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.

Sunday, December 30, 2018

2018 Heritage Foundation "President's Essay"

Each year, the President of the Heritage Foundation invites a thinker in the conservative tradition to write an essay to be published under Heritage's auspices as the "President's Essay." Past essayists include Whittaker Chambers, Michael Novak, Russell Kirk, Friedrich Hayek, Midge Decter, William F. Buckley, Jeane Kirkpatrick, Norman Podhoretz, James Q. Wilson, and Ryan T. Anderson. I'm grateful to Heritage's President Kay Coles James for inviting me to write the 2018 essay. It has now been published. Here is the text.


Returning to Our Principles

2018 Heritage Foundation President’s Essay

Robert P. George

The United States of America is a great country. It has achieved remarkable things. It has proven that republican government--government not only of the people (which all government is) and for the people (which all decent government is, even that of a benign despot) but by the people--can indeed "long endure." Our nation's record is not perfect and should not be whitewashed. Slavery and racial and other injustices are, alas, part of our story. But they are not the whole story. The efforts of our people--acting in deeper fidelity to our founding principles--to right historical wrongs and secure "liberty and justice for all" are also part of the story. And there is more.

The United States has created hitherto unimaginable prosperity and provided millions upon millions of people with unprecedented opportunities for economic and social advancement. It has welcomed immigrants--in astonishing numbers--and enabled them to become Americans--as truly and fully American as the descendants of those who came to North America on The Mayflower. It has defeated tyrants and tyrannies that have credibly sought nothing short of world domination.

And yet Americans are uneasy, unhappy, worried. Many are disaffected. At the extremes, small radicalized factions embrace violence against political opponents. Some stop short of endorsing violence but deploy a rhetoric of demonization that if unchecked will surely corrode the civic friendship--what Lincoln in his first inaugural address called "the bonds of affection"--on which the success of republican democracy vitally depends. Incivility in politics is scarcely something new, but some today regard it as a virtue. That is new. Even some who claim the mantle of conservatism seem to have been lured into an attitude of tribalism and identity politics. How should true conservatives understand our problems, and what should we propose to do about them?

As a conservative, I believe that at the heart of our woes is what has so often been at the heart of our woes whenever we have had woes, going all the way back to the original sin of slavery: infidelity to our nation's founding principles. Those principles include our formal constitutional commitments as well as the moral and cultural norms, practices, and understandings upon which those commitments depend. America is great. And the promise of America remains great. But in many crucial areas we have indeed gone astray. If America is to be true to herself, and if she is to fulfill her promise, things must be turned around.

Because our founding principles are true and good, they are demanding. It is not easy to live up to them, and we will never do so perfectly. Temptations to infidelity will always be with us. All the unsavory qualities of human nature that James Madison identified in the 10th Federalist Paper--and more--make it a challenge for us frail, fallen, fallible human beings to "hold fast to the right," in the words of the old hymn. We must summon the best in ourselves to overcome the weakest and worst in us if we are to resist temptations to sacrifice justice, virtue, honorable liberties, and the authentic demands of the common good for the sake of this or that shiny object: security, comfort, ease, being looked after, being protected from the possibility of failure, having special or dominant status--you name it.

If we are to overcome our woes, if we are to renew our great nation in the only way that our nation ever can be renewed--by returning to our first principles--then labor and sacrifice will be required of all of us. We must restore our national commitment to limited government and the rule of law. This will include the restoration of the constitutional separation of powers and the recovery of the principles of federalism. In particular, our national government must be returned to its constitutional status--to which even liberal jurists and constitutional scholars pay lip-service, even today--as a government of delegated and enumerated (and thus limited) powers.

More broadly, we must demand respect for what political philosophers call "the principle of subsidiarity." This principle of justice demands that government and other higher associations avoid taking over tasks that can be performed well by individuals and small associations, beginning with families, religious communities, and other institutions of civil society. If liberty and justice are to prevail, if the common good is to be realized, it is these "mediating" associations--Edmund Burke's "little platoons," which Alexis de Tocqueville celebrated for their crucial role in undergirding American democracy--that must bear primary responsibility for the health, education, and welfare of our people and for transmitting to each new generation the values, virtues, and skills necessary for individuals to lead successful lives and function as citizens in a free, democratic political order.

Government, especially central government, must stop usurping the authority, violating the autonomy, and damaging the integrity of these mediating structures. For example, government needs to respect the right of parents to direct the upbringing and education of their children, including their education on matters of sexuality and sexual morality. We cannot tolerate sex education programs--especially ones from which parents are forbidden to withdraw their children--that expressly or implicitly promote secular progressive dogmas about sexuality, morality, and marriage in defiance of the beliefs of parents and families. It is similarly intolerable when government--in hiring, licensing, contracting, or accreditation--discriminates against religious or other individuals and institutions because of their "traditional" beliefs about, for example, marriage, sexual morality, and the sanctity of human life.

Of course, there are legitimate roles for government to play. Often public health, safety, and morals and other aspects of the common good, including the protection of basic rights, require state action--laws, policies, or programs. But here the principle of subsidiarity demands that power must be exercised by the level of government closest, most responsive, and most accountable to the people over whom it is exercised. What can be done well by local government should be done by local government, not by the states. And what cannot be done well by local government, but can be done by the states, should not be done by the federal government.

We must also restore the democratic element of our republican constitutional system by reversing the outrageous usurpations of legislative authority routinely committed by the executive and by the courts. That reform would be right because it would make our government more faithful to the Constitution. It would also enable us to make critically needed gains in the direction of restoring in law and culture even more fundamental principles, beginning with the sanctity of human life in all stages and conditions; marriage as the conjugal union of husband and wife; and respect for religious freedom and the rights of conscience--including the rights of parents and families.

Social liberalism is riding high, having established itself as the dominant ideology in the elite sectors of the culture--in the media, in academia, in the entertainment industry and the corporate world, and in many professions. Social liberalism also benefited massively from eight years of aggressive promotion by a president who was willing to breach the constitutional limits of executive power at every turn in order to weave his socially "progressive" values into the fabric of our law and public institutions, including the military. But what was done can--albeit with difficulty--be undone. It is a matter of political will: The willingness to "pay any price and bear any burden" to do what is needed for moral-cultural renewal.

Conservatives must banish the thought that we can surrender on moral and cultural issues, letting the Left secure and consolidate its victories--even on the question of marriage--even while we achieve lasting victories of our own on limited government, economic reform, and national security. To give a sense of why that is the case, let me quote Jasper Williams, the fiery preacher who spoke at Aretha Franklin's funeral. Speaking of the importance of the marriage-based family and of the fundamental moral values that must be in place if families are to form, flourish, and play their critical role in the transmission of competency and virtue, Pastor Williams said:

As the home goes, so goes the street. As the street goes, so goes the neighborhood. As the neighborhood goes, so goes the city. As the city goes, so goes the state. As the state goes, so goes the nation.

His highly "politically incorrect" comments threw the Left into apoplexy. But what he said was true. The success of everything else in society--the educational system, the legal system, the political system, the private sector, the economy--rests vitally on moral foundations.

Conservatives understand that John Adams was right when he said that "our Constitution was made for a moral and religious people and is wholly inadequate to the government of any other." And the reason Adams was right is that our Constitution is, to borrow a phrase from Hayek, "a constitution of liberty," and liberty can never be sustained where immorality flourishes. A licentious people, a people given to appetite and vice, a people who come to accept or even tolerate the "if it feels good, do it" pseudo-principle of "Me Generation" social liberalism, a people who lose their sense of the need for virtue and the soul-shaping importance of the institutions of civil society--beginning with the family--will rapidly become a people no longer fit for freedom or capable of governing itself.

Now, none of this is to gainsay the importance of economic policy. Economic and moral reform must go hand in hand--indeed, the economic reforms we need have profound moral dimensions. Corporate welfare and crony capitalism (in the form of, for example, regulations preventing upstarts from competing with large firms that can more easily absorb compliance costs) undermine the proper functioning of the market-based economy and are blights on the honor of our nation. Moreover, there is a problem of plutocracy, which the Left derides while frequently taking advantage of, and the Right sometimes denies and more often ignores, supposing that the cultural and political power of big business is just the free market doing its thing.

Donald Trump's victories in the 2016 Republican primaries and in the presidential election--like Bernie Sanders' remarkably strong challenge to Hillary Clinton in the Democratic primaries--were driven to a considerable extent by legitimate economic grievances. Economic inequality is not in itself unjust, and any truly effective effort to eliminate it would give us tyranny in no time flat. But justice does require that we maintain fair terms of competition and cultivate conditions for large-scale upward economic and social mobility. A sound truly market-based system will be one in which upstart firms can compete fairly with the big dogs, and hard work, initiative, and the willingness to take investment risks are rewarded. Sound economic policies, by generating prosperity, redound to the benefit of the entire nation--including the poor. This remains true if we break things down into fiscal, monetary, tax, and regulatory policies. Everyone is made better off when money is sound, taxes are reasonably low, inflation is restrained, employment opportunities expand, capital is available, there is genuine market competition, government spending is reasonable, and there is decent wage growth. Everyone is made better off when environmental and other regulatory policies are sensible and evidence-based, and not driven by fads, junk science, alarmism, or corruption.

An urgent matter that most politicians wish to ignore but conservatives know can no longer be ignored is entitlement reform. The federal government's obligations under Medicare and Social Security threaten to bankrupt the nation unless we put them on firmer financial footing. Doing that will require courage--a virtue that is always in short supply among politicians. A true conservative, however, will exemplify it and provide the leadership in this area that America desperately needs.

In the area of national security, a renewed sense of American exceptionalism--one that would be massively advanced by moral reform and re-dedication to our constitutional principles--would serve us well. American exceptionalism is often misunderstood. It is not a claim that we, as Americans, are superior people. Rather, it is a claim that the principles of our founding are unique and valuable principles. It is an affirmation that the American people are not bound together as a nation by blood or soil but rather by a shared commitment to a moral-political creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life liberty and the pursuit of happiness." This creed is what has rallied Americans in the past to the defense of our country. It can once again strengthen us to stand up to the evildoers who threaten us, and it can inspire us to make the sacrifices that--make no mistake--will have to be made if we are to defeat them.

Despite the successes of General James Mattis and his forces, too often unjustly overlooked, "Islamic State" extremists have confidence that they will ultimately prevail over us, despite our overwhelming military power, because they believe in something and we believe in nothing; because they are spiritually and morally rigorous and we are soft and self-indulgent; because they are willing to fight and die and we are not. Our survival against them depends entirely on whether these beliefs about us are true or false. If they are true, then we are doomed, and doomed with us is the noble experiment in morally ordered liberty bequeathed to us by those who, at the beginning, pledged their lives, fortunes, and sacred honor to establish the regime of republican government that is our precious patrimony. The conservative movement in our time must prove them false.

About the Author

Robert P. George holds Princeton University's celebrated McCormick Professorship of Jurisprudence and is Director of the James Madison Program in American Ideals and Institutions. He is also a Visiting Professor at Harvard Law School. He has served as Chairman of the U.S. Commission on International Religious Freedom and on the U.S. Commission on Civil Rights and the President's Council on Bioethics. He was a Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. A Phi Beta Kappa graduate of Swarthmore College, he holds the degrees of J.D. and M.T.S. from Harvard University and the degrees of D.Phil., B.C.L., and D.C.L. from Oxford University, in addition to twenty honorary degrees. He is a recipient of the U.S. Presidential Citizens Medal, the Honorific Medal for the Defense of Human Rights of the Republic of Poland, and the Canterbury Medal of the Becket Fund for Religious Liberty. His most recent book is Conscience and Its Enemies.

December 30, 2018 | Permalink

Saturday, December 29, 2018

G.K. Chesterton on St. Thomas Becket

Reposting from 2015:


A reflection for today's Feast of Saint Thomas Becket:

Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.

It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.

Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.

G.K. Chesterton, A Short History of England (1917), 76-79.

December 29, 2018 in Moreland, Michael | Permalink

Tombs on Becket

Something in honor of the martyrdom of the great saint, from Robert Tombs's superb The English and Their History 68-69 (2015):

Henry [II's] policy of asserting the legal rights of the Crown did not make him popular. Eyres were sudden, frightening descents that not only tried legal cases, but generally asserted royal power, including by aggressive imposition of higher taxes and feudal exactions. Mere suspicion brought ordeal by water or hot iron. Royal justice also led to a clash with the Church, when in the Constitutions of Clarendon (1164) Henry legislated for political control over the Church, including royal jurisdiction over those clergy (and bogus clergy) who committed crimes. This caused an angry breach with his close friend and trusted chancellor, Thomas Becket, whom he had made Archbishop of Canterbury in 1162, and who had unexpectedly become an intransigent defender of ecclesiastical privilege. Their trial of strength culminated in Becket's murder on 29 December 1170 in Canterbury Cathedral.

December 29, 2018 in DeGirolami, Marc | Permalink

Friday, December 21, 2018

"Law and Love": Call for Proposals (from Zach Calo)

Law and Love Project Description

Drawing on jurisprudential, theological, and philosophical sources, this project explores the relationship between law and love.  In particular, it seeks to understand how the category of love can inform our understanding of the meaning, foundation, and ends of law.  Other recent projects have explored the relationship between law and love, including essays in Agape, Justice, and Law (Cochran and Calo, eds., Cambridge) and Law, Religion and Love:  Seeking Ecumenical Justice for the Other (Babie and Savić, eds., Routledge).  This project builds on such recent work, while also inviting particular reflection on the fundamental normative connective between law and love.  In brief, the aim is to work towards developing the outlines of a theological jurisprudence organized around the category of love, focusing above all on the application of resources from within the Christian intellectual tradition.   

We will convene a one day working group at the University of Notre Dame Australia (Sydney) on Saturday 20 July 2019.  It is expected that participants will have prepared papers in advance to be distributed and discussed by the group.  Our expectation is that these papers will be subsequently published in an edited volume.

Please send a brief proposal (200-300 words) to Zachary Calo ([email protected]) and Joshua Neoh ([email protected]) by 1 April 2019.

December 21, 2018 in Garnett, Rick | Permalink

Wednesday, December 19, 2018

Senators take aim at the Knights of Columbus

The Knights of Columbus -- the 125+-year-old Catholic fraternal and good-works organization -- is, it appears, in the minds of some U.S. Senators, an extremist and unworthy organization.  Good grief.   Here are the written answers to questions from senators provided by Brian Buescher, who has been nominated for a seat on the U.S. District Court.  Sen. Mazie Hirono asked (inter alia) if he "intend[ed] to end [his] membership with this organization to avoid any appearance of bias" (because the Knights took the "extreme position" of supporting California's Proposition 8 -- which, of course, was supported by a majority of the voters in the relevant election).  And, Sen. Kamala Harris asked if he was "aware that the Knights of Columbus opposed a woman’s right to choose when [he] joined the organization", as if there were something remarkable about the fact that the Knights have a position on the abortion question that is held by tens of millions of Americans.

The rapidity with which mainstream (even if minority) views are being re-cast as somehow disqualifying for public service -- or even public life -- is quite something.  

December 19, 2018 in Garnett, Rick | Permalink | Comments (0)

Populism and "the Constitution" in Dickens

From "Bleak House" (chapter 16, "Tom-all-Alone's"):

It must be a strange state to be like Jo! To shuffle through the streets, unfamiliar with the shapes, and in utter darkness as to the meaning, of those mysterious symbols, so abundant over the shops, and at the corners of streets, and on the doors, and in the windows! To see people read, and to see people write, and to see the postmen deliver letters, and not to have the least idea of all that language—to be, to every scrap of it, stone blind and dumb! It must be very puzzling to see the good company going to the churches on Sundays, with their books in their hands, and to think (for perhaps Jo DOES think at odd times) what does it all mean, and if it means anything to anybody, how comes it that it means nothing to me? To be hustled, and jostled, and moved on; and really to feel that it would appear to be perfectly true that I have no business here, or there, or anywhere; and yet to be perplexed by the consideration that I AM here somehow, too, and everybody overlooked me until I became the creature that I am! It must be a strange state, not merely to be told that I am scarcely human (as in the case of my offering myself for a witness), but to feel it of my own knowledge all my life! To see the horses, dogs, and cattle go by me and to know that in ignorance I belong to them and not to the superior beings in my shape, whose delicacy I offend! Jo's ideas of a criminal trial, or a judge, or a bishop, or a government, or that inestimable jewel to him (if he only knew it) the Constitution, should be strange!

December 19, 2018 in DeGirolami, Marc | Permalink

Tuesday, December 18, 2018

The death penalty, the development of Catholic doctrine, and judging doctrines and persons

The growing number of those who claim that Pope Francis is making a mess of things can hardly be accused of disrespecting the Roman Pontiff.  After all, it was Francis himself who in July 2013 famously said, "I want a mess."  I count myself among those who prudently suspect most of this Pope's "off the cuff" remarks of being more planned than spontaneous, much like the reliable presence of professional photographers when from time to time Cardinal Bergoglio took public transportation in Buenos Aires. Far from disrespecting the Pope, those who positively credit Francis with making a mess are guilty of sycophancy of an odd sort; messes are usually to be avoided, but this Pope's promoters are programatically pleased to attach themselves to his mess making.   

Disrespect and sycophancy aren't the only available postures, however.  A middle way would be respectfully to call upon Pope Francis to speak clearly and authoritatively on the matters of faith and morals that pertain to the exercise of the Petrine munus and otherwise to speak with the modesty befitting a monarch.  Previous Popes almost always knew how both things were to be done.  And the evidence (as collected by Henry Sire, for example) is that this Pope, author of that undefined novelty "synodality," does indeed see himself as a monarch, but some commentators have reasonably asked whether he isn't one masquerading, less and less successfully, as a populist in the Peronist model.  I remain of the traditional Catholic view that the Roman Pontiff is in fact constituted, by virtue of his office, as a monarch in his potestas, the current "mess" notwithstanding.

Which brings me to my present point, concerning Pope Francis's prepared statement and off-the-cuff remarks to the "International Commission against the Death Penalty" on December 17th.  The mess of confusion in what the Pope wrote and said does not allow us to pretend any longer that this Pope is not saying -- as clearly as he is likely to say it -- that he himself is in fact teaching a development of Catholic doctrine concerning the civil authority's right to execute persons.  But exactly what doctrine Francis has in mind, however, remains to be specified, and in specifiying it we should of course apply a hermeneutic of charity. 

Pope Francis himself helps by making unmistakably clear that sometimes the civil authority will have not only the right but also the duty to execute persons for the valid purpose of defending persons for whom the state is responsible.  This reaffirmation of the Church's teaching on self-defense is to be welcomed, even if it could have been accomplished in far more precise terms and concepts than the available texts and transcripts indicate.  But what Pope Francis seems now to have ruled out as always "inadmissible" is the state's executing a person for the purpose of applying a just (and therefore proportionate) penalty or punishment to a person duly convicted of a crime. 

What Pope Francis seems to be teaching is that, even when applied for the generally valid purpose of deterrence and to a duly convicted person to whom a proportionate penalty is due, the death penalty is always and everywhere immoral because it violates human dignity.  How executing in valid (and therefore proportionate) defense of persons is not a violation of human dignity, whereas executing a duly convicted wrongdoer as a punishment always and everywhere is a violation of human dignity, is an apparent contradiction that is not explained away.  Human dignity per se cannot be a good and sufficient reason not to kill a person if, as the Pope rather clearly states, self-defense, even including by killing a person, is sometimes both a right and a duty.

Setting this profound difficulty aside for the moment, I would like to conclude here with a different but deeply related line of inquiry, one that concerns Pope Francis's invitation, on December 17th in the remarks I have just been discussing, regarding how to judge (sic) those who in the past taught that the death penalty was in some cases morally acceptable:  

In past centuries, when the instruments available to us today for the protection of society were lacking and the present level of development of human rights had not yet been reached, recourse to the death penalty was sometimes presented as a logical and just consequence. Even in the Pontifical State this inhuman form of punishment has been resorted to, ignoring the primacy of mercy over justice.

This is why the new wording of the Catechism implies also assuming our responsibility for the past and recognizing that the acceptance of this form of punishment was the consequence of a contemporary mentality, more legalistic than Christian, which sacralized the value of laws lacking in humanity and mercy. The Church could not remain in a neutral position in the face of today’s demands to reaffirm personal dignity.

What are we to say about those persons, including the Popes, who accepted -- in the sense of authoritatively teaching the in-principle moral uprightness of -- the death penalty as, in Pope Francis's words, "the consequence of a contemporary mentality" (italics added)?  The then-contemporary morality was in fact, we are told by Pope Francis, immoral.  But how are we to think about the possible culpability of the Popes and everyone else (from the Fathers of the Church through and including Pope Benedict XVI) in teaching the in-principle morality of the death penalty as punishment?  It will not do to exonerate them, if indeed they need exonerating for holding and teaching allegedly objectively incorrect moral views, to say that their holding and teaching them was a "consequence" of the (defective) culture in which they lived.  It is the very possibility of human free choice, obviously, that makes moral assessment possible, and it would add the proverbial insult to injury to claim that our forebears weren't choosers but, in the relevant respect, "consequences."  What, after all, allowed Pope Francis the putative insight that the death penalty long approved by his Predecessors is, was, always has been, and always and everywhere will be in fact morally evil?

One set of answers to the complex questions about how to judge in the case of legitimate development of doctrine is provided by Judge John T. Noonan, Jr. (1926-2017).  Here is the crux of it:  "St Augustine and St. Thomas Aquinas were defenders of the lawfulness of human slavery and of the rightness of religious persecution.  Are we in a position to judge them as teachers of unjust doctrine?  It is evident, I believe, that if each generation is free to measure its predecessors morally, using the criteria now accepted, no one will escape condemnation.  We must be judged by the moral criteria we know.  Judgment of the status of past moral doctrine presents a different question." (Noonan, A Church that Can and Cannot Change, 200-01). 

Noonan thus suggests that persons should be judged by the moral criteria they knew, perhaps even the then-familiar "mentality," whereas doctrines must be judged, as Noonan elaborates in passages I have not quoted above, according to their conformity to the person of Christ.  But is it an exhaustive dilemma between persons-as-implementers-of-then-contemporary moral-criteria and doctrines-as-subjects-of-evaluation-according-to-transcendent-criteria?  I think not.  Those who press for valid development of doctrine are themselves engaging in morally praiseworthy, one might even say prophetic, witness.  But prophecy is risky business.  False prophets exponentially outnumber true prophets. 

What then of those who press for invalid "development" of doctrine?  The Catholic understanding is that valid development of doctrine occurs when what was implicit in the depositum Fidei is authoritatively made explicit.  In the face of a purported development that amounts in fact to no more than a comparatively attractive personal opinion, the judgment that cannot be blinked is that the purported doctrine, however attractive and no matter the sincerity of its proponent, is in fact false qua development of doctrine.  

The other judgment, however, concerns the culpability of the falsifier.  Here I think of something else Noonan wrote in the same vein, the valid development of doctrine:  "The Modernists took the idea of development and ran away with it.  Doctrine became the projection of human needs, changing in response to those needs. Control of doctrine by the objective content of revelation disappeared. . . . The Modernist position that human needs will shape doctrine carries the cost of eliminating any objective content; it is, as Pius X put it, 'the synthesis of all the heresies.'"  (Noonan, "Development in Moral Doctrine," 54 Theological Studies 662, 671-72 (1993) (citations, including to Pascendi (1907), omitted).  Noonan's touchstone, divine revelation in Scripture, of course establishes the moral rectitude of capital punishment in some circumstances.  See Edward Feser's work here

Even in December we can join Pope Francis in his prayer intention for this past October: "St. Michael the Archangel, defend us in battle."  The Modernists took the idea of development and ran away with it.

December 18, 2018 in Brennan, Patrick | Permalink

A bad misstep by the Ninth Circuit in a ministerial-exception case

Opinion hereInside Higher Ed commentary here.  The ruling is, put simply, nuts.  (Or, put more gently, "entirely incompatible with Supreme Court precedent.)  The Ninth Circuit acknowledged that:

[The fifth-grade teacher's] contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.

It is very difficult to see this ruling as anything other than an effort to ignore Hosanna-Tabor.  It's hard to be too confident that this mistake will be corrected en banc (given the Circuit), but it should be.  A fifth-grade teacher at a parochial school is a "minister", within the meaning of that decision.

December 18, 2018 in Garnett, Rick | Permalink

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!

December 17, 2018 in Garnett, Rick | Permalink | Comments (0)

Richard Ekins's "Judicial Power Project"

I wanted to direct a little notice to the very fine "Judicial Power Project" run by Professor Richard Ekins. The project has put together a few very interesting programs. Here are two:

First, an online collection of essays, the lead piece of which is by John Finnis ("Judicial Power: Past, Present, and Future"), and subsequent responses by various distinguished jurists, with a reply by Professor Finnis.

Second, an online symposium on a new book by Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. The book's core claims concern the mismatch between the empirical judgments made by judges in constitutional rights cases and the institutional capacity of courts to make such judgments. The online symposium contains responses by several prominent legal scholars and judges, including Professors Adrian Vermeule and Erin Delaney, as well as Professor Ekins himself.

December 17, 2018 in DeGirolami, Marc | Permalink