Mirror of Justice

Hitchens on England and Popery

More Reformation Day reading:  Christopher Hitchens -- I cannot help it, I think he's a great writer, even if he hates Mother Theresa! -- has a great review of James Sharpe's new book, "Remember, Remember:  A Cultural History of Guy Fawkes Day."  Here is a taste:

And it is in that seminal period, when the King James Bible was being written by committee, and the plays of Shakespeare performed, that James Sharpe locates his excellent chapter of history. The Cromwellian revolution was still a half-century in the future, the defeat of the Spanish Armada (also hailed by bonfires and braziers) two decades in the past, and relations between Catholics and Protestants in England and Scotland were extremely tense. Queens Mary and Elizabeth had both sent, respectively, Protestants and Catholics to the stake and the chopping block. And the new king--a Scottish import with a taste for witch trials and a verbatim knowledge of the two testaments--wanted a church and a Bible in his own Protestant image. A minority of Rome's loyalists, led by a man named Robert Catesby, met in the Duck and Drake Inn on the Strand (could anything be more English?) and decided to send king and parliament to perdition by means of a huge explosion.

Unmasked by treachery, tortured and executed, they put their coreligionists into the horrible position of seeming like a fifth column with a dual loyalty. And the Protestant hardliners, determined to rub in this very point, established the grisly commemoration, by order of Parliament and consecrated in the authorized prayer book, as a means of associating their own cause with patriotism. Some echoes of this persist to the present day, especially in stubbornly Presbyterian Northern Ireland, but also in novels like Brideshead Revisited, where Waugh's devout Lady Marchmain sighs that one can't seem to stop people thinking of Catholics as spies. Another indirect legacy can be guessed at: The English Protestants were delighted to have an alternative celebration to the Catholic feasts of All Saints' Day and All Souls' Day (sometimes known in the calendar as All Hallows), which take place on November 1 and 2. From this late-medieval fiesta of sectarianism, then, we can partly derive the tedium and foolishness of Halloween.

Some random thoughts:  Part of the aftermath of the alleged Gunpowder Plot was the torture and execution of Fr. Henry Garnet, S.J. (who, it was said, knew about the Plot beforehand).  Fr. Garnet's nephew, St. Thomas Garnet, also a martyr (and the son of one Richard Garnet), is my son's patron saint.

When I was in the first grade, at my public school in Anchorage, Alaska, my teacher -- Mrs. Gustafson (hmmmm) -- commemorated Guy Fawkes Day (I forget how).

When I was teaching in London, two years ago, I commented to one of the staff in the University of Notre Dame's facility that I was surprised by the fact that Guy Fawkes Day was being celebrated (apparently) by Catholics.  She asked, "why wouldn't they celebrate it?" 

Antonia Fraser's "Faith and Treason" is an accessible, good read about the Gunpowder Plot, and about the recusant Catholics and English Martyrs.

Abortion in Portugal

"Portugese Abortion Vote Denied," reports the BBC:

Portugal's constitutional court has thwarted the government's plan to hold a referendum next month on relaxing the country's strict abortion laws.

Judges said the vote could not be held before September 2006 because the same referendum had been rejected by the president in the current legislature.

The government wants voters to decide whether abortions in the first 10 weeks of pregnancy should become legal.

Abortions are currently only legal in certain situations such as rape.

"We want a law which is more modern and more European," said Prime Minister Jose Socrates, announcing that his government would propose a referendum for next September.

"More modern and more European" -- sigh.

Reformation Day: Bringin' It

Tom says, "[a]ll right, Rick!  Let's have a good old fashioned Protestant-Catholic brawl on Reformation Day."  Here we go! 

Oh wait, I don't think we disagree (that much)!  Tom writes:

[T]he Reformation emphasized the importance of individual conscience, which certainly plays an important role in arguments for political freedom.  (I know, I know, unmitigated individualism leads to (a) the need for a Hobbesian Leviathan to control things and (b) unrestrained wants for which people demand big government to make provision and (c) the destruction of intermediate institutions; and the Reformation brought all that on.  We'd have to have a long conversation about whether Protestantism meant unmitigated conscience, and what the status of conscience was in medieval Catholicism, and probably some other things as well.)

I guess in posing my thesis -- "Contrary to widely held belief, the Reformation was, on balance, a bad thing for political freedom." -- I was thinking about (a), (b), and (c). 

Tom also makes a nice point about the connection between the fact of disagreement (i.e., the reality of pluralism) and political freedom.  I am not sure, though, that I agree with Tom that "the fact of disagreement" is something for which the Reformation is responsible.  I mean, there was disagreement (lots of it!) before, during, and after the Reformation, and I'm not sure there was really more pluralism in England under Elizabeth and James than under the pre-divorce Henry.

It seems to me that our understanding of political freedom depended largely on the medieval struggle (described by John Courtney Murray, and also wonderfully by Harold Berman) for the "Freedom of the Church," that is, for the principle that the political authority is not the sole authority.  It seems to me that meaningful political freedom depends largely, if not entirely, on a thick civil society, on competing norm-generating communities, and on ideas of limited government.  We owe these latter ideas, in particular, to the Church's rejection of secular authority's claims over the Church.  The Reformation, in a nutshell, not only eradicated the "middle man" between the individual and (speaking anachronistically, I know) the state, but also undermined the primary check on the state's ambitions.

Alito, Sovereign Immunity, and CST

Like Tom and Eduardo (and Patrick Brennan), I have my doubts about the Court's sovereign-immunity cases.  (Cf., e.g., Greg Sisk).  I would note, though, that the error is more than 100 years old (Hans v. Louisiana), so I'm not sure what is to be done.  I am also going to persist in thinking that, although -- as Eduardo says -- the Chief Justice and Justice O'Connor came to a different conclusion, Judge Alito's interpretation and application of the relevant precedents (putting aside, as the Judge would have had do) in the FMLA case was, to my mind, more convincing than the Court's.  (That is, I think the Court shrank bank from the reasonably clear implications of its own precedents).

Ann Althouse -- a specialist in these matters -- appears to agree with me ("[Alito's opinion] is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. . . .    Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong."

But put all that aside (for now).  Eduardo writes:

More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process.

This is an important claim.  And, I disagree with it -- unless, by "broadest possible application" Eduardo means "unreasonable" or "incorrect."

The Constitution's structural and enumerated-powers features are judicially enforceable, in my view, and a judge committed to the rule of law should -- without apology -- enforce them.  That these features are (reasonably and in good faith) thought, by some, to "make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process" does not, in my view, create any tension between Catholic teaching and the robust, meaningful enforcement of these features.  If our Constitution is law, and if part of that law is a prohibition on the purported exercise by Congress of certain powers denied to it by that law, then I do not agree that Catholic teaching should be thought of as pushing judges toward under-enforcing that law, in order to ease the way for what some will regard (but others will not regard) as "effective legislative solutions."

So, when Eduardo writes:

I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching.  Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.

This is not the time to consider whether -- even if Eduardo is right here -- the doctrines embraced by (say) Breyer, Brennan, et al. (e.g., the notion that the Constitution authorizes Justices to invalidate abortion-related measures that strike the Justices as inconsistent with their own understanding of the demands of the mystery of the universe; or the notion that the Establishment Clause is violated by the indirect flow of public funds to parochial schools) threaten at least as much as Scalia's views "substantive policy results on issues of immense concern to Catholic Social Teaching."  My point here -- or, my claim -- is that it is not "unnecessar[y]" to "read[] limits on congressional power for [what] they are worth."  In my view, a meaningful commitment to the rule of law, under our Constitution, demands that Article I be taken as seriously as, say, the First or Fourteenth Amendments.

Finally, I think Eduardo's charge that Judge Alito "support[s] . . . the right of employers to discriminate against those suffering from AIDS" is a bit strong.  If I recall correctly the case to which Eduardo refers, Judge Alito was interpreting a statute, not expressing any "support" for discrimination.  More generally, though -- as my fellow MOJ-ers have probably tired of hearing me say -- I do not concede that the policies favored by "judicial and political conservatives" are any more likely than those favored by judicial and political liberals to be in opposition to CST, reasonably understood and prudentially applied.

Of course -- and I hope this goes without saying -- I am delighted (notwithstanding our disagreement on these few points) that Eduardo has joined the Mirror of Justice, and I look forward to many more conversations and exchanges like this.

Rick

More on Alito, Catholics, and the Court

Over at "The Volokh Conspiracy", Todd Zywicki has an interesting post called "Alito and the Changing Face of Conservativism," which is a worthwhile companion to Eduardo's earlier observation that the Catholics on the Court today tend to be "conservative" while, in years past, Catholic voters were part of the New Deal and Great Society coalitions.  He opens with this:

One of the more interesting elements of the Alito is what it says about the changing face of conservatism in the United States and the general drift of ethnic Catholics (some might say "urban Catholics") toward the Republican Party. Alito, along with Scalia, now makes the second ethnic Catholic to be appointed to the Court (no Poles yet, of course). I have yet to see an in-depth profile of his personal life, but one profile I read this morning indicated that he is the son of an Italian immigrant who worked in the New Jersey State Government, presumably from a relatively modest background (I'm just speculating on that point for now). Thus, three of the most conservative Justices (probably the three most conservative) on the Supreme Court would be a black man raised in Georgia poverty and two Italian-Americans, all Catholic as well. This group traditionally has been Democratic and liberal in orientation, which adds to the puzzle. Perhaps this is simply an isolated coincidence, but I wonder whether this demographic fact says something deeper about the nature of modern conservatism and political alignments in the country.

Also, David Bernstein passes along a helpful "Top Ten" list of things we can expect from a Court with a Catholic majority:

9) Oral arguments in Latin;

7) Collections between each session of oral argument;

6) Supreme Court windows replaced with stained glass;

3) Supreme Court opinions will be deemed infallible and unreviewable by any earthly authority [[original]Ed. - Sorry - that does not appear to be a change at all]

And, the number one change which a Catholic majority would make to the Supreme Court . . .

1) Wednesday night bingo!

More on Alito and State Immunity

I should make clear that I think the Court's 11th Amendment immunity jurisprudence is poor constitutional interpretation and does mostly reflect the general policy preferences of the conservatives (to figure out "some way to protect the states").  And maybe Alito, as a general conservative, will take the 11th Amendment jurisprudence and run with it as a justice.  I just don't think that the FMLA case is a great piece of evidence.  And because it lends itself to good sound bites, it will be used a lot against him, more than I think is warranted.

Tom

I Awake, and Rise to Rick's Challenge!

All right, Rick!  Let's have a good old fashioned Protestant-Catholic brawl on Reformation Day.

I don't know exactly what the argument underlying your thesis is, and I might actually agree with it.  But here are two thoughts that should at least call it into question.  One is that the Reformation emphasized the importance of individual conscience, which certainly plays an important role in arguments for political freedom.  (I know, I know, unmitigated individualism leads to (a) the need for a Hobbesian Leviathan to control things and (b) unrestrained wants for which people demand big government to make provision and (c) the destruction of intermediate institutions; and the Reformation brought all that on.  We'd have to have a long conversation about whether Protestantism meant unmitigated conscience, and what the status of conscience was in medieval Catholicism, and probably some other things as well.)

Second, just the very fact of fundamental disagreement leads ultimately to government having to provide greater freedom.  This I take to be one of the theses of John Courtney Murray in his argument in the late 1940s that the religion clauses were "articles of peace, not articles of faith."  And it was picked up by Gerry Bradley in his 1987 article on the "no religious tests" clause, arguing that the religion clauses stemmed from the practical fact of pluralism rather than from a theory of individual conscience (for which Protestants have tended to claim credit).  (Is there a difference between political and religious freedom on this score?)  But even if the rationale for freedom was the fact of disagreement rather than the idea of individualism, isn't the Reformation also responsible for the fact of disagreement?

Tom

Catholics and the Court, Responding to Rick

First, I apologize for my sloppy language, though I think it's fair to say that Alito did write an opinion holding the FMLA unconstitutional as applied to suits for damages against a certain (significant) class of employers.  In any event, I don't agree that this was a run-of-the-mill application of the Court's 11th Amendment precedent.  There was certainly ample room to come out the other way, as the Chief Justice and Justice O'Connor ultimately did.  The 3d Circuit opinion strikes me as a robust and enthusiasiastic interpretation of the relevant precedent.

This is important, and it goes to Rick's third point.  Rick says: 

The judicial conservativism of, say, Justice Scalia (or, I admit, me) need not be seen as in tension with the substantive left/ progressive / social-justice political commitments of many Catholics, because Justice Scalia (whatever his policy views are, and I assume they are conservative) is, for the most part, happy to leave these matters to the political process, so long as they are not pursued through legislative means that exceed Congress's powers.

I think Rick's qualification is crucial.  I agree that there is certainly a difference between judicial conservatism and political conservatism, though I think that gap can be overstated (see Bush v. Gore).  More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process.  Judicial conservatives consistently favor the latter, and I think there is at least some reason to believe that their efforts in that regard are related to substantive political preferences.

For example (and setting aside for the moment the proper role of personal religious views in judicial decision-making), assuming (heroically) the cogency of the constitutional exegesis underlying the Court's 11th Amendment jurisprudence, it's hard to say that there is no tension between Catholic Social Teaching and the decision by judge Alito, in a position of doctrinal uncertainty, to favor the broadest possible application of sovereign immunity doctrine when the effect is to prevent the application of a statute like the FMLA, whose principal beneficiaries will be working class women.

I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching.  Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.   

Finally, all of this seems academic to me (not that there's anything wrong with that), as we all know that Scalia, Thomas, (probably) Alito, and (at least earlier incarnations of) Roberts are judicial and political conservatives and are, accordingly, opposed to many substantive policies favored by CST (e.g., Alito's support for the right of employers to discriminate against those suffering from AIDS).  Sometimes this opposition bleeds into their judicial decisionmaking (Scalia's pinched readings of civil rights statutes comes to mind), and sometimes it does not.  My point was not that their judicial decision-making is necessarily in tension with CST, though I think it is in many areas, but rather that, as indivdiuals, their political conservatism is not representative of American Catholics as a whole.  The reasons for the lack of representation of progressive Catholics on the Court are complicated, but I think it largely has to do with the fact all but two of the sitting justices (and ALL of the Catholics) were nominated by Republicans.

Alito and State Immunity

I want to publicly welcome Eduardo Penalver to the blog -- great to have you!  I won't deny the point that Alito is conservative -- more than I'd like, probably, on several issues.  Concerning the Family and Medical Leave Act case, though, my sometime assignment to teach federal courts makes me conclude that he was just following the Supreme Court's lead at the time he wrote the panel decision in that case.  When Alito wrote the decision (Chittister, here) in 2000, the SCT had for several years been greatly expanding the immunity of states from damages, and severely limiting Congress's ability to abrogate immunity through legislation enforcing the Fourteenth Amendment.  One of the broadest pro-immunity decisions had just come down in 2000 (Kimel), holding that age discrimination suits against states for damages were barred by state immunity. 

The SCT's Hibbs decision of 2003, holding that the Family Medical Leave Act did validly abrogate the state's immunity, came as a big surprise.  By the time of Hibbs, the Court had suggested that to abrogate state immunity validly, a federal statute had to protecte a class that was "suspect" under Fourteenth Amendment decisions, such as race or sex -- Kimel said age discrimination didn't qualify, and the disability act was struck down as violating state immunity (Garrett, 2001) -- and also that it had to protect that class against intentional discrimination vs. just discrimination in effect (that's how the Religious Freedom Restoration Act fell in 1997 in the Boerne case).  Finally, in in Garrett and other cases, the Court required overwhelming factual records to justify applying the laws to states.  But the Court then turned around in Hibbs and held that the Family Medical Leave Act prevented sex discrimination, even though its terms apply equal to male and female employees.  How FMLA could satisfy the Court's earlier, tough tests has never been clear.

I don't think Alito can be faulted for reading the tea leaves wrong on this one -- or more accurately, for the fact that there were no tea leaves to read that would have suggested Hibbs was on the way.

Tom

Reformation Day

Today is -- as a number of my Separated Brethren pals have reminded me -- "Reformation Day."  On this day, many Protestants celebrate Luther's nailing his 95 Theses to the door of the church in Wittenberg, Germany.  Here is a (provocative, I hope!) thesis of my own:  Contrary to widely held belief, the Reformation was, on balance, a bad thing for political freedom.  Discuss (in a spirit of Christian charity, of course).

Rick