Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, November 26, 2004

Immigration, the Constitution as interpreted by the Court, and Catholic Social Teaching

Our constitutional approach to aliens (non-citizens) is schizophrenic. 

In Graham v. Richardson, 403 U.S. 365, 372 (1971), the United States Supreme Court used strict scrutiny to strike down state laws that distinguished between legal aliens and citizens in the state’s welfare expenditures.  It held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.  Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.”

In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held (using an intermediate scrutiny standard) that a state could not discriminate against illegal alien children by denying them free public education.

But, in the Chinese Exclusion Case, 130 U.S. 581 (1889), the Court upheld the exclusion of Chan Chae Ping, a Chinese national who had lived in the United States for 12 years who left the country temporarily to return to China.  Before he left for China, he obtained a certificate from the United State government authorizing his return to the United States.  Unfortunately for him, as he was returning to the United States, Congress passed a law revoking the certificates authorizing return, and he was turned away.  The Court held:  if, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion" is within the power of the government, even in times of peace.

Although decided 115 years ago, the Chinese Exclusion Case continues to have vitality and was cited as authority by the 10th Circuit earlier this year.  It created the plenary power doctrine, which basically stands for the proposition that our domestic constitutional norms are inapplicable in the immigration field.  In deciding who is admissible, excludable, and deportable from the United States, Congress can take into account race, religion, political affiliation, and gender in ways that would raise red flags if Congress attempted to do this in any other area.  And, because deportation is considered “civil” in nature and not “criminal,” the prohibition on ex post facto laws is inapplicable.

In a later posting, I’ll give an explanation of where our constitional framework for our alienage jurisprudence went wrong with some suggestions for how to get back on track.  I would also welcome comments from Chuck Roth, others working in immigration law, and anyone else.

November 26, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Thursday, November 25, 2004

Proselytism and Statism in China

Check out this story, "Violence Taints Religion's Solace for China's Poor," in today's  New York Times:

China's growing material wealth has eluded the countryside, home to two-thirds of its population. But there is a bull market in sects and cults competing for souls. That has alarmed the authorities, who seem uncertain whether the spread of religion or its systematic repression does more to turn peasants against Communist rule.

The demise of Communist ideology has left a void, and it is being filled by religion. The country today has more church-going Protestants than Europe, according to several foreign estimates. Buddhism has become popular among the social elite. Beijing college students wait hours for a pew during Christmas services in the capital's 100 packed churches.

But it is the rural underclass that is most desperate for salvation. The rural economy has grown relatively slowly. Corruption and a collapse in state-sponsored medical care and social services are felt acutely. But government-sanctioned churches operate mainly in cities, where they can be closely monitored, and priests and ministers by law can preach only to those who come to them.


November 25, 2004 | Permalink | TrackBack (0)

The New Yorker on Secularism in France

The Nov. 22 issue of The New Yorker features a piece by Jane Kramer on France's ban on Muslim headscarves in schools, and on French secularism more generally.  I have not been able to find a link to the article, but an interview with Ms. Kramer about the essay is available here.  It makes (in my view) for painful but instructive reading.  Kramer states:

I was interested in the issue of secularism, on the one hand, and, on the other hand, in what I have come to think of as the American theocratized state. Living in America and looking at France, as I often do, I was struck by the fact that these are the two most significant republics in the West with this total separation between church and state. Several Western countries are in some way tied to an established church and, as a result, are not fully separated constitutionally, in terms of church and state. But France is and America is. Just as the United States was reintroducing religion into the concept of the state, France was busy reaffirming the secularism of the state.

The interviewer then goes on to pick up the theme of America's "apparent tilt toward theocracy."

This is all, of course, so much nonsense.  Whatever one thinks of what might be characterized as a modest increase in religiously-toned discussion in the public square, the notion that the American "state" is "theocratized" is overheated blather.  And, contrary to Ms. Kramer's suggestion, the move in America away from "naked public square" ideas of public discourse does not amount to "reintroducing religion into the concept of the state," any more than France's aggressive moves against all but the most privatized forms and expression of religion can fairly be characterized as merely "reaffirming the secularism of the state."  In a nutshell, Ms. Kramer misses the important -- the crucial, for those of us who value freedom -- and Catholic distinction between "state" and "society."


November 25, 2004 | Permalink | TrackBack (0)

Wednesday, November 24, 2004

Not really about Catholic legal theory, but...

...its the night before Thanksgiving and I just returned from a beautiful inter-faith service, an annual event for Thanksgiving Eve here in Port Washington, N.Y.  By tradition the sermon is given by the newest rabbi, priest or minister in town.  Tonight, the speaker was a rabbi who gave a truly inspiring talk....one of those times when you really could hear a pin drop, so rapt was the attention with which the entire congregation listened to him.

One of the points he stressed is one dear to my heart - the importance of having a sense of gratitude rather than one of desert or entitlement.  Our culture, with its excessive emphasis on individualism, does much to promote a sense of entitlement.  ("I worked hard, I did it on my own and by golly I deserve the rewards I reap from my efforts.  I earned them.")   Yet, the reality is that all we are and all we have are gifts from our loving God, and those gifts are meant to be shared and used for the benefit of the communal whole.   If that recognition filled our being, imagine how different our world would be.  It alone would change tremendously how we view our stewardship of the earth, how we view our obligation toward the poor and marginalized, how we regard life itself.  I think if I could make only one change in the world that might be the one I'd make - to replace people's view of the things of this world as a matter of entitlement with a view of them as gift; to replace an attitude of desert with one of gratitude.   

Happy Thanksgiving to all (and to all a good night).


November 24, 2004 in Stabile, Susan | Permalink | TrackBack (0)

Immigration Law and the Human (Non-) Person

Chuck Roth of the Midwest Immigration and Human Rights Center offers the following response to my question on the compatibility of immigration law with Church teaching:

One troubled by Roe v. Wade's finding that unborn children are non-persons can hardly fail to be similarly troubled by cases like United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien not entitled to First Amendment rights, because "he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"), Kwong Hai Chew, supra, at 596, n. 5 ("The Bill of Rights is a futile authority for the alien seeking admission"), and even, in modern times, Chief Justice Rehnquist's opinion in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990) (questioning "whether the protections of the Fourth Amendment extend to illegal aliens in this country," suggesting that they are not "people" within meaning of the Fourth Amendment). It does seem that when we as a species wish to deprive someone of rights to which they are otherwise entitled, we tend to label them as non-persons. To borrow a phrase from the first Pres. Bush, when someone argues that a member of our species is a non-person - reach for your wallet.

November 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Immigration Law and Family Breakdown

I don't know much about immigration law, but there seems to be an undeniable tension between a nation's right to maintain its borders and the Church's emphasis on the primacy of the family, as reflected in this heart-breaking story of deported parents leaving children behind.  I'm wondering if Michael Scaperlanda or other immigration law experts have some insight on this issue.


November 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

[Thought this would be of interest to those who have thought about Mark Sargent's dreams of a new party.]

America (americamagazine.org), Vol. 191 No. 17, November 29, 2004

Needed: A New Spiritual Left

By Michael Lerner

[ Rabbi Michael Lerner of Beyt Tikkun synagogue in San Francisco is editor of Tikkun: A Bimonthly Jewish Critique of Politics, Culture and Society and author of Healing Israel/Palestine (North Atlantic Books, 2003). ]

For years the Democrats have been telling themselves “it’s the economy, stupid.” Yet consistently, for dozens of years, millions of middle income Americans have voted against their economic interests to support Republicans who have tapped a deeper set of needs. Tens of millions of Americans feel betrayed by a society that seems to place materialism and selfishness above moral values. They know that “looking out for number one” has become the common sense of our society, but they want a life that is about something more—a framework of meaning and purpose to their lives that would transcend the grasping and narcissism that surrounds them. Sure, they will admit that they have material needs, and that they worry about adequate health care, stability in employment and having enough money to give their kids a college education. But even more deeply, they want their lives to have meaning; and they respond to candidates who seem to care about values and some sense of transcendent purpose.

Many of these voters have found a “politics of meaning” in the political right. In the right-wing churches and synagogues these voters are presented with a coherent worldview that speaks to their “meaning needs.” Most of these churches and synagogues demonstrate a high level of caring for their members, even if the flip side is a willingness to demean those on the outside. Yet what members experience directly is a level of mutual caring that they rarely find in the rest of the society and a sense of community that is offered them nowhere else, a community that has as its central theme that life has value because it is connected to some higher meaning than one’s success in the marketplace.

It is easy to see how this hunger gets manipulated in ways that liberals find offensive and contradictory. The frantic attempts to preserve family by denying gays the right to get married; the talk about being conservatives while meanwhile supporting Bush policies that accelerate the destruction of the environment and do nothing to encourage respect for God’s creation or an ethos of awe and wonder to replace the ethos of turning nature into a commodity; the intense focus on preserving the powerless fetus and a culture of life without a concomitant commitment to medical research, gun control and health care reform; the claim to care about others and then deny them a living wage and an ecologically sustainable environment—all this is rightly perceived by liberals as a level of inconsistency that makes them dismiss as hypocrites the voters who have been moving to the right.

Yet liberals, trapped in a longstanding disdain for religion and tone-deaf to the spiritual needs that underlie the move to the right, have been unable to engage these voters in a serious dialogue. Rightly angry over the way that some religious communities have been mired in authoritarianism, racism, sexism and homophobia, the liberal world has developed such a knee-jerk hostility to religion that it has both marginalized those many people on the left who actually do have spiritual yearnings and simultaneously refused to acknowledge that many who move to the right have legitimate complaints about the ethos of selfishness in American life.

Imagine if John Kerry had been able to counter George W. Bush by insisting that a serious religious person would never turn his back on the suffering of the poor, that the Bible’s injunction to love one’s neighbor required us to provide health care for all, and that the New Testament’s command to “turn the other cheek” should give us a predisposition against responding to violence with violence.

Imagine a Democratic Party that could talk about the strength that comes from love and generosity and applied that to foreign policy and homeland security.

Imagine a Democratic Party that could talk of a new bottom line, so that American institutions would be judged efficient, rational and productive not only to the extent that they maximize money and power, but also to the extent that they maximize people’s capacities to be loving and caring, ethically and ecologically sensitive and capable of responding to the universe with awe and wonder.

Imagine a Democratic Party that could call for schools to teach gratitude, generosity, caring for others and celebration of the wonders that daily surround us. Such a Democratic Party, continuing to embrace its agenda for economic fairness and multicultural inclusiveness, would have won in 2004 and can win in the future.

Please do not tell me that this is happening outside the Democratic Party in the Greens or in other leftie groups. Except for a few tiny exceptions, it is not. I remember how hard I tried to get Ralph Nader to think and talk in these terms in 2000, and how little response I got substantively from the Green Party when I suggested reformulating their excessively politically correct policy orientation in ways that would speak to this spiritual consciousness. The hostility of the left to spirituality is so deep, in fact, that when they hear us in Tikkun talking this way they often cannot even hear what we are saying—so they systematically mis-hear it and say that we are calling for the left to take up the politics of the right, which is exactly the opposite of our point. Speaking to spiritual needs actually leads to a more radical critique of the dynamics of corporate capitalism and corporate globalization, not to a mimicking of right-wing policies.

If the Democrats were to foster a religious/spiritual left, they would no longer pick candidates who support pre-emptive wars or who appease corporate power. They would reject the cynical realism that led them to pretend to be born-again militarists, a deception that fooled no one and only revealed their contempt for the intelligence of most Americans. Instead of assuming that most Americans are either stupid or reactionary, a religious left would understand that many Americans who are on the right actually share the same concern for a world based on love and generosity that underlies left politics, even though lefties often hide their value attachments.

Yet to move in this direction, many Democrats would have to give up their attachment to a core belief: that those who voted for Bush are fundamentally stupid or evil. It’s time they got over that elitist self-righteousness and developed strategies that could affirm their common humanity with those who voted for the right. Teaching themselves to see the good in the rest of the American public would be a critical first step by which liberals and progressives might learn how to teach the rest of American society how to see that same goodness in the rest of the people on this planet. It is this spiritual lesson—that our own well-being depends on the well-being of everyone else on the planet and on the well-being of the earth—a lesson rooted deeply in the spiritual wisdom of virtually every religion on the planet, that could be the center of a revived Democratic Party.

Yet to take that seriously, the Democrats are going to have to get over the false and demeaning perception that the Americans who voted for Bush could never be moved to care about the well-being of anyone but themselves. That transformation in the Democrats would make them into serious contenders.

The last time Democrats had real social power was when they linked their legislative agenda with a spiritual politics articulated by Martin Luther King Jr. We cannot wait for the reappearance of that kind of charismatic leader to begin the process of rebuilding a spiritual/religious left.

November 24, 2004 | Permalink | TrackBack (0)

Wither Religiously Affiliated Law Schools: Thomas as a Hopeful Guide

Musing over Mark’s “struggles” with “deep skepticism” and faculty discomfort with the project to “make Catholic identity mean something” - I realized that I take great comfort from an appreciation of just how challenging this project is - so I'm not surprised or discouraged when it meets resistance or when it becomes evident that it will take time.

Looking into a distant mirror:  in his wonderful book, Guide to Thomas Aquinas, Josef Pieper sets out Thomas Aquinas’s cultural feat against the backdrop of the Aristotilean “urge to investigate, on the plane of pure natural philosophy, the reality that lay before men’s eyes.” (30)  By the time Thomas began teaching at the University of Paris, the medieval world was deeply suspicious of any premature harmonization of these two worlds; and one could already detect the fault lines of the threatened divide between what men “knew” and what they “believed.” (120)  To use Pieper’s image, to draw together the ends of Odysseus’ bow would require a “superhuman strength.”  (118-19)

As Pieper explained, Thomas’s challenge was not just to draw the ends together, but to do so in such a way that their “distinctiveness and irreducibility, their relative autonomy and their intrinsic justification, were seen and recognized.”  (120)  Further, the necessity of their union must be made apparent “not from the point of view of either of the two members of the union - neither simply from the point of view of faith nor simply from that of reason - but by going to a deeper root of both.”  (120) 

I see being at a school which cannot “start over” as a great blessing - both personally and intellectually.  The rigor and skepticism of colleagues can push us to new dimensions of openness, dialogue, and intellectual depth - toward a synthesis in which the deepest roots of both faith and reason are understood and appreciated. 

True, we may not have Thomas’s “superhuman” strength (or intellect!).  But here too - with extraordinary beauty, Pieper describes Thomas’s work in the silence of his “inner cloister,” with a heart “wholly untouched and untroubled,” able “to listen to something beyond [the din of his times], something entirely different, which was the vital thing for him.” (97) 

And when the resistance is hostile and the “culture wars” seem to paralyze hope for respectful and open conversation? Perhaps this is the moment to listen to “something beyond” the din, something - or someone - entirely different - someone who loved so deeply that he took on and identified with an experience of the darkest depths of doubt and skepticism: “My God, My God, why have you forsaken me?”  (Mk 15:34). 

Could this “method” - the capacity to fully enter into and go through the tunnel of doubt that our colleagues experience - with love and out of love - be the "vital" resource for the “struggle”?


November 24, 2004 in Uelmen, Amy | Permalink | TrackBack (0)

Tuesday, November 23, 2004

More on faith-based law schools

Our own Professor Bainbridge has a nice post on the Times' discovery of faith-based legal education (see my earlier post on that discovery), as does Ann Althouse.  Midwestern Mugwump asks, "Where is Notre Dame in all of this?"


November 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Monday, November 22, 2004

Abortion Stats

[Notice the figures on abortion at the end of this piece.  I was surprised.]

Sightings  11/22/04

Outmoded Morals?
-- Martin E. Marty

“The Fourth Commandment says, ‘Six days you shall labor and do all your work, but the seventh day is a Sabbath of the Lord your God; in it you shall do no work.’ … It’s simply breaking God’s law to be open on Sundays. … I don’t work on Sunday because God says not to in His Word."  So spake John Cully, owner of one of the largest independent Christian bookstores in the country.  He gave voice to what, a half century ago, almost 100 percent of Protestant church people on the “values and morals” front insisted was God’s law for themselves, the nation, all Christians. 

Jamie Dean in World (November 13) fair-mindedly reports on the conscience-struggles of evangelical business owners and their employees over Sabbath observance in “Day of Retail."  In contrast to Mr. Cully, owners of the Family Christian Bookstore (FCB), a chain of 326 stores, recently decided to open on Sundays, causing their store managers to regularly miss church. 

How does FCB legitimate this choice to violate the Commandment?  FCB’s CEO Dan Browne called it a “ministry decision."  Reminded that Hobby Lobby and Chick-fil-A keep the Sabbath on good evangelical grounds, Browne responded “No one’s going to go to hell for not eating a chicken sandwich,” implying that not being able to buy a religious book on Sunday might mean going to hell.  The Berean Christian Stores chain is also now open on Sunday.  Its VP, Greg Moore, gave his “higher critical” defense: “There is more value in saving a lost soul than adhering to an Old Testament custom that later became a commandment."   

Is there any outrage against this latest assault on God’s Law?  Pollsters found that 80 percent of FCB constituents shop on Sunday.  Jamie Dean checked inventories of the FCB stores for books “specifically about the Sabbath,” a topic regularly addressed by Catholic and mainstream Protestant spiritual literature.  How many titles did he find?  “Zero." 

Is this how values and morals change: when enough people engage in a new practice, the fight over the divine origin of “custom” or “Commandment” slips from view?  Surveys show that something like this also happens on conservative Protestant fronts.  Thus, calling divorce a sin and preaching against it, as evangelicals once did -- now it is a "tragedy" that is ministered to in “pastoral care” -- and, increasingly, preaching against gambling is largely off the evangelical screen.  Birth control was preached and editorialized against decades ago, and the "born-again" now take it for granted.

What’s next?  Women identifying themselves as Protestant obtain 37.4 percent of abortions in the U.S.  Catholic women? 31.3 percent, slightly above the general public average.  Jewish women? 1.3 percent.  As of now, nearly one-fifth of all abortions are performed on women who identify themselves as born-again/evangelical. 

If the "born again" number grows, will anti-abortion continue to hold the place it now does on the “values and morals” front? Or will it too fade?

Data Sources:
Religion abortion statistics: http://www.agi-usa.org/sections/abortion.html or http://www.abortionno.org/Resources/fastfacts.html.
A close-up, in this case of Oregon, on change in the “morals and values” practices front, see Benton Johnson’s study:


Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

November 22, 2004 in Perry, Michael | Permalink | TrackBack (0)