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.

Saturday, July 30, 2016

Kaine Says He Still Supports Hyde Amendment

Since others have previously noted here the reports that Tim Kaine dropped his support for the Hyde Amendment--the ban on federal taxpayer funding for abortions--we should also note that he has now told CNN that he continues to support the Amendment and has not changed his position. 

It's legitimate, of course, to question whether this makes the slightest difference. The Clinton campaign says it does not; they seem to suggest (as reported by CNN above) that Kaine only "personally" supports the Hyde Amendment and will actually help support "carry out" efforts to overturn it. (This is an interesting, and not very comprehensible, extension of the "personal vs. political position" distinction concerning abortion.) It's far from unheard of, obviously, for a VP candidate to disagree with some aspect of the platform; but if he has to support "carry out" a given policy in his official acts, it's not clear what "personally" disagreeing could really mean. For example, what would he do if he had to break a tie in the Senate over Hyde? The Clinton campaign, as a tactical matter, may simply have OKed him to make this latest statement, in order to have out there a small symbolic nod toward the middle of the country on abortion without making any change in the announced policy.

Nothing more could be claimed for the effect of Kaine's position than this modest point: It is better, from the standpoint of affecting immediate policy, to have someone in a Democratic White House circle who has some qualms (however limited) about forcing others to support abortion, and is willing to express those qualms, than it is to have no one with any such qualms. When the Obama contraception mandate was amended in 2012 to make the first provision for the "accommodation" for nonprofit schools and charities--which, as refined and strengthened, may become the basis for resolving the issue--it was reported that Vice President Biden had led in expressing the need to do some such accommodation, prevailing over those on the side of the abortion-sympathetic groups, who had not expected any accommodation to be adopted. I would hope and urge that if Clinton is elected, Tim Kaine would play such a role, but I certainly don't know whether he would.

July 30, 2016 in Berg, Thomas, Current Affairs | Permalink

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils's Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of "attachment to a particular epoch or a particular deed or a particular generation in the past."

July 30, 2016 in DeGirolami, Marc | Permalink

Friday, July 29, 2016

Moreland and Moreland on Amoris Laetitia

Theologian Anna Bonta Moreland (who happens to be my wife) and I discussed Pope Francis's apostolic exhortation Amoris Laetitia at the University of Chicago Divinity School a few weeks ago at an event sponsored by the Lumen Christi Institute, and the video has been posted here. For MOJ purposes, I included some remarks about implications for the law raised by the document in the areas of marriage, education, and adoption.

July 29, 2016 in Moreland, Michael | Permalink

Divine Rights and Human Rights

That's the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning:

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine? “All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power: “For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons. Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

July 29, 2016 in DeGirolami, Marc | Permalink

Thursday, July 28, 2016

A “Man for Others” . . . Well, Some Others, But Not All

Tim Kaine -- DNC 2016

Tim Kaine had this to say last night in his speech (here) accepting the Democratic nomination for Vice President:

I went to a Jesuit boys high school, Rockhurst High School.


Wow, that’s a big line for the Jesuits.

Now we had a motto in my school, “men for others.” And it was there that my faith became something vital. My north star for orienting my life. And when I left high school, I knew that I wanted to battle for social justice.

No doubt later today, there will be many posts on social media and on various Jesuit, and Catholic, and political blogs extolling the virtues of a Jesuit education and repeating with pride the phrase that Pedro Arrupe made so famous: “Men for others.”

And no doubt many of these same commentators will hold up Tim Kaine as an exemplar -- beaming with pride at the fact that Kaine is both the product of Jesuit education and that he openly identifies himself as such. And, indeed, Kaine tied his Jesuit education to his vocation in politics – the “north star” that oriented his life and made him want to “battle for social justice.”

To truly be a “man or woman for others” is surely to follow the “north star” by which to set one’s course in life.  But to do so authentically and with integrity means acting with justice towards all the members of the human family.

And this includes the unborn. Child in the womb

Unfortunately, Tim Kaine’s political career is marked by a conscious disregard for the most vulnerable human beings.  He insists, of course, that he’s “kind of a traditional Catholic” in that “personally I’m opposed to abortion” (here), but he strongly affirms Roe v. Wade.  His rationale for this position is the same intellectual drivel and incoherence that Mario Cuomo offered back in 1984 that has become the pat answer of pro-choice politicians who claim to be Catholic. (For my critique of Cuomo’s address see here).

Kaine claims that abortion is in “the personal realm,” that abortion and other matters of “intimacy” are “moral decisions for individuals to make for the themselves and the last thing we need is government intruding into those personal decisions.”

This, of course, is not an argument as to why the abortion decision should not be a matter of public concern, only a reaffirmation that it should not be.  And it makes no sense if, as Kaine says (together with Cuomo, and Biden, and Pelosi, and many others) that he believes what the Church holds concerning the sanctity and inviolability of innocent human life in the womb.  Or rather this makes sense only if belief in the sanctity and inviolability of innocent human life is inherently religious, and so unfit as a goal of public policy.  This is intellectually vapid.  Seeking to protect the lives of unborn human beings is no more incapable of being described and justified in secular terms than the humanitarian work that Tim Kaine performed in the Jesuit Volunteer Corps in Honduras.

  IHS Jesuits
Indeed, the Society of Jesus bluntly disagrees with Kaine’s flawed characterization of the issue. In its prophetic document Standing for the Unborn, the Jesuits in the United States made plain that “abortion is a human rights issue.” As such, it stands on at least the same moral footing as the work that Tim Kaine did in Honduras.

Moreover, abortion is not, said the Jesuits, merely a “personal preference or private choice” precisely because the decision involves the killing of an innocent human being.

Further, opposition to abortion does not, says the Jesuits, involve “the imposition of a narrowly-confined religious position upon an unwilling majority” but “reasonable arguments accessible to people of all faith traditions and people of none.”

Moreover, because Jesuits are dedicated to “faith and the promotion of justice,” all Jesuits and Jesuit institutions “must seek an end to the injustice of abortion.”

Finally, Jesuits are committed to the process of respectful dialogue, confident that the truth will persuade and succeed in “narrowing the gap between the current civil law of our nation and the demands of the moral law.”  This “way of proceeding” of course precludes the kind of “go along, get along” approach of ignoring and renouncing the pro-life cause so common among Catholics in public life.

But Tim Kaine has not proceeded on the path of social justice set forth by the Society of Jesus. He has instead earned a 100 percent approval rating from Planned Parenthood and NARAL Pro-choice America (here).  And, as Rick has pointed out, Kaine has now repudiated his long held support for the Hyde Amendment (here).  Since becoming Hilary Clinton’s running mate he has embraced the view set forth in the Democratic Party’s platform calling for repeal of the Hyde Amendment and full federal funding for elective abortions under Medicaid, and for payment for abortion under all health insurance plans (p. 37).

There is no social justice in this perverse proposal for the subsidized killing of our youngest and most vulnerable relations.  To truly be a “man for others” one cannot exclude certain members of the human family either because it is politically expedient, or because it helps to advance one’s career.  To do so is the repudiate the very premise that purportedly animates one’s pursuit of social justice in the first place – the dignity of the human person.

Black Hole

Roe v. Wade is no “north star.” It is a black hole that has set our nation, our Constitution, and the moral lives of countless individuals on a calamitous course – a road to the heart of darkness.

Given all this – given the substance of his position on the most vital civil rights issue of our day, and not simply his rhetoric – Tim Kaine’s overt identification with the Jesuits should be a source not of pride but of embarrassment.  It is a sign of failure – in catechesis, in training in philosophy and reason, in the formation of character -- especially courage.

Of course as with any person, Kaine is not simply a product of his high school education and his service in JVC.  He has also been formed by his legal education, and practice, and government service, and party affiliation.  He has been formed by larger currents of moral an political thought operating in the culture.

One would like to think that he has also been formed by his life in the Church – his participation in the sacraments and parish life. But where is this in evidence when it comes to the issue of life?  Perhaps in ways unseen that (we hope and pray) will emerge.

Still, rather than the back-slapping that one is likely to see among the Jesuit fraternity of priests, alumni and alumnae, one would instead hope to see some genuine introspection.  If Tim Kaine is an exemplar – if he truly represents the best of what Jesuit education is all about – then I would suggest that the current leaders, teachers and alums of Jesuit institutions should ask themselves a few simple questions: “Where did we go wrong? How can we correct this?”

July 28, 2016 | Permalink

Wednesday, July 27, 2016

Character matters (especially for new lawyers)

Yesterday the Institute for the Advancement of the American Legal System released the results of a multi-year study in which 24,000 attorneys from all 50 states participated. One key conclusion is that new lawyers need not only IQ and EQ, but also “a high ‘character quotient.’ Integrity, work ethic, grit, and common sense are just a few of the necessary characteristics.” From the report:

[According to the lawyers surveyed, new law school grads] need to have a blend of legal skills and professional competencies, and, notably, they require character. In fact, 76% of characteristics (things like integrity, work ethic, common sense, and resilience) were identified by half or more of respondents as necessary right out of law school, while just 46% of professional competencies (like arriving on time, listening attentively, and teamwork) were identified by half or more as similarly necessary. Legal skills (like legal research, issue spotting, and legal analysis) were identified by half or more of respondents as necessary right out of law school to an even lesser degree than either characteristics or professional competencies. Specifically, fewer than half of the legal skills we asked about—just 40%—were identified as necessary right out of law school. This is not to suggest that legal skills were viewed as unnecessary by respondents. In total, 98% of the legal skills we asked about were identified as necessary, but they were identified as foundations that could be acquired over time and that were not necessary as the new graduate entered his or her career.

As Catholic law schools work to articulate how a school's Catholic identity can and should matter to students faced with a difficult job market, these insights are key.  Other law schools can build character too, of course, but if we've been taking seriously the relevance of whole-person education, meaningful community, mentoring, and moral formation to our Catholic legal education project, we should have a significant advantage. 

July 27, 2016 in Vischer, Rob | Permalink

Reporting on the murder & martyrdom of Fr. Jacques Hamel

At Get Religion, Terry Mattingly has an important post up on the importance of reporting the facts, including the "hellish details", of the story.  Here's hoping we see more, in terms of responses, than just a flurry of hashtivism.

July 27, 2016 in Garnett, Rick | Permalink

Well, that was quick: Sen. Tim Kaine flips on the Hyde Amendment

Sen. Tim Kaine, the Democrats' candidate for Vice-President, is a practicing Catholic, and his position on abortion has been described in some quarters as "nuanced," because, in the past, he signed legislation allowing modest regulations (like parental notice) and limiting partial-birth abortion.  Apparently, though, only a month after telling a magazine that he supports the Hyde Amendment . . . he no longer does.  The new Democratic platform is, with respect to abortion, the most aggressive and radical its ever been -- and this in a year where the VP candidate is described by some as a "Pope Francis Catholic."  (I imagine the Holy Father would say, "well, sure:  like me, and like all of you, he's a sinner.)

". . . for Wales?"

July 27, 2016 in Garnett, Rick | Permalink

The leaked DNC emails reveal big-money backing for anti-religious freedom efforts

Story here.

July 27, 2016 in Garnett, Rick | Permalink

Tuesday, July 26, 2016

More on Trump, Clinton, Willing, and Proportionality

Following up on Rick's quick reply to me, an even quicker sur-reply:

Actually, in discussing votes for either Trump or Clinton, we (I?) kind of went on a tangent about whether one was/wasn't "willing" the accompanying bad stuff in voting for either candidate. In fact, neither one of us is really talking about "willing" the bad stuff--and whether you will the bad stuff does not (I think) depend on whether the bad stuff is substantially certain to happen. Theologians correct us here, but ... Even if one knows that Trump's day-to-day outrages will happen, and even if one knows that Hillary's attacks on religious freedom etc. will happen, that doesn't mean one wills either of them. You can will the good things associated with your chosen candidate (which can include, as Rick has indicated, the good of stopping the other (horrendous) candidate), and conclude that those good things outweigh the bad that is likely to come with the chosen candidate. So, as seems most common in the voting context, we are  talking (I think)  about material cooperation and proportional reasons for voting, not about formal cooperation. Again, theologians set us right if needed.
So then the issue becomes how bad each candidate is, given all the factors, and the alternatives, including the alternative of voting for neither. Then the point of my original post's first half--the response particularly to Rick's leadoff post--was that in such a calculus, Trump will still be very seriously bad, day to day and in unknowable, uncharted ways, even with all the checks on him. (As for "laziness" as a check, he doesn't seem to be very lazy about the things--often petulant and idiosyncratic things--that interest him most; that's part of why he's so risky.) And the point of my original second half was the very serious bad things with Clinton, which for me are more isolated but nonetheless very serious.


July 26, 2016 in Berg, Thomas, Current Affairs | Permalink