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.

Tuesday, July 26, 2016

A response to Tom Berg regarding Trump, voting, etc.

I appreciate Tom's response to my recent post .  Although, unlike Tom, I tend to think that most of the policy positions associated (at least, associated until recently!) with the Republican Party (though not with the current nominee!) better serve, on balance, the common good than those associated with the Democratic Party, I agree with very much of what he says in his post.  

I agree, to be clear, that Donald Trump "exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge."  I agree that many of his statements "have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse."  And, I agree that (quoting my earlier post) the "state of affairs that is likely to come to pass as a result of the election of [Donald Trump]" will almost certainly include many such statements and many erratic actions.  I suggested in my post, and I continue to think, that "Congress, the courts, the press, the bureaucrats, [and Trump's] laziness and ignorance" would meaningfully constrain him, were he elected, but I agree they would and could not completely constrain him.  It's a bad, bad situation.

All that said, I'm not convinced by what Tom says here:

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented.

It seems to me that it could be that what one "wills" (I guess I'm thinking Model Penal Code-type "purpose" here) when one votes for Trump is simply and only that the agenda of a Clinton Administration (which would be much less constrained by the press and by presidential laziness) be stopped.  What one "wills" need not include, it seems to me, the erratic behavior and offensive statements that one (with regret) expects.  (Cue the arguments among those who are smarter than I am about whether one "intends" what one "knows", etc. . . .)  

I also think, in response to Tom's statement that Clinton's "flaws are not in his category," that while Clinton's set of flaws is different than (though it overlaps with) Trump's, they are numerous, serious, and pervasive enough to make her (like him) unworthy of the office she seeks.  It's a shame, in my view, that, perhaps because of entirely justified disapproval of Trump, many seem to be accepting the notion that Clinton is simply a garden-variety politician with the usual flaws, slip-ups, and imperfections.  I don't think the evidence supports that view.  But, that's another issue . . .   


July 26, 2016 in Garnett, Rick | Permalink

Monday, July 25, 2016

The Unavoidable Problem with Trump

In response to Rick: The most serious problem with Trump is not his policy prescriptions. Several of them are awful; in my view, a few, like infrastructure rebuilding and probable Supreme Court appointments, have positive elements. But it is not enough to predict or hope that the awful announced policy prescriptions would be blocked by others--even if that would likely happen. (I realize Rick isn't adopting that position but is just saying it's reasonable.) The fundamental problem is Trump's personality: the man exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge. The latest confirmation--small but striking, and the latest of many--was his remarkable post-convention monologue last Friday, in which he said he didn't care about Ted Cruz and then proceeded to spend 10 minutes revisiting what Cruz did and the revenge that he, Trump, would take. There is absolutely no telling what Trump might do with the day-to-day powers of the Presidency, including the keys to the nuclear codes. We would be in virtually uncharted waters.

If Trump is elected, then even if other actors would block his bad policy initiatives, there would be no way to avoid putting the day-to-day power of the office in his hands. There is no way to avoid saying, "This is the man who will make the crucial judgments in whatever (unknowable) crises arise." In that sphere, military and other actors would presumptively obey his orders, some of which the press might not learn about in time to speak against them. Some officials might resign rather than enforce them, but that dynamic puts us on the short road to constitutional crisis. In addition, the day-to-day power of the office includes public statements; his have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse. No other actor--Congress, bureaucrats, press--can stop those, or their effects. They are inherent in electing him.

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented. #NeverTrump.

This argument does not entail voting for Hillary. Of course, those who think the Democrats are wrong on most issues will be disinclined to vote for her even to avoid Trump. That's not my situation: I am a Democrat who thinks that party's positions on many issues are better for the common good. But I nevertheless have a serious struggle. That's not because Clinton's personality flaws are as bad as Trump's: however significant, her flaws are  not in his category. It's primarily because of two (for me) very serious issues--familiar but sadly becoming even more pointed this year. First is the further intensification of the party's abortion position. As  a pro-life Democrat, I put a high priority on strengthening social supports in order to reduce economic pressures to abort; but the party's new attack on the Hyde Amendment, and its increasing tendency to view abortion as in no way regrettable, make the conflict for pro-life liberals more serious than ever.

Second, as a religious freedom advocate who also supports some of the policies that have come in sharp conflict with religious tenets (policies like sexual-orientation anti-discrimination laws and the Affordable Care Act), I am disturbed by having seen first-hand the unwillingness of more and more Democratic leaders to support any accommodations that would meaningfully balance these two goals--particularly accommodations that would allow faith-based service organizations to follow their tenets while continuing to do their work helping others. This dynamic has become very powerful, very suddenly, and there are reasons to think that the Clinton executive branch will be even less inclined to accommodate than the Obama executive branch has been. (Note that in some cases, such as hiring based on religious belief by groups receiving federal grants, Obama has preserved freedom for religious organizations to maintain their faith-based nature, against intense pressure from anti-accommodation progressives. I have no confidence that Clinton will do the same.)

But even with these serious (in my view) problems with Clinton's likely policies, I cannot in conscience vote for Trump. I can't tell myself it would be OK--even on balance--because others will check him in in office. There will be pervasive features of his presidency that they can't check. So if I ultimately cannot vote for Clinton, the only options for me would be to vote third-party (I'm not attracted to the current ones) or write in someone.

This is a pretty long-winded assertion of my judgments, and I know we don't want election discussion to take over the blog. But in responding to Rick's suggestion about avoiding Trump's problems, I thought I should explain my thinking more fully.

July 25, 2016 in Berg, Thomas | Permalink

Pro-Life Democrats on How the Platform "Betrays Millions of the Party Faithful"

My colleagues at Democrats for Life, Kristen Day and Charlie Camosy, spell it out in the L.A. Times. The platform not only attacks the Hyde Amendment, they point out; in addition, it calls for repeal of any regulation impeding access to abortion, acknowledging no considerations on the other side, and removes the 2012  platform's endorsement of religious liberty in the context of abortion. A bit more:

The abortion plank in the 2016 Democratic platform effectively marginalizes the voices of 21 million pro-life Democrats. It means the party that is supposedly on the side of justice for the vulnerable no longer welcomes those of us who #ChooseBoth; that is, those of us who want the government to protect and support prenatal children and their mothers....

The Democratic Party's abortion stances have already caused many to leave the party, and many more will drop out because of the platform wording. The percentage of extreme abortion rights advocates is increasing in the party, but only because the total number of Democrats has shrunk to its lowest level since the Hoover administration.

July 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Dualism & Doctrine

In light of arguments by Robby George and others that we are in a neo-Gnostic age, Dov Fox and Alex Stein have posted a fascinating new paper, Dualism and Doctrine. Here's the abstract:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.


July 25, 2016 in Vischer, Rob | Permalink

Friday, July 22, 2016

"A Vote's Consequences and a Voter's Choice"

My friend Matthew Franck has a depressingly timely piece over at Public Discourse, in which he maps out his thinking regarding the question "what to do with my vote in November, given the two awful major-party candidates?"  (As I've said here at MOJ before, both candidates are awful -- for various and varying reasons -- and one of many reasons each is awful is that each has the effect of inducing members of the opponent's political party to rationalize or normalize or minimize their own candidate's awfulness.)

I agree with much of what Matt writes.  I'm not sure about this, though:

[M]y conscience is more important to me than the outcome of this presidential election. I cannot in good conscience vote for either Clinton or Trump. What matters for me is that I cannot bring myself to intend, to will the victory of either of these ludicrously unacceptable presidential candidates. And that is what a vote for one of them would be—an act of willing that Clinton or Trump be president, carry out her or his stated policy aims, and bring his or her fundamentally bad character to the highest office in the land.

My hesitation is prompted, specifically, by the suggestion that voting for candidate X is "an act of willing that [candidate X] . . . carry out her or his stated policy aims[.]"  This seems wrong . . . or at least not necessarily true.  One could reasonably think (and, to be clear, I'm not saying that this is what I think) something like this:  "Look, candidate X has said all kinds of stupid and offensive things and also proposed stupid, dangerous, and immoral policies.  But, it is not the case that, if candidate X were elected, those policies would become operative because Congress, the courts, the press, the bureaucrats, candidate X's laziness and ignorance, etc., would prevent or obstruct them, or at least most of them.  Candidate Y, on the other hand, is smart and ideologically motivated, and would enjoy the support of the press and other opinion makers, and so would very likely be able to make operative a number of candidate Y's stupid, dangerous, and immoral policies.  So, I prefer candidate X, not because I intend that candidate X 'carry out his or her stated policy aims' but because I intend to do what I can to prevent candidate Y from carrying out his or her policy aims."

This is different, I think, from the usual "lesser of two evils" argument, because it is focusing more on the "state of affairs that is likely to come to pass as a result of the election of candidate X or Y" than on the merits of X and Y's character or proposals.

July 22, 2016 in Garnett, Rick | Permalink

A wonderful story about the Alliance for Catholic Education and Vocations . . . in the New York Times!

There are many, many reasons to be gloomy (or worse) today. Here's a story that might help, even if just a bit, you feel better.  If you were thinking of donating any money to either major-party candidate's campaign, consider re-routing that money to A.C.E.

July 22, 2016 in Garnett, Rick | Permalink

Steve Smith on Obergefell, religious freedom, and cultural transformation

Simply to say a piece is "by Steve Smith" is to recommend it.  Check out this short piece, from a few weeks ago, at the Cornerstone blog, called "Obergefell and the Reconstituting of American Community."  It ends with this:

The Christian legacy is manifest as well in the American approach to religious freedom, with its recognition that there are things we owe to Caesar and other things we owe to God. Over the latter category, Madison famously reasoned, civil society and government simply have no “cognizance” —no jurisdiction. This understanding has been central not only to religious freedom but, more generally, to our conception of our political community as (to quote Lincoln, and the Pledge of Allegiance) “one nation under God.” But that conception is today effectively renounced, even by many proponents of religious accommodation, and most vehemently by the opponents of such accommodation.

In sum, modern developments in the areas both of sexuality and of religious freedom are connected in a sustained campaign to reverse the fourth century transformation—to reconstitute the community by rolling back the Christian or biblical legacy that has been central to the American political tradition. “Progressivism” is in that sense profoundly reactionary. On its face, Obergefell was about marriage, but at a deeper level, given the cultural importance of marriage, the decision was a major symbolic victory for that reactionary campaign.  

And yet such transformations are not accomplished overnight, and surely not at the command of morally and intellectually insubstantial figures like the author of Obergefell. So we can expect the conflicts to persist for a long time to come.  


July 22, 2016 in Garnett, Rick | Permalink

Thursday, July 21, 2016

Should we change how we elect our President? To: James Hillhouse From: Your Obedt. Servt, J Marshall

In 1808, Senator James Hillhouse proposed a constitutional amendment to change how we elect our President.

Worried about the effect of party spirit as filtered through presidential elections, Hillhouse proposed picking the President by lot from the class of Senators who were finishing their terms. As explained by Richard Hansen, "Every year the retiring senators would meet and, after being blindfolded, each would draw a ball from a box. The senator drawing the colored ball would be President for the ensuing year."

Hillhouse's proposal went nowhere. He tried to revive it in 1830, thinking that experience with Andrew Jackson may have led people to realize the wisdom of his proposal.

He was mostly wrong.

But John Marshall was among those who saw some value in it, even while recognizing it would go nowhere.

Here's Marshall's 1830 letter to Hillhouse (emphases added). Worth reading now as an example of Marshall's judgment ... including his self-awareness that "[a]ge is perhaps unreasonably timid."

(N.B. Hillhouse was a member of the same military unit as Benedict Arnold and Your Obedt. Servt, A. Burr.)

* * *

Continue reading

July 21, 2016 | Permalink

What Does Laudato Si Mean For the Legal Professional?


This is the question my CUA colleague (and longtime friend of MOJ), Lucia Silecchia, endeavors to answer in her recent compelling essay in the Seattle Journal of Environmental Law. Professor Silecchia recognizes the value of Laudato Si beyond the constraints of a narrow reading which limits it to an environmental ethics papal letter. She invites us to glean so much more from it by describing the encyclical as:

an invitation for attorneys to reflect anew on their obligations toward each other, to the clients who entrust them with so many things, to the ideals of justice that profession and promise bind them to uphold, and to the passion for what is right and good that drew them to a common vocation a few, or many, years ago.

Capitalizing on Pope Francis's theme of stewardship, Professor Silecchia teases out from this document ten important "rules" for attorneys categorized under the dual concepts of Stewardship of Clients and Stewardship of Justice.

The notion of the law as a vocation is not novel, but Professor Silecchia injects into that idea a modern and contemporary framework well worth considering. This piece deserves a read and presents us with another excellent addition to her impactful body of work addressing issues of morality, ethics, and spirituality that face law students and young attorneys today. (See here, here, and here for a small sampling.)

July 21, 2016 | Permalink

A. Scalia, "Teaching About the Law"

Speaking of Justice Scalia, I have a short piece over at Liberty Law on a piece of his that (I think) has received almost no commentary, with the exception of a very good essay by Adam White, on "Teaching About the Law." Here's the beginning:

There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.

Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”

One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.

July 21, 2016 in DeGirolami, Marc | Permalink