Mirror of Justice

Substantive Due Process to be Debated at Georgetown

The Center for the Constitution at Georgetown Law Center and the James Wilson Institute (aka Hadley Arkes' outfit in DC) are co-sponsoring a day-long conference on substantive due process on October 6th. Hadley Arkes and Matthew Franck will open the event with a long-anticipated debate of their now well-known opposing views of the subject.

Michael Stokes Paulsen and Justin Dyer will then take the floor to discuss what might be called the jurisprudential book ends of the doctrine:  Dred Scott and Roe v. Wade. Dyer, of course, has written a book length treatment of the similarities between the two cases, and Paulsen treats the comparison repeatedly in his masterful The Constitution: An Introduction. 

Randy Barnett, the director of the Center and hero of libertarians everywhere, concludes the day with with the keynote, proposing a "good faith theory of due process of law." Barnett's "presumption of liberty" is sure to make a central appearance--as will, one expects, that other substantive due process case, unmentioned in the day's schedule: Lochner. 

I am hoping to make the event and promise to blog if I do. 

 

Call for Papers: "The Common Good as a Common Project"

Some graduate students at Notre Dame are putting together what looks to be an outstanding conference, which might well be of interest to MOJ readers:

Keynote speakers:

• Alasdair MacINTYRE, University of Notre Dame
• Jean-Luc MARION, University of Chicago and the Sorbonne
• Jean PORTER, University of Notre Dame
• Emilie TARDIVEL-SCHICK, Institut Catholique de Paris

The common good enjoys a central place in classical and Christian social thought. Although the concept is frequently invoked in both theological and political discourse, its rhetorical use is rarely connected to a more satisfying theory of its form or content. When rigorously conceived, however, the common good has ramifications for nearly all social inquiry, both empirical and theoretical. The resurgence of interest in the principle of the common good demands a two-fold conversation: one part building a conception of the common good that moves beyond vague or platitudinous gestures and the other applying the principle to social questions in a rigorous and intelligent way. This conference aims to embody that conversation across the many disciplines which can view the common good as their common project.

We invite both theoretical and applied papers that address key questions about the common good:  Is the common good still relevant today? Which conception of the common good best illuminates our understanding of politics, ethics, economics, and other social institutions? What arrangements in family life, civil society, and politics will best foster the common good? Submissions are welcome from the perspective of any discipline of social inquiry, including but not limited to: philosophy, theology, political science, sociology, economics, history, and law. The conference will be structured to foster exchange among competing theoretical conceptions of the common good as well as debate about the application of these conceptions to particular disciplines and moral/social/political problems.

Please submit an abstract of no more than 300 words by November 15, 2016 to [email protected]. Notices of acceptance will be sent by December 6, 2016.

All presenters at the conference will receive a private hotel room for two nights during the conference as well as a small stipend of up to $150 to help defray documented transportation expenses. There is also a limited fund to further assist those who may be traveling from abroad; such funds will be awarded upon request, based on availability. For more information, please email us at the above address or visit the conference website at nanovic.nd.edu/cg2017.

Great opportunity at the Becket Fund

Check out the information, here, about the Constitutional Law Fellowship with the merry band of happy warriors at the Becket Fund for Religious Liberty:

The Becket Fund’s Constitutional Law Fellowship gives exceptional recent law clerks or law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is also an excellent stepping stone to a judicial clerkship, private practice, academia, or a permanent position with the Becket Fund.

My Take on "Religious Exemptions and Third-Party Harms"

Scholarship about religious-freedom exemptions from laws has increasingly focused on whether the existence of any "harms to third parties" is a ground for holding that an exemption is not required by religious freedom principles, or is perhaps even forbidden by the Establishment Clause. I've just published my analysis of the question, in the Federalist Society Review. A couple of excerpts:

The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion....

Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms. The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.

But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom. For example, once Title VII and analogous laws defined various forms of discrimination as a legal harm to employees, religious organizations faced lawsuits triggering civil court review of their employment decisions concerning their clergy and other leaders. Their ability to choose their leaders was preserved only by a court-ordered religious exemption: the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....

 If religious freedom is to continue receiving strong weight in an era of greatly expanded government, the existence of some harm to other individuals cannot be enough in itself to deny exemption or accommodation. On the other hand, harms to others certainly are grounds for limiting religious freedom in a number of circumstances.

... And then you read the rest to find out when. (I've done a longer version of the arguments here.)

A "Consistent Ethic of Life" Party

At Crux, Charlie Camosy has some thoughts about, and is developing a proposal regarding, a Consistent Ethic of Life (CLE) political party.  Way, way back, in the early days of MOJ, Dean Mark Sargent and others also speculated/hypothesized/ruminated about such a party.  He points out, among other things, that "we consistent ethic folks have a problem: there is no agreement about what a pro-life party with a consistent ethic should look like."  I agree.  (Like Charlie, but for some different reasons, I don't regard the American Solidarity Party as a promising venture or alternative to our current situation.)

(At least) two questions, it seems to me, would have to be "on the table":  One would be "what positions and policies would such a party have to address specifically, and what would it need to say about them?"  Another would be, "what positions, if taken or endorsed by another party, would preclude -- or, maybe, weigh heavily against -- an endorsement by the CLE party?"

I'm pretty sure the two-party system is here to stay, in the U.S., so this might all be, as they say, "academic"; still, its interesting to think about.  And, who knows:  I was pretty sure a year ago that the two major parties' nominees would be Joe Biden and Jeb Bush . . .       

Archbishop Chaput and Tocqueville

Perhaps this is very old news in our 24 hour news cycle, but MOJ readers who haven't yet read Archbishop Chaput Tocqueville Lecture at Notre Dame last week, should do so. It's a quick read but worth it-- and really, who would want to skip a lecture so named at a time in our nation's history when the great Frenchman's insights are so desperately needed? Democracy in America should be required reading these days -- or, if the tome is just too vast, maybe this forthcoming book would do? 

My favorite paragraph of Chaput's is this one -- really the Tocquevillian hermeneutic through which one can understand this election cycle, and really the ever-present threat to American democracy: 

People unwilling to rule their appetites will inevitably be ruled by them — and eventually, they’ll be ruled by someone else.  People too weak to sustain faithful relationships are also too weak to be free.  Sooner or later they surrender themselves to a state that compensates for their narcissism and immaturity with its own forms of social control.

 

Torts and Causation in the Right Way

As I write, first-year torts students across the country are learning that much of the law of negligence isn’t really “law” but is instead an accumulation of judgments about something called “policy” (often based on cost-benefit analysis) by courts about whether liability is appropriate. To think about, for example, whether a duty of care existed between this defendant and this plaintiff in any other way is a hopelessly naïve harkening back to the bad old days of privity and other retrograde concepts in cases like Winterbottom v. Wright (1842).

That all seems to me badly mistaken. It’s a legacy of the moral skepticism of Oliver Wendell Holmes and William Prosser to reject any vestige of formalism and regard torts as basically a utilitarian regulatory body of law. (That’s a rough characterization, but the details are persuasively spelled out by John Goldberg and Ben Zipurksy in The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998)). The great merit, among others, of the civil recourse view of Goldberg and Zipurksy is to rebut that skepticism and bring some legal structure back into the discussion of duties of care.

The same kind of argument can, I think, also be brought to bear on the element of proximate causation, though proximate cause is probably trickier than duty. I started thinking about this when I read a blog post from a while ago by Alexander Pruss on “causation in the right way:"

It's a medieval dictum that causes contain their effects. But that needs qualification. Causes in a sense contain their proper effects. They contain those proper effects as telê, and then some aspect of the effect--perhaps with cooperation or thwarting from other causes--just is an actualization of the cause with that telos. When all goes well, the whole of the teleologically specified effect is an actualization of the cause, but in aberrant cases, very little is....

....

[W]e could say that when x causes y in the right way, then being-an-actualization-of-x is an intrinsic feature of y, a feature that is causally involved in everything y does, and so when y causes z in the right way, z has the intrinsic feature of being-an-actualization-of-y, and we can go back down the chain to x. Perhaps this is what Aquinas means by per se ordered causal series.

This isn't the place for a complete account of how to map "causation in the right way" onto the element of proximate cause in torts, but I think that account would be a helpful corrective to so much blather in torts casebooks about proximate cause as a free-for-all policy judgment. And most importantly, as Pruss notes, such an account would "require[] a fairly non-reductive metaphysics of human beings."

Bernard Williams against "the efficient organization of happiness"

I’ve been reading a lot of Bernard Williams lately—partly for some professional reasons, partly out of sheer enjoyment and admiration for his bracing arguments. His critique of utilitarianism seems to me still underappreciated by legal scholars, but why that might be so and its importance are topics for another time. Here is a little bit from his essay “The Makropulos Case: Reflections on the Tedium of Immortality” (from his 1973 collection Problems of the Self) discussing the Spanish philosopher Miguel de Unamuno--and with perhaps some important implications for law:

Unamuno reveals himself at equal removes from Manicheanism and from Utilitarianism; and that is correct, for the one is only the one-legged descendant of the other. That tradition – Manichean, Orphic, Platonic, Augustinian* – which contrasts the spirit and the body in such a sense that the spiritual aims at eternity, truth and salvation, while the body is adjusted to pleasure, the temporary, and eventual dissolution, is still represented, as to fifty per cent, by secular Utilitarianism: it is just one of the original pair of boots left by itself and better regarded now that the other has fallen into disrepair. Bodies are all that we have or are: hence for Utilitarianism it follows that the only focus of our arrangements can be the efficient organisation of happiness. Immortality, certainly, is out, and so life here should last as long as we determine – or eventually, one may suspect, others will determine – that it is pleasant for us to be around.

Unamuno’s outlook is at the opposite pole to this and whatever else may be wrong with it, it salutes the true idea that the meaning of life does not consist either in the management of satisfactions in a body or in an abstract immortality without one. On the one hand he had no time for Manicheanism, and admired the rather brutal Catholic faith which could express its hopes for a future life in the words which he knew on a tombstone in Bilbao:

Aunque estamos in polvo convertidos

zen Ti, Señor, nuestra esperanza fía,

que tomaremos a vivir vestidos

con la carne y la piel que nos cubria.**

Notes:

*I don’t think it's quite accurate to lump “Augustinian” into this set of views given Augustine's break (how much so is a long-running debate) from Manichaeism.

**Though we are become dust,

In thee, O Lord, our hope confides,

That we shall live again clad

In the flesh and skin that once covered us.

(Miguel de Unamuno, The Tragic Sense of Life (1921), trans. J.E. Crawford Flitch)

Secularism as Religion - Kirsanow and Eberstadt

The introductory pages of Commissioner Peter Kirsanow's important statement in the Peaceful Coexistence Report  resound in themes taken up by Mary Eberstadt in her new book, It's Dangerous to Believe: Religious Freedom and Its Enemies. Both Kirsanow and Eberstadt suggest that the difficult cultural and legal impasse we've reached between SOGI laws and religious liberty is so fraught because, at base, the conflict concerns competing "religious" beliefs, one secularist, the other Judeo-Christian. And as such, both are fundamentally identity-forming, especially as regards sexuality.

Kirsanow's statement at pages 43-4 of the report: 

The tension between religious liberty and nondiscrimination principles appears most acute when religious liberty and sexual liberty conflict....It is a conflict between two worldviews, both held with the intensity generally associated with religious belief. The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation. This interest in the individual is now construed as a positive responsibility to ensure that everyone has the ability to engage in sexual conduct without cost or consequence, whether in money, unwanted children, or hurt feelings. An individual’s sexual behavior is considered an act of self-creation and something that goes to the deepest level of their identity. Criticism of an individual’s behavior is considered an attack on the dignity of the person. Naturally, this worldview is at odds with many aspects of traditional morality grounded in sexual restraint. 

Eberstadt makes the claim as to the religious character of the conflict more unequivocally: 

[I]t seems beyond dispute that progressive ideology shares recognizable features with Judeo-Christianity, even as it repudiates all traditionalists tenets that threaten its substitute theology. The bedrock of contemporary progressivism can only be described as quasi-religious. In sum, secularist progressivism today is less a political movement than a church....The so-called culture war...is [] a content of competing faiths: one in the Good Book, and the other in the more newly written figurative book of secularist orthodoxy about the sexual revolution.

And here, Kirsanow could be quoting Eberstadt (who, for example, compares embattled Christians to the victims of the Salem witch trials): "One reason for the bitterness surrounding the debate is that the secularists tend to make their interpretation mandatory for society. Because they consider the providentialist view a heresy, and often regard the non-elite adherents of the providentialist view with disdain, they are unwilling to allow different views to exist in different places." 

Kirsanow concludes his lengthy statement with the question Eberstadt suggests animates her book:  But why should secularists care about threats to religious freedom? 

Kirsanow's answer (read Eberstadt's book for hers!):  

Because if they destroy the moral and religious assumptions underpinning the idea of human dignity, they may accidentally destroy the idea of human dignity itself....As discussed earlier in this statement, the effort to force traditional religious believers to bow to certain sexual mores is really an attempt to replace the old faith with the new. But if the old faith is destroyed, and with it the idea of human dignity, the adherents of the new faith may rue the day they did so. Secularists may believe that they are simply expanding the idea of human dignity to encompass various important facets of human behavior, but in so doing they are destroying the foundation of the idea and are unlikely to find a similarly compelling basis. Revolutions often turn on their instigators. The Judeo Christian belief that man is created in the image of God, the imago Dei, undergirds Jefferson’s proclamation that “all men are created equal”. Despite the failures of its adherents, as is the case with any set of principles, this concept is the root of the traditional Christian belief that people are ends, not means, and that therefore every person - male, female, black, white, disabled, gay, straight - is inherently dignified, despite his undoubted sins and perhaps seemingly dubious prospect of salvation. Without that foundation, the idea that everyone has equal dignity is little more than a polite fiction to be brushed aside for greater convenience.

As perhaps an example of the transformative influence of imago Dei in Christian sensibilities, Kirsanow offers the Christian response to slavery in a later rebuttal statement in the report. It too is well worth quoting: 

Of course, there were Christian slave owners in America. That is indeed a repugnant period in American and Christian history but, unfortunately, unremarkable when viewed in the context of history as a whole. Slavery has been an almost universal institution. It is the abolition of slavery, largely because of individuals motivated by their Christianity, that is unusual. So, it is peculiar that the Chairman singles out Christianity for opprobrium in regard to slavery. Slavery has existed in almost every society and among the adherents of almost every major religion. But it was only in the Christian world that a serious critique of slavery arose. Those Christians who supported slavery were utterly unremarkable in the sweep of human affairs, no better or worse than millions of others throughout history. In contrast, it is remarkable, perhaps even astonishing, that there were Christians who rose far above the historical propensities of humankind to call for abolition as a religious and moral imperative. 

 

It was the self-avowed Christian British Empire that initially ended its own involvement in the international slave trade and then acted to curtail the slave trade within the Muslim world. As the Middle Eastern scholar J.B. Kelley wrote: "No movement of any consequence towards abolition ever arose of its own accord in the Muslim world; it was the reproach of Muslim slavery, not Christian, that men and boys were castrated for service in the harim; and it was a Christian nation, Britain, which led the campaign to end the Arab slave trade and to compel Muslim rulers to forbid it to their subjects. . . . It was [British officials], after all, who led the Arab tribes of the Persian Gulf to cease trading in their fellow Muslims, the Somalis."

 

Religious believers were also in the forefront of the civil rights movement. Of course, the most prominent leaders of the civil rights movement were disproportionately Christian ministers - Rev. Dr. Martin Luther King, Jr., Rev. Fred Shuttlesworth, Rev. Ralph David Abernathy, Rev. C.K. Steele. Rev. Theodore Hesburgh, perhaps our own Commission’s most renowned member, was among them. “More than 900 Catholics participated in the Selma protests” and a log of out of town participants in the Selma protests included “140 priests, 50 sisters, 29 ministers, four rabbis” [footnote omitted.] 

He concludes his statement quite gracefully, and for those of us living in this post-Roe era, most presciently, one thinks: 

A sense of modesty, humility, and perspective should temper our remarks about those who lived before us. We are all creatures of our own time, our minds and attitudes shaped by influences and assumptions of which we are largely unaware, our actions constrained by weighty responsibilities and unacknowledged self-interest. We all like to think that had we lived in the past we would be among the few righteous. But history is plain - the visionary righteous are few. Most of us are far more likely to have subscribed to the conventional wisdom of our time, or in good faith to have been unable to see our way clear to what is now considered self-evident. We cannot know the reasons future generations will condemn us. All we can know is that they will indeed condemn us, and hope that they judge us with more charity than the Chairman does our predecessors. 

 

Saint John Paul II . . . patron of alpinists?

I love this . . .