

It seems my initial assessment was correct and that Vermeule has backed off the claim that originalism is "an essentially positivist approach." This latest blog post about Alicea's paper is the most recent indicator of this salutary development. (I'm not aware of co-author Conor Casey having previously advanced the same "essentially positivist" claim as Vermeule.)

Rather than press the claim that originalism is essentially positivist, Vermeule and Casey dispute neither that Alicea's approach is originalist nor that it is non-positivist. They argue not that Alicea is wrong, but rather that he has justified "uncontroversial generalities." They contend that what they call Alicea's "generic, lowest-common-denominator version of originalism" amounts to "thin gruel." More particularly, they say Alicea establishes only that:

[F]irst, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.

Vermeule and Casey assert that these two propositions of generic originalism are "what we take the classical legal tradition to entail." If the classical legal tradition is not essentially positivist, then neither is this generic originalism. 

As for whether this generic originalism amounts to "thin gruel," that may be more a matter of taste than anything else. If Alicea's arguments are correct—and Vermeule and Casey do not dispute them—they exclude many non-interpretivist theories of the sort that proliferated through the 1970s, 1980s, and 1990s. (Believe it or not, young 'uns, that's how these arguments were once framed: "interpretivist" versus "non-interpretivist" theories.) Originalism's success in this regard may be why some theorists jumped off the non-interpretivist track and relabeled the previously non-interpretive aspects of their approaches as interpretive. If one believes that there's nothing that interpretation just is, then this amounts to little more than marketing the same old non-interpretivism under a different label. But whether interpretation is a distinctive activity with a distinctive object is a question for another day.

Vermeule has previously acknowledged the existence of nonpositivist originalism by sometimes more carefully limiting his criticisms to "originalist positivism." [109] It would be helpful to the cause of argumentative clarity if he would do this more consistently. In the light edits that he did for the book version of the MOJ post in which he made his "essentially positivist" claim, for example, Vermeule left that claim in. As a result, Vermeule was still insisting as of the book's publication that "views that attempt to fuse the common good with originalism ... are intrinsically unstable, because they attempt to combine an essentially positivist approach with the classical approach." [136] 

It is a welcome development that the "essentially positivist" claim no longer appears to be the considered position of Vermeule or Casey. Their claim now is that the stability of any combination on originalism and common good constitutionalism depends on the substantive insignificance of any version of originalism that is compatible with common good constitutionalism. Evaluating that claim depends, of course, on the relative insignificance of posited law in the comparator version of common good constitutionalism.

In any event, Vermeule's and Casey's recognition of the incorrectness of treating generic originalism as "essentially positivist" is why I began by describing Vermeule's and Casey's post as an uncharacteristically pugnacious recommendation of Alicea's paper. They are in heated agreement with Alicea's titular claim about The Moral Authority of Original Meaning. 

The reality of the Annunciation, the angel Gabriel, and the injustice of the Ukraine invasion

Today's Feast of the Annunciation is both somber and hopeful. Pope Francis will lead an Act of Consecration of Russia and Ukraine to the Immaculate Heart of Mary. We should accept the invitation he has extended to all the faithful to join him in praying this prayer:

O Mary, Mother of God and our mother, in this time of trial we turn to you. As our mother, you love us and know us: No concern of our hearts is hidden from you. Mother of mercy, how often we have experienced your watchful care and your peaceful presence! You never cease to guide us to Jesus, the prince of peace.

Yet we have strayed from that path of peace. We have forgotten the lesson learned from the tragedies of the last century, the sacrifice of the millions who fell in two world wars. We have disregarded the commitments we made as a community of nations. We have betrayed peoples’ dreams of peace and the hopes of the young. We grew sick with greed, we thought only of our own nations and their interests, we grew indifferent and caught up in our selfish needs and concerns.

We chose to ignore God, to be satisfied with our illusions, to grow arrogant and aggressive, to suppress innocent lives and to stockpile weapons. We stopped being our neighbor’s keepers and stewards of our common home. We have ravaged the garden of the earth with war, and by our sins we have broken the heart of our heavenly Father, who desires us to be brothers and sisters. We grew indifferent to everyone and everything except ourselves. Now with shame we cry out: Forgive us, Lord!

Holy Mother, amid the misery of our sinfulness, amid our struggles and weaknesses, amid the mystery of iniquity that is evil and war, you remind us that God never abandons us, but continues to look upon us with love, ever ready to forgive us and raise us up to new life. He has given you to us and made your Immaculate Heart a refuge for the church and for all humanity. By God’s gracious will, you are ever with us; even in the most troubled moments of our history, you are there to guide us with tender love.

We now turn to you and knock at the door of your heart. We are your beloved children. In every age you make yourself known to us, calling us to conversion. At this dark hour, help us and grant us your comfort. Say to us once more: “Am I not here, I who am your Mother?” You are able to untie the knots of our hearts and of our times. In you we place our trust. We are confident that, especially in moments of trial, you will not be deaf to our supplication and will come to our aid.

That is what you did at Cana in Galilee, when you interceded with Jesus and he worked the first of his signs. To preserve the joy of the wedding feast, you said to him: “They have no wine” (Jn 2:3). Now, O Mother, repeat those words and that prayer, for in our own day we have run out of the wine of hope, joy has fled, fraternity has faded. We have forgotten our humanity and squandered the gift of peace. We opened our hearts to violence and destructiveness. How greatly we need your maternal help!

Therefore, O Mother, hear our prayer.

Star of the Sea, do not let us be shipwrecked in the tempest of war.

Ark of the New Covenant, inspire projects and paths of reconciliation.

Queen of Heaven, restore God’s peace to the world.

Eliminate hatred and the thirst for revenge, and teach us forgiveness.

Free us from war, protect our world from the menace of nuclear weapons.

Queen of the Rosary, make us realize our need to pray and to love.

Queen of the Human Family, show people the path of fraternity.

Queen of Peace, obtain peace for our world.

O Mother, may your sorrowful plea stir our hardened hearts. May the tears you shed for us make this valley parched by our hatred blossom anew. Amid the thunder of weapons, may your prayer turn our thoughts to peace. May your maternal touch soothe those who suffer and flee from the rain of bombs. May your motherly embrace comfort those forced to leave their homes and their native land. May your sorrowful heart move us to compassion and inspire us to open our doors and to care for our brothers and sisters who are injured and cast aside.

Holy Mother of God, as you stood beneath the cross, Jesus, seeing the disciple at your side, said: “Behold your son” (Jn 19:26). In this way, he entrusted each of us to you. To the disciple, and to each of us, he said: “Behold, your Mother” (Jn 19:27). Mother Mary, we now desire to welcome you into our lives and our history.

At this hour, a weary and distraught humanity stands with you beneath the cross, needing to entrust itself to you and, through you, to consecrate itself to Christ. The people of Ukraine and Russia, who venerate you with great love, now turn to you, even as your heart beats with compassion for them and for all those peoples decimated by war, hunger, injustice and poverty.

Therefore, Mother of God and our mother, to your Immaculate Heart we solemnly entrust and consecrate ourselves, the church and all humanity, especially Russia and Ukraine. Accept this act that we carry out with confidence and love. Grant that war may end and peace spread throughout the world. The “fiat” that arose from your heart opened the doors of history to the Prince of Peace. We trust that, through your heart, peace will dawn once more. To you we consecrate the future of the whole human family, the needs and expectations of every people, the anxieties and hopes of the world.

Through your intercession, may God’s mercy be poured out on the earth and the gentle rhythm of peace return to mark our days. Our Lady of the “fiat,” on whom the Holy Spirit descended, restore among us the harmony that comes from God. May you, our “living fountain of hope,” water the dryness of our hearts. In your womb Jesus took flesh; help us to foster the growth of communion. You once trod the streets of our world; lead us now on the paths of peace. Amen.

None of this makes any sense, of course, if the only reality in this world is material reality. But materialism is so ingrained, primarily as a practical rather than speculative stance, because our spiritual senses have been deadened and dulled. Perhaps this Feast of the Annunciation can be an occasion for a renewed commitment to prayer for the grace of enlivened and sharpened spiritual senses.

As a matter of "intellectual engagement," a good place to begin is with the reality of spiritual reality. This is where Frank Sheed begins in Theology for Beginners. He relates an exchange that a Catholic Evidence Guild member had with "a materialist, who asserted the the idea of justice was the result of a purely bodily activity, produced by man's material brain":

Speaker: How many inches long is it?

Questioner: Don't be silly, ideas have no length.

Speaker: O.K. How much does it weigh?

Questioner: What are you doing? Trying to make a fool of me?

Speaker: No. I'm taking you at your word. What color is it? What shape?

[Sheed continues:] The discussion at this point broke down, the materialist saying the Catholic was talking nonsense. It is nonsense, of course, to speak of a thought having length or weight or color or shape. But the materialist had said that thought is material, and the speaker was simply asking what material attributes it had. In fact, it has none, and the materialist knew this perfectly well. Only he had not drawn the obvious conclusion. If we are continuously producing things which have no attribute of matter, it seems reasonable to conclude that there is in us some element which is not matter to produce them. This element we call spirit.

Oddly enough, the materialist thinks of us as superstitious people who believe in a fantasy called spirit, of himself as the plain blunt man who asserts that ideas are produced by a bodily organ, the brain. What he is asserting is that matter produces offspring which have not one single attribute in common with it, and what could be more fantastic than that? We are the plain blunt men, and we should insist on it.

Occasionally a materialist will argue that there are changes in the brain when we think, grooves or electrical discharges or what not. But these only accompany the thought; they are not the thought. When we think of justice, for instance, we are not thinking of the grooves in the brain; most of us are not even aware of them. When I say that mercy is kinder than justice, I am not comparing mercy's grooves with the stricter grooves of justice.

Our ideas are not material. They have no resemblance to our body. Their resemblance is to our spirit. They have no shape, no size, no color, no weight, no space. Neither has spirit, whose offspring they are. But no one can call it nothing, for it produces thought, and thought is the most powerful thing in the world—unless love is, which spirit also produces.

Let us consider this passage in light of today's Act of Consecration. The category of spiritual reality is necessary to make sense of it. Without this category, we would have no adequate way to conceive of the reality of the Annunciation itself, of the angel Gabriel, or of the injustice of the Ukraine invasion. Each of these events, persons, or states of affairs is real. Each only makes sense as real in light of spiritual reality. As an event in the material world, the Annunciation was manifest through the appearance of the angel Gabriel to Mary. But what is an angel? What does it mean for a purely spiritual creature to "appear"? What was announced in the Annunciation? None of this makes any sense, and there is no possibility of salvation through the Incarnation, Life, Death, and Resurrection of Jesus Christ, unless spiritual reality is real reality.

And now we return to this day, March 25, 2022. Spiritual reality grounds the claim that the injustice of Russia's invasion of Ukraine is real injustice. The act of invasion was the act of a real vice, of objectively disordered human will. Again, something important is missing if we think of justice and injustice as simply subjective opinions lacking any basis in reality. Yet if the only reality is material reality, then that's where we are.  

Mary, Queen of Angels, pray for us.

Christian nationalism and the rule of law

I've posted on SSRN my chapter on Christian nationalism from a new book on the January 6 insurrection.  You can read the whole thing here.  The abstract:

Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?

Academic Freedom (?) and Catholic character at Dayton

The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021.  The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”

The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought."  The letter also states:

We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.

I have written before about the issue of Catholic universities, honorees, and outside speakers before.  Among other things, I said:

[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.

That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university.  It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate.  As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research. 

Again:  This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights.  And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one.  But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university.  And again:  I say a bit more about why this suggestion is incorrect, here. 

Announcing the Sixth Biennial Colloquium in Law & Religion at St. John's Law School

The Center for Law and Religion, which Mark Movsesian and I co-direct, is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. 

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

Mirror of Justice's 18th (!) anniversary . . . and the Velveteen Rabbit

Our first post here at Mirror of Justice went live just over 18 years ago.  ("Wait, grandpa . . . they had the Internet 18 years ago?"  "Yes, m'boy, and there was content besides homemade dance videos, too!")  Here's the opening graf:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations.  There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read.  And yet:  Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!

One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise.  I continue to think this is a linch-pin issue.  That is, it matters -- a lot -- for law what human persons are and what they are for.  Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets?  If we have "dignity", what makes it so that we do?

Conference: "Beyond 'Defensive Crouch' Religious Freedom"

I'm happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I'll present a paper called "Traditionalist Disestablishments," a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.

 

The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.

 

Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email [email protected]. We hope you'll join us!

True Again Today: There's a Bear in the Woods