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, November 14, 2017

In City Journal: "Taking the Catholic out of Catholic universities"

A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it.  I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame.  The author writes:

Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.

I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges.  At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc.  As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!). 

November 14, 2017 in Garnett, Rick | Permalink

Monday, November 13, 2017

Law & Religion Moot Court competition at Touro

Touro Law Center is pleased to announce the Fifth Annual National Moot Court Competition in Law and Religion.  More info is available here

November 13, 2017 in Garnett, Rick | Permalink

A Putative Right in Search of a Constitutional Justification

I've recently posted on SSRN my forthcoming article, "A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v Casey's Equality Rationale and How it Undermines Women's Equality." In the article, I argue that women's equality is the key interpretative lens through which to understand Casey's controversial reaffirmation of Roe but one that has not been understood adequately by those most critical of Casey. The article aims to fill the void - and specifically critiques the "reliance" arguments made in Casey.  It could be understood as a companion to my 2011 HJLPP article, "Embodied Equality." 

The Federalist Society at Harvard and Yale law schools have had me to campus to speak on the article in recent months. I'll be out at Stanford in February doing the same. 

Also, happy to announce I am beginning a year-long fellowship at Harvard Law School in February as a Visiting Scholar, under the faculty direction of Mary Ann Glendon. I am working to complete a book on women's rights that most prominently features her work.

November 13, 2017 in Bachiochi, Erika | Permalink

Friday, November 10, 2017

Falsehoods on Barrett (Will) Continue

Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in  the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.

There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.

There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.

So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.

November 10, 2017 in Berg, Thomas, Current Affairs | Permalink

Good, Evil, and Criminal Law: A Report from the Center for Ethics and Culture

As Marc mentioned the other day, the annual Fall Conference sponsored by the Notre Dame Center for Ethics & Culture is in full swing.  (It's always a wonderful event.)  I had the pleasure of moderating a panel of law-professor-Criminal-Law-profs, including our own Marc DeGirolami and Cecelia Klingele, and also MOJ-friends John Stinneford and Meghan Ryan.  It isn't always the case that multi-speaker panels actually cohere with each other, or with the panel's ostensible theme, but this one definitely did.

Meghan provided an overview and orientation of the various purposes and goals of punishment; John reflected on what exactly "punishment" is and the extent to which it is (or should be) connected to moral blameworthiness (and not merely social control); Marc discussed the different ways we have talked about, and talk about today, "evil" (with reference to, inter alia, Arent, Mill, and Stephen); and Cecelia rounded things out with some cautionary notes about the moves in Criminal Law and corrections in the direction of algorithm-driven risk-assessment and big-data-dependent predictive policing.  A good time was had by all! 

November 10, 2017 in Garnett, Rick | Permalink

Thursday, November 9, 2017

Bolshevism is Back!

In Iron Curtain: The Crushing of Eastern Europe, 1944-1956, Pulitzer Prize-winning historian Anne Applebaum tells the simultaneously captivating and tragic story of the degradation of Eastern Europe as it was absorbed into the Soviet empire after World War II. In little more than a decade, the vibrant and rich cultures of many Eastern European nations were stripped to the bone so that they could be reincarnated as totalitarian systems beholden to a communist ideology.

In a 2014 post here at Mirror of Justice about Applebaum’s award-winning book, I highlighted the antipathy of Soviet Lenin
occupiers to the Catholic Church in Poland and Hungary, precisely because “[r]eligious leaders were a source of alternative moral and spiritual authority.” Following the Leninist path taken earlier by the 1917 Bolsheviks, the Soviet occupiers of Eastern Europe were bent on “crushing” civil society, banishing tradition, suppressing diversity of thought, and burning down all institutions. Only then could they sow the new communist seed into the freshly scorched earth.

Earlier this week in the Washington Post, Anne Applebaum drew upon her considerable historical wisdom to warn us about the resurgence of Bolshevism with its nihilistic attitude of destruction in today’s western society and in the United States. In a column titled 100 Years Later, Bolshevism is Back. And We Should Be Worried, Applebaum reminds us that the ascendance of Bolshevism in Russia in 1917 came suddenly and with little warning. The economic and cultural devastation that Lenin and the Bolsheviks brought to Russia came not through a popular movement but rather by the calculated extremism of a chaos-worshipping minority. The popular and moderate regime that initially succeeded the Czar was suddenly swept away by the intransigent Bolshevik leaders, who brooked no compromise, reveled in smashing everything before them, and boldly seized power for a fanatical minority.

The signature characteristic of Bolshevism was then (and remains today) not its socialist ideology as much as its uncompromising hatred of anything and everything that stands in the way of absolute power. The Bolshevik game-plan is a cynical play for power by fomenting chaos and disrupting civil society. Thus, as Applebaum explains, the neo-Bolsheviks of today can be identified not so much by liberal/left or conservative/right ideology but by their origins on “the extremist fringes of political life” and their desire “to overthrow existing institutions.”

To be sure, heirs to Bolshevism can be found on the far left of American political life, especially on campuses where the Marxist fringe, as described by Applebaum, “policies the speech of its members, fights to prevent students from hearing opposing viewpoints, and teaches a dark, negative version of American history, one calculated to create doubts about democracy and to cast shadows on all political debate.” But while we should be troubled by this development and worry about its foothold on the edges of the Democratic Party, it has not yet tasted power.

By contrast, the Bolshevism of the American right has grasped political power. The key strategy of these modern Bolsheviks of the right is what Applebaum calls their adoption of “Lenin’s refusal to compromise, his anti-democratic elevation of some social groups over others and his hateful attacks on his ‘illegitimate’ opponents.” As Applebaum notes, Stephen Bannon has Bannon
been rather candid by expressly comparing himself to Lenin, saying he has the same goal of “bring[ing] everything crashing down.” Consider the deliberate chaos promoted by the Trump White House team, the pattern of falsehoods in perpetuating political myths, and the constant attempts to delegitimize political opponents while provoking outrage by a small base of true believers. As a particular worry to people of faith and conscience, these neo-Bolsheviks are “often not real Christians, but rather cynics who use ‘Christianity’ as a tribal identifies, a way of distinguishing themselves from their enemies.”

The Russian Bolshevik revolution in 1917 shocked all observers with its sudden fury and unexpected success, while lacking anything approaching majority support in Russia. If we are not careful, so too the Trump insurgency might still succeed in its authoritarian agenda despite waning support from a tiny minority of the population. As Applebaum warns, we must not be complacent:

At the beginning of 1917, on the eve of the Russian revolution, most of the men who later became known to the world as the Bolsheviks were conspirators and fantasists on the margins of society. By the end of the year, they ran Russia. Fringe figures and eccentric movements cannot be counted out.

November 9, 2017 in Sisk, Greg | Permalink

Wednesday, November 8, 2017

"Irony and Religious Freedom" (at Notre Dame Conference)

Thanks to Marc for posting about the Notre Dame Center for Ethics and Culture conference on Good and Evil. Sounds like a great criminal-law panel. As Marc notes, I'll be presenting (in a different panel) on the concept of irony in religious-freedom disputes, somewhat along the lines that I and Marc discussed on the blog a while back.

November 8, 2017 in Berg, Thomas | Permalink

Good and Evil at Notre Dame

I'm delighted to be participating in the annual conference of the Notre Dame Center for Ethics and Culture, which begins tomorrow and runs through Saturday. This year's theme is "Through Every Human Heart" and focuses on ideas of good and evil. 

I'm on a criminal law panel moderated by Rick Garnett and together with Cecelia Klingele, John Stinneford, and Meghan Ryan. I think Tom Berg is also on another panel involving free speech. My remarks will consider the fate of evil as a concept in scholarship about criminal law and punishment. If I have some time left over, I'll talk about good too. My general thesis is that both of these ideas are basically irrelevant in academic discussion of criminal law (I wrote something about this when I was just a young MOJ pup years back).

November 8, 2017 in DeGirolami, Marc | Permalink

Tuesday, November 7, 2017

A quick response to Stephen Schneck on "How Catholics Should Vote"

A few days ago, Stephen Schneck posted this reflection at U.S. Catholic.   Although I agree with most of what he writes, I have a few quibbles, too.  

First, under "Practice Politics," he writes "Catholic teachings insist on the importance of voting."  True, but I'd want to clarify that voting's "importance" does not mean that, in every election, Catholics are morally obligated to vote.  Not only are there many other ways to effectively "practice politics," it could also be the case that one communicates an important point by not voting.

Second, under Reflection 3 ("Discern the Common Good"), he writes:  

The measure for the common good is not military prowess, technology, or the Dow Jones Index; it is instead the quality of life of the least among us. In Catholic teachings citizens should vote with the least among us foremost in their minds.

It strikes me that this way of putting things is running together two distinct ideas:  First, it seems right that, as a matter of solidarity, we should take special care to practice politics in such a way as to protect the vulnerable.  The "common good," though, is usually defined in the Catholic Social Tradition (See Catechism para. 1906-09):

 "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."26 The common good concerns the life of all. It calls for prudence from each, and even more from those who exercise the office of authority. It consists of three essential elements:

1907 First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."27

1908 Second, the common good requires the social well-being and development of the group itself. Development is the epitome of all social duties. Certainly, it is the proper function of authority to arbitrate, in the name of the common good, between various particular interests; but it should make accessible to each what is needed to lead a truly human life: food, clothing, health, work, education and culture, suitable information, the right to establish a family, and so on.28

1909 Finally, the common good requires peace, that is, the stability and security of a just order. It presupposes that authority should ensure by morally acceptable means the security of society and its members. It is the basis of the right to legitimate personal and collective defense.

So, one of the conditions that makes up the common good is "the stability and security of a just order" and, relatedly, effective "collective defense."

Finally, Schneck writes that "[i]n Catholic teachings citizens should vote for the virtuous."  Not necessarily.  For starters, we don't always (to put it mildly) have that option.  It seems that this reflection is running together the importance of "policies that inculcate virtue" with a policy of "voting for the virtuous."  It could easily be, in any given election, that the prudent course -- the best way to secure policies that inculcate virtue and protect the common good -- is to vote for a particular candidate who is not particularly commendable in terms of his or her character.  Now, to be clear:  I do believe, and have for as long as I can remember, that "character matters."  (As I discussed about a year ago, here.)  A candidate's lack of virtue or a candidate's bad character will often be good reasons to vote against him or her.

Like I said . . . quibbles!     

November 7, 2017 in Garnett, Rick | Permalink

Upcoming event at Georgetown's Initiative on Catholic Social Thought and Public Life

I'm looking forward to joining Melissa Rogers and Bishop McElroy for a discussion at this event:

Faith, Common Good, and Democracy in a Time of Pope Francis and President Trump

Before his death 50 years ago, John Courtney Murray, S.J., the preeminent Catholic theologian on democracy and religious freedom, wrote that people: 

of all religions and of no religion must live together in conditions of justice, peace and civic friendship, under equitable laws that protect the whole range of human rights, notably including the right to religious freedom. It is therefore necessary for the Church to show the way to justice and peace in society…

The implications of Murray’s call to action in our polarized politics and challenged Church will be explored in a one-on-one conversation with Bishop Robert McElroy of San Diego, who authored the book The Search for an American Public Theology: The Contribution of John Courtney Murray (Paulist Press, 1989). The bishop will then be joined by former executive director of the White House Office of Faith-based and Neighborhood Partnerships Melissa Rogers and Professor of Law and Associate Dean at the University of Notre Dame Richard Garnett for further discussion of faith, the common good, and democracy. These panelists will answer several key questions:

  • What are the legacy and lessons of Murray’s groundbreaking work on faith and democracy? 
  • How are religious freedom and the common good threatened and advanced today?
  • How do these principles challenge us in a nation led by President Trump and in a Church led by Pope Francis?

John Carr, director of the Initiative on Catholic Social Thought and Public Life, will moderate the Dialogue.

November 7, 2017 in Garnett, Rick | Permalink