Mirror of Justice

Another question re the Palmer piece

Amy raises some excellent questions in her post.  I want to raise a question about a different part of Palmer's piece.  In the last paragraph, he says:

"My second negative rule is that I never give any indication of my own religious views.  To do so would be distracting and overreaching, and would cause concern for even those students who hold the same beliefs as I....My beliefs will inevitably shape my classroom conduct, so why hide them?...My goal as a law teacher is to convey the material in any given course, including policy, philosophy, black-letter rules, background facts, and all else that is reasonably relevent.  Expressing my beliefs would only get in the way of that goal."

I'm curious to hear people's reaction to this.  I understand the concern about overreaching.  It is obviously important for students to understand that they are not required to approve or agree with a professor's religious beliefs. 

On the other hand, my religious views are not divorced from who I am and, as Palmer observes, one's religious views inevitably shape what one says and does in the classroom as it affects all aspects of one's life.  In my own case, my students know I am Catholic - some of them see me at mass on campus and I wear a crucifix around my neck. 

Given that reality, is it possible to, for example, conduct a seminar that raises religious issues as part of the discussion without the discussion in some way revealing the professor's religious views?  And, whether it is or is not possible, is it really so clear that revelation of the professor's views always gets in the way of the goal of the classroom?  Might it not, at least in a seminar context, make it easier for students to evaluate what a professor if saying and doing if they understand the context out of which the professor is operating.  (Again, the atmosphere has to be such that the student does not feel compelled to mouth agreement with the professor's views....but that is also something I think is important in all cases, not just in matters of religion.)       

Questions for Robert Palmer

Thanks, Michael S., for pointing out Robert Palmer's essay in "The Law Teacher" - it's a great piece for our discussion.  I have a few questions, too.  For example, while we're at it, let's throw gender into the mix.  It seems, for Prof. Palmer, that the quintessential law school experience is where "arguments are laid bare under the cool, white light of legal analysis."  Yes, the world of experience and emotions exist - but they should be carefully controlled and cabined in by the neat lines between logic and belief.  For Prof. Palmer, reasoning in this way is "comfortable, fun." 

My question is, comfortable and fun for whom?  I find this way of reasoning grounded primarily in the "cool white light of legal analysis" to be strange, alienating, incomplete, and artificial.  What might women's perspectives have to say about this description of law school or law teaching?  Prof. Palmer's response to the reaction, "that's just the way I feel," or to statements of "belief", is to shrug and move on.  But how often, under those "feelings" and statements of belief can one find a world of "experience" which in a law school course can and should be explored and discussed in a "rational" way. 

Perhaps one of the unexplored beauties of our project to develop Catholic legal theory is its potential to draw not only from what seems to be the "cool, white light" of legal analysis," but from the deepest resources of all human experiences - and from the persepctives of both men and women.

When Prof. Palmer posits that "religious concepts are not readily applicable to much of the law school curriculum" - I think what's at work is an extremely limited notion of "religious concepts" and persepctives.  I'd like to ask him what is his definition of a "religious concept," and if he could give us a few examples.   A large part of our project, I think, consists of identifying what definition of "religious concept" is at work in the legal academy, and exploring how to re-frame that in a more complete and coherent way.  Much of our scholarship indicates that "religious concepts" have everything to do with the cultural fabric that shapes all areas of the law - including business law and contracts and property, tax and civil procedure - because questions of justice are at the heart of all of these courses.

Amy

Religious Beliefs in the Law School Class

An article titled "Is God on Your Seating Chart?:  Discussing Religious Beliefs in Class" appears in the Fall 2005 issue of "The Law Teacher."  In the article, GW law professor, Robert Palmer, says that he allows students to express religious beliefs in class because "student beliefs, particularly religious beliefs, can be informative and bring us to a deeper level of understanding."  But how is it informative and how does it lead to a deeper level of understanding?   If I understand Palmer, he suggests that it allows the students a deeper awareness of the subjective motivations at play in our polity.  He doesn't think, however, that expressions of religious belief add anything of reasonable relevance to the teaching and learning of the material in a course.

Palmer views the classroom and its discussion as exercises in logic with an underpinning of experience.  He hopes that "experience and logic will align, and the students will leave class with a beginner's level of understanding of the area of law covered."

In contrast, religion is about belief.  And, although "religious belief usually isn't a knee-jerk, 'that's just the way I feel' belief," it is still just belief and as such "cannot be challenged with logic" because "to do so would be illogical.  All we can do with belief is know it for what it is and add it to our repository of experience."  For Palmer, "logic is a cool white light" while "belief, especially religious belief, can be red hot.  Emotions run high.  Voices rise and quake.  Tempers flare."

The development of Catholic Legal Theory (our stated purpose at MOJ) is premised on a rejection of Palmer's view that religious belief cannot be scrutinized for its logic or reasonableness.  Prudence might indicate that we scrutinize delicately and Jesus commands that we do it in love.  Nevertheless, if a student (or professor, for that matter) makes an argument from religion (or religious belief) in the classroom, it seems to me that student (or professor) opens himself up to being probed and tested as to the reasonableness of their assertion.

Any thoughts?  I will invite Professor Palmer to comment.

Michael S.

Last Word (from me, that is) on Federalism and Moral Conflict

I appreciate the most recent comments from Eric Claeys and from Rick on the "Can enforcing federalism create a moral conflict?" question.  Since RIck and I have gone back and forth already on this, let me focus on Eric's arguments.  Most of them rest on the negative consequences that would follow if judges purposely disregarded proper principles of constitutional interpretation in order to avoid a moral conflicts (e.g.: "If the judge turns a blind eye to the original meaning of 'interstate commerce' here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases").  I want to make clear that I would not advocate a justice/judge misinterpreting the Constitution as the means of avoiding a serious moral conflict.  The proper course in a case of such conflict would be to recuse oneself or, if that option is not available (though I think it should be), resign.

I still wonder:  if a justice who blocked any effective attack on widespread, oppressive discrimination by striking down the Civil Rights Act would not be impermissibly cooperating with great injustices, then I wonder whether the same defense couldn't be offered for the justice who votes to uphold abortion rights and thereby let abortions go forward?  After all, if applying judicial review to block a law in the one situation is cooperation with evil only "to some remote degree" (as Eric puts it), then it seems the cooperation logically would be remote in the abortion case as well.  And while, as Eric notes, there are valid and important arguments for federalism and subsidiarity in general (even if the application of federalism in a particular case lets a terrible evil go forward), there are also valid and important arguments for rights of personal privacy in general (even if their application in the abortion case lets a terrible evil go forward).

This takes us back full circle to Rick's original post on the subject, which argued (if I characterize it correctly) that the problem with the justice who upholds abortion rights under the federal Constitution is not that s/he is conflicting with Catholic moral theory but rather that s/he is misinterpreting the Constitution because abortion rights cannot be derived from the text, history, and structure.  And that led to my comment that while I agreed about the merits of the constitutional issue, a justice might with somewhat more plausibility adhere to Roe and Casey because of stare decisis concerns than because of their correctness on the merits.

And since we've already gone through the ensuing progression of posts, I think I'll leave it there; RIck and Eric are welcome to the last word if they wish.

Just to sum up my main point:  People need to be consistent in the standards they apply to justices.  If, as RIck has consistently argued, Kennedy is wrong in Casey simply because he's misinterpreting the Constitution, fair enough (and I certainly agree about the misinterpretation).  But if, as I've heard argued by others, Kennedy was wrong (independent of the correctness of the constitutional interpretation) because he was cooperating with evil in upholding abortion rights, then the same moral stricture would apply against Roberts upholding Roe and Casey because of precedent, or against the conservative justice who struck down the Civil Rights Act.

Tom B.

"Both/And" Anti-Poverty Strategies?

Left-side evangelical Jim Wallis of the Sojourners ministry is circulating a "Katrina Pledge" (readable here) in which signers commit to do what they can to combat the kind of poverty that the Katrina aftermath dramatized, both in their own contributions of time and money and in urging their representatives to act.  The pledge itself is extremely short; but Wallis has also sent a letter to members of Congress that speaks a bit more (though still in general terms) about policy approaches and the longstanding liberal-conservative fight over what anti-poverty strategy to pursue.  The central quote:

Second, each "side" of our political landscape ignores too many valid concerns of the other side. Poor families don't need us to take sides - they need us to stand in the gap with them. Much could be accomplished with a merging of personal and social responsibility, a commitment to reverse family breakdown, a more honest assessment of both the personal decisions and social systems that trap people in poverty. That involves being more creative than looking solely to charity or only to government for hope. We need to acknowledge that budgets are moral documents and budget priorities can help or hurt the poor - and acknowledge that negative family and cultural values deeply impact low-income people. We must all confront realities of our national, community, and personal priorities, recognizing that there are multiple breakdowns of culture, family, community, and government that are undermining poor families and the very fabric of our nation. Doing so requires that leaders who care about results start to look at the current situation and the future differently.

Indeed we must be disciplined by results when it comes to poverty reduction. It's time to move from the politics of blame to a politics of solutions. Liberals must start talking about the problems of out-of-wedlock births and strengthening both marriage and parenting. Conservatives must start talking about strategic public investments in education, health care, affordable housing, and living family incomes. We must focus on making work really work for low-income families. Those who work hard and full time in America should not have to raise their children in poverty - but many still do. Together, we must end the debate between large and small government and forge a common commitment to good and effective government. I hope you agree that now is the time to do so.

In this week's Time, Joe Klein writes in a similar vein:

The most effective thing the Congressional Black Caucus could do to fight poverty would probably be to invite white and Hispanic legislators who have significant numbers of poor people in their districts to join its ranks and rename itself the Congressional Antipoverty Caucus. One could also argue that the only way to build a coalition to fight poverty—and preserve affirmative action—in this conservative era would be to base preferences on economic need rather than race.

People like [Rep. Charles] Rangel and [Harry] Belafonte might do well to listen more closely to the next generation of black leaders—people like [Barack] Obama and Congressmen Harold Ford of Tennessee, Artur Davis of Alabama and Sanford Bishop of Georgia—who emphasize both the need for more money to fight poverty and the need to change the behavior patterns of the poor.

I also remember reading recently in either Time or Newsweek (can't find it online, though) the assertion that the vast majority of serious academic students of poverty issues have a consensus that both addressing family breakdown and providing smart public investments are necessary.  Does that kind of "both/and" approach offer any hope -- in terms of both policy success and political viability?

Tom B.

   

Call for Papers: Public Policy, Prudential Judgment, and the Catholic Social Tradition

Call for Papers

2006 Annual Conference

“Public Policy, Prudential Judgment and the Catholic Social Tradition”
April 6-8, 2006

Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy
University of St. Thomas, Minneapolis-St. Paul, Minnesota

In the Catholic moral tradition, prudence is understood to be a moral virtue that enables a person to reason well about things to be done. Prudence concerns reasoning both about goals to be pursued and means to be employed to accomplish them. The tradition acknowledges the importance of moral principles, which shape practical reasoning in very fundamental ways, but it also insists that concrete actions are also determined by prudential judgment, which wisely takes account of particular conditions.

In recent years a number of public policy questions, such as the permissibility of the death penalty, the morality of the war in Iraq, and the justice of welfare reforms, have provoked controversy among Catholics. Advocates of very different policies have claimed that their positions follow from the Catholic social tradition and, at times, some have even insisted that their positions alone are faithful to this tradition. These controversies highlight enduring questions about the proper relationship between moral principles and prudential judgment.

In much the same way, controversies have also accompanied some of the formal positions adopted by the American bishops and even the Vatican on questions of public policy. Here again there has been an indistinct line between direct inference from moral principles and sound prudential judgment, where the former invites commitment and the latter tolerates disagreement.

Because of the importance of prudential judgment in public policy matters, we believe that the time is ripe for a careful and comprehensive discussion of the topic. We therefore welcome proposals for papers in the following categories:

Prudential Judgments in General: What different functions are played by fundamental moral principles and prudential judgments in choosing and acting? Which sorts of questions or challenges are best resolved by direct appeal to general moral principles and which require prudential judgment? What should be the scope of prudential judgments in the application of the Catholic social tradition to concrete situations? To what extent should the principles of the Catholic social tradition be shaped over time by the experience (and prudence) of Catholic laity active in public life?

The Bishops and the Laity: With their experience of political and economic life, should the voice of the laity play a special role in the development of the Catholic social tradition? Do the bishops teach with different authority on matters of principle and matters of prudence? What difference in response is appropriate for the laity when the bishops teach about principles and when they teach about prudential application? Should the bishops, as bishops, publicly address matters of prudential judgment? What are the implications of the character and influence of professional staff on the teaching of the bishops?

Specific Applications and Case Studies: Insight into the role and scope of prudential judgments is likely to be limited if it is based only on abstract considerations. The line between fundamental moral principles and prudential judgments is likely to vary from subject to subject and among concrete issues within various subjects. Proposals are welcome that assess specific cases such as: (1) the role of prudential judgments in a particular area of law or legislation, such as economic policy, foreign affairs, or sex and the family; (2) particular historical examples of the role of prudential judgments, or the historical development of prudential judgments on particular subjects.

Submission Information:

Please submit a 1-2 page proposal no later than 15 November 2005. Authors should indicate in the proposal how they intend to treat their topic and, if necessary, provide a rationale for inclusion of this topic in the conference agenda. It would also be helpful if authors would include brief biographical information and an e-mail address. Acceptance decisions should be made by 15 December 2005.

For further information or to submit proposals, please contact us at the address below:

Prof Thomas C Berg ([email protected]; 651 962 4918)
Prof Robert G Kennedy ([email protected]; 651 962 4823)
Terrence J Murphy Institute for Catholic Thought, Law, and Public Policy
University of St Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015

Recent Survey on Views of American Catholics

According to a survey conducted by National Catholic Reporter shortly after the election of Pope Benedict XVI, the most important issues to American Catholics are helping the poor and belief in the resurrection (84%).  Dean Hoge, one of the resarchers who conducted the study observed that the findings "are similar to the findings of earlier studies except that in the past the sacraments were usually in first place ahead of helping the poor...We consider it noteworthy that helping the poor is held in such central importance by American Catholics." In contrast, Hage observes that most American Catholics appear to view teachings on, e.g., celibacy and issues such as death penalty, abortion and same-sex marriage as "more optional than essential." The Reuters report of the survey is here.  (The report notes that the survey is at ncronline.org, but I couldn't easily locate it.)

Volokh on Federalism, Localism [and Subsidiarity]

One often hears the charge that "conservatives" are "inconsistent" for. say, supporting federal-level tort reform, given their professed devotion to "states' rights" and "federalism."  But, of course, "federalism" is about more than "states' rights".  (In my view, "states' rights" talk is quite unappealing; I am not interested in the "dignity" or "sovereignty" of states, but in the constitutional principle that ours is a national government of limited, enumerated powers.). 

In any event, Eugene Volokh has this helpful post, "Federalism and Consistency", over at the Volokh Conspiracy.  (Thanks to Professor Bainbridge for the link).  I expect it will be of interest to CST-minded MOJ readers.  Here is a taste, but check out the whole thing:

People sometimes argue that others -- usually conservatives who have expressed some support for federalism -- are being inconsistent: How can you argue for leaving topic X to state-level decision, but favor federal authority over topic Y? Such arguments can of course sometimes be apt. But often they seem to me overstated, (1) because they conflate different kinds of criticism of state action, and (2) because they mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level).

1. Let me begin by laying out several different kinds of questions that people can ask about whether something -- and especially some matter of ostensible individual right -- should be decided at the national level as opposed to the local level. (By local I'll usually mean "state," but similar questions can sometimes arise as to city/county-state relations.)

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? The answer here will often turn on how one reads the Constitutional text. Most federalists acknowledge that there are at least some such rights that are constitutionally protected, but they may legitimately disagree among themselves (and with those who don't much care about constitutional federalism) about which are protected, and how much.

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? The answer here will turn on how one reads the grants of federal power in the Constitution, both the Enforcement Clause of the Fourteenth Amendment, and the provisions (especially broader ones, such as the Commerce Clause) of article I, section 8 of the Constitution. (A related question: Should the Commerce Clause be interpreted as presumptively prohibiting states from doing certain things that have an effect on interstate or foreign commerce, absent specific Congressional authorization?)

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? The answer here may turn on whether you think the claimed right really is morally proper (e.g., Congress shouldn't enact a statute giving parents the right to beat their children, even if it's within Congress's power to do this). It may also turn on whether you think there are practical or democratic theory reasons for resolving certain matters at the state level (e.g., the right solution may be different depending on different local conditions, the right solution will only be reached through state-level experiments, or there are special dangers in federal authority in this area) or at the national level (e.g., the actions of one state will substantially affect behavior in another state, or the claimed right is so morally imperative that we must protect it as broadly as possible).

d. Even if the federal government shouldn't step in, should people nonetheless urge all states to protect a certain ostensible right? One might, for instance, think that states have the constitutional power to restrict guns, punish various sexual practices, engage in religious speech, regulate economic activity in certain ways, and the like -- but one might think that such actions improperly interfere with people's moral rights (even if not their federal constitutional rights), or yield various inefficiencies. As to other matters, one might think that states really should do their own thing, especially when one thinks there aren't really genuine claims of moral right involved, or if one thinks that diversity among states is helpful.

It's therefore important, when analyzing someone's arguments for consistency, to understand which argument they're making. There might be inconsistency in arguing for federal constitutional protection for sexual autonomy but arguing that gun rights questions should be left at the state level (though even there one can of course explain why one thinks that the Constitution should be understood as protecting one sort of individual right and not the other). But it's hard to see the inconsistency in arguing that there should be no federal constitutional protection for sexual autonomy (a level (a) argument), but that it's wrong for states to ban handguns (a level (d) argument) and that such handgun ban proposals should therefore be defeated in state legislatures.

2. More broadly, it's important to remember that few people are complete localists in the sense of believing that everything should be done at the local level, or even complete nationalists in the sense of believing that everything should be done at the national level. . . .

So again one can't just say "If you're such a federalist on the Violence Against Women Act, why are you in favor of national rules governing gun manufacturer liability?" Federalist theory does support national rules in some areas (for instance, regulations of commerce that substantially affect the national economy) and local rules in other areas (for instance, punishment of noncommercial criminal activity).. . .

3. All this may be obvious -- but it's the sort of obvious that people miss. . . .

Rick

Religion Bad for Society? Read Weigel

Rick quoted and posted a link to a report that argues, among other things, that  "[t]he widely held fear that a Godless citizenry must experience societal disaster is therefore refuted."  Not so fast...  Are these societies really thriving?  George Weigel provides several examples of the failure to thrive in Europe in his book, "The Cube and the Cathedral."  Weigel offers keen insight into how Europe arrived at the present and asks whether the people of the Cube (metaphor for those who would banish God from the public square) or the people of the Cathedral are better positioned to defend human rights, democratic government, etc.  It is well worth the read.

Michael S.   

God-Talk in the Ivy League

What happens when the Dartmouth student body president decides to talk about Jesus in a speech at the convocation for entering students?  Read about the fallout here.  (HT: Volokh)

Rob