Mirror of Justice

International Perspectives on Family

I'm currently in Rome, where I have the privilege of participating in a conference hosted by the Pontifical Council for the Family and the Union of Catholic Jurists, and funded by Priests for Life, on "The Rights of the Family and the Challenges of the Contemporary World."  The Conference was organized to consider the continued relevance of the Charter of the Rights of the Family, promulgated by the Pontifical Council for the Family 30 years ago.  One of today's highlights was an excellent presentation by our own Fr. Araujo, who managed (despite having his time cut from 30 minutes to 15) to give a splendid summary of work I hope he's planning on publishing somewhere on "Totalitarian Democracy and Defending the Meaning of Marriage and the Family."  He describes the work of Israeli professor of modern history Jacob Talmon (developed as well by Christopher Dawson) on how superficially democratic political philosophies can devolve into totaliarian regimes, and suggests that the Casey decision's definition of liberty is turning out to be "a revolutionary exercise of the present day totalitarian democracy."

Today's agenda for the conference involved formal presentations of similar quality, but I suspect things will get even more interesting the next two days, as the entire group separates into discussion groups on a host of topics, from "work, family and economic challenges", to "pluralism, human relationships and lifestyles", to "family in the immigration experience".  International conferences like this can be true tonic for the battle-weary Catholic soul, especially when held at the Vatican.  Masses where the readings are done in English, French, Spanish, and Italian, with the universal Latin shared by all binding us together in worship, are potent reminders of the universality of our faith.  Already today, in the breaks and meal conversations, and the question and answer sessions, intriguing similarities and differences are emerging.  I've had conversations in German with Austrian lawyers, and in English with Spanish law professors, about how Catholic high schools and universities in our respective countries are doing in educating our Catholic youth.  A law professor from Japan taught me that the Japanese penal code started as a Chinese system, which was supplanted by the Napoleonic Code, which was in turn replaced by the German penal code, which was in turn replaced by an American system after World War II.  (Try teaching THAT, Rick and Marc!)  She also expressed amazement at the discussions of same-sex marriage debates raised in many of the presentations today, saying that these debates were not taking place in Japan, she speculated, "because children are so important to us."

It's good to be reminded sometimes of how big the world is, how parochial our own political battles are, and how some things are simply universal truths.

Reflections from the City of God: On Excellence in the Two Cities

Excudent alii spirantia mollius aera,                                                                              

(credo equidem), vivos ducent de marmore voltus;                                            

orabunt causas melius, caelique meatus                                                              

describent radio et surgentia sidera dicent:

tu regere imperio populous, Romane, memento                                                          

(hae tibi erunt artes) pacique imponere morem,                                                      

parcere subiectis et debellare superbos.

When I was a kid, these lines were an ending of sorts. We read them in 11th grade Latin, at year's end, and they represented the culmination of the first half of the Aeneid. True, several of us continued on to read Books 7-12 in our senior year, but the second half is something of a long walk down the hill (and I always had a soft spot for Turnus and couldn't get too excited about his defeat). It's this section of Book VI (lines 847-853)--in which the ghost of father Anchises discloses to Aeneas what the special arts and excellences of the Roman are to be--that was the peak moment. It was satisfying to us not only as an explanation for all of the trouble that the hero of the story seemed to be taking and enduring but also as an inspiring affirmation of political virtue and the excellence of civic governance writ large: to impose the habit of peace, to spare (or, one might say, to tolerate) the subjugated, and to tame the proud!

It is really quite unnecessary to study "politics" as a discrete subject in high school, or even in college, since the study of abstract political ideologies is often simply a truncated version of the study of the political tradition and heritage of a particular society. And if you want to learn about the "political theory" of an empire that continued to think itself deeply committed to its republican past, you can find it all in Vergil. Other people, he says, might make pretty arts and crafts, but this is what you want from your politics.

These lines came back to me as I read some of the Preface of Book I of the City of God, in which Augustine notes the obstacles that he faces in laying out the aim of the work.

For I am aware what ability is requisite to persuade the proud how great is the virtue of humility, which raises us, not by a quite human arrogance, but by a divine grace, above all earthly dignities that totter on this shifting scene. For the King and Founder of this city of which we speak, has in Scripture uttered to His people a dictum of the divine law in these words: "God resisteth the proud but giveth grace unto the humble." But this, which is God's prerogative, the inflated ambition of a proud spirit also affects, and dearly loves that this be numbered among its attributes, to "Show pity to the humbled soul,/ And crush the sons of pride." And therefore, as the plan of this work we have undertaken requires, and as the occasion offers, we must speak also of the earthly city, which, though it be mistress of the nations, is itself ruled by its lust of rule.

Book I is, in fact, loaded with Vergil; Vergil's poetry itself illustrates the excellence of the City of Man. Later in Book I, it is almost as if Augustine is speaking to the hundreds upon hundreds of generations of young Latin students to come: "There is Vergil, who is read by boys, in order that this great poet, this most famous and approved of all poets, may impregnate their virgin minds, and may not readily be forgotten by them," after which he proceeds to engage in some close textual reading of and interlocution with Vergil. All of this, of course, is meant to counter the claims of those who argued that the Romans got what was coming to them by abandoning the Roman gods and embracing Christ (those that embraced him, that is). And as for "parcere subiectis," Augustine argues that, in fact, the Romans did no such thing. To the contrary: "[A]mong so many and great cities which they have stormed, taken, and overthrown for the extension of their dominion, let us be told what temples they were accustomed to exempt, so that whoever took refuge in them was free." I.6. In this book, then, Augustine punctures the Vergilian rhetoric of the Augustan age extremely effectively--"[a]ll the spoiling, then, which Rome was exposed to in the recent calamity--all the slaughter, plundering, burning, and misery--was the result of the [Roman] custom of war." I.7. What was novel, and what showed itself in the comparatively gentle behavior of the barbarians, was truly to spare the subjugated who (whether godly or not, whether deserving--by man's lights--or not) sought sanctuary in the Christian "temples."

The eminent Augustine scholar R.A. Markus puts it this way in his magisterial volume, Saeculum: History and Society in the Theology of St. Augustine:

In Augustine's mature view the radical vice of Greek philosophy as of Roman political ideology was the belief in the possibility...of perfection through the polis or the civitas. 'God resists the proud, but to the humble He giveth grace': the scriptural sentence quoted at the opening of the City of God was to Augustine's mind the most fundamental comment on classical pretensions to human self-determination, as expressed in Vergil's line, quoted in dramatic juxtaposition, on the historic mission of Rome....Here is Augustine's final answer to the illusion of a teleiosis through rational and human means; and it is the more poignant for being a repudiation of a heritage which, as we have seen, had some power over his mind in his youth. (84)

And not only over Augustine's mind! The political program, and the power, of Rome is beguiling and attractive indeed. It holds enduring appeal to young people--as it did for me and my friends in high school, and as it still does. There are, I suppose, several reasons that one reads Vergil rather than Augustine in high school (to the extent that either is read at all in high school). But one of them, perhaps the most important, is that the excellence of the City of Man is so easy and approachable (as texts millennia old go), while the excellence of the City of God is so distant and so difficult. The excellence of humility is so much harder to appreciate and embrace than the excellence of dominion--especially, it seems to me, for the young. The excellence of the City of God holds little of the immediate and prepossessing appeal of the splendors of Rome.

But perhaps a little Augustine in the relatively early educational years, as a counterpoint to Vergil, might cast politics in a mellower light for the rising generations.

Happy Constitution Day?

Today, September 17, is Constitution Day. I think that the Constitution is worth celebrating, but I also worry that this "holiday" feeds into a problematic understanding of the Constitution as sacred. The Constitution is our fundamental law, but it is positive law; it is not sacred. Yet the idea that the Constitution is sacred is taken seriously enough that the Casey plurality, for example, concludes its opinion using quasi-theological "covenant" terminology:

Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.

The idea of the Constitution as a covenant is not inherently problematic, but it is when used to prop up the authority of a Supreme Court that serves as what Steven Smith has described as an anti-Magisterium. Smith's description of the "aggressively Catholic and radically Protestant" self-understanding of the Supreme Court is worth pondering this Constitution Day. Near the conclusion of his paper, The Supreme Court as (Anti)Magisterium, he writes:

We might say, then, that the Casey Joint Opinion was both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. The opinion contemplates a nation that is institutionally Catholic--in which one institutional body (namely, the Supreme Court) has ultimate authority to say what is orthodox and what is not. Indeed, the fact that some citizens have been so obstreperous--so faithless, really--as to question that authority, or at least to question the correctness of the Court's past pronouncements, is cited as an additional reason for the Court to stand firm in maintaining what it has previously said, lest its monopoly on the orthodoxy-declaring prerogative come to seem vulnerable, and lest those who have trusted in the Court should have their tender faith betrayed. But the substantive content of the orthodoxy declared by the Court holds that on the most central questions, nobody--nobody in government, at least--gets to tell us what is orthodox; like it or not, we each must figure that out for ourselves.

Smith goes on to question whether it is really possible to separate "ecclesiology and substantive doctrine" in this way. He asserts that "[i]nsofar as we are skeptical about the separation, the Catholic-Protestant conflation of Casey will seem not a hybrid but rather a mongrel--a monster, perhaps. And the Court's attempt to seize the role of (anti-)magisterium will seem destined to promote not legitimacy and unity but rather confusion, resentment, and the very fragmentation that a magisterium is supposed to avoid."

Volokh, Garnett, Paulsen, Zick, Lee, Chen, & Krotoszynski in McCullen v. Coakley

Following up on Tom's post about the Democrats for Life brief and Michael's post about the McConnell/Inazu/CLS et al. brief, see here for another amici curiae brief in support of petitioners in McCullen v. Coakley. This one is filed on behalf of several First Amendment scholars: Eugene Volokh, Rick Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan Chen, and Ronald J. Krotoszynski, Jr. The brief highlights the depth and breadth of academic criticism of Hill v. Colorado. The brief's signatories have different views on the Supreme Court's abortion jurisprudence but agree on the importance of the First Amendment principles at stake in the case. Special thanks to Matthew Fitzgerald of McGuireWoods for taking the pen and for serving as counsel of record.

The table of contents for the brief provides a sense of the arguments:

I. EVEN STRONG SUPPORTERS OF ABORTION RIGHTS 
FAVORED FREE  SPEECH IN HILL v. COLORADO................... 6

A. Hill’s content-neutrality holding disagreed with the ACLU 
and drew immediate criticism from leading liberal scholars.............................. 8

B. Hill’s focus on protecting the unwilling listener was also widely 
doubted and criticized............................ 12

II. THE LOGIC OF HILL OPENED THE DOOR TO 
THE MORE RESTRICTIVE MASSACHUSETTS LAW HERE ................... 14

A. In the wake of Hill, scholars predicted trouble such as this 
ahead. ..................................................... 14

B. The courts have slid directly down 
Hill to McCullen..................................... 15

CONCLUSION ........................................................ 21

 

Robert Bellarmine and the Seeds of Constitutionalism

The great saint, Jesuit cardinal, and doctor of the Church Robert Bellarmine died on this date in 1621. This gives me another opportunity to commend the work of the terrifically talented Stefania Tutino, including her book on Bellarmine's political theory, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford, 2010), and her edited collection of primary sources from Liberty Fund. Here's a bit from Stefania's conclusion to the chapter on Bellarmine and the "potestas indirecta":

Bellarmine followed the neo-Thomist doctrine of differentiating sharply between the natural power of the sovereign and the supernatural power of the pope, and indeed he grounded his view of the pope's empire of souls precisely on the unique, incommensurable, and supreme character of the pope's spiritual authority over both the Church and the Christian temporal commonwealths. This move, however, did not remove the seed of constitutionalism when it came to secular government, or, better, it weakened the authority of the sovereign with respect to the authority of the pope while at the same time granting to the temporal authority an autonomous space with respect to the authority of the Christian Church....

What this paradox highlights, I argue, is just how relevant Bellarmine's theory was in the political discourse of early modern Europe, precisely because it was engineered to safeguard and preserve the pope's spiritual primacy against both the Protestants and the authority of early modern monarchies. The significance of this issue transcends the question of the constitutionalist elements embedded in Bellarmine's and other neo-Thomists' doctrine: in a sense, in fact, precisely because Bellarmine's potestas indirecta was meant to oppose the supernatural and supernational empire of souls of the pope to the national and "natural" jurisdiction of the king, it became a fundamental springboard to rethink the secular arguments and foundations of constitutionalism and absolutism. 209-10.

McConnell and Inazu Brief in McCullen v. Coakley

Following on Tom's earlier post, Michael McConnell and John Inazu have co-authored an excellent amicus brief (available here) in the upcoming McCullen v. Coakley case challenging Massachusetts' public-sidewalk exclusion zone statute. The brief is on behalf of a range of religious groups, including the Christian Legal Society, National Hispanic Christian Leadership Conference, Christian Medical Association, Ethics & Religious Liberty Commission of the Southern Baptist Convention, National Association of Evangelicals, Institutional Religious Freedom Alliance, InterVarsity Christian Fellowship, Missouri Synod Lutherans, US Conference of Catholic Bishops, and International Society for Krishna Consciousness.

As McConnell and Inazu note, even some sympathetic to abortion rights have roundly criticized Hill v. Colorado (Laurence Tribe has said it was "slam-dunk simple and slam-dunk wrong" and Kathleen Sullivan noted its weaknesses in a Pepperdine Law Review symposium). As I've been working my way through the canonical First Amendment cases in Constitutional Law II this semester, I am struck again by how rarely the government wins in contemporary free speech cases, Hill v. Colorado and Holder v. Humanitarian Law Project being notable recent exceptions, along with a smattering of government employee (Garcetti v. Ceballos) and student speech (Morse v. Frederick) cases. In cases that seemed to pose close questions--Brown v. EMA (violent video game sales to minors), for example--the Court has issued broad, bright-line, pro-free speech opinions. And the four members of the Court appointed since Hill v. Colorado seem at least somewhat more liberal (libertarian) on freedom of speech than their predecessors, all of whom were in the majority in Hill. Chief Justice Rehnquist, for example, was (to put it broadly) often pro-government in speech cases, see Renton v. Playtime Theaters. Hill's author, Justice Stevens, was also (again broadly) frequently pro-government in speech cases and said after his departure that he would have joined Justice Alito's dissent in United States v. Stevens (animal cruelty videos). With Hill's three dissenters (Justices Scalia, Thomas, and Kennedy) still on the Court and by replacing Chief Justice Rehnquist with Chief Justice Roberts, Justice Stevens with Justice Kagan (whose nascent record on the Court and earlier academic work is strongly pro-free speech), Justice Souter with Justice Sotomayor, and Justice O'Connor with Justice Alito, a clean majority to reaffirm Hill looks very unlikely.

Religious Freedom: A moral imperative, yes; but also a practical necessity

I offer some thoughts at CNN on religious freedom as not only a moral imperative, but also a practical necessity around the globe today: 

http://globalpublicsquare.blogs.cnn.com/2013/09/11/fight-terrorism-with-religious-freedom/

 

Comfortable self-preservation rather than mere self-preservation

Thanks to Rick for calling our attention to Mike Baxter's characteristically trenchant essay "Murray's Mistake".  Baxter's thesis reminded me of how Boston College's Fred Lawrence made a parallel and overlapping point in criticism of Murray:  "Murray never acknowledged that Locke did not basically disagree with Hobbes's 'artificial law of nature.' He did not recover virtue instead of power as the publicly relevant chief concern of political theory.  Intsead he moderated Hobbes's bottom line of self-preservation into comfortable self-preservation."  The result, as Lawrence goes on to explain, is that "[t]he common good and values not able to be 'costed out' get eliminated from the sphere of political discourse and public opinion.  This de facto privatization of Christian values may just be left obscured, albeit unintentionally, by Murray's famous distinction between public order as the domain of legitimately exercised political power and the common good as the domain of public consensus and of social concern beyond the limits of public order."

I'm not clear on why Lawrence thinks that what Murray obscured he obscured "unintentionally."  Be that as it may, Baxter is surely right that Catholics today are not capable of doing what Murray supposed that they would do.  The solution to the current problem requires that the Church do what Murray refused her constitutional room to do.  I'll commend again in this connection Chris Ferrara's magisterial book Liberty, The God That Failed.  In my view and in Ferrara's, the *problem* is the separation of the state from the Church.  The Church-less state that is remitted, on a good day, to mere natural law cannot think adequately, and, on the bad day that is our era, the state gives up thinking altogether and righteously does whatever the majority happens to covet.   

 

Radio Program on God and Government

Here is a radio program where I recently appeared as a guest called "Interfaith Voices." The program is organizing a substantial series for the next several months on "God and Government" whose aim is to explore church-state relations in different countries.

This episode kicks the series off and considers the United States and Canada. There was a broad spectrum of views represented: the other guests are Professors Jacques Berlinerblau (Jewish Civilization, Georgetown) and Lori Beaman (Classics and Religious Studies, University of Ottawa). The editing process cut out some of the more interesting disagreements, but what remains gives a strong flavor of the discussion.

Democrats for Life Amicus Brief in Abortion Buffer-Zone Case

McCullen v. Coakley, currently before the U.S. Supreme Court, is a free speech challenge to a Massachusetts law that puts a 35-foot "buffer zone" around abortion clinic driveways and entrance ways, barring sidewalk counselors from coming within conversational distance while exempting clinic employees "acting within the scope of their employment."  The plaintiff/petitioner sidewalk counselors provide information to clinic patrons about abortion alternatives; financial support, housing, and health care for women and children; parenting training; etc.  They claim that the statute discriminates against anti-abortion speech, and that even if it's "content-neutral," it sweeps too broadly and leaves them inadequate alternative channels of communication like shouting quick slogans, etc., from a distance. 

I've filed an amicus brief for the Democrats for Life of America  and Clergy for Better Choices, a NYC organization of urban clergy concerned about abortion, especially the high rates in minority communities, and seeking to provide alternatives.  The gist of the brief is that a significant number of women would be responsive to the kind of calm, conversational offers of support the plaintiffs seek to provide.  A taste of the argument:

[S]tudies examining the abortion decision-making process have concluded that a significant number of women obtaining abortions experience ambivalence about doing so, even up to the point of the abortion itself. The evidence also indicates that ambivalent women who request an abortion are more likely to be driven to do so by factors such as personal finances, housing, health care, and lack of parenting training. Again, these are precisely the factors on which Petitioners offer information and support. . . .

Petitioners’ unrebutted testimony shows that they are able to speak with far fewer women now, and their speech is far less effective in reaching women, than before the Act imposed the buffer zones. Moreover, speech from outside the buffer zones is inadequate not simply because it is less effective. Petitioners and others like them wish to speak on this sensitive matter in gentle, civil, personal conversations. The manner of speech is crucial to their message of caring assistance. They should not be forced into a different mold—in many ways, a stereotyped mold—of a shouting protester.

I can't get the file with the full brief to upload now (that Typepad function seems to be out), but when the brief gets onto the Supreme Court website or upload starts working, I'll link to the page or file with the full brief.

UPDATE: The brief is here.

Tom