Mirror of Justice

David Gushee's candor about the shrinking "middle ground"

It is sometimes said that concerns about threats to religious freedom, properly understood, in America are overstated, or partisan, or part of a misguided "culture war" mentality.  Of course, the threats and persecutions faced by many religious believers in many other places are far more grave.  Still, those who imagine that religious freedom doesn't face challenges, even threats, here in the United States, are seriously mistaken.

This piece by David Gushee is refreshingly candid, and discusses the dynamic that I'm talking about.  The only way it can be the case that religious freedom is not threatened by the developments he describes, anticipates, and welcomes is if "religious freedom" is (mis)defined so as to include only the religious freedom of those who share Gushee's views.  

A wonderful picture of the young Saint Pope John Paul II

To resist legal suicide, build communities

Here is a very thoughtful piece at Crux by my former Notre Dame Law School student, Laura Wolk.  (Keep an eye out for her work; she's going to do great things.)  A bit:

[D]egrading isolation characterizes the lives of myriad disabled persons. So many live either confined and neglected in homes and institutions, or walk among us laboring under the weight of unfathomable loneliness.

I am not surprised, then, that along with desires to control death and avoid pain, data show that fears about decreasing independence, becoming a physical burden, andlosing the  ability to participate in meaningful life activities can motivate a person’s decision to seek physician-assisted suicide.

At bottom, these factors reflect the widespread, internalized belief that living with a disability means experiencing life sequestered from society, destined to live out one’s days as the perpetual and helpless recipient of unilateral beneficence.

Christians can allay these fears only by changing the cultural assumptions surrounding disability. We must use our lives to testify that independence and dependence take multiple forms, and that the financial costs of disability can never outweigh the richness of a life fully and joyfully lived.

But to do this, we must also try harder to draw our disabled brothers and sisters-especially those deeply or completely isolated from human fellowship-into our communities.

A Challenge To My Fellow Evangelicals

That's the title of a piece today in the New York Times (online edition) by Deborah Fikes, who previously served as a board member of the National Association of Evangelicals and as the Executive Advisor to the World Evangelical Alliance.  She holds a graduate degree in international law from Oxford University.  I think many MOJ readers will be interested in what Ms. Fikes has to say (here).

Stoner's Response, "Legal Realism, Legal Revolution"

The final response to my essay on law and tradition has been posted over at Liberty Law, and it is superb: Professor James Stoner's Legal Realism, Legal Revolution. Jim's work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism--and in particular about the erroneous and all-too-common characterization of constitutional law as "judge-made law." It's wonderful to have his contribution. A bit from the end of Jim's piece:

Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.

“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”

DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.

Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.

Civil friendship and the 2016 election

Yesterday I read a Christian leader's commentary on the presidential election, but I had to stop when I came to his assertion that candidate X is "wrong on 100% of the issues" that matter to Christians.  This all-or-nothing take on candidates is hardly new ground for campaign strategists, but I'm struck by how deeply it has infiltrated the society at large, including Christians attempting to analyze the election through the lens of their faith.

The Compendium of the Social Doctrine of the Church addresses "civil friendship" as part of its teaching on the political community. (Para. 390)  The Church emphasizes the importance of civil friendship as "the most genuine actualization of the principle of fraternity, which is inseparable from that of freedom and equality," and entails "inner acceptance of the needs of others."   It is not part of the sphere of rights, which "is that of safeguarded interests, external respect, the protection of material goods and their distribution according to established rules."

In the current presidential campaign, we are focused, as we should be, primarily on how each candidate will impact the sphere of rights.  Nevertheless, the divisive and apocalyptic rhetoric of this political season cannot be easily separated from the viability of civil friendship in our country.  When each candidate is EVIL! EVIL! EVIL!, each candidate's supporters can only be understood as unable or unwilling to recognize or reject said evil. 

Does the rhetoric we deploy in an effort to ensure that Trump (or Clinton) is not President make it more difficult to cultivate the civil friendship that is more central to society's flourishing than a particular President's impact on the sphere of rights?  Relatedly, does this rhetoric make it more difficult to foster a culture of political cooperation that will be necessary come January when President Trump (or Clinton) will be tasked with leading the country?  Put differently, should the way we speak of the candidates aim toward our responsibilities as citizens come November 9, not simply our priorities as voters on November 8?

I'm not sure what this would look like, but I know we're not seeing much of it.  A few tentative thoughts on how we can better convey the respect and empathy on which civil friendship and responsible citizenship depend:

1) We should strive to praise the laudable traits and policy positions of the candidate we oppose, even as we criticize the traits and policy positions we abhor.

2) We should strive to be specific and substantive in our critiques of the candidate we oppose.

3) We should talk less about the candidates themselves, and more about the underlying issues that motivate our fellow citizens to support one candidate or the other.  (And yes, this year especially, for many Americans, Trump himself is a major motivation to support Clinton, and vice versa; but there are deeper concerns at play here too.)

Christians have strong opinions about the outcome of this election, as we should.  But we also have to ask ourselves, do we want to contribute to the likelihood that our country will flourish through the bonds of civil friendship and collaborative governance even if the candidate we have designated as EVIL! EVIL! EVIL! prevails?  If so, how should that change the nature and tone of our current political engagement? 

"Bearing False Witness: Debunking Centuries of Anti-Catholic History"

Here is the new book by Rodney Stark.  The description:

As we all know and as many of our well established textbooks have argued for decades, the Inquisition was one of the most frightening and bloody chapters in Western history, Pope Pius XII was anti-Semitic and rightfully called “Hitler’s Pope,” the Dark Ages were a stunting of the progress of knowledge to be redeemed only by the secular spirit of the Enlightenment, and the religious Crusades were an early example of the rapacious Western thirst for riches and power. But what if these long held beliefs were all wrong?

In this stunning, powerful, and ultimately persuasive book, Rodney Stark, one of the most highly regarded sociologists of religion and bestselling author of The Rise of Christianity (HarperSanFrancisco 1997) argues that some of our most firmly held ideas about history, ideas that paint the Catholic Church in the least positive light are, in fact, fiction. Why have we held these wrongheaded ideas so strongly and for so long? And if our beliefs are wrong, what, in fact, is the truth?

In each chapter, Stark takes on a well-established anti-Catholic myth, gives a fascinating history of how each myth became the conventional wisdom, and presents a startling picture of the real truth. For example,

• Instead of the Spanish Inquisition being an anomaly of torture and murder of innocent people persecuted for “imaginary” crimes such as witchcraft and blasphemy, Stark argues that not only did the Spanish Inquisition spill very little blood, but it was a major force in support of moderation and justice.

• Instead of Pope Pius XII being apathetic or even helpful to the Nazi movement, such as to merit the title, “Hitler’s Pope,” Stark shows that the campaign to link Pope Pius XII to Hitler was initiated by the Soviet Union, presumably in hopes of neutralizing the Vatican in post-World War II affairs. Pope Pius XII was widely praised for his vigorous and devoted efforts to saving Jewish lives during the war.

• Instead of the Dark Ages being understood as a millennium of ignorance and backwardness inspired by the Catholic Church’s power, Stark argues that the whole notion of the “Dark Ages” was an act of pride perpetuated by anti-religious intellectuals who were determined to claim that theirs was the era of “Enlightenment.”

In the end, readers will not only have a more accurate history of the Catholic Church, they will come to understand why it became unfairly maligned for so long. Bearing False Witness is a compelling and sobering account of how egotism and ideology often work together to give us a false truth.

Admittedly, he's shooting fish in a barrel, but still . . . it's important to shoot those fish.

The perennial relevance of "Chariots of Fire"

I re-watched Chariots of Fire the other day, and was struck by a few lines and exchanges that seem particularly timely and relevant:

HRH Edward, Prince of Wales: There are times when we are asked to make sacrifices in the name of that loyalty. And without them our allegiance is worthless. As I see it, for you, this is such a time.

Eric Liddell: Sir, God knows I love my country. But I can't make that sacrifice.

. . . .

Lord Cadogan: Hear, hear. In my day it was King first and God after.

Duke of Sutherland: Yes, and the War To End Wars bitterly proved your point!

Garnett on the upcoming Trinity Lutheran case

Here, thanks to the good people at SCOTUSblog, are some thoughts of mine about the upcoming Trinity Lutheran case -- another one that, I cannot help thinking, will turn out differently than in would have otherwise as a result of Justice Scalia's death.

I end with this:

Will any of the Justices examine or embrace the claim, advanced in the amicusbrief filed by the Lambda Legal Defense and Education Fund that the Constitution should be read to disallow government from cooperating, even through neutral programs, with religious organizations that “discriminate on the basis of religion and other grounds”? I have argued in academic writing that it is a mistaken oversimplification to equate invidious and irrational “discrimination” by governments with religious organizations’ efforts to operate in keeping with their religious teachings, character, and mission. The government, of course, may and should not discriminate on the basis of religion. However, there is not (or, at least, there should not be) anything objectionable about a religious school or social-welfare agency hiring for mission. Nor does the latter become objectionable, let alone unconstitutional, simply because the religious actor is cooperating with the government to do good works like feeding the hungry, caring for the sick, or educating the young. Unfortunately, some seem determined to wage an aggressive culture-war campaign that conflates religious commitments with “bigotry.” Will the Court resist, or enlist in, this effort?

“Separation of church and state” is an important idea. Correctly understood and reasonably implemented, it is a limit on government that protects religious freedom by preventing the government from corrupting religion or interfering in religious groups’ affairs. It does not require, though, and the Constitution’s neutrality principle should not permit, the pointless discrimination at issue in Trinity Lutheran Church.

Levinson on Law and Tradition (a Skeptical View)

Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It's a pleasure and an honor to be in conversation with him. I'm already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson's essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument....

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)