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, May 28, 2010

"Youthful, stylishly dressed . . . ."

Thanks (I think), Rick, for calling attention to John Haldane's embarrassingly flattering profile of me in Standpoint.  I fear that what is most noteworthy about it, though, is that one of the world's most acclaimed and gifted philosophers managed to get three things wrong in a single sentence.  He says that I am (1) "youthful" (I wish!); (2) "stylishly dressed" (well, by the standards of 1937 perhaps); and (3) "fully up-to-speed with the electronic information culture" (my wife has to remind me every few days how to turn on my cell phone).  As for his claim that I am the new "leader of American intellectual conservatism, the heir to William F. Buckley Jr, Richard John Neuhaus, Irving Kristol, and Ralph McInerny," the danger there is that my mother will actually believe it.  I'm pretty sure she's the only one at risk, though. 

May 28, 2010 | Permalink | TrackBack (0)

Thursday, May 27, 2010

Christianity and Libertarianism

Over at the America blog, Michael Sean Winters -- with whom MOJ readers are familiar -- has this new(ish) post, discussing Christianity and Libertarianism.  In it, he engages (appreciatively) Robby's recent post, in which "libertarianism" is characterized as a "heresy."  Winters writes, among other things, that:

The problem is not just libertarianism, in which the difficulties are most obvious, but extend also to the modern, Western liberal state. (Here, "liberal" is intended in the Lockean sense of the word, not the partisan sense of the word.) Because, in Catholic anthropology, the idea of "personal autonomy" is not a "truth," not at the beginning and not at the end, and linking it with a Catholic notion of freedom is enormously problematic. . . .. . .

The problem for libertarianism . . . is that it starts at the wrong place. It is not a truth run amok. It is a falsehood masquerading as a truth. Yes, human freedom is a good thing, but what is freedom? I do not see how you can reconcile negative freedom with Christian anthropology. The "freedom of the children of God" of which St. Paul writes is not autonomy.

So, we only skate around the difficulties. The problem, of course, is not just philosophical. I love the practical consequences of the First Amendment as much as the next person, but I worry that it is built on a faulty foundation, that it derives from ideas about the human person and human dignity that do not cut the anthropological mustard, and like everything built on a faulty foundation, it may not be as sturdy as it seems. We can keep the issues fuzzy, but at the end of the day, the fact of the Incarnation calls into question the very idea of autonomy. I submit this is the central issue in our Western culture today and the point at which the Church remains the most counter-cultural influence in the West: How do we rescue human freedom and all the manifest good that flows from a politics in which human freedom is valued, from the nasty Enlightenment influences that require the privatization of religion? It is no small question and hats off to Professor George for raising it.

This is important stuff, and I invite my colleagues (and MOJ readers) to weigh in.  Two quick thoughts of my own:  First, I think "negative freedom" is reconcilable with (and, indeed, can serve well) the Christian understanding of human flourishing and common good, so long as the negative-freedom claim is (something like) "generally speaking, unless they have a sufficiently compelling reason, governments ought not to interfere with the plans and projects of persons and societies.  Rather, persons and societies - generally speaking -- ought to enjoy the (negative) liberty to be free from such interference."  This claim is, I suppose, "libertarian", but not in the misguided ("heretical") sense of making deep claims about autonomy.

Second, with respect to the First Amendment:  It is possible (indeed, it is common) to think about, interpret, and apply the First Amendment as if it were a philosophical statement about the nature of truth (e.g., "it can only be found through the operation of an unregulated marketplace of ideas") or human flourishing (e.g., "no one is any position to judge whether or which ideas and statements are damaging or harmful").  But, it can also be understood, in a more pedestrian way:  "Generally speaking, the government is an unreliable, or even untrustworthy, regulator of the search for, and debates about, truth.  So, we disable the government from regulating speech not because there is no truth, or because ideas never cause harm, but only because the government-speech-regulation cure will too often be worse than the disease."

Other thoughts?


May 27, 2010 in Garnett, Rick | Permalink | Comments (4) | TrackBack (0)

Happy (Belated) Feast of Pope St. Gregory VII

May 25 was the feast day of Pope St. Gregory VII (a.k.a. Hildebrand).  He was, it's fair to say, "the man."  (More here.)  Indeed, someday I hope to tell him, face-to-face, "youdaman."  If one cherishes and appreciates the Freedom of the Church (as we all should), then one cares about the legacy of Gregory VII.

May 27, 2010 | Permalink | TrackBack (0)

Comment on Michael P’s post and the Marquette Controversy

As Michael P. reports, critics of Marquette’s decision to rescind the offer to Prof. O’Brien claim that the decision “puts academic freedom at risk at Marquette University.”  They “reject an intellectual ‘litmus test’ for our faculty, staff, and leaders in the administration.”  This high-minded appeal to “academic freedom” strikes me as disingenuous.  I suspect that the critics are driven by ideology rather than principles of academic freedom. 

If an offer had been extended by Marquette to someone whose academic career centered seriously but mistakenly around the notion (a) that the poor across the globe are largely responsible for their own impoverishment and that, therefore, the preferential option for the poor is not only mistaken but positively harmful or (b) that women are inferior in some way to men, I suspect that these same individuals would be calling for the university president’s head.  These may be inadequate examples, but I think the point is clear.  A Catholic university – like any university - ought to have the institutional academic freedom to form its own identity within which individual academic freedom can flourish.  And, I suspect that these critics don’t disagree with this notion.  Rather they disagree with its application in this particular case because they wish that the Catholic Church taught something different than what it does on matters of human sexuality.

May 27, 2010 in Scaperlanda, Mike | Permalink | Comments (2) | TrackBack (0)

Dear Rick,

In my "deep waters" post, I didn't say that you "lack [my] appreciation for the depth of the relevant waters."  I *did* that that the waters are deep--and that generalizations are perilous.  Sometimes when we--that "we" certainly includes me--blog, we say things that are too quick, too simple, too shallow.  But when we do so, that doesn't mean that we--or our appreciation of the issue at hand, whatever it is--are necessarily simple, shallow, .... If you tell me that you can run just as fast as I can, if not faster, in appreciating the depth of the waters (how's that for mixing metaphors?!), I say:  Doesn't surprise me!

About "going into it":  that will have to wait until *after* the Second Circuit Judicial Conference.  I want the judges to be the first to hear what Kent Greenawalt and I have to say to them about the issues we plan to put on the table.

May 27, 2010 | Permalink | TrackBack (0)

Congrats to our own "youthful and stylishly dressed" Robby George!

John Haldane, writing in the (British) magazine Standpoint, offers an appreciative portrait of our own Robby George and his work. . . .

 . . .Well-known as a scholar, lawyer and public commentator, he has acquired a new status as a leader of American intellectual conservatism, the heir to William F. Buckley Jr, Richard John Neuhaus, Irving Kristol, and Ralph McInerny, who have all died in the past two years. Indeed, if the verdict of a major profile recently published in the New York Times Magazine is to be believed, George is the leading American voice of thoughtful Christian conservatism. But any images of eccentricity or fogeyishness would be out of place: "Robby" George is youthful, stylishly dressed and fully up-to-speed with the electronic information culture. . . .

Central to his work is the task of understanding and helping others to appreciate what he describes as "the profound, inherent and equal dignity of every human being and all that follows from that about how we should lead our lives, and govern ourselves as communities". According to George, this takes us to a true humanism that identifies principles of conduct (including justice and human rights) by considering the various fundamental and irreducible aspects of human wellbeing and fulfilment

In George's view, religious faith illuminates these principles and helps us to grasp their full meaning and significance, but they may be reasonably affirmed even apart from divine revelation: "That is what it means to say that they are principles of natural law." . . .

There's more . . . 

May 27, 2010 | Permalink | TrackBack (0)

Michael's "deep waters"

With respect to this recent post by Michael P.:

Um, those are deep waters, and generalizations are perilous ...

Rick writes:  "For me -- more than, I think, for Michael [Sean Winters] -- it is . . . a departure from justice, when our Supreme Court overreaches to invalidate even unjust immoral enactments of politically accountable representatives."

Rick, I don't have time to go into it now, but I can imagine situations--in my lifetime if not in yours--when it would not have been a departure from justice but a just act for SCOTUS to overreach.

Kent Greenawalt and I will be discussing just that issue at the Second Circuit Judicial Conference, in New Paltz, New York, on June 3.

No doubt it was the press of time that caused Michael to imagine that I lack his appreciation for the depth of the relevant waters.  I hope he will find the time, though, to "go into it" soon, describe the situations he has in mind, and tell us more about decisions that are well characterized both as "overreaches" and as "just."  (Brown, by the way -- which was, I admit, not decided in my lifetime -- is not such an example, because it was not, in my view, an "overreach" for the Court to hold that legally mandated racial segregation in our governments' government's schools violated the Equal Protection Clause, properly understood.)  

My use of the word "overreach" was intentional:  that is, I did not say (and, obviously, do not think) that it is unjust for the Supreme Court to invalidate immoral enactments of politically accountable representatives.  Rather -- and in keeping with the theory of judicial review that Michael embraces in his recent books -- I said and think that the Court should not "overreach" even to secure policy outcomes that Michael and I believe are just (e.g., the abandoning of LWOP sentences for juveniles).  

May 27, 2010 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

The Marquette controversy, con't

[This is lifted from Brian Leiter's Law School reports.]

Marquette Dean Crisis Continues; Faculty Not Ready to "Heal and Move On"

A couple of weeks ago, I noted that Marquette had offered the deanship of Arts and Sciences to sociologist Jodi O'Brien.  O'Brien, who is on the faculty of the Jesuit Seattle University, is an out lesbian who writes about issues of religion and homosexuality.  For whatever reason - Marquette's official position amounts to "we were lazy and never bothered to read her controversial work" but some now hint that the turnabout was in response to pressure from Archbishop Jerome Listecki - Marquette (also a Jesuit school) reneged on its offer and told Professor O'Brien to go away. 

Folks at Marquette have been stewing about this.  Monday, faculty members from both Marquette and Seattle joined to buy a critical full page ad in the Milwaukee Journal-Sentinel.  Among other things, the ad stated that the university's decision: "puts academic freedom at risk at Marquette University. We reject an intellectual 'litmus test' for our faculty, staff, and leaders in the administration." 

Showing the signs of a school that perhaps worries more about sports than Arts and Sciences, the faculty added: "We note with chagrin that while the administration encouraged the university community to discuss the name change of our basketball team for a full year, less than two weeks after this egregious action, which strikes at the heart of our functioning as a university, we were told it is time for 'healing' and 'moving on.' We will not be silent until the integrity of our university is restored."


May 26, 2010 | Permalink | TrackBack (0)

Tuesday, May 25, 2010

The Dalai Lama: "Many Faiths, One Truth"

"WHEN I was a boy in Tibet, I felt that my own Buddhist religion must be the best — and that other faiths were somehow inferior. Now I see how naïve I was, and how dangerous the extremes of religious intolerance can be today.

Though intolerance may be as old as religion itself, we still see vigorous signs of its virulence. In Europe, there are intense debates about newcomers wearing veils or wanting to erect minarets and episodes of violence against Muslim immigrants. Radical atheists issue blanket condemnations of those who hold to religious beliefs. In the Middle East, the flames of war are fanned by hatred of those who adhere to a different faith.

Such tensions are likely to increase as the world becomes more interconnected and cultures, peoples and religions become ever more entwined. The pressure this creates tests more than our tolerance — it demands that we promote peaceful coexistence and understanding across boundaries.

Granted, every religion has a sense of exclusivity as part of its core identity. Even so, I believe there is genuine potential for mutual understanding. While preserving faith toward one’s own tradition, one can respect, admire and appreciate other traditions.

An early eye-opener for me was my meeting with the Trappist monk Thomas Merton in India shortly before his untimely death in 1968. Merton told me he could be perfectly faithful to Christianity, yet learn in depth from other religions like Buddhism. The same is true for me as an ardent Buddhist learning from the world’s other great religions."

Read the rest of the Dalai Lama's op-ed, in this morning's Times.

May 25, 2010 | Permalink | TrackBack (0)

How the Bishops Get Health-Care Legislation Wrong

That's the title of of piece by Washington & Lee law prof Tim Jost, who is Mennonite.  Tim is widely recognized as one of the premier health law scholars in the United States.  Tim begins:

"On May 20, 2010, the Secretariat of Pro-Life Activities of the United States Conference of Catholic Bishops issued a statement supporting H.R. 5111, sponsored by Congressmen Joseph R. Pitts (R-Pa.) and Dan Lipinski (D-Ill.). H.R. 5111 is prolife legislation intended to protect the unborn and the consciences of health-care providers, and it is not surprising that the USCCB should support this bill. Unfortunately, the USCCB used this occasion to attack once again the major health-care legislation that was signed into law in March, the Patient Protection and Affordable Care Act (PPACA). The USCCB continues to misunderstand the provisions of PPACA and contributes to confusion about its content. This analysis is intended to correct the USCCB’s erroneous characterizations of PPACA, and to clarify what the legislation actually says and does. . . .

Public polling repeatedly reveals that Americans are confused about what the health-reform legislation does. The legislation is long and complicated, and some misunderstanding of the bill is inevitable. It is unfortunate, however, that this confusion continues to be fed by mischaracterizations of the legislation by the USCCB."

Read the rest in Commonweal.

May 25, 2010 | Permalink | TrackBack (0)