Tuesday, April 30, 2019
The Supreme Court of Kansas held last week in Hodes & Nauser, MDs, P.A. v. Schmidt that Section 1 of the Kansas Constitution protects a pregnant woman's natural right to obtain a Dilation & Evacuation abortion. There's much to think about and say about the opinions. Thus far, too, I've only read the majority opinion. But I thought I'd begin with a few general thoughts:
- The very existence of this case shows the fragility of the current constitutional law of abortion--both state and federal. The majority distances itself from the the federal constitutional law of abortion. That is presumably because of the Kansas justices' well-founded perception that the federal constitutional law of abortion is likely to change in ways that make it harder to find abortion limitations unconstitutional.
- The distancing is opportunistic rather than thoroughgoing, though. The Kansas majority imports three-tiered scrutiny from federal constitutional law. And the key move to get from John Locke to a right to abortion passes through the Supreme Court's 1972 decision in Eisentadt v. Baird. Despite some surface differences, the majority opinion overall reads like a product of the 1970s.
- This "Back to the '70s" feel is amplified by the majority opinion's heavy reliance on the unreliable abortion historiography in James Mohr's 1978 book, Abortion in America: The Origins and Evolution of National Policy. Any judge inclined to rely on this book would be well-served to first go through the seventy or so index entries on Mohr in Joseph Dellapenna's 2006 book, Dispelling the Myths of Abortion History.
April 30, 2019 | Permalink
Thursday, April 25, 2019
Here at MOJ, we've often discussed the content and application of the core principles of the Catholic Social Thought tradition, including "solidarity." I'm pasting, below, a short reflection that my daughter Maggie (a student at Notre Dame) wrote on the idea:
. . . In his encyclical letter, Spe Salvi, Pope Benedict XVI writes: “the true measure of humanity is essentially determined in relationship to suffering and to the sufferer.” Humanity is measured by the ways in which we live in relationship when it is most difficult. Suffering challenges, breaks, and burdens us. It can quickly isolate us, or separate us from our relationships. When we love well in suffering, not despite of it, we are loving as we are called to. And, this relationship is more than just the acknowledgement of someone else’s suffering: “to accept the “other” who suffers, means that I take up his suffering in such a way that it becomes mine also.”
That, dear readers, is what I want to say that solidarity is. It is shared outrage, sure. It can be a recognition and resistance to injustice, absolutely. But it seems to me that solidarity exists most profoundly where it is hardest to find: in the taking up of another’s cross as my own. By sharing in suffering, being in solidarity with another in their pain, light and love enters in.
In this solidarity in suffering we encounter Christ in a powerful way. Jesus Christ became man so that he could suffer “for and with us”. “Man is worth so much to God that he himself became man in order to suffer with man in an utterly real way” (Spe Salvi). In our pain, underneath the weight of our crosses, we remember that he lived in that same pain, underneath the weight of his own cross. Solidarity is not found in a Facebook-organized leggings protest: it is found on a tree on Calvary.
That is, of course, a challenging example to live out. I do not handle suffering as well as I would like to. When I encounter hurt, it’s often with discomfort. I feel useless, unable to fix things, and eager to escape that feeling. It is easy to feel insufficient when others are suffering. But God is not calling me to be the perfect fix-it-girl. He is not asking me to have all the answers. When I am blessed enough to have a friend approach me in their suffering, they don’t want me to rattle off a solution. They are just asking me to be with them.
As much as I want to fix everything -- to end the hurt, heal the pain, calm the anxiety, shut out any and all darkness -- I cannot do that, for myself or for those I love. What I can do is be in solidarity, simply in presence. For me, that has been a friend sitting with me on a chapel floor, staring at the tabernacle with a friend. It’s been a cold walk around the lakes, or a meal that is longer than it “should” be, because of a conversation that needed to be had. It is, and ought to be, quiet prayer intentions, tight hugs, shared tears, vulnerable moments, and admittance of weakness that allows us to be more fully and completely human.
If we approach solidarity with compassion, if we “suffer with”, we might be able to set aside the instinct to fix, and settle instead for the presence and empathy that we can offer. And, if we enter into that compassion with consolation, if we are with those we love in their solitude, suffering ceases to exist in isolation. We then exist in solidarity, not because we offer solutions but because we are willing to be present.
Solidarity is difficult. Asking for the presence of others, even those you know love you, is hard -- I can be really bad at it. But by entering into real and intentional relationships, we find people than can, imperfectly and temporarily, help us to carry what we must. Those people, in turn, point us to the One that, perfectly and eternally, carries us. . . .
TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.
The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.
The appropriate unit of analysis for unconstitutionality varies among various areas of substantive constitutional law. But for freedom of speech purposes, a speech prohibition and its exemptions are a single unit of analysis for purposes of determining whether the prohibition is content-based. Consider, for instance, the ordinance in Police Department of Chicago v. Moseley:
"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . . ." Municipal Code, c. 193-1 (i)
The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry.
Another way of thinking about the Fourth Circuit's ruling on the robocall ban is by analogy to R.A.V. v. City of St. Paul. The ordinance in that case provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.
In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.
Saturday, April 20, 2019
Here. A bit:
In “Liberty in the Things of God: The Christian Origins of Religious Freedom,” Robert Louis Wilken provides a wealth of evidence drawn both from major events and seminal texts to show that the unfolding of Christian faith and the development in the West of the idea of individual freedom have been intimately intertwined.
This is not to deny the religious persecution across centuries perpetrated by Christianity. The enforcement of religious orthodoxy and the repression of dissent have been a default option throughout history. What distinguishes Christianity has been the steady and deepening appreciation that its core teachings require not merely toleration — in the sense of grudging or politically expedient acceptance of differences in religious belief and forms of worship — but rather robust freedom because by its very nature faith cannot be coerced. So powerful was this idea within Christianity and so profound has been Christianity’s influence in the West and around the world that it has furnished an “intellectual framework” that established freedom of religion as a basic assumption of liberal democracy and eventually as a fundamental human right. . . .
Thursday, April 11, 2019
On Thursday, May 2nd, the Lumen Christi Institute will host a panel discussion of Rev. Wilson D. Miscamble, C.S.C.’s recent book, American Priest: The Ambitious Life and Conflicted Legacy of Notre Dame’s Father Ted Hesburgh.
I am delighted to serve as the moderator for this panel discussion. The panelists include the book’s author, Father Bill, together with long-time religion writer Ken Woodward, William T. Cavanaugh, a professor of Catholic Studies at DePaul University, and Jennifer Mason McAward, a professor at Notre Dame Law School and the director of the Klau Center for Civil and Human Rights.
When I was an undergraduate at Notre Dame in the early 1980s the joke was: “What’s the difference between God and Father Ted? . . . God is everywhere, and Father Ted is everywhere except Notre Dame.” Father Bill’s book covers the peripatetic life of the Holy Cross priest who raised Notre Dame from a minor Catholic college on the Indiana prairie whose greatest claim to fame was football, to a world-class university. In doing so Father Ted changed not only Notre Dame but Catholic higher education as a whole. But how and at what price?
The panel will address these and other matters on May 2nd in the conference room at Skadden Arps’ Chicago office, 155 N. Wacker Drive. Friends of MOJ and others interested persons are welcome to attend. Registration and additional information are available here.
April 11, 2019 | Permalink
Thursday, April 4, 2019
Here, at Public Discourse, is an essay by Ryan Anderson called "Catholic Thought and the Challenges of Our Time." There's a lot going on in the essay, and I recommend reading the whole thing. Among other things, it engages a topic that has been a focus of the Mirror of Justice project from the beginning, i.e., the importance of a sound, Christian moral anthropology for, well, just about everything. A bit:
The capacity to know right and wrong, good and evil, is key to recovering today a sound understanding of freedom. For the liberty on offer in many post-Christian liberal societies today is not the liberty of the ancient Greeks, Romans, or Christians. For them, the most important freedom was freedom from slavery to sin, freedom for self-mastery. Today we face two competing conceptions of freedom, in what the Belgian-born Dominican theologian Servais Pinckaers has termed a freedom of indifference and a freedom for excellence.
On the modern conception of freedom, freedom is indifferent to what is chosen. What matters is simply that I chose it. Whether I chose to degrade myself or to respect my dignity is ultimately irrelevant, provided that I freely choose either way.
The more traditional understanding of freedom flowed out of a different conception of human nature. If freedom is grounded in man’s rational and animal nature, and in how such freedoms allow man to flourish given his nature, then freedom is directional—it has a purpose, an end, and thus has limits. It is not primarily a freedom from something, but a freedom for something. A freedom for excellence, a freedom for human flourishing.
I read recently a short essay/pamphlet on the nature and mission of Catholic education, published by Notre Dame's Alliance for Catholic Education and written by some friends and colleagues associated with that (wonderful) program. It's called "Education in a Catholic Key" and I recommend it. You can download it here: Download Education in a Catholic Key. Check it out. (And pray that many bishops, superintendents, principals, teachers, and parents do, too!)
Wednesday, April 3, 2019
April 2 was the 15th anniversary of the death of Pope (now Saint) John Paul II. Here is a post I wrote, back in 2005, reflecting on some aspects of his life and legacy that seemed relevant to the work of Mirror of Justice:
Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
Monday, April 1, 2019
For readers in the Philadelphia area: the McCullen Center at Villanova will host its annual symposium on Catholic social thought and law on Tuesday, April 2 at 3:00pm. This year's symposium will focus on my colleague Mary Hirschfeld's exciting new book, Aquinas and the Market: Toward a Humane Economy (Harvard University Press, 2018). Respondents will be Jonathan Klick (Penn Law), Russ Roberts (Hoover Institution and host of "EconTalk"), and Thomas Smith (Villanova). Details here.