Friday, April 28, 2017
A nice thought, from Prof. John Witte (Emory):
“History is more than simply an accidental chronology of first one thing happening, then another. For me, history is also a source of revelation, a collection of wisdom. The archive is a treasure trove. Old books are windows on truth. The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust.”
Yesterday I posted to SSRN the introduction to my new book. Several issues I address in the book are issues that engage many MOJ readers: the religious v. secular grounds of human rights (chapter 2); the human right to religious/moral freedom (chapter 4); the proper role of the judiciary in resolving constitutional controversies that are also moral controversies, such as the constitutional controversies over capital punishment, same-sex marriage, and abortion (chapters 5-6); and human rights of the socioeconomic sort—such as the human right to adequate healthcare—which are the sort of human rights with which Catholic social teaching has long been concerned (chapter 7). Here is a link to the introduction. The abstract:
This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.
The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?
The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.
The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional interpretation — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?
Thursday, April 27, 2017
Last week I had the great honor of receiving the Susan B. Anthony Award for Commitment to Life from the Harvard Law Students for Life. (I'm pictured below with the incoming president of the organization, Steven Obiajulu.) The organization was founded by a merry band of students in 2016, advised by the ever courageous Mary Ann Glendon and fellow MOJer Adrian Vermuele. The students presented the inaugural SBA award last year to Robert George.
Over lunch, I gave a lecture to the law school community, co-sponsored by the HLS Federalist Society. My topic, "Revisiting Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" was a summary of a law review article I've written for a symposium on the 14th Amendment and abortion, convened by Steve Gilles at Quinnipiac University School of Law. The symposium, inspired by Steve's recent pro-life legal scholarship, took place at Quinnipiac this past Saturday and included contributions from Michael Stokes Paulsen and Charles Camosy (as well as Steve and myself). The articles will be published in the Quinnipiac Law Review's late summer issue. (NB: The dean of the law school, Jennifer Brown, participated in symposium in its entirety, offering incisive questions and important critique. Her support of Steve's work -- and her engaged and thoughtful participation in the Symposium -- are an admirable example of an institutional commitment to intellectual diversity. Bravo!)
For those who haven't read Gilles' pro-life work, Why The Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- and Why It Matters, 91 Notre Dame L. Rev. 691 (2015) is a good place to start. His forthcoming article is a much-needed critical analysis of Whole Women's Health v Hellerstadt, and specifically, Justice Breyer's failure to be faithful to Casey. With characteristic surgical precision, Gilles explores the Casey compromise, and why Hellerstadt could be a bigger blow than some might realize.
My forthcoming article argues that Casey has been inadequately understood by those most critical of it. Specifically, I argue that concerns about women's equality are the interpretative lens through which to read the substantive due process discussion (re women's "unique liberty"), the attempted (and I think failed) comparison of the contraception cases with Roe and its progeny, and finally the stare decisis holding (wherein the oft-quoted 'reliance' language makes its debut). (Much too could be said about the spousal notice discussion but I give it only a footnote, perhaps to return to it more fully some other day.) Here's a bit from my HLS talk:
Many have ably critiqued the Court’s use of stare decisis in Casey both as a general constitutional matter and by taking each of the considerations the Court reviews one by one...most notably the late Justice Scalia in his Casey dissent and eminent constitutional law professor Michael Stokes Paulsen. But when, in the Joint Opinion, the Court declared that “a terrible price would be paid for overruling [Roe],” both Scalia and Paulsen understand the Court to be concerned primarily with the legitimacy and integrity of the Court itself. Though it’s probably not so prudent to argue against these two constitutional giants, I think the text of the Joint Opinion indicates that the Court was actually primarily concerned with something else: the impact reversal would have upon women’s enhanced status in society. This is not to say that the voiced concern for the court’s legitimacy and institutional integrity expressed in Part III of the Casey decision was not important to the justices in the plurality, for surely the space afforded and the sheer energy manifest in that part reveal that it was.
It is to say, however, that by its own terms, Casey indicates that women’s constitutionally protected "liberty" to access abortion to “participate equally” in the “economic and social developments” of the nation is the key concept undergirding the controversial reaffirmation. Now perhaps the Court’s concern about its own institutional integrity may have gone hand in hand with worries about how the Court would have been perceived had it upended the constitutional right to abortion--what had become, over the intervening nineteen years, the sine qua non of the modern day women’s movement. My point here is not to disturb others’ critiques of the stare decisis or institutional integrity arguments; my point is only that critics of Casey have not taken the underlying concerns about women’s equality seriously enough.
I spend some time exploring and then critiquing the reliance arguments concerning the interplay between abortion and contraception (arguing, most fundamentally, that the moral hazard effects of abortion as a back up to failed contraception has made this interplay far more complex than the Casey plurality assumes). I then look at the reliance arguments concerning women's equal participation in social and economic life. Here's some from the presentation, where I borrow from Justice Holmes' dissent in Lochner to shape my point:
[W]hen Holmes wrote in his Lochner dissent that "a constitution is not intended to embody a particular economic theory,” I would suggest that these words are equally applicable to Roe, and more explicitly to Casey, if one replaces “economic theory” with “feminist theory.” For by constitutionalizing the right to abortion in Roe, and reaffirming it through equality reasoning in Casey, that is precisely what the Court was doing: it illicitly appropriated a particular feminist theory, newly popularized in the 1970s, into the Court’s interpretation of the 14th amendment --with social consequences that remain salient for women today....
Just as the Lochner court chose to constitutionalize one particular theory of how to respond to the asymmetries in the employer/employee relationship after the cultural upheaval of the Industrial Revolution, Casey doubled down on a particularly inhumane way of securing women’s increased social status in society after the Sexual Revolution. In so doing, Casey thwarted more humane responses to the asymmetries that naturally exist—and socially persist—due to women’s disproportionate role in human reproduction.
I'll post when the issue comes out.
Wednesday, April 26, 2017
Another book you may wish to consider for your summer reading list is All Falling Faiths: Reflections on the Promise and Failure of the 1960s, by J. Harvie Wilkinson III.
An exchange that stood out to me in David Lat's ATL interview with Judge Wilkinson about the book was the one that elicited Judge Wilkinson's statement that "the audience is anyone who loves America":
DL: I think the book will interest a wide range of readers for a wide range of reasons — but did you have a particular reader or group of readers in mind when you were writing it?
JHW: The audience is anyone who loves America. All of us can still help to repair the damage that long-ago decade did to the spirit of tolerance in education, to the stability of family bonds and units, to the rule of law, to our sense of America as our home, to our capacity for national unity even in times of crisis, and to the sustenance we derive from the practice of religious faith. It’s also important to recognize, however, that the 1960s did great good and helped to broaden America’s embrace of all its citizens, not just some. I hope that by the end of the book, each reader will come at least to appreciate the other side of the enduring ‘60s argument.
I believe the generation of the Sixties has been given one last chance to get it right. We can help upcoming generations learn from our experience. And we can devote our later years to bringing together the nation we did so much in our youth to drive apart. We owe our beloved country at least this much, before we leave Shakespeare’s stage and life itself for good.
Marc DeGirolami and I wrote an article a few years ago that explored the relationship between constitutional adjudication and constitutional theory through a study of some judicial and extrajudicial writings by Judge Wilkinson and Judge Posner. We contended that their anti-theory stance, together with their advocacy for judicial restraint and judicial pragmatism, respectively--which functioned in some important ways similar to the theories that they criticized--were best understood as accounts of judicial dispositions in constitutional adjudication. Judge Wilkinson's new book, together with his and Judge Posner's judicial and extra-judicial writings since Marc and I wrote, provide some evidence for the comparative attractiveness of the dispositions advocated by Wilkinson over those advocated by Posner.
Monday, April 24, 2017
Last month St. Gregory's University held a wonderful conference, "Leisure and Labor: The Liberal Arts and the Professions," inspired by our mission as a university and Joseph Pieper's great work, Leisure the Basis of Culture. There were many highlights, including my daughter's paper on the practical arts (cooking, sewing, etc) as preparation for the liberal arts, Fr. Schall's wonderful paper, Robert Royal's penetrating insight, Teresa Collett's practical wisdom, and many others. I hope at some point to be able to blog more on the substance of these papers, but I fear that the book of conference papers will probably appear before I have the chance.
The conference was planned around my inauguration as President (HT to John Garvey for giving me the idea of a conference at the time of an inauguration). An edited version of my inaugural address was published today in Crisis. Here is a taste:
The dialogue between Martha and Jesus in Chapter 10 of Luke’s Gospel captures the essence of this relationship between labor and leisure. Mary sits at Jesus’s feet, attentively listening to him, while Martha serves the guests. “Martha, burdened with much serving, came to [Jesus] and said, ‘Lord, do you not care that my sister has left me by myself to do the serving? Tell her to help me.’” Jesus replied, “Martha, Martha, you are anxious and worried about many things. There is need of only one thing. Mary has chosen the better part and it will not be taken from her.”
Reflecting on this passage in his Angelus message on July 18, 2010, Pope Benedict XVI said that this Gospel passage “recalls the fact that the human person must indeed work and be involved in domestic and professional occupations, but first and foremost needs God, who is the inner light of Love and Truth. … And who, if not Jesus Christ, gives us Love and Truth?”
Friday, April 21, 2017
From his very interesting article in the latest issue of First Things, "The Tragedy of the Republic," in which Manent explores some of the themes of Shakespeare's Roman plays in describing the nature of a republic:
The first political dimension is especially disagreeable and bitter for us, but for this reason it is particularly useful: The principle of the republic is aristocratic; the spirit of those who govern a republic is aristocratic pride, the pride of the few who are capable and virtuous. Coriolanus takes this pride to the point of insolence and furor, but it remains the general principle of the regime. The life of the republic rests on the emulation of those who judge themselves to be the most capable of governing the city and who expect from the city honors proportionate to their service. This aristocratic character belongs to the essence of a self-governing political body, one that wishes to be governed by the best. The modern device of representation is designed to manufacture artificially, with the consent of the many, a few who are capable, if not virtuous.
Tuesday, April 18, 2017
John T. Noonan, Jr., judge of the Ninth Circuit since his appointment in 1985, has died. He was 90. A good and faithful servant of our Lord first, he was a jurist of great distinction and a legal historian with a breadth approached by none. If you haven't read his book, Persons and the Masks of the Law, now is the time -- it shows how love works in law. Please join me in praying for the happy repose of the soul of John T. Noonan, Jr., a man who unashamedly communicated love wherever he traveled.
Friday, April 14, 2017
Prof. Carl Esbeck has posted a succinct, and very helpful, response to the currently popular theory that discretionary religious exemptions violate the Establishment Clause whenever they result in "third-party harms." Here is the abstract:
The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these new burdens, an accommodation for those holding conflicting religious beliefs or practices. Such religious exemptions are enacted at the discretion of the legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. In an unbroken line of cases now spanning a century, the Supreme Court has seven times rejected the argument that a religious exemption contravenes the Establishment Clause. In some instances, no doubt, lawmakers should exercise their discretion and deny an exemption for religious observance. What is not the law is that the presence of adverse effects on those who do not benefit from an exemption causes an otherwise lawful accommodation to violate the Establishment Clause.
Cases involving a religious preference are being confused with exemptions. An exemption occurs when a dissenter’s religious practice is simply left alone even as others are made to labor under a new burden of the legislature’s creation, be it a tax or regulatory duty. Government does not establish religion by leaving it alone. An exemption, rather, ensures that a new regulatory burden on others is not also thrust in the path of individuals who are already inclined to follow the dictates of their faith. Because the government’s exemption is not the causal agent behind the religious observance, any harm to third parties is the result of private conduct. Harm redressable under the Establishment Clause must be injury that was caused by the government, not private actors.
A preference, on the other hand, arises when the government takes note of a disagreement in the private sector that involves religion. If a law is adopted that takes the side of the religious disputant, the government is intentionally preferring religion. The favoritism occurs in a situation not of the state’s creation, but in circumstances arising out of private social or market forces. Should the form of the government’s intervention go on to “unyieldingly” side with religion such that any costs to others are not weighed in the balance, then the Court will strike down the preference. The operative Establishment Clause rule is that persons in the private sector should not be forced to readjust their lives just so that a neighbor can better conform to his or her religion.
Along with the foregoing preferences, progressives want religious exemptions to be balanced against any incidental harms that befall third parties. They want this not as a matter of legislative discretion, but as a constitutional imperative. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” as a juridical category can be both defined and bounded. It cannot. Additionally, the logic behind this category is in danger of expanding and could end up overwhelming most every religious exemption.
The founding generation did not regard a religious exemption as an establishment. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse religions.
Regular MOJ readers (and those burdened by social-media connections with me) will know that, for quite a while, I'd been looking forward to the release of Martin Scorcese's production of "Silence", by Shusaku Endo. I saw it -- in a theater, even! -- last week and was moved, impressed, provoked, and unsettled.
There are a lot of reviews and interpretations out there already (some of which seem to be more about the author's theological or political hobby-horses than about the book, the film, the author, or Scorcese), and I won't try to referee the arguments here. The film is, like the book, ambiguous -- deliberately so, I've always assumed. I do not pretend to know what Scorcese "intended" to communicate, but -- as I saw it -- the production paints statist anti-Christian persecution as the evil that it was, and is; depicts sympathetically the pain (physical and spiritual) that such persecution causes; and admiringly portrays the courage of martyrs, even as it evokes sympathy for those who stumble (as we all do). The sound, the imagery, the color, the scenes and settings - all great. Highly recommended.
A blessed Easter to all!