Thursday, September 28, 2017
In this (uncharacteristically) pretty low piece about Prof. Amy Barrett's personal religious activities, Laurie Goodstein of the NYT relies on the partisan distortions of Prof. Barrett's academic work that are still being pushed by an activist group called "Alliance for Justice." MOJ readers will recall that, at Barrett's hearing, some of the senators were fixated on a article she co-authored 20 years ago, as a student, regarding the obligations of Catholic judges in capital cases. Here's what Goodstein writes:
Ms. Barrett was questioned in particular about a 1998 scholarly article in which she and her co-author argued that sometimes Catholic trial judges should recuse themselves from the sentencing phase of death penalty cases. At the hearing, Ms. Barrett backed away from that position, saying she could not think of any class of cases in which she would recuse herself because of her faith.
It's not "back[ing] off", at all, to say (a) sometimes Catholic trial judges should recuse themselves frmo the sentencing phase of death penalty cases and (b) that the role of an appellate judge is not likely to present any situations that might similarly require recusal. Indeed, the article itself discussed the distinction between the two roles. Unfortunately, the Times piece simply serves as a vehicle for pushing the activist group's distortion.
Wednesday, September 27, 2017
Check out (MOJ-friend) Judge Stephen Dillard's excellent concurring opinion in this recent decision from the Georgia Court of Appeals. The case "involv[es] the removal of three children from their parents’ custody by the Coweta County Department of Family and Children Services (“DFCS”)[.]" This is one of those happy occasions where the Constitution of the United States (correctly understood) and the social teaching of the Church are, I think, on all fours. Here's a bit from Judge Dillard's opinion:
. . . Juvenile courts must be mindful that in every case, regardless of any perceived authority given to them by Georgia’s Juvenile Code to interfere with a natural parent’s custodial relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that “[p]arents have a constitutional right under the United States and Georgia Constitutionsto the care and custody of their children.”
I take this opportunity, then, to remind our juvenile courts and the State that, in making any decision or taking any action that interferes with a parent-child relationship, our Juvenile Code and established case law is subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions. As this Court has rightly recognized, “[t]he constitutional right of familial relations is not provided by government; it preexists government.” Indeed, this “cherished and sacrosanct is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.”
I agree. As I wrote, 17 years ago (!), in this essay, "[t]he law no more 'creates' the family than the Rule Against Perpetuities 'creates' dirt."
Tuesday, September 26, 2017
Commonweal has published my review of an important new book, Debating Religious Liberty and Discrimination, by Ryan Anderson, Sherif Girgis, and John Corvino. Here's an excerpt from my review:
The book’s fourth and, in my view, most important lesson: restoring relationships across the political divide does not necessarily require shared beliefs, but it will require shared work. The book’s tone in this regard was set by the introduction, jointly authored by Corvino, Anderson, and Girgis. They identify foundational principles and recite a history of religious liberty in our country. In an era of rampant “fake news” accusations, setting out agreed facts before proceeding to engage arguments is (unfortunately) a bold gesture. When it comes to religious liberty and nondiscrimination, if we cannot agree on where we should go, can we at least agree on how we arrived where we are? The authors can and do. Consensus about the facts should not be mistaken for concession on the normative claims, though; neither side pulls any punches in the arguments that follow. Anderson and Girgis identify specific areas of consensus with Corvino after 237 pages of back-and-forth criticism. Robust, honest, and respectful argument can be an impetus to authentic, if not total, agreement.
. . . I suggest that the immediate question is whether American society is properly civil. This question is intelligible and answerable, because the basic standard of civility is not in doubt: "Civilization is formed by men locked together in argument. From this dialogue the community becomes a political community." This statement, made by Thomas Gilby, O.P., inBetween Community and Society, (New York: Longmans, Green & Co., 1953.) exactly expresses the mind of St. Thomas Aquinas, who was himself giving refined expression to the tradition of classic antiquity, which in its prior turn had given first elaboration to the concept of the "civil multitude," the multitude that is not a mass or a herd or a huddle, because it is characterized by civility.
The specifying note of political association is its rational deliberative quality, its dependence for its permanent cohesiveness on argument among men. In this it differs from all other forms of association found on earth. . . .
It is otherwise with the political community. I am not, of course, maintaining that civil society is a purely rational form of association. We no longer believe, with Locke or Hobbes, that man escapes from a mythical "state of nature" by an act of will, by a social contract. Civil society is a need of human nature before it becomes the object of human choice. Moreover, every particular society is a creature of the soil; it springs from the physical soil of earth and from the more formative soil of history. Its existence is sustained by loyalties that are not logical; its ideals are expressed in legends that go beyond the facts and are for that reason vehicles of truth; its cohesiveness depends in no small part on the materialisms of property and interest. Though all this is true, nevertheless the distinctive bond of the civil multitude is reason, or more exactly, that exercise of reason which is argument.
Friday, September 22, 2017
More info here!
The Notre Dame Institute for Advanced Study (NDIAS) brings together leading thinkers from around the world to live and work at the University of Notre Dame as Fellows in a residential intellectual community. The Institute supports outstanding, innovative research in all academic disciplines that is directed toward, or extends inquiry to include, ultimate questions and questions of value, especially as they engage the Catholic intellectual tradition. Consistent with, but not limited to, this tradition the NDIAS encourages its Fellows, regardless of their particular expertise and research,
to think about their work with a view toward the unity of knowledge in a manner that pushes beyond mere interdisciplinarity; and
to explore the relationship between the descriptive (the world as it is) and the normative (the world as it should be).
Wednesday, September 20, 2017
During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit. A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.
More surprising, and disappointing, than these scholars' defenses have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal. [UPDATE: What I say below applies also to Cathy Kaveny's Washington Post op-ed, defending Feinstein's questioning.] In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing. Read the linked-to pieces for yourself. Then, consider these thoughts of mine, for what they are worth:
- (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role. It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations. This kind of questioning does not violate the "No Religious Tests" Clause of the Constitution.
- (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views. In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X. This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.
- (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken). The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different. Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations. Rather, Sen. Feinstein said this:
Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.
This is not an appropriate question. (Nor was Sen. Durbin's "are you an orthodox Catholic?") This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism. It's what was done to Al Smith and John F. Kennedy. Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your faith commitments." Sen. Feinstein's critics are right; her defenders are wrong. The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they). The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly."
A few posts ago, I recommended Matthew Crawford's book, The World Outside Your Head. To convince MOJers to pick it up, I wanted to offer an excerpt. From the book's final chapter, in a section called "The Dialectic with Tradition," I pull here the lessons from Crawford's study of organ-makers. (This is transcribed from the audio, so excuse formatting or other mistakes.)
We moderns have inherited a view that pits the technical spirit versus tradition. Partisans of the first will say it embodies reason and that the latter amounts to little more than inherited prejudice. For their part, partisans of tradition often see in technology a spirit of vandalism that can only destroy meaningful human activity. But to be in conversation with a tradition is a kind of rationality, a mode of thinking that helps us get at the truth about things....
The dialectic between tradition and innovation allows the organ-maker to understand his own inventiveness as a going-further in a trajectory he has inherited. This is very different from the modern concept of creativity which seems to be a crypto-theological concept: creation ex nihilo. For us, the self plays the role of God and every eruption of creativity is understood to be like a miniature Big Bang coming out of nowhere. This way of understanding inventiveness cannot connect us to others or the past. It also falsifies the experience to which we give the name creativity by conceiving it to be something irrational, incommunicable, unteachable....
According to the Enlightenment concept of knowledge we explored [earlier in the book], the exemplary sort of knower is a solitary figure and his knowing happens always in the present tense. He is not encumbered by the past nor does he recognize the kind of authority that operates in communities. His arguments are demonstrative... they float free of any particular historical circumstances or set of lived experiences. Tradition is thus disqualified as a guide to practice. Tradition may convey some truths, it will be conceded. But to be ratified as such, the truths in question must be scrutinized by a mode of reasoning that is independent of what came before. To be rational is to think for oneself. For the most part, this Enlightenment understanding views tradition as a darkness that grips men's minds and a habit of inflexibility to be rooted out. But this view gets a lot wrong.
As we saw also in the case of scientific apprenticeship [earlier in the book], in the development of any real competence, we don't judge everything for ourselves, starting from scratch each morning. Rather we have to begin by taking a lot on faith, submitting to the authority of our teachers, who learn from their teachers. The individualist conceit that we do otherwise - and the corresponding discredit that falls on tradition - makes people feel isolated. As we learned from Tocqueville, this isolation brings with it a certain anxiety which we try to relieve by looking around to see what others - our contemporaries - are thinking and feeling. The rugged individualist becomes the statistical self....
In the book, Crawford dives deep again and again into various sorts of expertise (e.g., short order cook, hockey player, glass-maker, motorcyclist, engineer) to show, among other lessons, the reality of the human person as a situated, embodied self who develops competency and independent judgment within the tradition within which he or she works, "going-forward from" but always dependent upon it. In a word, we are only capable of independent judgment - of thinking for ourselves and innovating anew- when we've appropriated the traditions from which we come. Only then can we look back with reasoned critique. But in making our critique, we best be wary of tearing out root and branch that which has given us the capacity to do so.
[Sept 24 update: Thanks to a reader, original typo corrected.]
I am not on social media much, but from what I gather the vitriol that seems often to characterize the medium has heated up on religious matters. Whether it's with regard to the unconstitutional treatment of judicial nominee Amy Barrett, Fr. Martin's new book, Building a Bridge, or Pope Francis (always Pope Francis), online religious warfare is apparently at its zenith. This should concern all who care about faith - but even more broadly, all who care about reason. After all, it is the capacity to offer coherent reasons for one's perspective, as well as the capacity to listen and civilly engage those who differ, that makes constitutional democracy possible--and well, we live in one.
The founders of our republic took a great risk in presuming human beings could engage in public-spirited dialogue about matters of the common good. But to them, the historical alternative was not all that appealing. And we might be reminded of that from time to time. Religious warfare - even of the increasingly digital variety - leads neither to changed hearts nor minds, and it certainly does not lead to peace among people. It degrades the human person - who by his capacity to reason most distinguishes him from the animals - and it degrades the common life we live together.
So I was happy to see Bishop Barron's address to employees at Facebook earlier this week. Bishop Barron, like Pope Benedict and others before, does even more good in his defense of reason than even in his defense of the faith. His talk, "How to Have a Religious Argument," brings together many of his recurring themes, but most especially that faith is opposed to neither reason nor science. The talk is outstanding as a matter of apologetics. There is simply no one better.
But perhaps the talk is most instructive in its final minutes when he walks the audience through the medieval method of disputation as best exemplified by the great St. Thomas Aquinas. Thomas formulates arguments for atheism far better than the modern atheists, Barron tells his audience; perhaps you might go and read them. No argument is off the table; best to know your interlocutor's argument better than even they do, noting points of agreement when you see them; treat each person with whom you disagree with the respect he or she deserves.
None of us is Thomas Aquinas, and few of us can treat an opposing argument with the charity and dexterity Bishop Barron does, but we can all seek to improve along these lines. As Catholic lawyers, we have an obligation to do so. For if not us, who else will?
Bishop Barron offers a way forward, but not just for religious argument. The medieval approach to dialogue, disagreement, and debate that Barron recommends would do our republic a whole world of good. If we cannot restore the capacity for reason-giving, if all disagreement becomes a battle of the will to power, we have seized to be a republic. I, for one, am not ready to give up on that project yet.
Call for Papers: Law and Development Conference - The Catholic University of America and Jagiellonian University in Krakow, Poland
The American Law Program at the Catholic University of America School of Law and the Jagiellonian University in Krakow, Poland are hosting a fabulous conference next year which will be of interest to all MOJ readers and contributors. They have issued a call for papers and I encourage all to consider a submission. Here is a summary of the purpose of the conference which will be held in Krakow - a beautiful city if you have not had the pleasure of teaching there. I have highlighted the specific aspects that may be of interest.
"Academic purpose: The research project’s aim is to look at the concept of ‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching.
‘Development’ may be seen as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.
This research project is also about how different approaches to ‘development’ and their impact on law may coexist in pluralistic and multicultural societies and how to evaluate their legitimacy. The problem may be analyzed from the overarching theoretical perspective as well as based on case studies stemming out from different legal branches."
The details regarding submission and the opportunity for publication are as follows:
Dates: March 16, 2018
Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at [email protected] Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.
Publication: The best conference papers will be published with Catholic University Law Review. Final draft will be due by late January 2018 for those who would like to be considered for publication.
Tuesday, September 19, 2017
Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018
In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.
Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:
Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)
Definition and classification of both religious violence and religious extremism
What is the relationship between religious freedom and religious extremism?
Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?
How should we distinguish between a deeply religious lifestyle and extremist
What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)
How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE
Faculty of Law
Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?
Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?
What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?
The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.
An abstract of 500 (max.) words should be sent to [email protected] no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
All participants will be provided three days of hotel accommodation and board during the
After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.
The organizing committee:
Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA
JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state