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.

Thursday, October 10, 2019

Happy Charles Martel / Battle of Tours Day

On this day, in 732 A.D. . . .


October 10, 2019 in Garnett, Rick | Permalink

Wednesday, October 9, 2019

Tocqueville, Leo XIII, associations, and China's "Great Firewall."

I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine."  Among other things, it discusses the striking developments in AI/machine learning and the ways that the PRC's dictatorship is using them for policing, surveillance, rewards, and punishment.  Along the way, though, there was this, which reminded me of the crucial role that both the Catholic Social Tradition and the various instances of Tocqueville-inspired political theory have assigned to mediating institutions:

The point of the state apparatus is not to silence all debate, but to prevent organisation and co-ordination; the ultimate no-no is the formation of any kind of non-party group. The CCP’s goal is not silence but isolation: you can say things, but you can’t organise. That is why the party has cracked down with such ferocity on the apparently harmless organisation Falun Gong, whose emphasis on collective breathing exercises wouldn’t normally, you would think, represent much of a challenge to CCP control of China. But Falun Gong grew popular, too popular – seventy million by 1999, as many as the CCP itself – and had an unacceptable level of collective organisation. So the party set out to destroy it. Two thousand members of Falun Gong have died in custody since the crackdown began.

Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.

For my own take (now quite a few years old), check out this article:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­ - that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.


October 9, 2019 in Garnett, Rick | Permalink

Tuesday, October 8, 2019

A Recipe for Overruling Roe v. Wade 2/

The first ingredient in the recipe for overruling Roe v. Wade is Prenatal Equal Protection.

The most basic function of any government is the protection of persons within its jurisdiction. In the United States, the Fourteenth Amendment imposes on States a duty of supplying the equal, protection, of the laws, to all persons, within its jurisdiction.

This constitutional duty is worded negatively: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." But it imposes an affirmative duty. As Christopher Green explained in two articles ten years ago (here and here), the original legal meaning of this Equal Protection of the Laws Clause was precisely about the duty of equal protection: no separate laws or patterns of law enforcement for disfavored groups of people; no license for some—such as the Ku Klux Klan—to harm others with legal impunity.

If unborn human babies are persons within the meaning of the Fourteenth Amendment, then this duty of equal protection prohibits the state from licensing lethal private violence against them without some justification tied to their location in the womb to authorize differential treatment. There may be very good reasons for states to have legal rules that differ in some respects for the born and the unborn. After all, equality means treating like things alike, and the born and unborn are unlike in some respects. One way in which they are alike, though, is that they are persons.

The Supreme Court infamously held otherwise in Roe v. Wade, interpreting "person" to exclude unborn human babies. The Court's reasoning on this issue was pretty thin throughout and demonstrably flawed in part.

The demonstrable flaw came in Justice Blackmun's claim that, if unborn humans are persons, the case for a right to abortion "collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Justice Blackmun here had in mind the Due Process Clause, as context makes clear.

The belief that the Due Process Clause protects against private lethal violence is a common mistake, one which has ensnared many pro-lifers as well. When one private party kills another, something bad has happened. But not a violation of the Due Process Clause. Only state action violates the Due Process Clause. 

While this state-action limitation had been established since well before Roe, post-Roe decisions have made even clearer that the state-action requirement for the Due Process Clause cannot be met by redescribing state failure to intervene against private violence as state action.

The leading case is DeShaney v. Winnebago County Department of Social Services. In Deshaney, the Court held that a “State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.”

More recently, the Court stood by the general rule of Deshaney in Castle Rock v. Gonzales, holding that police failure to enforce a restraining order, which resulted in the death of children, did not violate the Due Process Clause; this grievous law enforcement lapse was state inaction rather than state action.

Taken together, Deshaney and Castle Rock refute Justice Blackmun’s operative assumption in Roe that a state’s failure to prohibit and to punish abortion would violate the Due Process Clause.

October 8, 2019 in Walsh, Kevin | Permalink

Monday, October 7, 2019

Testimony on Viewpoint Diversity and Freedom of Speech in Higher Education

Testimony of Robert P. George

U.S. House of Representatives

Committee on Oversight and Government Reform

May 22, 2018


I wish to thank the chairman, ranking member, and members of this committee for holding this important hearing and for inviting me to give testimony. It is a particular honor to appear alongside Professor Stanger and Dr. Weinstein, whose courage, integrity, and commitment to freedom of thought and expression and robust civil discourse are inspiring.

I have provided to the committee’s excellent staff my formal written testimony. This afternoon I wish to share some thoughts drawn largely from a statement I issued some months back along with my dear friend and teaching partner Professor Cornel West. Professor West and I, though representing different political perspectives, share concerns about the state of American higher education and the condition of American democracy. We worry that too narrow a range of perspectives is represented in a great many colleges and universities, especially among faculty, and that this tends to create an echo chamber in which education degenerates into indoctrination and dissent is stigmatized, marginalized, and even punished or driven off campus. We also worry that the American people are becoming polarized in ways that foment a level of distrust and hostility to each other, and an unwillingness to listen to and engage each other, that undermines the foundations of democratic civic life.

By hard experience, mankind has learned that the pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of certain virtues, including intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.

That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As the great 19th century English liberal philosopher John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.

None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.

All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.

It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?

Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.

When universities are permitted to degenerate into ideological echo chambers, which is what tends to happen when a campus lacks viewpoint diversity, especially among its faculty, freedom of thought and expression quickly come under attack and are sooner or later (usually sooner rather than later) lost. Dissent from campus orthodoxies comes to be perceived and even experienced as attacks on "our community's values" and even as personal "assaults." People begin defining “hate speech” way too broadly and saying things like “free speech is violence.” Some may even begin defending actual violence—violence against dissenters from campus orthodoxies—as a form of “free speech.”

Following in the wake of these developments are censorship, language policing, and disciplinary proceedings and “re-education” for people who offend against “our community’s values.” Education, which requires the careful and critical exploration of competing perspectives on disputed questions, degenerates into indoctrination. Universities cease being truth-seeking institutions and courses become catechism classes for whatever ideology happens to be dominant on campus. That’s fatal for the cause of learning. And it’s very bad for the cause of democracy.

October 7, 2019 | Permalink

Uighur Muslims say camps are ‘unbearable brutality’

Uighurs are Muslims who trace their roots back thousands of years in Central Asia, most currently living in the Chinese province Xinjiang. The group represents less than 1 percent of China's population, but they have endured what the U.S. calls one of the worst human rights crises of modern times. Nick Schifrin at PBS News Hour reports on how Communist China has persecuted this religious and cultural minority: https://www.pbs.org/newshour/show/china-calls-it-re-education-but-uyghur-muslims-say-its-unbearable-brutality

October 7, 2019 | Permalink

A Recipe for Overruling Roe v. Wade 1/

This past Saturday morning, I had the privilege to address the 2019 General Assembly of the Catholic Bar Association. This year's Assembly was held in St. Louis, and the title of my talk was "What Kind of Law Will It Take to Overturn Roe v. Wade in the Short Term?"

The location and setting brought to mind Webster v. Reproductive Health Services, 492 U.S. 490 (1989). This case out of Missouri placed the constitutional law of abortion in the United States on the trajectory on which it has proceeded for the past thirty years. Doctrinally, one might attribute that significance instead to Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). But the plurality decision in Casey was the product of momentum from Webster. It was in Webster that Justice O'Connor's undue burden standard broke away from the rational basis fold that Chief Justice Rehnquist was trying to nudge the Court toward, and it was in Webster that the rift between Justice O'Connor and Justice Scalia on the constitutional law of abortion became permanent.

Webster came about a couple years after two new Justices had recently been added to a Supreme Court with a Chief Justice publicly committed to judicial restraint. If that sounds familiar, it should. We are talking now, thirty years later, about the very kinds of variables that Court-watchers were talking about thirty years ago: when to distinguish versus to overrule; when to overrule sub silentio versus explicitly; when to construe statutes to avoid constitutional difficulties versus confronting the constitutional difficulties head on; what is "judicial statesmanship" and is it good or bad? And so on. 

Tactically speaking, one desideratum for moving toward a stable, more pro-life equilibrium in the constitutional law of abortion in the United States would seem to be avoiding another Webster. By that I mean a narrow tactical "win" that presages a broader strategic defeat rooted in divisions over the pace and explicitness of displacing bad precedents with good ones.

In days to come, I hope to lay out in more detail some of the elements of my Catholic Bar Association approach. Just by way of preview, the recipe for overruling Roe v. Wade that I am working up has three main ingredients: (1) prenatal equal protection; (2) judicial incapacity for line-drawing with respect to relative values of prenatal and maternal life and health; and (3) Catholic guilt. 

October 7, 2019 in Walsh, Kevin | Permalink

G.K. Chesterton's "Lepanto"

On this day . . .

Never hurts to re-read Chesterton!

October 7, 2019 in Garnett, Rick | Permalink

Our Lady, the Holy Rosary, and Lepanto


October 7, 2019 in Garnett, Rick | Permalink

Thursday, October 3, 2019

"It’s not because I am good. It’s because I believe in Christ."

A very public story of tragedy and violence set on a stage of racial injustice that ends with expressions of mercy and faith.

If you have not taken the time to watch the two videos following the sentencing of Amber Guyger and the response of Brandt Jean, the brother of the homicide victim Boothan Jean, and that of Judge Tammy Kemp, you should do so.  As one of the reporters described it, this was a scene of "extraordinary grace."  No person of faith can fail to be inspired and brought to tears.

In a troubling period of our history in which people of Christian faith too often are seen by the public as apparently advocates for cruel policies and agents of division rather than as witnesses for the Gospel, this episode reminds us that Christ still walks among us through his disciples.

October 3, 2019 in Sisk, Greg | Permalink

Anti-Catholic Hate Speech . . . and Respect Life Week . . . at Notre Dame

As Alexandra DeSanctis and others have reported, there was at Notre Dame recently an unfortunate series of connected incidents -- involving an outdoor poster display, then a poem of sorts in the student newspaper, and also a performance-art video posted online -- of what I think can fairly be called anti-Catholic hate speech.  You can read DeSanctis's article for the details, but -- in a nutshell -- in addition to contending that various writers, publications, and organizations have "blood on their hands" by virtue of writings and activities that support and defend Catholic theology, morality, and anthropology, the performers/authors of the attacks engaged in what can reasonably be regarded as a kind of fantasy about inflicting violence (using a crowbar) against the offending writers, some of whom are their fellow students. 

These incidents are particularly upsetting, not only because the attacks aim at the University's animating and foundational Catholic mission and commitments, but also because Notre Dame has been (thankfully) relatively untouched by the fever-swamp excesses of our overly politicized and excessively polarized academic culture.

Although Notre Dame is a private institution, and not subject to the First Amendment's constraints, it's my view that, as a general matter, "Chicago statement"-type rules and norms should be observed by students, faculty, and administrators.  As important as civility and charity are, I am inclined to agree with the Chicago Statement that "[a]lthough the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community."  At the same time -- and while I reject the tendency to equate "discourse" with "violence" and the claim that criticism and disagreement make one "unsafe" -- it seems clear that actual threats of or incitements to violence are not only legally unprotected (while "hate speech" is), they are also morally excludable, and punishable, even in a university setting.

It's too bad (or, perhaps, it is fitting?) that this week is also Respect Life Week at Notre Dame (and at many other places).  Even as the spirit of community and care -- the Week's theme is "authentic love, authentic freedom" -- was attacked by the series of hate-speech incidents, this beautiful student-led week of prayer, speakers, celebration, and conversation reminds us of the radical Christian call to solidarity and of the radical Christian claims regarding human dignity and equality.  Here's hoping hearts and minds -- including those of the people who engaged in the expressive attacks -- will be touched and healed.  

October 3, 2019 in Garnett, Rick | Permalink