Mirror of Justice

Cochran on the Catholic Court

Pepperdine law prof (and friend of many MoJ-ers) Bob Cochran has an essay in the new issue of Touchstone: A Journal of Mere Christianity titled "The Catholic Court Appeal."  Here's the intro:

The Supreme Court has been dominated since the founding of our country by mainline Protestants, but with Samuel Alito joining Antonin Scalia, Anthony Kennedy, Clarence Thomas, and John Roberts, five of the nine justices are now Catholics. All five have been appointed in the last 20 years. In the previous 200 years, only seven Catholics have served on the Court.

There may be political explanations for the attractiveness of Catholic justices, but I think three Catholic doctrines—natural law, subsidiarity, and religious freedom—help to explain why a majority of the justices are now Catholic. My argument is not that citizens who support, presidents who appoint, and senators who confirm these justices consciously do so because they want Catholic religious beliefs on the Court, but that these doctrines yield habits of thinking that make Catholics attractive candidates to the broad range of the American people.

I write as an Evangelical, but one who has come to share a commitment to the Catholic doctrines that I will mention

Rob

Toward a Catholic Legal Theory of Flag-Burning Amendments . . .

Yes, symbols are important.  But symbols are important, in large part, because they are accessible and interpretable in ways that transcend collective edicts.  Using the law to express the non-negotiable sanctity of the physical embodiment of national identity strikes me as an understandable, but ultimately absurd, endeavor.  Further, given that Catholic legal theory is operating in the "reality-based world," I'll go ahead and open the MoJ debate on the flag-burning amendment with the (entirely unoriginal) observation that it seems like a colossal waste of time.  As Dana Milbank observed today:

The chamber has scheduled up to four days of debate on the flag-burning amendment this week. If that formula -- one day of Senate debate for each incident of flag burning this year -- were to be applied to other matters, the Senate would need to schedule 12 days of debate to contemplate the number of years before Medicare goes broke, 335 days of debate for each service member killed in Iraq this year and 11 million days of debate on the estimated number of illegal immigrants in the country.

Am I missing something?  Are we all agreed that this is straightforward election-year posturing?

Rob

Cardinal Newman Society

. . . is profiled in the new Chronicle of Higher Education.  (HT: Open Book)

Rob

The Marsh case

Dan Filler (of Concurring Opinions) has some thoughts about the Supreme Court's recent death-penalty decision, Kansas v. Marsh.  Here is more, from Scotusblog.  The specific question presented -- to which Justice Thomas's majority opinion confined itself -- had to do with the provision of Kansas law dealing with the balancing of aggravating and mitigating factors in capital-sentencing proceedings.  However, the case became the occasion for a pointed, and interesting, exchange between Justices Souter and Scalia about the death penalty more generally, about the implications of DNA-based exonerations for the death penalty's legality and morality, about the relevance of other countries' practices and norms, and about role of judges.  Check it out.

10 Commandments Movie

Here's a preview for a genre-defying new movie that promises to bring timeless scriptural truth to today's hip-hop masses.  (Warning to sensitive ears.)

Rob

Catholics, competition, and patriotism

The other day, I came across this paper, "Our Anticompetitive Patriotism," by Professor Todd Pettys.  Here is the abstract:

This article examines the profound regulatory implications of Americans' deep, quasi-religious devotion to their nation. I argue that Americans' powerful identification with their country poses a significant threat to the system of intergovernmental competition that the Framers envisioned. The Framers believed that the state and federal governments would compete with one another for citizens' loyalty and for the regulatory power which that loyalty often yields, and that this competition would give both sovereigns strong incentives to remain finely attuned to the needs and desires of the citizenry. I contend that the nation's seemingly exclusive claim to citizens' patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain its ability to govern in objectionable ways. I conclude by advancing a two-part argument. First, to ensure that the federal government does not wield monopolistic power in a vast array of domains, we should give increased consideration to treaties and other regulatory alternatives that require America's leaders to negotiate with their counterparts in other countries. Second, in the years ahead, Americans may very well develop the supra-national patriotic sentiments necessary to sustain such models of international governance.

It is an interesting point:  The Framers (some of them anyway -- certainly Alexander Hamilton hoped that national loyalty would win out) expected that citizens' loyalties to their own states would facilitate competition between the states and the federal government, and among the states themselves.  Pettys notes that Americans' "quasi-religous" devotion to their *nation* throws a wrench in the competitive-federalism works.  It is probably also part of the story that Americans are much more mobile than ever that, increasingly, most places feel, look, and regulate like most others. 

To be a Catholic, I suppose, is to be "cosmopolitan," in the sense that we have been baptized into a community that is bigger than, and prior to, with larger purposes than, any nation, including our own.  At the same time, to be Catholic is to understand and appreciate the importance to human flourishing of rootedness-in-community, of mediating institutions, of subsidiarity, etc.  Probably, membership in the universal Church is not what Pettys has in mind when he speaks of "supra-national patriotic sentiments".  I wonder, *should* we want Catholics to develop such sentiments?  Or, at the present moment, is it at least as important for all of us to re-discover sub-national "patriotic" sentiments?  Or, is that even possible?

Some thoughts about Church autonomy

I would like to thank many of the MOJ contributors who have recently raised some important questions involving Catholics in public life-- be they university professors, office holders, theologians, or citizens. I believe that Rick's recent posting on the Church autonomy conference he recently attended helps me frame the thougths that I would like to present in this contribution that address the issue of Church autonomy.

Rick properly asked a question about the Constitutional source of the Church-autonomy doctrine. I imagine most lawyers addressing this issue would immediately think of the religion doctrines that emerge from the First Amendment. But I think that it is not only the free exercise and anti-establishment doctrines that would apply; we must also consider the apppropriate application of church members and their churches relying on the protection of rights regarding assembly, petitioning the government, and free speech and expression. Of course, other elements of the Constitution that also apply would include the doctrines involving equal protection, due process of law, and the prohibitions against bills of attainder and ex-post facto laws.

Coming back to some of the First Amendment matters for a moment, I want to address the difficult issue of the "wall of separation." I think most of us would agree that the Constitution does not use this formulation; however, some Supreme Court jurisprudence has attached particular, and perhaps undue, significance to a phrase found in a political letter written by Thomas Jefferson who had no hand in the drafting of the Constitutional text to which his phrase has often been applied. But, let us assume for this discussion that the Jeffersonian formula provides a useful analogy to understanding the First Amendment religion provisions in some contexts. I will further assume that most of us would be inclined to agree that there could be situations in which exclusive deference to particular religious views in developing public policy might raise establishment questions. So if the Church is barred from certain actions under some circumstances that would constitute establishment, is the State barred from any intrusions into the proper activities of the Church? In other words, does the separation principle generate responsibilities for both? I believe the separation principle also obligates the State from improper incursions of the Church's matters just as that principle restrains the Church from interfering with certain matters that properly belong to the temporal authorities. If the abstention obligation also applies to the State, its improper intrusions into Church affairs interferes with the autonomy of the Church.

In this context, individuals (office holders and citizens who are also members of the Church) need to be mindful of the dichotomy presented. But, when the person claims loyalty to both institutions--the sacred and the temporal-- he or she must be clear on certain first principles. Just as the Catholic owes certain responsibilities to the State, the Catholic office holder and citizen cannot use the authority of the State to intrude into those matters that properly are those of the Church. An illustration of this last situation would be the unsuccessful attempt last summer and fall of some members of the Massachusetts General Court (the legislature) to impose certain financial obligations and reporting duties on the Church.

How we think about the respective autonomies of the State and Church brings me to something Patrick had raised in one of his recent postings. In one of his discussions, Patrick made a reference to the Woodstock Reports. I did not realize they are posted on-line, so I took advantage to read some of the Woodstock Center's recent monthly reports. I found a passage in the June 2006 report [Here] pertinent to this posting. In an entry entitled "Vagaries of Faith and Politics", the author, William Bole, made this interesting observation in the context of the "prophetic voice" of bishops in nonpartisan debates on the political issues of the day:

"Some would argue the bishops muted this nonpartisan message in the 2004 [sic], when a furious handful of them stole the election-year stage by denying communion to Catholic politicians (especially liberal Democrats) who take a prochoice stand on abortion."

I believe this author is correct when he offered his suggestion that a small number of bishops had publicly addressed the duties of Catholics vis-a-vis their respective roles in participating in the temporal affairs of the State in 2004. However, I question his use of particular language and the accuracy of his portrayal, and I lament the image which his chosen rhetoric portrays. I read most, and I believe all, of the statements that American bishops issued during the 2004 election year regarding the public responsibilities of Catholics in exercising their public duties as either officials or as citizens. I found their written and oral statements clear and helpful in clarifying Church teachings that applied to many of the pressing issues being debated during the election season. I did not find their rhetoric "furious." Firm: yes; furious: no. I also recall that "stealing" is a crime, but I do not think any bishop committed this crime by exercising his proper teaching authority and other duties of episcopal office. In short, no bishop and no group of bishops "stole" anything in the context of the election-year stage. To suggest otherwise reveals an attitude that may well lead to the State improperly intruding into the Church's exercise of its autonomy.

I return to Rick's posting. I think he is on to something important when he concludes that Church autonomy could well be the religious-freedom issue of the present day. It is surely an important one. As we continue to address it, we also need to be mindful that there are other sources of authority addressing the relationship between the Church and the State. Some of them are from international law and could very well apply to the ensuing discussions; but, we must never forget the Church's own body of law that also has a bearing on this important issues and those others related to it.    RJA sj

Schiltz on Hirshman

My colleague Lisa Schiltz responds to our ongoing conversation (see here, here, here, here, and here) regarding Linda Hirshman's critique of the claim that staying home with the kids is a legitimate feminist option:

I was prepared to be outraged by her article, but I actually agreed with much of what she says.  I think it’s important to keep in mind that she is quite consciously addressing a very narrow band of women – highly educated, affluent women who are married, have a couple of kids, and are nearing 40 years old.  Those are the women she was studying; even though she addresses her “rules” to younger women, she’s thinking about them as women who are going to be just like the ones she studied in a few years, unless they start making some different choices.

I think a lot of the advice she gives those younger women is great career advice.   Hirshman is right to tell these young women that “glass ceilings” in the workplace these days are much more likely to be a function of choices they make about how much time and energy they’re willing to dedicate to their job, and strategic decisions they make about launching their careers than of lingering prejudice against women.  I also really appreciated her suggestion for the proper economic analysis of the cost of child care to a married couple.  It ought not be deducted from the woman’s salary to determine whether it makes economic sense for the woman to keep working;  it ought to be deducted from the joint salary of the couple.  Indeed, she sounded almost Catholic about her criticism of the former method of calculation, saying “it totally ignores that both adults are in the enterprise together."

And I heartily applaud Hirshman’s challenge to the “older” women – as she calls them: “the privileged brides of the Times.”  If women never rise to leadership positions in the public sphere, the unique genius of women that our Church articulates so forcefully will never have a chance to change the power structures in the U.S.  Hirshman wrote:  “If the ruling class is overwhelmingly male, the rules will make mistakes that benefit males, whether from ignorance or from indifference.”  I’d go even further, and say that if women who are mothers never rise to leadership positions in the public sphere, our families are going to continue to suffer from the mistakes our countries leaders have been making about all sorts of policy questions.  In the words of everyone’s hero, Mary Ann Glendon:  “[F]or the first time in history large numbers of women occupy leadership positions and almost half of these new female leaders – unlike male leaders – are childless.  Will this affect our goals and values?  Will it affect our programmatic agenda?  You bet it will.  People without children have a much weaker stake in our collective future.  As our leadership group tilts toward childlessness, we can expect it to become even harder to pay for our schooling system or for measures that might prevent global warming.  America’s rampant individualism is about to get a whole lot worse.”  I think some women with children really need to take up the challenge of working outside the home.  I think the ones that Hirshman’s talking to – well-educated, wealthy women who probably only have one kid who is now in school full time – are exactly the ones who ought to heed this call, and step up to the plate to try to make things better for other mothers who aren’t in a position to do so.

That all being said, I think Amy’s hit the nail on the head with the most important mistake that Hirshman makes – buying in to the notion that flourishing means meeting the standards of  success established by the current power structures – the very ones Hirshman criticizes.  In fact, Hirshman’s own research support’s Amy’s point, but Hirshman doesn’t seem to recognize that.  She says, “Half my Times brides quit before the first baby came.  In interviews, at least half of them expressed a hope never to work again.  . . . [W]hen they quit, they were already alienated from their work or at least not committed to a life of work.  One, a female MBA, said she could never figure out why the men at their workplace . . . were so excited about making deals.  ‘It’s only money,’ she mused.”  So Hirshmann recognizes that women are rejecting current workplace environments for reasons OTHER than just the desire to be home for their children.  But then she ignores that, and, as Amy points out, challenges women to go back to those workplaces and gives advice for how to be successful under the criteria for success that those workplaces establish.

I agree, as I usually do, with Amy.  We’re all called to work, to participate in all sorts of ways in God’s ongoing creation.  Hirshman’s wrong to insist that ONLY the work we do in the paid workforce can contribute to our flourishing, but it’s also wrong to insist that, for women who are mothers, ONLY the work we do at home with the kids can be considered legitimate “work” to contribute to our flourishing.

I agree with your notion that we ought to have more respect for the different possible rhythms in a person’s life.  I’ve often argued that workplaces like law firms could be more productive over the long term if they could balance one contrasting cycle I’ve noticed between men and women.  About the same time that many women who are getting through the most intense early child-raising years have fresh energy to devote to their professional lives, many men are feeling totally burned out from intense career building years and end up careening into mid-life crisis affairs and other unproductive escapades.  I’ve only ever thought about this in terms of law firm productivity, but given this exchange on MOJ, I’m wondering if maybe we ought to also be encouraging men to channel that mid-life crisis energy into parenting their teenaged kids!

Finally, I also do think it’s true that sometimes, out of love, our own individual “flourishing” does have to be sacrificed for others.  I suspect that many of the women that Hirshman is talking to – and many of the ones who seem to have gotten so angry about her article -- did give up their jobs out of love – sacrificing for love of their spouses and their kids.  When they’re confronted with the fact that there is, really and truly, a cost to that sacrifice, they don’t want to accept that.  I think that’s what’s behind some of the vehemence of the reactions to things said in the “mommy wars.”

Compendium's cover

I received in the mail today my copy of the Compendium of the Social Doctrine of the Church (order yours today, here!).  It looks to be a rich and inspiring resource.  The introduction describes nicely the foundation for the whole enterprise -- an "integral and solidary humanism," one oriented to the "full truth about man." 

As much as the introduction, though, I really like the cover.  It's the Allegory of Good Government, a fresco by Ambrogio Lorenzetti, which is in the Palazzo Pubblico in Siena, Italy.  (There is also, in the same room, the Allegory of Bad Government.)   Professor Nicole Garnett opened a recent paper of hers, "Ordering (and Order in) the City," with this:

The walls of the Palazzo Pubblico in Siena, Italy, are graced with Ambrogio Lorenzetti’s striking frescos contrasting the effects of “good government” and “bad government” on fourteenth-century city life. In the city under good government, men work to repair stately buildings, women socialize in the streets, and merchants sell their wares in a busy marketplace. In the city under bad government, the buildings are crumbling, men stand idle (save one crafting weapons), bandits terrorize the innocent, and the bodies of murder victims lie in the streets.  The goals of urban policy, it appears, have not changed in over six hundred years.

The frescoes' messages seem consonant with the renewed interest, particularly among Christians, in urbanism, and also with Joel Kotkin's dictum that cities were, and should be, "sacred, safe, and busy."

Church autonomy gathering

I'm back from a fascinating, two-day roundtable conference of scholars and practitioners on "church autonomy."  The conversations were fascinating; what a treat to hear so many stories from folks who are "in the trenches" of church-autonomy cases.  Some of the questions we kicked around -- and I'd welcome MOJ-ers' thoughts -- included:  What is the constitutional source of the church-autonomy doctrine(s)?  What is its content / reach?  How can lawyers, judges, and our fellow citizens be educated about the doctrine and its importance, particularly in a post-clergy-sex-abuse-scandal context, and particularly when -- as Alan Wolfe has reported -- Americans generally regard religion as spirituality, and churches as little more than overlapping personal experiences?  How can the doctrine be framed (can it be framed?) in a way that is both true to the relevant constitutional text, history, and structure, *and* to our various ecclesiologies?  And so on.

This is, I think, the religious-freedom issue of our time.