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.

Sunday, April 29, 2012

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer -- as a moment for loose impromptu brilliance.  And in his exceptional piece, "Constitutional Cadenzas," Dan Farber argued that there are sections of the Constitution which contain cadenzas -- "instructions for the interpreter to improvise on the Constitution's grand themes."  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment's Privileges or Immunities Clause as such sections.  "[B]oth of these constitutional provisions," he wrote, "call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration."  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation -- specifically, "transnational legal sources" and "contemporary social consensus" -- the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers -- he may perhaps take notice of past interpretations -- but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind -- the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, 'un appoggio' is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment -- it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody -- it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

Continue reading

April 29, 2012 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Saturday, April 28, 2012

Seeing the Church in Red and Blue

If you were asked “How come nuns tend to be Democrats and bishops tend to be Republicans?” how would you respond?

That was the first question posed Thursday night by Chris Matthews to Sister Simone Campbell on Matthews’ MSNBC show Hardball (video available here).  The segment of the program during which Matthews asked the question ostensibly addressed Rep. Paul Ryan’s speech on Thursday at Georgetown University concerning the budget prepared by Ryan and passed by the Republican controlled House.  Ryan has stated that his public service in government is inspired by his Catholic faith and that the budget that he and his Republican colleagues put forth is consistent with Catholic social teaching.

Chris Matthews, however, is having none of that.  The segment was dedicated to showing that Ryan and his budget are at odds with Catholic social teaching.

Now, Matthews did not trouble himself with what Ryan actually said at Georgetown.  The Hardball segment did not feature a fair sampling from Ryan’s speech, just two sound-bites.  And Ryan was not a guest on the program.  (For those interested in what Ryan actually said Rick posted a link to the transcript of Ryan’s address here.  A video of the address can be found here).  Instead, Matthews quoted a letter signed by some Georgetown faculty in opposition to the Ryan budget (here).

The bulk of the segment, however, involved an interview with James Salt, the head of Catholics United, and Sister Simone Campbell, the executive director of Network, a lobbying organization sponsored by women religious.  Given that Mr. Salt and Sr. Campbell had already signed a letter in opposition the Ryan budget (here), it seems clear that Matthews was not reaching for journalistic balance in his selection of commentators.  Nor was he trying to provide a forum for dialogue, unless by “dialogue” we mean “monologue” – sadly, a not implausible suggestion in American journalism today.

One way to respond to Matthews’ question would have been to question the alleged voting habits of vowed women religious and Catholic hierarchs – blue nuns and red bishops.  That is, one could deny the factual predicate upon which the question is based, or deny our ability to have confidence in the soundness of the predicate.

That, in essence, is how Chicago’s archbishop, Francis Cardinal George responded to a similar question he received during a question and answer session – albeit a question that assumed Catholic episcopal support for the Democratic Party.  (See the video here).

George was asked: “How could our bishops vote for Obama when he specifically clarified that he was supportive of Planned Parenthood, late-term abortions, funneling high schools with $300 million worth of condoms, etc.?”

Cardinal George responded:

I don’t know if any bishops voted for Obama, and I don’t know anyone else who does.  I never asked any other bishop ‘How did you vote?’ and I don’t think they would tell me if I did ask.  So, how do you know this?  I don’t know how any of you voted and I’m not going to ask you.  So I can’t go out of here and say ‘Well, half the people here voted for Obama.’  How could I say that responsibly without being a sinner?!  It is a sin to detract and to classify a whole group of people, bishops or anyone else, in that way without anyway of knowing it is simply sinful.  It is worse than gossip.

(Watch the full video of George.  It is just under 7 minutes and is well worth the time.  Among his remarks are thoughts on freedom, violence and American history, and the role of the laity in politics.  George also says that those Catholics who did vote for Obama “have an obligation to tell that administration that we didn’t vote for you because you are pro-abortion.  Don’t do this.”  Query whether this has taken place over the last three years).

Whereas George shows prudence, tact, and a desire to avoid sin, Sister Campbell jumps in with both feet.

Gossip, schmossip.

Rather than deny the factual predicate upon which Matthew’s question is based she assumes its truth and then tries to explain it in a rather self-serving way:

Well that’s a really good question.  I’d like to know the answer to it myself, but I have a hunch that it’s our experience that makes the difference.  We sisters work at the margins of society . . . And when you’re in touch with those sorts of struggles you can’t help but realize that we need to be together as a society and respond to the needs of all around us.  We’re only as good as the strength of our society, and that’s why we think that often Democratic principles are much more in keeping with that sense of solidarity.

No one would question the wonderful work that vowed women religious have performed in the United States on behalf of the poor, the uneducated and the marginalized.  (I am proud to count several Ursuline nuns among my teachers in grade school).  Indeed, the CDF recently praised the Gospel-inspired work of American nuns in its otherwise dim assessment of the LCWR (here).  Certainly, familiarity with the day-to-day struggles of the poor can make one more sensitive to their plight, but such sensitivity is hardly the only qualification for crafting policy to address their needs.

More troubling is the fact that Campbell’s remarks imply that the American episcopacy has no connection – no understanding – of poverty in this country.  Even if only by implication (i.e. “I’m a Democrat because I’m on the frontlines of poverty, and the bishops are Republicans because they’re clueless and out of touch, sitting in their chancery offices”) the charge is plainly absurd given the pastoral ministries and life experiences of many American prelates.  The vocation of a bishop – to teach, to sanctify, and to govern – may be different from that of a vowed religious working in a hospital or social service agency, but that does not mean that bishops are unfamiliar with the plight of the poor or that this explains their alleged (and it nothing more than this) support for Republicans.

Now Campbell could have assumed the truth of the premise underlying Matthews’ question – that “nuns tend to be Democrats and bishops tend to be Republicans” – yet offered a very different explanation than the one she did.  For example, Campbell could have said that many American bishops may well support the policies championed by Democrats in serving the needs of the poor but they find the very premise of human dignity undermined by the Democratic Party’s unfailing support for abortion rights.

She could have said that “[n]o public official, especially one claiming to be a faithful and serious Catholic, can responsibly advocate for or actively support direct attacks on innocent human life” (Living the Gospel of Life ¶ 32).

She might have said that the bishops have many disagreements with the Republican Party on a host of issues, but that they at least recognize the fundamental right to life upon which all other rights depend.  They at least recognize the humanity of unborn children and are willing to see the truth of that humanity reflected in law.

Likewise, she might have noted that “Catholics are not single issue voters” and “[a] candidate’s position on a single issue is not sufficient to guarantee a voter’s support.  Yet a candidate’s position on a single issue that involves an intrinsic evil, such as support for legal abortion or the promotion of racism, may legitimately lead a voter to disqualify a candidate from receiving support” (Forming Consciences for Faithful Citizenship ¶ 42).

She might have said all these things, but she instead stuck to the script provided by Matthews – seeing the Church in blue and red.

Sister Campbell’s failure to mention these points or anything like them – her studied reticence with respect to the right to life and the right to abortion – echoes the CDF’s observation that the LCWR “is silent on the right to life from conception to natural death” (here).

Of course the right to life – the legal protection due to the human child developing in his or her mother’s womb – is neither blue nor red.  It is not a Democratic issue or a Republican issue.  It is a matter of truth that cannot be ignored, least of all under the guise of support for the poor and disadvantaged since the unborn child is in solidarity with all those who are vunerable in our society.

This truth is neither red nor blue.  It is the clear-eyed vision offered by the Gospel.



April 28, 2012 | Permalink | Comments (4) | TrackBack (0)

A Picture is Worth a Thousand Words Department

It was an honor and a pleasure to host Justice Scalia earlier this month at our school.  During his visit with us, he taught my constitutional law class.  Here he is responding to a question I had about how originalism can accommodate and coexist with what will soon be more than a century of substantive due process precedent (after all, Pierce v. Society of Sisters turns 100 in about a decade).  The Justice was animated and incisive in his response.  In fact, my students quite reasonably suggested to me after class that, if given the choice, they'd probably prefer to finish out the rest of the semester with the Justice as their teacher.


April 28, 2012 in DeGirolami, Marc | Permalink | Comments (2) | TrackBack (0)

Friday, April 27, 2012

A (gloomy) observation

Over the course of the last few days and weeks, consuming lots of (and contributing some) commentary in various forms about, e.g., the preventive-services mandate, the Bishops' religious-freedom statement, the Ryan budget and Catholic Social Thought, the Supreme Court arguments in the ACA and SB 1070, the presidential campaign and election, etc., I was struck by what seem to me to be some characteristics of our (and by "our" I'm thinking mainly of "reasonably engaged, informed, and formed Christian citizens) conversations about law, politics, policy, and faith. 

It seems to me that, generally speaking, the following are true:

(1)  People object indignantly to tu quoque, "so's your mother!", and "if only you were consistent . . ." arguments and charges, and to double-standards, and also deploy, and apply, them often.

(2) People assume that those who disagree with them are, at least in part, motivated by something undisclosed, or by ideological precommitments that overdetermine the content of their claims, while they themselves are candid and transparent, and able to transcend ideology in order to identify what the right answer really is.  

(3) People object to pronouncements by religious authorities about "political" matters selectively and strategically / tactically.

(4) People are clear-eyed about the weakness of guilt-by-association arguments, and also entirely happy to press them.

(5) People are sensitive to the important truth that there is (this side of Heaven) almost always room for reasonable disagreement among intelligent, faithful, reasonable people about how best to apply principles, standards, and rules to those facts that are known; and also to the reality that such people will also often disagree about what the "facts" (which include, I suppose, predictions about the effects of particular interventions or omissions) . . . except when they aren't.

(6) People say that we should assume the best of others and their arguments, and avoid a "hermeneutic of suspicion", but don't.

To be clear:  I am, I am sure, among these "people."  I am not claiming innocence.  Sure, the merits matter, and I tend to think (as we all do) that, basically, I'm right about those matters about which I disagree with other people (assuming we are talking about matters about which it's possible to be right).  But still -- I'm not pretending to have entirely clean hands.  (I guess I'm overcompensating, in anticipation of (1)).

So, a serious question:  Given (1)-(6), is there really any hope for productive, charitable, and enlightening conversation and argument (about these matters), among people who don't already (pretty much) agree, outside the context of close personal relationships where trust (and even love) can reduce the incidence of the phenomena described in (1)-(6)?

I very much want the answer to be "yes", but it strikes me that it might be "no."  Hence, the gloominess of my observation.

April 27, 2012 in Garnett, Rick | Permalink | Comments (36) | TrackBack (0)

A Catholic brain trust?

Those interested in the development and declension of things Catholic in the U.S. over the last century will be interested in Patrick Hayes, A Catholic Brain Trust: The History of the Commission on Intellectual and Cultural Affairs" (University of Notre Dame Press, 2011). I have a brief review of the book coming out in the Catholic Historical Review, which concludes thus: "What happened when the CCICA dissolved itself in 2007, following a period of quiescence, speaks volumes -- it divided its remaining resoures between First Things and Commonweal. Not with a bang, but a whimper." The book's detailed attention to Fr. Murray's early and largely unrememberd efforts on behalf of "religious liberty" will be especially helpful to many working on that question today. Better to read Bellarmine, however.

April 27, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

Some (more) thoughts about Church and State

This is just a follow-up to Fr. Araujo's very helpful post the other day on John Courtney Murray and church-state relations.  As Matthew Cantirino noted, over at First Things, the upshot of Fr. Araujo's post is that "separation is not indifference."  Fr. Araujo noted, among other things:

. . . The fact that the Church and State are different and distinct does not necessarily imply that they cannot have a relationship. Moreover, separation is not synonymous with indifference. Why? Both the Church and the State have a critical interest in the common good and its furtherance. . . .

This is a point that I also tried to develop, in this short tribute-essay for my colleague, Prof. Robert Rodes (an amazing scholar who was, in fact, cited in John Courtney Murray's We Hold These Truths).  The paper is called "Pluralism, Dialogue, and Freedom," and it focuses in part on Rodes's use of the term "nexus", rather than "wall of separation", when talking about church-state relations:

A “nexus,” according to my dictionary, is a “means of connection; a link or tie.”  It suggests a relation, even a symbiosis, between two distinct things—neither a collapse of one into the other nor a rigid segregation of the one from the other. The term captures well, then, Rodes’s thinking about church, state, and society. As his friend Professor Thomas Shaffer put it, “the foundation of [Rodes’s] church-state theory is that the two are so intertwined—so much the remnant of Christendom—that they could not part even if they wanted to.”  This is, Shaffer notes, a “strikingly unique position” in the church-state field.

April 27, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Five years ago on MOJ: "Religion and the Common Good"

On April 27, 2007, I posted this:

Here's Archbishop Chaput, on "religion and the common good." A bit:

Only one question really matters. Does God exist or not? If he does, that has implications for every aspect of our personal and public behavior: all of our actions, all of our choices, all of our decisions. If God exists, denying him in our public life—whether we do it explicitly like Nietzsche or implicitly by our silence—cannot serve the common good, because it amounts to worshiping the unreal in the place of the real. . . .

We most truly serve the common good by having the courage to be disciples of Jesus Christ. God gave us a free will, but we need to use it. Discipleship has a cost. Jesus never said that we didn’t need a spine. The world doesn’t need affirmation. It needs conversion. It doesn’t need the approval of Christians. It needs their witness. And that work needs to begin with us. Bernanos said that the “scandal of Creation [isn’t] suffering but freedom.” He said that “moralists like to regard sanctity as a luxury; actually it is a necessity.” He also said that “one may believe that this isn’t the era of the saints; that the era of the saints has passed. [But] it is always the era of the saints.”

The only thing that matters is to be a saint. At least we can try. And if we do, God will take care of the rest.


April 27, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Robert Bellarmine, On Temporal and Spiritual Authority

As I was reminded when I taught it this past semester in a 1L elective, Thomas Hobbes's Leviathan--part scientific treatise on human nature, part philosophy of law, part theological commentary, part just plain weirdness--is the greatest work in English-speaking political philosophy. Interestingly, the only contemporaneous figure whom Hobbes engages at length in Leviathan (in chapter xlii, "Of Power Ecclesiastical") is Saint Robert Bellarmine, the great Jesuit cardinal of the Catholic Reformation most famous for his role in the Galileo affair but also an important figure in seventeenth century political theory and the defense of papal authority. The Liberty Fund has just published an edition of Bellarmine's On Temporal and Spiritual Authority, treatises that have been difficult to find in reliable translations or critical editions until now. Bellarmine is a vital resource for any account of religious institutions possessing real authority (not merely by concession of the state, see Rob's post below), and so those of us working in Catholic legal theory should be especially grateful to the Liberty Fund for this publication.

April 27, 2012 in Moreland, Michael | Permalink | Comments (2) | TrackBack (0)

Thursday, April 26, 2012

Rep. Paul Ryan's Whittington Lecture

Today, Rep. Ryan delivered the Whittington Lecture at Georgetown University.  The text is available here.  Among other things, the lecture has an admirably civil and warm tone (I didn't hear the talk itself), which I confess I might have had difficulty in maintaining, in the wake of the snooty and dismissive letter he received by way of welcome from a number of Georgetown faculty.  Besides the regrettably-common-but-still-simplistic identification of the current state of social-welfare programs with policies clearly mandated by a conscientious application of Catholic Social Teaching, the Georgetown letter snarkily charged that the Ryan budget proposal "appears to reflect the values of your favorite philosopher, Ayn Rand, rather than the Gospel of Jesus Christ. Her call to selfishness and her antagonism toward religion are antithetical to the Gospel values of compassion and love.”   Ryan has made clear that his alleged devotion to Rand is an "urban legend", and elaborated:

“I reject her philosophy,” Ryan says firmly. “It’s an atheist philosophy. It reduces human interactions down to mere contracts and it is antithetical to my worldview. If somebody is going to try to paste a person’s view on epistemology to me, then give me Thomas Aquinas,” who believed that man needs divine help in the pursuit of knowledge. “Don’t give me Ayn Rand,” he says.  [RG:  Nor me!

Because -- like most of those who have criticized the Ryan budget -- I actually don't know everything about it, or everything about its implications, or everything about the soundness of its empirical premises and predictions, I don't presume to endorse it uncritically or dismiss it out of hand.  It does seem to me, though, that Ryan is entirely right (a) to challenge the so-tired idea that Catholic Social Teaching maps neatly onto the social-welfare, spending, and taxation proposals and priorities of the Democratic Party (just as "subsidiarity" is not merely "devolution" or "small government," "solidarity" and "community" are not Catholic baptisms of statism and bureaucracy) and (b) to insist that those charged with authority in the political community are morally obligated to address the challenge of our "debt-fueled economic crisis."  As he says, of course, "how we do this is a question for prudential judgment, about which people of good will can differ."  There is, however, nothing Catholic about election-oriented complacency (see, e.g., the Senate's indifference to its obligation to pass a budget at some point) in the face of mounting debt, the weight of which can only crush the hopes and opportunities of young people, children, and future generations.  Ryan critics who stop at criticism, without at least proposing, for consideration and debate, feasible changes in course that they plausibly and in good faith believe would respond to the challenges he identifies, are not, in my view, serious.

April 26, 2012 in Garnett, Rick | Permalink | Comments (43) | TrackBack (0)

"Growing in Love": Congrats to Susan!

I'm delighted to report that our own Susan Stabile's new book, "Growing in Love and Wisdom:  Tibetan Buddhist Sources for Christian Meditation," is available for pre-ordering now.  Check it out!

In Growing in Love and Wisdom, Susan Stabile draws on a unique dual perspective to explore the value of interreligious dialogue, the essential spiritual dynamics that operate across faith traditions, and the many fruitful ways Buddhist meditation practices can deepen Christian prayer.

Raised as a Catholic, Stabile devoted 20 years of her life to practicing Buddhism and was ordained as a Tibetan Buddhist nun before returning to Catholicism in 2001. She begins the book by examining the values and principles shared by the two faith traditions, focusing on the importance of prayer--particularly contemplative prayer--to both Christianity and Tibetan Buddhism. Both traditions seek to effect a fundamental transformation in the lives of believers, and both stress the need for experiences that have deep emotional resonance, that go beyond the level of concepts to touch the heart. Stabile illuminates the similarities between Tibetan Buddhist meditations and Christian forms of prayer such as Ignatian Contemplation and Lectio Divina; she explores as well such guided Buddhist practices as Metta and Tonglen, which cultivate compassion and find echoes in Jesus' teachings about loving one's enemies and transcending self-cherishing. The heart of the book offers 15 Tibetan Buddhist practices adapted to a contemplative Christian perspective. Stabile provides clear instructions on how to do these meditations as well as helpful commentary on each, explaining its purpose and the relation between the original and her adaptation. Throughout, she highlights the many remarkably close parallels in the teachings of Jesus and Buddha.

Arguing that engagement between religions offers mutual enrichment and greater understanding of both traditions, Growing in Love and Wisdom shows how Buddhist meditation can be fruitfully adapted for Christian prayer.

April 26, 2012 in Garnett, Rick | Permalink | Comments (20) | TrackBack (0)