Saturday, September 12, 2009
My subject line was the unofficial title for the symposium held yesterday at Villanova Law: "Sovereignty's Seductions: Reconciling Conflicting Claims to Govern." The symposium grew out of a conversation my wonderful colleague Ann Juliano and I carried on, over several years, about whether it makes sense to try to decide any important politico-legal issues in terms of "sovereignty." I was skeptical, but Ann, who teaches Indian Law, made lots of good points about why sovereignty is indeed what one should call what tribes should be seeking from the U.S. government. Our goal in convening the symposium was to bring into a common conversation people who talk about sovereignty in a wide range of generally disjointed areas. Because of scheduling difficulties, a couple of the perspectives we had hoped to include (international, theology proper) weren't in the end represented. But that didn't get in the way of a fabulously successful discussion of a topic about which (to paraphrase one of the presenters) "there is still amazingly much to say."
The day was supposed to begin with remarks by Kevin Gover, director of the Smithonian's Museum of the American Indian and former Assistant Sectretary of the Interior for Indian Affairs, but at the last minute illness prevented him from attending. Doug Endreson, a pracitioner of Indian law in D.C. and an adjunct at Columbia Law School (and, like Kevin Gover, formerly my colleague at ASU) started us off with a masterful account of the phases and direction of Indian law in the U.S. Doug emphasized that even during periods when Indian interests have not succeeded in the Supreme Court, many tribes have made huge strides forward in terms of effective self-governance and community prosperity. Kate Struve, of Penn Law, went next, and she offered a rich account the myriad consequences of tribes' frequently having their interests determined in the courts of another sovereign. Hope Babcock, of Georgetown Law, spoke third, and her focus was the use, since John Marshall's trilogy of Indian law cases, of legal fictions to fix the place of Native interests in American law. This presentation offered lots of insights, coming out of Lon Fuller's work, on the broader place of fact and fiction in forming legal doctrine and practice. Where Endreson is optimistice, Babcock is straightforwardly pessimistic. The contrast couldn't have been sharper or better articulated. The fourth speaker was Don Doernberg, of Pace Law, and he developed the fascinating theme that because knowledge is power, putative sovereigns are having a harder time of it in this world of Twitter (where "Twitter" stands for all the instantaneous communication that dominates our lives). The instant availability of knowledge is making government more accountable to the governed, which, Doernberg argued, defeats claims to "sovereignty." Responsible and responsive governors are not the stuff of which Leviathan is made! MOJ's own Greg Sisk went last (but was not least), and he developed a strong account of why the common good calls for -- rather than, as I tend to think, forbids (or counsels against) -- federal sovereign immunity. For me, the principal issue is that when the the governor (I won't call him "sovereign") disobeys the law (and then claims immunity from suit under that law), this is inconsistent with the governor's showing the positive law the respect it deserves (as, by hypothesis, an ordinance of reason, for the common good, promulgated by one who has care of the community). Sisk's way around my objection, as I see it, is to take an ontologically lighter view of the status of the positive law. While I don't assume that judges have the power to craft remedies for violations of the positive law (that is itself a question of positive law, not of the natural law), I do take the (natural law) position that the positive law governs -- that is, its preceptive force holds with respect to-- even the behavior of the one who posits it (unless and until he withdraws it). I hope Greg will add his two or three cents not only the issues but on the tenor and topics of the whole day. Thanks to all who participated!
The five papers will be published in a forthcoming issue of the Villanova Law Review. I look forward to reading them with the care they deserve.
As an aside, I would add that this strikes me as event that exemplifies some of the distinctive contribution "Catholic law school" can make. I don't make the silly suggestion that this conversation could not have occurred at Rutgers or Iowa. Of course it could have. We had similar conversations at ASU during my eight years there, thanks in part to the presence there of the estimable Michael J. White. But in this case it occurred at Villanova, and it did so in part because of the intellectual space provided for the purpose of introducing Catholic views into the conversation. The symposium grew out of an organic intellectual inquiry and disagreement in which the Catholic view (as I understand it: "God alone is sovereign," as Maritain said) was in dialogue with a view in which God is not available (to be sovereign or anything else). "Catholic law schools" are uniquely positioned, through their faculty members who ask and answer the questions that define and guide the Catholic tradition, to test and try the other views that are on offer in the culture at large. This can happen sporadically in other institutions. It should be a defining feature of and regular occurrence in the life of a Catholic law school. Why is that so controverisal (or, as the case may be for others, negligible)?