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.

Thursday, February 21, 2013

George Will on solitary confinement

That noted bleeding-heart-lefty, George Will, has a very powerful column today, challenging the widespread practice of solitary confinement in America's prisons:

In 1890, the U.S. Supreme Court said of solitary confinement essentially what Dickens had said: “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide.” Americans should be roused against this by decency — and prudence.

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

February 21, 2013 in Garnett, Rick | Permalink | TrackBack (0)

Maryland death-penalty repeal advances

It appears that a bill to repeal the death penalty in Maryland is advancing, and is likely to -- eventually -- be enacted into law.  Good.  The death penalty is constitutionally permissible, and it is not the job of judges to abolish or undermine it.  But, it should be rejected, by us, for the reasons set out by Archbishop William Lori (you know, that "conservative" who, some imagine, has been speaking out forcefully about the importance of religious freedom for merely "partisan" reasons):

There are many worthy arguments against the death penalty regarding bias in
its application, its ineffectiveness as a deterrent, its costliness, and the
emotional toll of death penalty proceedings on victims. As a faith community,
however, our perspective goes beyond these issues. While those who have done
terrible harm to others deserve punishment, we urge a response that meets evil
with a justice worthy of our best nature as human beings, enlightened by faith
in the possibility of redemption and forgiveness.

As the bishops of the United States have consistently said, “We oppose
capital punishment not just for what it does to those guilty of horrible crimes,
but for what it does to all of us as a society. … We cannot overcome crime by
simply executing criminals, nor can we restore the lives of the innocent by
ending the lives of those convicted of their murders. The death penalty offers
the tragic illusion that we can defend life by taking life.”

February 21, 2013 in Garnett, Rick | Permalink | TrackBack (0)

A response to Marty Lederman

Michael Perry has directed readers' attention to a discussion by Marty Lederman of the HHS mandate and, in particular, of a proposed bulletin insert which observes, among other things, that the mandate (in its current form and, it appears, in whatever form it eventually takes) would “force the employees of Catholic agencies to accept coverage for themselves and their children that violates their Church’s teaching on respect for human life.”  

In the course of explaining why he thinks this emphasis on the "employees" (and their children) is misguided, Marty writes that the "claim of an alleged 'substantial' religious burden based on such a complicity-with-evil rationale was tenuous from the start."  Now, let's put aside the important fact that an alleged burden can, under RFRA, be "substantial" even if some people believe the theological premises of the claims about that burden are unsound or unorthodox.  I think the RFRA argument against the mandate (in its current form) is strong -- indeed, it presents what should be an easy case -- but I think it's important to remember that the "complicity-with-evil rationale" is not, and has not been, the only argument in play.  See, for example, my colleague Dan Philpott's excellent essay, here.  Dan writes:

The debate over cooperation with evil, however, misses what is most at stake for Christians organizations in the HHS mandate, which is much the same as what has been most at stake for the Christian church in its relationship with the state over many centuries, which in turn is what is most at stake for the church in religious freedom: their right to give witness to the truths that they believe. . . .

Following the Catholic tradition, I regard the criterion of cooperation with evil as a valid one for a wide range of moral dilemmas, including the one at hand. The debate over cooperation with evil, however, whose every thrust and parry grows increasingly complex in its distinctions regarding intentionality, causality, and directness, obscures the larger, more important issue of whether Christian organizations enjoy the freedom to give witness to their professed truths.

To witness means to proclaim or to give testimony for a truth that the proclaimer believes is maximally important. To witness is to communicate a message – in the Christian’s case, that of God’s salvation of the world through Jesus Christ. For a Catholic, this salvation is embodied in, and its meaning for the Christian believer is manifested through, the teachings of the Catholic Church, including its teachings about contraception and the sanctity of life. Many Protestant churches make parallel claims, with due variations, about the role of the church in salvation. For (many) Christians, then, salvation is achieved through corporate entities as well as the faith of individuals. Consonant with this mission, churches and their affiliated universities, schools, hospitals, and orphanages share a duty not simply to avoid cooperating with what is false but to proclaim loudly what is true. . . 

Marty also suggests that "the . . . government has gone much further than was necessary in order to accommodate religious objections" and characterizes this going-further as "generous."  As I see it, though, (a) the government has not, in fact, gone as far as RFRA actually requires in order to accommodate religious objections (e.g., the sincere objections of for-profit employers), (b) a better proposal would have been to exempt entirely religious employers, broadly understood (including hospitals, universities, and social-welfare agencies), and (c) the movement we have seen (or, more precisely, that has been proposed for consideration) -- some of which, in my view, represents a genuine improvement -- is better regarded as a grudging and belated effort to avoid possible bad results in litigation, and to re-connect with some political allies, than as "very generous[]."

February 21, 2013 in Garnett, Rick | Permalink | TrackBack (0)

Zywicki's reflections on the Pope's resignation

My friend Todd Zywicki, a law professor at George Mason, posted some "personal notes on Pope Benedict's resignation" at the Volokh Conspiracy -- one of the most-read blogs there is.  Todd's thoughts are, well, (no surprise) thoughtful; the stuff in the comments, sadly (but revealingly), really is not.

February 21, 2013 in Garnett, Rick | Permalink | TrackBack (0)

Wednesday, February 20, 2013

"Where Have All the Babies Gone?"

Newsweek reflects on the potentially devastating effects of a childless - they call it "postfamalial" on our culture. Here are a few quotes:

...Postfamilial America is in ascendancy as the fertility rate among women has plummeted, since the 2008 economic crisis and the Great Recession that followed, to its lowest level since reliable numbers were first kept in 1920. That downturn has put the U.S. fertility rate increasingly in line with those in other developed economies—suggesting that even if the economy rebounds, the birthrate may not....

 ..."Kids, they change your entire life. That’s the name of the game. And that’s not something I’m interested in doing.”  ...

These changes are not theoretical or inconsequential. Europe and East Asia, trailblazers in population decline, have spent decades trying to push up their birthrates and revitalize aging populations while confronting the political, economic, and social consequences of them. It’s time for us to consider what an aging, increasingly child-free population, growing more slowly, would mean here. As younger Americans individually eschew families of their own, they are contributing to the ever-growing imbalance between older retirees—basically their parents—and working-age Americans, potentially propelling both into a spiral of soaring entitlement costs and diminished economic vigor and creating a culture marked by hyperindividualism and dependence on the state as the family unit erodes.

Crudely put, the lack of productive screwing could further be screwing the screwed generation.



February 20, 2013 in Scaperlanda, Mike | Permalink | Comments (1) | TrackBack (0)

Georgetown's Marty Lederman on the USCCB on the Latest Proposed Accommodation

At dotCommonweal, here.

February 20, 2013 | Permalink | TrackBack (0)

Disagreement, contempt, and the "merriment of heaven"

Prof. Robert Miller (Iowa) has a really nice post up at First Things, called "Thanatopsis for Ronald Dworkin."  The last few paragraphs really stood out for me.  This is a long quote (one that I hope our FT friends will still think is "fair use"!), but it's a good one:

Especially with people whom we do not know personally, it is easy to pass from thinking that a person holds bad ideas to thinking that the person who holds such ideas is a bad person—to move from disagreeing with a person to contemning him. This is a moral lapse, of course, because we should love everyone and contemn no one, even people who really are bad, but it is a mistake in another way as well, for it usually involves us in a simple factual error.

In my experience (and as a religious and political conservative in academia, I have a lot of experience of this kind), when we get to know the people with whom we disagree deeply, it usually turns out that they are very good people—people who love their spouses and children, who work hard at their jobs, who have overcome serious hardships and obstacles in life, who are kind to strangers, who are truly upstanding and morally admirable people. Rather than despising them, we end up liking and admiring them.

With people we never meet, however, we do not have this opportunity to see more of them than their ideas. Seeing just the ideas and thinking these are wrong, we too often dismiss the person with the ideas, and people we dismiss we easily come to hate. Reflect for a moment on your feelings for your least favorite politician currently in office. Allowing ourselves to have such feelings, however, reduces us as human beings because the final end of human nature requires that we will the good of all human beings, and it also has deleterious consequences, for it erodes social capital. It makes it harder for us to trust those with whom we disagree, to discuss matters reasonably with them, and to find common ground where such ground can be found in order to work together despite persisting disagreements.

This move from disagreeing with a person’s ideas (even rightly disagreeing with them) to holding the person in contempt—this is one of the things that Our Blessed Lord was condemning when he said, “Whoever says, ‘You fool!’ shall be liable to the hell of fire” (Matt. 5:22). But even if we restrain our tongues, it is not as easy to restrain our ill will, which is what really counts.

One way for a believing Christian to test his attitude to someone with whom he disagrees profoundly is this: Ask yourself how you would feel about this person’s enjoying a high place in heaven, even a place higher than the one you yourself hope to have. If you’re happy about such a prospect, you have the right attitude; if you’re disturbed by it, you don’t. It’s very difficult to get our feelings in order in this matter. It’s akin to breaking our attachments to the worldly things we love the most.

I never met Ronald Dworkin, which is too bad for me, because I am sure I would have enjoyed questioning him about his ideas and perhaps being questioned by him in turn. This, however, is but a minor misfortune. I still hope to meet him in the merriment of heaven.

Well said.

February 20, 2013 in Garnett, Rick | Permalink | TrackBack (0)

Michael Sean Winters is *almost* exactly right . . . and totally wrong (about Duke)

Over at Distinctly Catholic, my fellow college-hoops fan Michael Sean Winters is exactly right about this:

This is the best time of year. College basketball is on almost every night. And, this year, the level of competition is stunning. 

Unfortunately, he goes off the rails with this:

 This past weekend, #2 Duke lost to unranked Maryland. Anytime Duke loses is a good day to be alive. (Sorry Rick!) 

Now, let's put aside the fact (on this issue "there can be no debate") that the Maryland Terps (and their home-court fans) are classless louts who should wake up and apologize for imagining that they are the Duke Blue Devils' "rivals."  More important is the crucial fact that all good Catholics have a moral obligation to cheer for, and indeed to revere, Coach Mike K. and his team.  If anyone says otherwise, anathema sit.


February 20, 2013 in Garnett, Rick | Permalink | TrackBack (0)

Tuesday, February 19, 2013

A Baptist reflects on the retirement of our Augustinian Pope

Timothy George's Benedict XVI, the Great Augustinian, will be of interest to our readers.

He writes, in part:

Soon after Benedict emerged as the surprise choice of the most recent papal conclave in 2005, I wrote an essay on why Evangelical Protestants, among orthodox believers of all persuasions, should be pleased at his election. I summarized the promise of his new pontificate in five points. I emphasized that:

he takes truth seriously, an antidote to what he called on the eve of his papal election “the dictatorship of relativism”;

his theology is Bible-focused, building on the declaration of Vatican II that “easy access to sacred Scripture should be provided for all the Christian faithful”;

his message is Christocentric, boldly asserting that Jesus Christ is the divine Son of God and the only Redeemer of the world;

he is a fierce champion of the culture of life, advocating for the most vulnerable members of the human community, the children still waiting to be born.

To these four items I added a fifth: Joseph Cardinal Ratzinger is an Augustinian. Those familiar with his intellectual biography will find no surprise in this statement. As he himself noted, “I have developed my theology in a dialogue with Augustine.”

February 19, 2013 in Scaperlanda, Mike | Permalink | TrackBack (0)

The best choice for pope? A nun.

So writes E.J. Dionne, who is himself Catholic--and a frequent contributor to Commonweal--in The Washington Post, here.

February 19, 2013 | Permalink | TrackBack (0)