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, June 19, 2014

Unaccompanied Minors Crossing the Border by the Thousands

First Things published my essay Tragic Compassion on the origins of our current crisis at the border.

Here is the beginning of the essay: "The Department of Homeland Security estimates that 90,000 unaccompanied minors will be apprehended attempting to enter the United States this year, up from 40,000 last year. DHS expects the number to grow to more than 140,000 next year. Ranging in age from six to 17, many of these minors travel more than 1,700 treacherous miles from Honduras across Guatemala and Mexico.

Overwhelming immigration authorities, many unauthorized entrants are released into the United States on the promise to report to immigration authorities, although federal authorities lack the will and the resources to ensure follow through. Others are being or will be housed on military bases in California, Oklahoma, and Texas. At least in the short term, there are concerns about adequate housing, health care, education, sanitation, food, and supervision as detention facilities attempt to cope with the influx. 

Misguided compassion led directly to this tragedy. How did we get here?"

June 19, 2014 in Scaperlanda, Mike | Permalink

Tuesday, June 17, 2014

Heritage's Problem with Muslims (UPDATED: and Pushback)

The Washington Post's Dana Milbank reports on a Heritage Foundation panel this weekend on the Benghazi issue, where a group of speakers weighed in on the Muslim threat to America:

Then Saba Ahmed, an American University law student, stood in the back of the room and asked a question in a soft voice. “We portray Islam and all Muslims as bad, but there’s 1.8 billion followers of Islam,” she told them. “We have 8 million-plus Muslim Americans in this country and I don’t see them represented here.” ...

If the report is accurate, the speakers then contempuously dismissed Ms. Ahmed's point, to the cheers of the crowd. One speaker, Brigitte Gabriel of a group called ACT! for America,

dismissed as “irrelevant” the “2.3 million Arab Muslims living in the United States [when] it took 19 hijackers — 19 radicals — to bring America down.” She mocked Ahmed’s “point about peaceful, moderate Muslims” by making quotation marks with her fingers when she said the word peaceful.

Heritage's attitude seems to be unchanged from, or worse than, a few years ago, when they invited me to speak with a couple of other panelists about "Islam and Religious Liberty." I said yes and described my thesis: that it was vital for religious traditionalists to enlist American Muslims, most whom are both devout and peaceful, as partners in the defense of full religious liberty, i.e. the freedom of all Americans to live out religious values in society, not just in private/insular settings. The staff member who had conveyed the invitation called back the next day and said that wasn't what her supervisors had in mind: they really wanted only talks about how Islam threatened religious liberty.

That attitude is both unfair and short-sighted. It's important, of course, to talk and act concerning radical Islam's threats of violence; but it's simply wrong to ignore how much most Muslim practice, especially in America, differs from that, and how much Muslim citizens can contribute to our society.

There are important voices challenging religious conservatives (and all Americans, because this problem crosses ideological lines) to reject anti-Muslim prejudice. They include our own Robbie George, and the Becket Fund for Religious Liberty. Keep up that crucial work!

UPDATE: As several people pointed out to me, Milbank's characterization has been sharply criticized,  here and here. You can look at the video here. I think it does complicate the simple story Milbank tells. For one thing, Frank Gaffney gives a respectful response to the woman's question while still making his point: clearly not all the speakers dismiss her. For another thing, it's unclear whether, as the speaker Ms. Gabriel charged, the questioner introduced the issue about Islam without any provocation from anything any of the speakers had said. But I do think the video still supports a couple of points:

(1) Ms. Gabriel adopts a hostile and accusatory tone to the questioner (who only asked whether it's possible to win the war against radical Islam without undercutting the appeal of the ideology), and Ms. Gabriel dismisses moderate Muslims as "irrelevant" the fight against radical Islam. I don't think wholesale dismissals of peaceful Muslims as "irrelevant" are likely to increase conservatism's appeal to those folks, who as I said might otherwise be allies on some important social and cultural issues. The fact that she acknowledged most Muslims are peaceful does not undo the counterproductive results of dismissing them as irrelevant.

(2) Although I wasn't in the room, the ovation from the crowd (with quite a few people standing) in response to Ms. Gabriel's comeback had a level of emotion that I don't think reflects a hospitable attitude toward  Muslim citizens, or would reasonably be taken by Muslims as hospitable.

No doubt I'm reading my own experience with Heritage into a judgment about the balance in the programs it does on this subject. (There's no audio of the phone conversation I had with Heritage about their invitation, so you'll have to take my word for it.) And Heritage's approach isn't really the issue. But there is an undeniable problem here, folks. I also read attitudes about Muslims in light of evidence like the empirical work of Greg and his co-authors, which shows that Muslims have a markedly lower success rate than other groups in their religious-liberty claims in federal court. The authors conclude, after investigating other possible causes for this pattern, that "the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges."

June 17, 2014 in Berg, Thomas | Permalink

Philpott: "No Human Rights Without God"

My friend and colleague Dan Philpott has a nice, short piece up at the Open Democracy 
site, making the case that there are "no human rights without God."  (MOJ readers will remember that Michael Perry has pressed this argument in several works (here, for example)). 

June 17, 2014 in Garnett, Rick | Permalink

Monday, June 16, 2014

"The Good of Government"

This essay, by Roger Scruton (follow him on Twitter!), "The Good of Government:  American Conservatives Need a Positive View of Government" seems an important intervention not only in the conversation about "radical" v. "liberal" "conservative" Catholics, but also in the one about Catholicism and "libertarianism."  Check it out. 

June 16, 2014 in Garnett, Rick | Permalink

A sobering thought

From David Bentley Hart, in May's issue of First Things, responding to Adam Gopnik in the New Yorker:  "[W]e have reached a moment in Western history when, despite all appearances, no meaningful public debate over belief and unbelief is possible.  Not only do convinced secularists no longer understand what the issue is; they are incapable of even suspecting that they do not understand, or of caring whether they do. . . .Principled unbelief was once a philosophical passion and moral adventure, with which it was worthwhile to contend.  Now, perhaps, it is only so much bad intellectual journalism, which is to say, gossip, fashion, theatrics, trifling prejudice.  Perhaps this really is the way the argument ends--not with a bang but a whimper."

. . . which reminds me of this essay, in a March issue of Commonweal, by Terry Eagleton:  "An Unbelieving Age:  Nietzsche's Challenge and the Christian Response." 

June 16, 2014 in Garnett, Rick | Permalink

On "limiting government"

A nice point, from the December 2013 issue of First Things, from Rusty Reno:  "Where family limits from below, religion limits rom above.  Faith makes a claim -- the claim -- on our loyalty. . . .  Rousseau saw how the Christian faith divides our loyalties.  We can be citizens, yes, but we must be disciples first. . . .  He rejected this divided loyalty as a threat to genuine freedom, which to his way of thinking requires an integral and all-powerful government that can give full and unlimited expression to the general will of the people." 

June 16, 2014 in Garnett, Rick | Permalink

"Pluralism and Conviction"

In the April issue of First Things, Rusty Reno writes -- in the course of a discussion about my colleague George Marsden's new book, The Twilight of the American Enlightenment - about the "paradox of modern democratic society:  The more individualistic our culture, the more powerful and all-pervasive government becomes.  We want a very strong and robust state to guarantee our freedoms . . .."  (I am assuming, or perhaps just hoping, that making or endorsing this observation does not make one an un-Catholic "libertarian.")

Later, he writes that "the consensus of consensus liberalism is the consensus of the powerful, and so it's essential that liberalism should rule.  That's why it so loudly announces itself as the arbiter and manager of pluralism without every allowing itself to be a constituent." 


June 16, 2014 in Garnett, Rick | Permalink

Cert denial in Elmbrook School Establishment Clause case

The Supreme Court denied certiorari this morning in Elmbrook School District v. Doe, and thus will not be reviewing the Seventh Circuit's decision holding that a public school graduation at a church (chosen for reasons of convenience) violated the Establishment Clause. Justice Scalia (joined by Justice Thomas) dissented from the denial of cert.

I was wrong about what the Court would likely do. I thought that the Court would GVR or outright grant in light of Town of Greece v. Galloway. 

June 16, 2014 in Walsh, Kevin | Permalink

Drakeman, "What's the Point of Originalism?"

A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism--three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).

While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.

First, the titular question. The idea here is that "the point"--or at least one point--of originalism is to persuade the public of the court's decisions, and more generally of the court's legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.

Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don't. Opinions are not constitutionally mandated. The Constitution speaks in terms of "the judicial power" and judicial "offices." But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation--devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).

Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. Of course, a counterpoint would be that for much of the Supreme Court's history and in many important cases that are embraced by the public, it has not been originalist. But at any rate, he is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism's value. I think that sort of account of originalism's worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.

June 16, 2014 in DeGirolami, Marc | Permalink

Saturday, June 14, 2014

First Novel Launch: Marital Privilege by Greg Sisk

As regular readers of Mirror of Justice might recall, over the past couple of years, I’ve tried my hand at something rather different -– writing a novel.  My first novel, Marital Privilege, has just been published by North Star Press.

Marital_Privilege_front_cover_1024x1024The lead character is a law professor, and, while I should warn readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy.  More information about the novel can be found here.

While I will post up something more about the novel in coming days, I wanted to let Mirror of Justice readers know about the launch party if you just happen to be in the Twin Cities next week.  You are all welcome at the publication/launch party on Wednesday, June 18, from 4:30 to 6:00 p.m. at the University of St. Thomas School of Law in downtown Minneapolis (on the fourth floor in the faculty lounge).  At the party, the novel will be available through a representative of the University of St. Thomas Bookstore.  (The novel is also available at Amazon.)

If you think you might come, it would help to know so that we can be sure to have enough food and beverages –- and copies of the novel –- on hand.

Greg Sisk

June 14, 2014 in Sisk, Greg | Permalink