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, April 24, 2014

"more reverend than plausible": John Marshall on the Constitution as a "sacred instrument"

In his exploration of John Marshall's jurisprudence, Robert Faulkner has described how Marshall sought, in a way, to found a "political religion" in which the Constitution is a "sacred instrument" to be treated with reverence. Here is an excerpt in which Faulkner discusses Marshall's judicial writing style:

The Chief Justice's mode of construction, "adhering to the letter of the statute, taking the whole together," also tended to engender close respect for the law. And the style of his writing had a similar effect. Story remarked that Marshall followed Lord Bacon's suggestion, with which the conduct of Justice Holmes might be instructively compared, that "judges ought to be more learned than witty; more reverend than plausible; and more advised than confident." The gravity of the Chief Justice's style is proverbial. While it dulls the Life of George Washington, it yields an appropriate dignity to the judge. Marshall rose to a kind of magisterial reverence when he treated the fundamental law. By no means, his whole manner indicated,, was the Constitution to be confused with the hurly-burly of politics. It was to be venerated, not controverted. It seems, as the more flippant and unreflective commentators have not hesitated to point out, that Marshall dealt not merely with a constitution framed by unusual mean, but with a sacred law made by sainted men. The reverence of Americans for their law and for the "cult of the robe" has not gone unnoticed. It is certain that the great Chief Justice's endeavors have something to do with this. Apart from the tone of his opinions, he repeatedly called the Constitution "sacred." Perhaps the best illustration of his treatment occurred when in United States v. Maurice he was faced with a rather ambiguous provision of the fundamental law. He wanted so badly to shield Constitution and framers from any imputation of error, that he ascribed to the flaw itself responsibility for its own appearance. "I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause." In his own way too Marshall tried to found a "political religion."

Robert Kenneth Faulkner, The Jurisprudence of John Marshall, 218-19 (1968).

April 24, 2014 in Walsh, Kevin | Permalink

St. Josephine Bakhita, "a shining advocate of genuine emancipation"

Mary's post on working with the Vatican against modern slavery brought to mind St. Josephine Bakhita, a former Sudanese slave canonized in 2000. After being traded among several owners, Bakhita ended up with an Italian family who brought her to Italy. When her Italian owners needed to return to tend to affairs in Africa, she was left to live for a short time with the Canossian sisters. She later refused to allow her Italian owners to bring her back with them to Africa. In the resulting court case, she was recognized to be free under Italian law. (I only know what Google has found for me about the legal reasoning, which seemed to be either that she was not a slave because Italian law did not recognize slavery or because she was never a slave under the law as it existed in Sudan when she was captured by slave traders in 1877.)

As Lawrence Cunningham has written, "When we honor Josephine Bakhita, we ought to do so not with any spirit of sentimentality but with a vigorous sense of outrage at those who rob children and adults of their dignity, their freedom and their physical and spiritual integrity. We honor Josephine Bakhita not as a humble nun (which she surely was) but as an emblematic figure who stands for all who are enslaved."

(See below for excerpts from Pope John Paul II's canonization homily.)

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April 24, 2014 in Walsh, Kevin | Permalink

Wednesday, April 23, 2014

Working With the Vatican Against Modern Slavery

Referencing that he is the first Roman Catholic Secretary of State in 33 years, Secretary Kerry has written an op-ed with the above title in the Boston Globe. In addition to highlighting the joint efforts of United States and the Holy See, Secretary Kerry makes an important observation about human trafficking:

[A]s we dive deeper, we begin to see that modern slavery, like so many other 21st century challenges, doesn't exist in a vacuum. It's interconnected with so many of our other foreign-policy concerns, from environmental sustainability to advancing the lives of women and girls to combating transnational organized crime. Wherever we find poverty and lack of opportunity — wherever the rule of law is weak, where corruption is most ingrained, and where populations can't count on the protection of government and law enforcement — we find not just vulnerability to trafficking, but zones of impunity where traffickers can more easily prey on their victims.

This is a point often missed in media discussions of human trafficking. It is easy to be against human trafficking. Who could not oppose the activity labeled "modern day slavery?" However, it is more challenging for states and stakeholders (including consumers of low priced goods) to acknowledge that trafficking cannot be regarded as a silo that can neatly be cabined off from other activity – some of which is criminal and some of which is not. Combatting human trafficking requires combatting poverty and corruption – two of the more stubborn ills that affect human beings seeking a life of dignity throughout the world.

The comments of Secretary Kerry follow many recent efforts by the Holy See to highlight Human Trafficking. They also underscore the view articulated by the Holy See far earlier and seemingly more frequently than many other stakeholders: that trafficking in persons is a denial of basic human dignity and a primary method of combatting it includes instilling that notion of dignity through more than just words but through economic, immigration, and other social policies.

While the media highlighted Pope Francis's recent speech on human trafficking, less attention was paid to the fact that this was an address to welcome participants to an international conference on human trafficking hosted by the Holy See. This conference focused on the productive partnership between the international law enforcement and religious communities throughout the world. It acknowledged the reality that religious orders and local dioceses have been working with victims for many years (see here, here, and here for examples). It ended with the Santa Marta Commitment by these global police chiefs.

Work such as this is comprehensive and grounded in reality. It is a positive step to see the State Department focusing on the substantive position and work the Holy See is doing as it takes on a leadership role regarding this issue.

April 23, 2014 in Leary, Mary G. | Permalink

Statement on "Freedom to Marry, Freedom to Dissent: Why We Must Have Both"

Here is a welcome statement, posted at Real Clear Politics, from a ideologically varied group of 60 or so supporters of same-sex marriage, including a number of law professors and other voices known to many MOJ readers. The statement expresses the signers' concern

that recent events, including the resignation of the CEO of Mozilla under pressure because of an anti-same-sex-marriage donation he made in 2008, signal an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree. We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.

We support same-sex marriage; many of us have worked for it, in some cases for a large portion of our professional and personal lives. We affirm our unwavering commitment to civic and legal equality, including marriage equality. At the same time, we also affirm our unwavering commitment to the values of the open society and to vigorous public debate—the values that have brought us to the brink of victory....

So the issue is cleanly presented: Is opposition to same-sex marriage by itself, expressed in a political campaign, beyond the pale of tolerable discourse in a free society? We cannot wish away the objections of Christian, Jewish, and Muslim faith traditions, or browbeat them into submission. Even in our constitutional system, persuasion is a minority’s first and best strategy. It has served us well and we should not be done with it.

I applaud the statement as a supporter of both same-sex marriage and the rights of those who dissent from it.
 
It does seem to me that the arguments for "persuasion over punishment" extend beyond respecting rights of speech and political activity and also support some protection of non-speech conduct as a matter of religious liberty--another fundamental right in our "open society." Thus I wish the statement had mentioned religious liberty as well. At the same time, I don't fault the statement for not going into that in detail, since there is likely less consensus among the signers--as there is in the legal tradition generally--about just how far religious liberty calls for protection of religiously motivated conduct, e.g. in the face of antidiscrimination laws (e.g. protection for churches only, or for religious nonprofits, or for religious individuals in commerce?).
 
I've disagreed with some of the signers over the scope of religious liberty in this area, arguing for broader protection than they do (e.g. here). But I applaud the commitment to liberal values that is expressed in yesterday's statement.

April 23, 2014 in Berg, Thomas | Permalink

We're back . . . and Happy Easter!

As MOJ readers noticed (I hope!), Typepad was down for the last few days, due to Some Technical Thing That I Do Not Understand.  It appears to be fixed.  Happy Easter to all!

April 23, 2014 in Garnett, Rick | Permalink

Friday, April 18, 2014

Smith on "the Jurisprudence of Denigration"

To say "Steven Smith" is to say "must-read".  Check it out.  Here is the abstract:

In his opinion for the Court in United States v. Windsor, Justice Anthony Kennedy asserted that section 3 of the Defense of Marriage Act was unconstitutional because it was enacted from “a bare congressional desire to harm a politically unpopular group,” or from a “purpose...to demean,” “to injure,” and “to disparage.” Kennedy and the Court thereby in essence accused Congress – and, by implication, millions of Americans – of acting from pure malevolence.

Why might distinguished Justices put their names to such an extraordinary accusation? This article explores deficiencies, first, in contemporary constitutional discourse and, second, in contemporary moral discourse. These deficiencies have resulted in a situation in which, in some contexts, the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponents. Windsor is a recent and egregious instance of this discursive pattern, or of what we may call the discourse of denigration.

Also of interest will be MOJ-friend Paul Horwitz's reaction and response to Prof. Smith's piece, at Jotwell.

April 18, 2014 in Garnett, Rick | Permalink

Kurt Lash on "Religious Sincerity and the Hobby Lobby Investments"

My friend, Prof. Kurt Lash, shared with me (and gave me permission to post) these thoughts:

Although public attention has turned elsewhere, the Supreme Court continues to mull over the question of Hobby Lobby’s religious objection to the contraceptive mandate in the Affordable Care Act. Perhaps with an eye to influencing the Court’s deliberations, recently a number of Hobby Lobby’s critics have pointed to the company’s 401(k) investment program as calling into question the sincerity of their religious objection.  Among the many stocks included in mutual funds made available to Hobby Lobby employees are those of companies manufacturing contraception products.  To Hobby Lobby’s critics, this not only renders the owners hypocrites, it also undermines their claim that the contraception mandate burdens a sincerely held belief.

 It’s a specious argument, one effectively rebutted by others. In brief, it is the manager of the 401(k) program, not the owners of Hobby Lobby, who select the program’s mutual funds--funds that invest in the stock of hundreds (or thousands) of individual companies.  And it is the employees, not the employers, who choose which fund to invest in.  Even the critics concede that it is not likely Hobby Lobby’s owners knew about the activities of every company in every mutual fund offered as a choice to their employees.  There is nothing in this story, in other words, that calls into question the sincerity of Hobby Lobby’s claim.

 But what about going forward?  If the owners do not take affirmative steps to deny employee access to mutual funds that (sometimes) include companies that manufacture contraceptives, doesn’t this call into question the sincerity of their refusal to authorize contraception coverage as mandated by the ACA?  The question involves drawing a line between religiously permitted and forbidden activity, and determining who gets to draw that line.  Should Congress, in passing legislation like the Religious Freedom Restoration Act, protect the beliefs of religious claimants who may identify moral distinctions that their secular fellow-citizens would not?  And should they do so if the result arguably shifts a burden onto third parties? 

The first time we faced this issue as a country, the answer was emphatically yes.  During the Civil War, Congress debated whether to grant an exemption from the military draft for religious objectors.  The exemption would relieve objectors from service but require a payment of $300 “to be applied to the benefit of the sick and wounded soldiers”—a payment religious objectors had signaled Congress they would accept.  Opponents of the exemption argued that the objectors’ willingness to pay the fee called into question the sincerity of their objection to military service.  Although the $300 would be earmarked for the “sick and wounded,” money was fungible and the payment would free up funds to secure a replacement or to purchase weapons.  

The reply, which carried the day, was that religious exemptions must be viewed from the perspective of the individual’s religious conscience.  According to Sen. Doolittle: 

Gentlemen say [providing that the money go to the use of hospitals] makes no difference; they are just as much supporting the war in this way as if they paid the money directly to procure a substitute and place him in the field with arms in his hands. Perhaps you think so; perhaps I think so; but they do not; they draw a distinction; and in legislation we must regard as facts the prejudices and the religious convictions of a people.  

Nor was the issue one of mere political expediency. According to Thaddeus Stevens, “independent of policy ... justice requires [exemption of the religiously scrupulous.]”  In the end, not only was the amendment modified to include non-Christian denominations that conscientiously opposed bearing arms, but the discretionary wording “may” was replaced with “shall” to make the exemption mandatory. 

There are several lessons here that are important to the current debate.  First of all, the religious exemption from military service during the Civil War was the first true national religious exemption.  The exemption was limited to only religious-based objections and granting the exemption had the effect of making it more likely that a non-believer would be forced to serve and risk life and limb.  Nor did it matter that the same objectors were willing to pay a fee that could be viewed as directly advancing the military effort they refused to join.  If the purpose of the exemption was to protect the religious conscience, the moral lines drawn by that conscience were to be respected as well. 

Should the Supreme Court grant Hobby Lobby an exemption under the Religious Freedom Restoration Act, its decision will echo an earlier and far more serious decision to grant a legislative exemption during a time of war.  Then as now, religious adherents drew moral lines in the sand beyond which they could not go.  The country has long understood that respecting those lines is an essential part of respecting religious freedom.

 Kurt T. Lash

 [Note: for citations to the historical material cited above, see Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. L. Rev. 1106 (1994).]

 

April 18, 2014 in Garnett, Rick | Permalink

Yale, "Social Justice", and The Princess Bride

Reading this piece ("Yale's Agony Over Social Justice"), at First Things, made me (of course!) think of this scene, from The Princess Bridge.

April 18, 2014 in Garnett, Rick | Permalink

Wednesday, April 16, 2014

"I have already picked up a vast deal of theological knowledge & shall become a great disputant."

In the course of checking on some sources for an article I've been writing on Section 25 of the Judiciary Act of 1789, I had occasion this morning to dip a bit into letters sent by South Carolina's Congressman William Smith to fellow South Carolinian Edward Rutledge. One letter I came across described Smith's participation as a lay delegate to an Episcopal convention in October 1789. It may be of some interest to MOJ readers this Holy Week. Here are a couple of paragraphs:

Yesterday I took my Seat in the Convention, where I have now the Honor of representing the Laity of S. Carolina being the only Layman from our state: we vote by States & no vote can pass unless the Laity concur. Several questions have been [torn] by the Laity's negative, altho the Clergy [were] pretty unanimous. In general the two orders don't perfectly agree--Yesterday we had much debate on the new form of Liturgy & to day was spent in discussing the propriety of inserting in the Creed that J. Christ decended into Hell: the Clergy all voted for it & nearly all the Laity against it, consequently the motion for inserting those words was lost. It was matter of great triumph to us that the reverend gentlemen could not agree among themselves what was the meaning of the words, some contending that he actually went to the place of the damned, vulgarly called Hell, others that he only went to the place of departed spirits & others again that he only went to his grave--finally we made a compromise & agreed that the Minister may use either words, viz.; that he decended into Hell or into the place of departed Spirits.

The Lay Deputies who are most conspicuous are Mr. Hopkinson & Tench Coxe of this place & Mr. Andrews of Virginia. Dr. Smith of this State is President & a very bad one, for he is perpetually interrupting the members & mingling in the Debate--indeed I observe that all the Gentlemen are always out of order: I have already picked up a vast deal of theological knowledge & shall become a great disputant.

Letter of William Smith to Edward Rutledge, Oct. 6, 1789, reprinted in 69 The South Carolina Historical Magazine 1, 25 (1968).

April 16, 2014 | Permalink

Tuesday, April 15, 2014

The Spirited Debate About the Role of Government and Religious Liberty Will Continue Well into the Future

According to the pundits, the Republican Party is destined to increase its majority in the House of Representatives and seize control of the Senate in this year’s congressional elections.  In an ironic contrast, many of the same pundits predict that Hillary Clinton will sweep into the White House in two years.

My own prognostications, for what little they are worth, are that (1) Republicans have at best a 50-50 chance of gaining a majority in the Senate this year and (2) Hillary Clinton (assuming she runs) has a much better than 50-50 chance of winning the presidential election in 2016.  While Republicans will gain seats in the Senate this year, jumping up by six more seats (the number necessary to obtain a majority) in a single election cycle remains a daunting task.  And while Hillary Clinton’s current sky-high popularity will inevitably fall back down to earth once she becomes an actual candidate who must appeal to real voters, Republican prospects have not yet demonstrated that they could carry a national electorate.

But whatever the outcome of the 2014 and 2016 elections, don’t pay attention to those commentators who will portend that whichever party prevails will then become dominant while the other party fades into obscurity.  Someone always seems to be asserting that this or that political debate is over, which invariably proves to be wishful thinking by the side that has won a temporary victory.  If Republicans hold the House (as they will), there will be those who proclaim that Democrats are doomed to perpetual minority status in the House.  Don't believe them.  As a counter-example, James Carville insisted last Sunday on This Week that, if they lose the presidency to Hillary Clinton in 2016, the Republican Party will become “extinct.”  Nonsense.

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April 15, 2014 in Sisk, Greg | Permalink