Mirror of Justice

"Complicating the Narrative"

Here is a post of mine, at the Berkley Center's "Cornerstone" blog, called "Religious Freedom in Early America:  Complicating the Common Narrative."  In the coming days, a number of law-and-religion scholars and historians will respond.  Stay tuned!

To Confess Our National Sins

[Cross-posted from my blog, Creo en Dios!]

Yesterday, Professor Robby George of Princeton quoted on his Facebook page a portion of Abraham Lincoln's March 30, 1863 Proclamation Appointing a National Fast Day:

We have been the recipients of the choicest bounties of Heaven. We have been preserved, these many years, in peace and prosperity. We have grown in numbers, wealth and power, as no other nation has ever grown. But we have forgotten God. We have forgotten the gracious hand which preserved us in peace, and multiplied and enriched and strengthened us; and we have vainly imagined, in the deceitfulness of our hearts, that all these blessings were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us! It behooves us then, to humble ourselves before the offended Power, to confess our national sins, and to pray for clemency and forgiveness.

Quoting that language, Professor George asked, "151 years later, is it not the case that the very same words could be said, the very same diagnosis offered, the very same remedy prescribed?"

I think there is enormous truth in Lincoln's words and agree with Robby that the very same words could be said today. We live in a world in which there is an absence of what the Beatitudes term "poverty of spirit" - our recognition of our absolute an utter dependence on God. And we live in a world in which runs rampant not only individual sin, but what in Ignatian terms we call "social sin" - institutional or structural sins. And it does behoove us to humble ourselves in the face of our sinfulness.

The difficulty with Lincoln and Robby's prescription that we confess our national sins is that we have no widespread agreement as to what those national sins are. (Not that there was any greater agreement on that subject in 1983.) I wonder if Robby and I (or any other two or more people for that matters) were asked to list the top five national sins of the day, how similar or different would our list be? (And I shudder to think how many would not have ever given thought to the question.)

In part this reflects the fact that our definition of social sin in this country is heavily tied to our political leanings, with the result that we don't have widespread agreement as to what are our national sins. Sadly, however, it also reflects the fact that our list of national sins is quite large.

16.2 million children in America don't get enough to eat.

Almost two-thirds of all US drone strikes in Pakistan target homes.

More than half a million people in the US are homeless on any given night.

US surveillance practices violate fundamental civil and political rights.

About 10.5 million Americans are working poor, that is people who spent 27 or more weeks of the year in the workforce but whose income still fell below the poverty line.

Our rhetoric on abortion has gotten so vitriolic that it can hardly be termed debate, with the result that seeking common ground seems an impossible task. And the same can be said about the tone of debate about contraception, medical care, climate change, and a host of other issues.

And those are just the things that come to mind off the top of my head.

That doesn't mean I disagree with indictment or the prescription. I think we take structural sin far less seriously than we ought to. But our inability to agree on what those are (and, increasingly, to demonize those with whom we disagree) is itself part of the problem. And it is a part that is worth thinking about.

The Ukraine Conflict and the Post-War History of Eastern Europe

With all of the attention focused on Ukraine and its resistance to renewed Russian imperialism, Mirror of Justice readers will be among the first to place this latest event into the context of history.  Indeed, even before the Iron Curtain had fallen across the rest of Eastern Europe after World War II, Ukraine had already been the site of unimaginable suffering under Russian (Soviet) rule.  One of the greatest atrocities in history was Stalin’s deliberate imposition of famine in the 1930s to force collectivism in agriculture, with the greatest loss of life suffered in Ukraine – estimated at about 3.3 million people.

The fearful resonance of recent events in Ukraine throughout Eastern Europe is not surprising, as memories linger of the devastation delivered by Soviet Russia to the economies, civil institutions, culture, and faith of formerly independent nations in the region.  We often forget today that pre-war Eastern Europe was by and large a prosperous region with economic infrastructure, national productivity, and cultural strengths that rivaled or exceeded that of Western Europe.  Four decades of Soviet Russian oppression -- and the deleterious political ideology of communism and the failed economic policy of collectivism -- drained that economic strength and corroded the cultural, social, and religious fabric of a multitude of peoples.

For those wishing to further immerse themselves into the twentieth century historical background that remains indispensable for understanding the current conflict in Ukraine and surrouding nations, I highly recommend the book, Iron Curtain: The Crushing of Eastern Europe, 1944-1956, by Pulitzer Prize winning historian and Washington Post columnist Anne Applebaum.

Of particular interest to Mirror of Justice readers, in a passage that runs in the hardcover edition from pages 256-274, Applebaum addresses the role of the Catholic Church in Eastern Europe and the inevitable clash between the Church and State that followed the invasion of the Red Army from Russia.  Communists “instinctively hated and feared church leaders,” not only because of their ideological atheism but because they appreciated that “[r]eligious leaders were a source of alternative moral and spiritual authority,” as well as independent financial resources and connections to the rest of the world.

Momentum, the physics of persuasion, and the relative weakness of the "force of argument" in shaping same-sex marriage litigation outcomes

Will Baude at the Volokh Conspiracy links to a piece by Robert Barnes in the Washington Post that reflects on the unanimity of district court decisions finding a constitutional requirement of same-sex marriage and the diversity of judicial backgrounds behind those decisions. Baude suggests that one influence may be a "momentum effect" that causes judges to worry about being overturned or being "on the wrong side of history."

Baude's suggestion brings to mind former Solicitor General Seth Waxman's ruminations on what he called "The Physics of Persuasion." According to Waxman, "analogues to ordinary principles of physics can sometimes help explain, and predict, the direction of Supreme Court decision-making." If this claim is correct, Waxman observes, then "generally one would expect the force of the better legal argument ultimately to determine the destination of the law. Where stronger and weaker arguments oppose each other, the one with greater jurisprudential force should prevail." But what is true generally is not true universally. And this is where the analogy becomes interesting. Waxman continues:

[I]n individual cases, force of argument alone does not determine outcome. Other forces can also influence the direction of the law. One of those forces is friction. And friction in litigation works just as it does in more familiar contexts. The broader the undertaking requested of a court – in other words, the more points a case touches – then the more friction it is likely to encounter. And the more massive the new program that the government asks the Court to uphold – in other words, the more ponderous its weight – then the more pronounced is friction’s effect. 

Another force is magnetism. One often hears attorneys say that the optics of a case are not good, the atmospherics are bad, or there is an unattractive odor to the matter. Those sensory descriptions all point to what is a singular phenomenon – courts often find particular results attractive or repellent for reasons other than the force of legal argument. 

Forces like magnetism and friction can cause the law to begin moving in the wrong direction. And because principles like inertia and momentum also apply, once doctrine starts moving in a particular direction, it will continue to do so until other forces bring it to a halt.

Armed with these insights from an experienced Supreme Court practitioner, what might we be able to speculate about the influence of constitutional physics in the same-sex marriage litigation? Perhaps a sea change in public opinion has resulted in the removal of friction. Perhaps plaintiffs' counsel have figured out how to maximize the force of magnetism. Maybe fear of being on the wrong side of history exacerbates inertia. And momentum is surely on the side of those challenging the constitutional permissibility of basing civil marriage on the conjugal understanding of marriage as the union of husband and wife.

Constitutional inertia and momentum operate in such a way that "once doctrine starts moving in a particular direction, it will continue to do so until other forces bring it to a halt." What "force," if any, might bring the current doctrinal movement to a halt when the Supreme Court again takes up a case presenting the issue of same-sex marriage? The "physics of persuasion" is less helpful in answering this question than in posing it. But the persuasiveness of the physics analogy suggests something about the nature of the constitutional change taking place. The analogy begins by assimilating the "force of argument" to the same category of "force" as frictional force and magnetic force. These are physical forces, while "the force of argument" is not. Similarly, inertia and momentum are physical properties, not the properties of argument. Given that the analogy seems to work nonetheless, what does this reveal about the relative contribution of "the force of argument" in shaping constitutional law? At least in this context, perhaps the analogy suggests the relative weakness of the "force of constitutional argument" in comparison with the push and pull of other forces more analogous to those studied by political physicists rather than by jurisprudes. 

Political (and legal) humility

George Will's column today begins with this:

All modern presidents of both parties have been too much with us. Talking incessantly, they have put politics unhealthily at the center of America’s consciousness. Promising promiscuously, they have exaggerated government’s proper scope and actual competence, making the public perpetually disappointed and surly. Inflating executive power, they have severed it from constitutional constraints.

The reminder of the limited role and efficacy of government, politics, and law is especially important for those of us who live and work in the legal academy.  Law school denizens often presume too much expertise in reorganizing society by legal compulsion to achieve preferred social goals.  And the law professoriate tends to ignore the possibility of collateral consequences by such legal restructuring of the lives and businesses of our fellow citizens, the most powerful of which is a withdrawal of freedom and a weakening of private associations (or at least those associations that do not follow the government line).

In most respects, the thriving and happiness on a day to day basis of the people we know and love -- and should seek to serve -- turns much more on what happens in the neighborhood, the school community, the parish congregation, and the family, than on the ambitions, agendas, and pretenses of politicians and their legal advisors in some distant capital.

And, thanks be to God, that is how it should be in a free society.

"The New Authoriphobia"

Charlie Camosy has a thoughtful post up, at Catholic Moral Theology, called "The New Authoriphobia."  He covers a lot of ground -- and has some really interesting thoughts about the place of authority in the work of academics -- but this quote was highlighted by (corporeal and Facebook) friend, Patrick Deneen:

The evidence now appears to be clear: more than a year into Pope Francis’ pontificate, many on the right and left in the US cynically use the authority of the Pope as a weapon in their political war.  The source of their ultimate and irreducible concern is not the authoritative Catholic tradition, but rather the success of an American political agenda. 

I agree entirely with Charlie that the Church's teaching - which all three of these Popes have proclaimed and defended - poses challenges to both the American left and the American right. Still, it seems to me that the reality is that our political system serves up two realistic options at election times and so those who choose to vote and who think elections can move things for better or worse (which does not mean, of course, that they can cure all or even most ills) have to make choices based on trade-offs.

It is not, it seems to me, "authoriphobia" (and I think Charlie would agree) to prioritize, relatively speaking, say, religious liberty, educational choice, and improved abortion laws over other matters (which also matter very much). This prioritization might be misguided, or based on an erroneous perception of the facts or on speculative predictions, but it need not involve denying the Church's (or the Gospel's) "authority" with respect to the questions given lower priority, nor need it reflect a misplaced loyalty to an "American political agenda."

Did Town of Greece limit Marsh v. Chambers? If so, Chesterfield County, VA needs to know.

The Legal Directors of the ACLU of Virginia and Americans United for Separation of Church and State have sent a letter to the county attorney of Chesterfield County, Virginia, asserting that the county's prayer policy is unconstitutional. The letter writers assert that the Constitution, as recently construed by the Supreme Court in Town of Greece v. Galloway, requires the county to rescind its existing invocation policy for county board meetings. In their letter, the Directors do not explicitly threaten litigation or actually purport to represent anybody other than themselves and their interest groups. They do, however, request a response within 14 days. And they invite the county attorney to email them if he would like to discuss this matter further. 

Like the letter-writing Directors, I do not purport here to threaten litigation or to represent anybody but myself. But their letter interests me more than the typical Americans United for Separation of Church and State threat letter, as Chesterfield County is where I live and pay taxes. And in thinking about how I might respond if I were in the county attorney's shoes, I find the Directors' letter curious as much for what it does not say as for what it says. Unlike other litigation-threat letters, for example, this one does not even explicitly allude to litigation risk. (Compare, for example, the recent AUSCS letter to Roanoke County, which asserts that "[v]iolation of these rules would subject the County to the risk of a legal challenge.") Instead of writing back immediately, then, I might pick up the phone and ask the letter writers to send a follow-up letter addressing a few additional questions so that I could better understand their position and explain it to the Board. Maybe it's not a litigation-threat letter after all. Perhaps something along the lines of the following: 

- Why don't you mention Marsh v. Chambers in your letter? As you know (and as I know you know I know you know given our mutual personal history with that case's application to Chesterfield County), Marsh is the case in which the Supreme Court of the United States upheld Nebraska's policy of having a state-paid Presbyterian minister offer invocations at the opening of legislative sessions. I'm trying to figure out what you think has changed since the last time you challenged Chesterfield County's prayer policy and lost under Marsh.

- You assert that the County "must make the [invocation] invitation open to people of all religious persuasions, consistent with the Greece decision." (emphases added) Please explain what you mean. A take-all-comers policy is consistent with Town of Greece, but do you contend that such a policy is constitutionally required under that case? If so, how do you square that contention with Marsh, as interpreted by the Supreme Court in Town of Greece and the Fourth Circuit in Simpson v. Chesterfield County Board of Supervisors? 

- After you lost in Simpson, both of you filed an unsuccessful petition for certiorari in which you wrote that the "crux of the Fourth Circuit opinion [in Simpson] is that the Chesterfield County policy 'is in many ways more inclusive than that approved by the Marsh Court.'" Unless Town of Greece further limited what is constitutionally permissible under Marsh, it is hard to see what has changed in the legal landscape that would transform Chesterfield County's policy from constitutional to unconstitutional even under your view of Simpson. I've been following some of the post-decision commentary on Town of Greece, and the general view seems (quite reasonably) to be that the decision is even more permissive than Marsh. (I don't know that I would go so far as Dean Chemerinsky, for example, but he says that the "clear message from Town of Greece v. Galloway is that prayers before legislative sessions are allowed, no matter how much they are sectarian and from a particular religion.") What am I missing?

Conference: "International Religious Freedom and the Global Clash of Values"

On June 20, the Center for Law and Religion will co-host a conference, “International Religious Freedom and the Global Clash of Values,” at the Libera Università Maria SS. Assunta in Rome. The conference will bring together American and European scholars and officials; proceedings will be in English and Italian with simultaneous translation. Panels will include “Comparative Perspectives on International Religious Freedom,” “Christian and Muslim Perspectives on International Religious Freedom,” and “The Politics of International Religious Freedom.” Participants will include Abdullahi An-Na’im, Pasquale Annicchino, Heiner Bielefeldt, Giuseppe Dalla Torre, Thomas Farr, Ken Hackett, Monica Lugato, Francisca Pérez-Madrid, Olivier Roy, Nina Shea, Marco Ventura, John Witte, and Roberto Zaccaria.

For details and information about registration, please click here.

History of insanity and criminality before the 19th century--a bleg

For a chapter in a book on the insanity defense, I'm doing a little research on the history of insanity as a phenomenon relevant to criminality. So far I've found plenty of discussion of 19th century developments. But what I'd really like are primary sources that predate the 18th and 19th centuries (setting to the side sources like Coke, Hale, and Blackstone) or secondary sources that discuss a discrete pre-19th century period. And in particular, if there are writings by Catholic thinkers related to the subject even tangentially, I'd very much like to read them. Any suggestions? [please write to me off line].

"High legal threshold," indeed.

Pennsylvania Governor Tom Corbett, darling of some Republicans I know, has publicly refused to appeal yesterday's decision by the Hon. John E. Jones, III, striking down Pennsylvania's law recognizing marriage as limited to opposite-sex couples.  Mr. Corbett is running for office, of course, so he assures us that the reason for his dereliction of the same office is "the high legal threshold set forth by Judge Jones in this case."  High legal threshold?  Does Judge Jones make the law?  (Judge Jones's opinion reads like a C+ final exam in sophomore Judicial Opinion Writing, but that's another matter).  Ironically, Judge Jones flatters himself by likening his own judicial (prophetic?) behavior to that of the Supreme Court in Brown v. Board of Education, which he (erroneously) claims overruled Plessy v. Ferguson.  Would Governor Corbett have lived (campaigned?) by a mere District Court decision on the wrong side of the race issue?  In any event, Corbett, recently shown grinning and shaking hands with Pope Francis, assures us that "[a]s a Roman Catholic, the traditional teaching of my faith has not wavered."  Who in the world wondered whether Corbett's dismal failure could cause the teaching of the Church to "waver[]."  Who cares about Corbett's "private" faith that apparently has so little public punch?  Ahh, the Republicans!