Monday, June 23, 2014
Jonathan Cohn (almost the only serious/nuanced regular analyst at the New Republic these days) has a piece on the state of parental-leave laws, child-care support, and other work-family initiatives. Apparently the White House is hosting a meeting of academics, policy sorts, and business leaders on these issues next Monday.
Policies that allow parents to spend more time with young children and get better day care have clear, quantifiable costs. They also have clear, quantifiable benefits—not just in the form of better child and maternal health, but also in the form of better retention and possibly higher productivity. As a matter of fact, there’s reason to think that America’s retrograde treatment of working families doesn’t help the economy at all. It might actually be hurting it....
The case for more generous parental leave laws begins with the cost—and the fact it's one that most of the rest of world happily bears. Among developed nations, the U.S. is now the only one that doesn’t guarantee some kind of paid employee leave available for new parents. In these countries, firms don’t typically bear the costs directly. Instead, governments set up funds that work the way unemployment and disability insurance do—workers and employers pay into the funds, through some kind of payroll contribution, and then take money out of it when they become parents.
Whatever is the right amount of government encouragement on this question, isn't it substantially more than our country is doing? Would love to hear Lisa Schiltz's latest thoughts (following on these), and the thoughts of others.
Read this. , , 
 Don't read the full set of comments that it links to and summarizes. Don't.
 I'm pretty sure the original post with comment thread is real (impossible to imagine someone constructing it); but just in case, I am hereby covering myself.
 Way to go, everyone, warm up for Hobby Lobby!
Sunday, June 22, 2014
A prayer by St John Fisher
strong and mightly pillars
that may suffer and endure great labours,
which also shall not fear persecution,
but always suffer with a good will,
slanders, shame and all kinds of torments,
for the glory and praise of thy holy Name.
By this manner, good Lord,
the truth of thy Gospel
shall be preached throughout the world.
Therefor, merciful Lord,
exercise thy mercy,
show it indeed upon thy Church.
Friday, June 20, 2014
Upon reading Kevin Walsh’s posting yesterday on Constitutional and scriptural interpretation and mystic writing, I revisited work that I have done with the interpretation of legal, scriptural, and ecclesiastical texts over the past four decades. My interest in careful legal interpretation began during my time as a young lawyer working for a Federal regulatory agency. The horizon of interpretation expanded when I changed gears and entered the Jesuit order. My theology studies necessitated careful parsing of scripture and ecclesiastical documents. My graduate legal studies and subsequent teaching enabled me to return my love of legal interpretation. When the opportunity arose to pursue graduate legal studies, I chose to write my dissertation on developing a coherent method of using and evaluating legislative history in statutory interpretation. I realized that most textual interpretation, regardless of the genre of writing, has certain common denominators. One of them is that words are important because they convey important meanings; therefore, relating the words of a text or communication to one another is critical to the interpretative enterprise. Another one is to be familiar with the entire corpus of texts that has a bearing on the issue under examination—for all the ideas conveyed in all the relevant documents’ words again mean something that is essential to good interpretation. If the reader/interpreter is only familiar with a portion rather than the entirety of applicable texts, the interpretation can very well be incomplete. If, on the other hand, one fails to read any of the relevant texts but assumes the nature and, therefore, the meaning of their content, the interpretation of the texts and their application to human existence will be flawed.
In addition to Kevin’s posting, some of my other reading yesterday included the June 13, 2014 issue of Commonweal magazine. Of the many interesting articles published in this edition, the one written by Mollie Wilson O’Reilly entitled “The U.S. Sisters & the Holy See: A Culture of Encounter in Action?” (HERE) has a bearing on my present posting’s theme.
Ms. O’Reilly rhetorically asks why the Holy Father hasn’t intervened in the CDF’s doctrinal assessment of the Leadership Conference of Women Religious—or, as she presents the issue, “Why hasn’t Pope Francis stepped in to get the Vatican of the nuns’ backs?” Of course, no one is on the “nuns’ backs” literally or figuratively. It is easy to reach certain conclusions that every member of the Church is the same in the eyes of God. After all, each is a sinner but loved by God nonetheless. All that the sinner needs to do in his or her life is to reciprocate that love by acknowledging one’s own sins and sinful tendencies and asking for God’s mercy and forgiveness. But does this mean that everyone is equal in all other respects that concern the nature of the Church? Are we not different in some fundamental ways whether we are bishops, clerics, religious, or lay? Today, largely based on a false understanding of equality, many think that the Council established and promulgated norms which empower the faithful to minimize or ignore the teachings of the Church as reflected in the hierarchical offices of the Church. Is this in fact what the Council concluded? After all, the Council emphasized the notions and subsequent doctrines of dialogue and conversation of peers, did it not? Or did the Council conclude that the relationships amongst the People of God are different? Would the Council’s documents help answer these and related questions raised by Ms. O’Reilly? Would these texts also address concerns about the propriety of the doctrinal assessment? My point for today focuses on Ms. O’Reilly’s twice-made assertion that the LCWR’s actions which are the subject of the doctrinal assessment are consistent with the Second Vatican Council—or, as she says, “the vision” of the Council. Ms. O’Reilly’s article argues that the LCWR is in keeping with “the vision of Vatican II.” But is this a proper and correct claim? How and where do we find “the vision” of the Council? From my point of view, this issue is akin to that of the legal interpreter who is in search of the intent and purpose of the legislator.
In responding to the issues I have just raised, I should be obliged to answer them. In doing so, I am further obliged to conduct a careful reading of the applicable texts of the Second Vatican Council so that solid answers about the conclusions—“the vision”—of the Council may be ascertained as it pertains to the doctrinal assessment.
Among its many tasks and accomplishments, the Council acknowledged the importance and renewal of religious life for men and women who are members of the many and diverse religious communities that observe the evangelical councils of poverty, chastity, and obedience. Through its own citation of elements of the conciliar texts, the CDF, in its 2012 Doctrinal Assessment published on the LCWR, acknowledges and relies upon the work of the Council regarding religious and consecrated life in the Church.
What the Council concluded about religious life and any other matter falling within its work cannot be assumed—for any assumption about the Council’s conclusions can be filled with peril if the conciliar texts are not carefully examined. By reading the crucial texts judiciously, any reader can understand what the Council said and why the Pope, bishops, the CDF, and many of the faithful had and continue to have concerns about the LCWR. Whether there were and remain grounds for the assessment of the LCWR and who has the legitimate authority to conduct the assessment can be verified by ecclesial texts that are the record of our faith. When “the vision of Vatican II” as it applies to the deposit of faith is at stake, the relevant conciliar documents should contain and express “the vision.” This is the only way in which anyone can come to distinguish between the authentic vision of the Council and a mirage of the Council.
So, what do the texts of the Council say about the matters at the heart of the LCWR doctrinal assessment and of the related concerns of the pope and bishops, the faithful, and the LCWR about the assessment? To understand “the vision” of the Council as applicable to the LCWR/CDF issues and CDF doctrinal assessment, one should be familiar with the relevant documents on authority in the Church and on religious life which include: the Dogmatic Constitution on the Church, Lumen Gentium (LG) and the documents on bishops (Christus Dominus) (CD) and religious life (Perfectae Caritatis) (PC).
Chapter III of LG discusses the hierarchical structure of the Church with a special emphasis on the bishops. There has been much discussion, debate, and criticism about the Church’s hierarchical nature, the Petrine Office, the collegiality of the bishops, and the primacy of Peter (the pope). The Council reiterates that all the Church’s bishops are the successors of the Apostles and, therefore, are the shepherds of the Church. But they are not shepherds alone for their vital unifying force is the Roman Pontiff, the successor of Peter, the permanent and visible source and foundation of the unity of faith and communion. The pope is fortified in his office and primacy by the teachings of the Church as formulated by LG, N. 22.
In the twenty-first century, we witness on several fronts—those of clerics, the members of religious congregations, and the laity—sources of error which become the specific responsibility of bishops to address with charity, wisdom, and authority. A source of recent error, contested by the LCWR, is some of the activities of the LCWR and particular members of the organization. In this regard, a critical passage of Lumen Gentium needs to be recalled:
In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking. LG, N. 25.
The clarifications offered by LG about matters intersecting the LCWR doctrinal assessment are complemented by the Decree Concerning the Pastoral Office of Bishops in the Church (Christus Dominus, or CD). The first chapter of this decree speaks directly to the issues about which this posting is concerned. The Council recalls how Jesus sent the apostles into the world to glorify God and to build up the Body of Christ, the Church. As St. Peter’s successor, the pope is charged with the overarching duty of protecting the faithful who are Christ’s people. With this commission comes “supreme, full, immediate, and universal authority over the care of souls by divine institution.” CD, N. 2. As the first bishop, the pope is solemnly charged with the care of and the common good of the universal Church and of all the churches within it. In essence, the primacy of Peter is the primacy of the pope. This primacy belongs to no one else.
A principal duty of each bishop is to be a teacher of the Gospel to all within his territorial jurisdiction—“let them teach with what seriousness the Church believes these realities should be regarded.” CD, N. 12. The responsibilities of the episcopal teaching office cannot be taken lightly nor should it be ignored.
Good teaching is an acquired skill necessitating patience, diligence, and perseverance. Every bishop is primarily responsible for ensuring that the faithful and all others understand the doctrine of the Church—especially on those matters dealing with “the human person with his freedom and bodily life, the family and its unity and stability, the procreation and education of children, civil society with its laws and professions, labor and leisure, the arts and technical inventions, poverty and affluence.” CD, N. 12.
But the Pope and the bishops are not the only ones who labor for Christendom and the Church; after all, they require helpers in the furtherance of the work entrusted to them by Christ. The group of workers relevant to my discussion in this posting is the LCWR. Two texts of the Council quickly apply to this group of the faithful. The first is, once again, LG which addresses the evangelical counsels of poverty, chastity, and obedience that have long been the cornerstone of religious life in the Church. The counsels are instruments which make the men and women religious effective collaborators of those to whom hierarchical office has been entrusted. LG, NN. 44-45. The evangelical counsels also provide the structure for vigorous apostolic or contemplative life that serves the welfare of the entire Body of Christ, the Church. Through the fraternal association that is inherent in the counsels, the “militia of Christ” is reinforced. LG, N. 43.
The Council fathers expressed with clarity that religious life is not some middle ground or hybrid entity between lay and clerical life; rather, it draws from both of these groups to serve as witness of the gift of the evangelical counsels in the prayer and work of the Church and by a special bond to God through the exercise of the gifts of apostolic or contemplative life as overseen by the competent authorities of the Church. LG, N.43. Hence, it is the duty of the ecclesiastical hierarchy to regulate the practice of the evangelical counsels for they have a momentous bearing on the Church and her welfare. LG, N. 45. In short, the life of the evangelical counsels consecrates the person fully in service to and for the welfare of the Church and God’s people in diverse but rich ways. LG, N. 44. Moreover, the counsels are a means to ensure that men and women religious maintain their dedication to their vocations and to those individuals who are competent ecclesiastical authorities. LG, N. 45.
Today there is evidence, some of it cited by the CDF doctrinal assessment, that some members of the LCWR, by word or by deed, distance themselves and their activities from these competent ecclesiastical authorities. The potential for this happening was recognized by the Council fathers who emphasized that it is the proper duty of the ecclesiastical hierarchy to regulate the practice of the evangelical counsels and those who profess vows or in some other fashion follow the evangelical counsels. LG, N. 45. Thus, members of the religious institutes are obliged to “show reverence and obedience to bishops” because of their pastoral authority in the local churches where the religious institutes work and pray for the “need for unity and harmony in the apostolate.” LG, N. 45. To claim that “conscience” entitles anyone to depart from the Church’s authentic teachings that are essential to following Christ is a perilous course that hinders the work to which men and women religious are called to perform in fulfillment of their individual and corporate ministry.
The Decree on Religious Life, PC, acknowledges how the Church profits from the diversity of experiences, charisms, and talents which each of the religious institutes presents to the People of God. PC, N. 1. But if these gifts are to flourish, it is essential that men and women religious remain uniformly faithful to the original spirit of their institutes as appropriately adapted to the “changed conditions” of the modern world. PC, N. 2. Otherwise the justification for their existence becomes ambiguous or, worse yet, irrelevant.
Although the Council urged renewal of religious institutes that would include the abandonment of outdated laws and customs, PC, N. 3, it was simultaneously noted that the approval of the Holy See to the renewal process is essential due to the nature of its office. PC, N. 4. This principle is consistent with both the hierarchical structure of the Church and the Church’s need for universality. Renewal does not mean reinventing or compromising the faith and the moral life that must accompany the faith. By living, working, and praying in fidelity to the Church and the charism of their respective institutes, men and women religious are able to serve the Church with their entire selfless being by a vigorous practice of particular virtues that include obedience, humility, fortitude, and chastity. PC, N. 5. Daily prayer and the Eucharist are therefore essential to the vitality of religious life as they cultivate a stronger bond with the universal Church’s mission. PC, N. 6. As with priestly formation, religious formation must be accomplished by selecting directors, spiritual fathers, and instructors who “are carefully chosen and thoroughly trained.” PC, N. 18.
While this is a bird’s eye view of the relevant conciliar texts that have a bearing on “the vision” of the Council as it applies to the LCWR doctrinal assessment, my presentation, first and last, takes account of what the Council actually said about the pope, the bishops, and religious institutes and their organs regarding the issues presented and charges made in Ms. O’Reilly’s article. The relationship of the persons who hold the offices and statuses discussed here are a part of “the vision” of the Second Vatican Council. Indeed, if “American women religious draw their remarkable strength in part from a half-century’s experience living out the vision of Vatican II” as the O’Reilly article contends, the authenticity and durability of this strength must be established on what the Council actually said and not what it did not.
Yesterday was an important day in the anti-trafficking world; the State Department released its 2014 Trafficking in Persons (TIP) Report. This annual report card on international efforts to combat human trafficking is a product of the Trafficking Victims Protection Act of 2000 (TVPA). The Report has been a significant resource as well as diplomatic tool to confront both trafficking and failed or weak efforts to address it.
The theme of this year's report is "The Journey from Victim to Survivor." This reflects the recent focus of anti-trafficking movements of victim services and the importance of governments working with NGO's to help victims. I was especially pleased to see this. As I have previously blogged, many Catholic women religious orders have been at the forefront of working with victims. This was recently recognized more publicly by the law enforcement community in an international meeting of law enforcement and religious organizations. Indeed, one chief of police noted that the women religious with whom he partnered were indispensable to their efforts to interface with victims.
Of particular interest to MOJ readers is a discussion within the first 10 pages of the report regarding the dignity of the human person – a bedrock of the Church's position on this issue. This is followed by a rather candid statement about the reality of victim services:
These individuals have often endured horrific physical, psychological, and/or sexual abuse at the hands of their traffickers and others. But victim services that focus on providing support only until individuals are physically well enough to be sent on their way—or put in line for deportation—are insufficient. Those who have been enslaved have endured more than physical harm. They have been robbed of their freedom, including the freedom to make choices about their own lives. Medical care and a few nights in a shelter do not make a victim whole again. Even as the physical wounds are salved and begin healing, a major element of the recovery process is helping victims regain their agency, their dignity, and the confidence to make choices about how to move forward with their lives.
As if to underscore the point, MOJ readers may be pleased to see that on that same page in the TIP report is a photograph of Pope Francis meeting with the President and the following quote from the Holy Father himself: "I exhort the International community to adopt an even more unanimous and effective strategy against human trafficking, so that in every part of the world, men and women may no longer be used as a means to an end."
I continue to work my way through the Report (all 432 pages of it), but encourage all MOJ readers to review its findings. It is encouraging to see it publicly endorse some of the important work the Holy See is doing in this area. It also provides a challenge to all of us as educators of young lawyers to consider how we can respond to Francis' invitation.
I very much enjoyed this essay, by Miroslav Volf (Yale), called "Life Worth Living: Christian Faith and the Crisis of the Universities." Among other things, it engages my friend and teacher Tony Kronman's important book, Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life. Here's just a bit:
What is lost when the exploration of life worth living gets squeezed out of the university? For one, the university's character changes. In terms of the main thrust of what universities are about, they become a combination of research institutes and vocational schools. As research institutes, universities seek to explain how the world and various swaths of it function and to apply the knowledge gained to mastery over the world. As vocational schools, universities prepare students for jobs, which are increasingly knowledge based.
As sites of research, application of knowledge, and training, universities are immensely important. But if this were all there was to them, they would be seriously deficient. In research and vocational training, the most basic question is "How?" - how things (from galaxies to subatomic particles, and everything in between) work, and how to make things work for our benefit. Reason is employed for explanatory and instrumental purposes. Answering "How?" as we seek to achieve our goals is important. So is answering "What?" as we stand in wonder before the world. But perhaps the most characteristic question for humans is neither "How?" nor "What?" but "To what end?" To what end do we seek to advance knowledge and invent new technologies? To what end do we work from dusk to dawn, whatever our jobs are?
Centred on research and vocational training, universities are about cognition and instrumental rationality only, not about moral norms and meanings. They teach students how to achieve whatever ends they themselves or others set for them, but not how to evaluate and chose wisely among possible ends. Experts in means, they then remain amateurs in ends. With cognitive and instrumental prowess, they blindly follow their "preferences" bereft of reflexive standards or norms with which to evaluate them; they seek to satisfy their desires without having explored what is genuinely desirable and why. . . .
. . . The Christian faith can help universities build robust humanities programs in which the question of life worth living figures prominently. This may in fact be the most important contribution that the Christian faith has to make to the flourishing of universities, just as participating vigorously in the public debate on life worth living might be the most important contribution to public life more broadly. . . .
Anything by UVA's Charles Mathewes is presumptively worth reading, but Chuck's review at the American Interest combining his reflections on Ronald Dworkin's posthumous Religion Without God and Christian Wiman's My Bright Abyss (which I praised last summer here) is especially thoughtful on the place of religious discourse in contemporary public life. (Though I must resist Chuck's characterization of law and philosophy as "deeply unreflective academic fields.") A bit from the first section that frames his essay:
If any of these religion[s] try to “appear” in public (the metaphor itself is telling), they must politely cram themselves into the whalebone corset that is the etiquette of the modern Western public sphere. Religion in the contemporary West has become socially and politically denominationalized and existentially privatized. Many religions can accept such terms only at the cost of self-mutilation. Pretty obviously, this is a situation that doesn’t encourage coherent conversation about belief—more the opposite.
This is a special problem in a liberal society. If the genius of political liberalism is to recognize an inviolable wall around the privacy of the individual, the problem that liberalism faces is that that wall, once established, blocks passage in both directions. If we deem it abhorrent to violate another’s conscience, and so construct the public sphere in such a way as to forbid the public from invading the conscience, it is hard to see how so private a conscience can break out, to interact at all with public affairs. This risks turning the individual’s fortress into a prison; we have secured ourselves from violation only by forbidding ourselves real encounter. Liberalism’s admirable recognition of the unique value of each individual has had the effect of creating a society composed of gilded birds trapped in iron cages.
Having recently posted Thomas Mann Randolph's critical comment about the Supreme Court treating the Constitution as a "mystical writing," I thought it would be fitting to post something in a related vein, but more constructive than critical. In 2009, Professor Samuel Levine published in the Michigan State Law Review an interesting essay that suggests that the Ninth Amendment may serve a similar function in constitutional law to that served by close analysis of legal scenarios that some Talmudic authorities believe will never occur. Here is the abstract for Levine's essay, Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework:
In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the Torah and the United States Constitution contain sections that, notwithstanding a textual appearance of actual implementation, have been interpreted by at least some legal authorities as not susceptible to practical application. Specifically, in the case of the United States Constitution, the Ninth Amendment appears on its face to serve as a basis for the identification of constitutional rights not enumerated elsewhere in the Constitution. In practice though, the Ninth Amendment has not served such a function; its harshest critics have characterized the amendment as the functional equivalent of an inkblot, while the United States Supreme Court, though not as dismissive in tone, has resisted arguments that would rely on the Ninth Amendment as a source for the derivation of unenumerated, individual constitutional rights. In an effort to reconceptualize the function of the Ninth Amendment in American constitutional interpretation, Levine looks to the analogue of the Biblical account of the “stubborn and rebellious son,” one of three legal scenarios in the Torah that, in the views of some Talmudic authorities, will never occur. According to a number of Jewish legal scholars and philosophers, the Talmud ascribes to these sections of the Torah considerable legal significance, albeit of secondary or symbolic legal value. Although these legal scenarios may never occur, the lessons derived from the text have both pedagogical and practical implications for understanding and interpreting the laws of the Torah. Likewise, perhaps the Ninth Amendment functions neither as a primary source for the derivation of unenumerated constitutional rights nor as an inkblot. Instead, the Ninth Amendment may serve a secondary role, providing both practical and symbolic lessons for understanding and interpreting the United States Constitution.
Thursday, June 19, 2014
Randolph (1821) and Smith (2005) on constitutional interpretation as scriptural interpretation and the Constitution as "mystic writing"
I've mentioned before Steven Smith's description of the Supreme Court as a kind of (anti-)magisterium. Part of Smith's argument is a comparison between "what the Court does with the Constitution" and scriptural interpretation:
[M]uch of what the Court does with the Constitution simply does not make sense except on assumptions similar to those that inform the interpretation of scripture– such as the assumption that the text is ultimately not the product of merely finite and mortal authors but rather the expression of some more transcendent mind whose meanings exceed the grasp of either the flesh-and-blood enactor-scribes or the judicial interpreters
Earlier today I came across another quotation that reminded me that the idea that the Supreme Court has taken up magisterial authority is no recent development. The Marshall Court garnered comparisons to papal authority, and the language of constitutional heresy and constitutional orthodoxy was not uncommon. Consider, for example, how Virginia governor Thomas Randolph in December 1821 discusses the Supreme Court's decision earlier that year in Cohens v. Virginia. He contends that the Constitution is a monument to the wisdom and harmony of the past; its imperfections are a testimony to the need for good faith in the present and future. And he criticizes the Court for mystically pretending the Constitution is something better than what it is:
The constitution of the United States is a durable monument of the wisdom and harmony of times past. Its very imperfections constitute an impressive memorial of the necessity for good faith in the passing and in future times. It is not a mystic writing given in charge to the federal judiciary as to a priesthood to be enveloped in a studied obscurity, consulted through mazes, and made to give such responses as may suit the peculiar views of political expediency, of incumbents of any political sect, at any period.
Thomas Mann Randolph, Richmond Enquirer, December 4, 1821, p. 3.
The Becket Fund reports that "the Grand Chamber of the European Court of Human Rights (ECHR), Europe’s final arbiter of human rights disputes, decided 9-8 today that the autonomy rights of religious institutions—here, the Catholic Church—trump the rights of religion teachers to mount a public attack on church teachings." What is amazing, and unsettling, to me, is that the decision was so close. Apparently, at least one judge wrote an . . . interesting dissent: "In a remarkable dissent from the Court’s decision today, the ECHR judge appointed by the government of Russia, Dmitry Dedov, directly attacked the Catholic Church and its practice of priestly celibacy, calling the practice “totalitarianism” and adding his opinion that “the celibacy rule contradicts the idea of fundamental human rights and freedoms.”"