Tuesday, May 19, 2020
Oregon Supreme Court puts hold on judge’s ruling declaring governor’s coronavirus orders ‘null and void’
In a late Monday ruling, the Oregon Supreme Court stepped in to put a hold on a dramatic decision by an eastern Oregon judge that declared not only Gov. Kate Brown’s restrictions on church gatherings “null and void” but all her “Stay Home Save Lives’’ coronavirus emergency orders.
May 19, 2020 | Permalink
Saturday, May 16, 2020
Liberty University has shuttered its department of philosophy. This is a mistake. I implore the University's administration and trustees to reverse course.
Liberty, of course, is a controversial school. It is a proudly and unabashedly evangelical Christian institution. Its founder, Rev. Jerry Falwell, was controversial. Its current president, Jerry Falwell, Jr. is controversial. The moral values it upholds and stands for are, today, alas, controversial. But it has provided many young people with an excellent liberal arts education. I know this to be true because I have met a number of them and even taught or informally advised a few as graduate students. I also know it to be true because I have visited the University and talked with students.
My visit was last year, together with my beloved friend and teaching partner Cornel West. We spent a day-and-a-half meeting faculty, staff, and students. We did not meet President Falwell--he was not on campus--though we were assured that far from opposing our visit he enthusiastically endorsed it. (Falwell is best known as a supporter and confidante of President Trump. Both Cornel and I, from our different perspectives, have been critical of the President.) We did a formal presentation before a massive audience but then had opportunities to talk with students individually and in small groups. These conversations were unsupervised by faculty or administrators. The students could speak freely to us, and they certainly availed themselves of that freedom. We were, to say the least, impressed.
We were impressed by the desire of these young men and women to explore the deepest questions, and to explore them in a critical, unconditional way. They wanted to know the best that has been thought and said by the greatest minds--from the pagan Greek and Roman thinkers, to the Islamic and Jewish as well as Christian philosophers and theologians of the Middle Ages, to the grand figures of Enlightenment and modern thought. And it was clear from our discussions with these students that their professors in philosophy and the other humanities disciplines had indeed exposed them to the ideas of many of these thinkers--to their considerable intellectual benefit.
Cornel and I came away from our visit to Liberty with esteem for its students and faculty and respect for the University. We said so publicly--even though that is, to say the least, an unfashionable thing for professors at Harvard and Princeton to say. (We're expected to disdain institutions like Liberty University, pity the students, and hold the faculty in something not too distant from contempt.) And we came away thinking of ourselves as having a relationship with the folks at Liberty--a bond. We want Liberty to flourish. We want it to be the best it can be. We want it to continue to provide a true and fine liberal arts education for students who are attracted to the religious and moral environment it offers.
And so I hope that the administration and trustees of Liberty will hear my plea as coming from a friend--someone who wishes you well and believes in your mission. Humanities are central to liberal arts learning and philosophy is the heart of the humanities. You cannot have a true liberal arts college or university that does not have a vibrant philosophy department or some equivalent institutional way of teaching students what is taught in departments of philosophy. Indeed, philosophy is where it all began--in Plato's Academy. Philosophy gives us the tools and motivation and rational justification for asking and seeking by proper methods honestly to answer all the questions that we categorize in other disciplines, from history and economics to chemistry and astronomy.
I know that some people do not regard philosophy as "practical" (though in truth it is the most practical of all academic disciplines). And I am aware that the need to cut costs often tempts people to cut things that seem "impractical." But far from abolishing philosophy as a course of study at Liberty, you should be strengthening the department (which was already a good one) and encouraging more students to enroll in its courses and even major in the field.
I am not condemning or scolding. We're all human and we all make mistakes and misjudgments. I've made plenty, believe me. But mistakes can often be rectified. And this one is in that category. There is no shame in saying, "well, we've given the matter some more thought and concluded that for Liberty to be the best Christian university it can be, we need to retain our philosophy department. The questions that philosophy explores are questions our students need to be wrestling with." Far from being embarrassing, such a decision would be applauded by everyone who understands the value and importance of liberal arts learning and who believes that Liberty should be a great Christian liberal arts university.
May 16, 2020 | Permalink
Friday, May 15, 2020
Hot Topics: Cool Talk
Who Matters? Who Cares?
Disability-Based Rationing of Health Care
Friday, May 22, 11am-12pm CST
Join us for a conversation between a disability advocate and a medical ethicist exploring the legal and ethical implications of policies for allocating scarce medical resources during the COVID-19 pandemic, focusing on their impact on the elderly and persons with disabilities.
Registration is required. A link to join the webinar will be emailed to registrants on Friday, May 22 at 9am CST.
1.0 Elimination of Bias CLE credit has been applied for. Please include an Attorney Number with registration to claim CLE credit.
Charlie Camosy grew up in the cornfields of Wisconsin, but he is now an Associate Professor of Theology at Fordham University in the Bronx, where he has taught since finishing his PhD in theology at Notre Dame in 2008. Among other places, his published articles have appeared in the American Journal of Bioethics, the Journal of Medicine and Philosophy, the Journal of the Catholic Health Association, the New York Times, the Washington Post, the Los Angeles Times, the New York Daily News and America magazine. He is the author of five books. Too Expensive to Treat? (Eerdmans) was a 2011 award-winner with the Catholic Media Association, Peter Singer and Christian Ethics (Cambridge) was named a 2012 "best book" with ABC Religion and Ethics, and For Love of Animals (Franciscan) was featured in the New York Times. Beyond the Abortion Wars (Eerdmans), was also a 2015 award-winner with the Catholic Media Association. His most recent book, Resisting Throwaway Culture (New City), was published in May of 2019. In addition to advising the Faith Outreach office of the Humane Society of the United States and the Children's Hospital of New York, Camosy received the Robert Bryne award from the Fordham Respect Life Club and received the 2018 St. Jerome Award for scholarly excellence from the Catholic Library Association. He has four children, three of whom he and his wife Paulyn adopted from a Filipino orphanage in June of 2016.
Barnett (Bud) Rosenfield is a supervising attorney with the Minnesota Disability Law Center and Mid-Minnesota Legal Aid. For most of the past 22+ years, he has focused on individual and systems advocacy on Medical Assistance, social services, and civil rights issues for persons with disabilities. He currently oversees the Disability Law Center's Community Services & Integration and Policy teams. Prior to joining Legal Aid, Bud represented individuals in employment discrimination and civil rights cases. An avid baseball fan, he is trying to patiently await for the games to, once again, begin...
Thursday, May 14, 2020
MOJ readers know me as one of the blog editors, and as the Program Director of Notre Dame Law School’s Program on Church, State & Society. It’s a great job, and it’s thrilling to be a part of NDLS during a time when so many exciting things are happening.
I also have the pleasure of serving in a concurrent role with Notre Dame’s political science department where I teach an undergraduate course called Philanthropy & the Common Good. Teaching the course is a true privilege. We explore the common good from multiple viewpoints and get to put our theory to practice by making real grant awards to deserving nonprofits in greater South Bend.
For those interested, I published a brief article in Notre Dame Magazine today.
May 14, 2020 | Permalink
Wednesday, May 13, 2020
CREATED EQUAL: CLARENCE THOMAS IN HIS OWN WORDS, a new film tracing the life story of Associate Justice of the Supreme Court, airs on PBS on Monday, May 18 at 9:00 p.m. ET (check local listings). The film, produced and directed by Michael Pack, is the product of over 30 hours of interviews with Justice Thomas and his wife, Virginia Thomas —unprecedented access from a Supreme Court justice. The PBS broadcast follows a limited theatrical release that began in January 2020.
“Justice Thomas’ life is a remarkable journey, the quintessential American success story,” said executive producer Gina Cappo Pack. “He began life in Gullah-speaking Pin Point, Georgia, suffered poverty and privation in Savannah, dealt with the vicious iniquities of segregation, and yet rose to serve on the highest court in the land.”
“His intellectual journey is just as remarkable,” said producer/director Michael Pack. “He was raised by his grandfather with strict discipline, taught by Catholic nuns in parochial schools, yet he rebelled and became a ’60s radical who supported the Black Panthers, only to rethink his way back to his traditional beginnings. He went to work for Ronald Reagan as a rare African American conservative, and now serves as one of the most influential justices on the Supreme Court. We offer viewers a chance to hear Thomas’ story directly from the man himself, a unique opportunity.”
“This film gives fascinating insight into one of the most important and yet enigmatic public figures in the country,” said Perry Simon, Chief Programming Executive and General Manager, General Audience Programming at PBS. “Michael Pack’s latest film continues PBS’s long tradition of airing point-of-view, biographical documentaries that empower audiences with new information and points of discussion that are both insightful and relevant.”
The film has garnered positive responses from the press.The Washington Post said that the film “is a marvel of filmmaking that two hours pass so quickly. At the end of a screening I recently attended, there weren’t many dry eyes in the room.” Time Magazine said it "offers viewers rare insight into the mind of a justice known for his reticence on the public stage.”
Beginning May 18, CREATED EQUAL: CLARENCE THOMAS IN HIS OWN WORDS will be available to stream for 14 days on all station-branded PBS platforms, including PBS.org and the PBS Video App, available on iOS, Android, Roku, Apple TV, Amazon Fire TV and Chromecast. For an additional 14 days immediately thereafter, members of PBS stations will be able to view the film via Passport (contact your local PBS station for details).
May 13, 2020 | Permalink
Tuesday, May 12, 2020
As recent posts have noted, there is no shortage of religious freedom cases at the Supreme Court this May. However, another significant religious freedom case continues its fight in the Eastern District of Arkansas.
Gregory Holt has returned to federal court after his historic success in Holt v. Hobbs, now more than five years ago. Once again, he is represented by Professor Doug Laycock. Holt now claims that the Arkansas Department of Corrections failed to accommodate his Islamic religious practices by unlawfully preventing its Muslim inmates from observing separate prayer services according to their faith and movement. Instead, prisoners are effectively forced to choose between combining their religious services with other Islamic groups or abstaining from group services altogether.
Specifically, Holt claims that the Department of Corrections violated RLUIPA, as well as the First and Fourteenth Amendments, by prohibiting separate Jumu’ah services for its inmates. Practitioners of various Islamic groups must pray together as one group, or not at all. Furthermore, the prison prohibits its Muslim prisoners from wearing kufis outside of their religious worship.
At its core, this case raises questions about religious accommodation, the extent of deference to prison officials, and the need to distinguish between sincerely held beliefs. It has the potential to address some of the most fundamental religious protections for prisoners. For now, the case fights on in federal district court. It is worth keeping an eye on “Holt II,” even with the Supreme Court’s busy docket and live oral arguments.
See Holt v. Kelley, No. 5:19-cv-00081 (E.D. Ark. filed Mar. 1, 2019).
Monday, May 11, 2020
This post collects links to my writings on and around the theme of common-good constitutionalism, some of which respond to the debate sparked by the original piece. I’ll update the post at intervals as the writings accumulate.
1. “Common-Good Constitutionalism”
2. Interview with Le Grand Continent (English version)
3. “Deference and the Common Good”
4. “Abuses of Power”
5. “Common-Good Originalism”
6. “A Series of Unfortunate Events”
7. “The Guardian of Life”
8. “Bureaucracy and Mystery”
9. “Natural Law, Welfare Economics, and Administrative Law: Comments on Helmholz”
May 11, 2020 | Permalink
Sunday, May 10, 2020
Bloomberg Supreme Court Reporter Greg Stohr discusses the first day of live arguments at the Supreme Court. Richard Garnett, a professor at Notre Dame Law School, discusses the Supreme Court oral arguments on the Trump administration’s broad expansion of the employers and universities who can opt-out from the Obamacare contraceptive mandate. Christine Reilly, a partner at Manatt, Phelps & Phillips, discusses the Supreme Court arguments over a challenge to the ban on robocalls. They speak to host June Grasso.
May 10, 2020 | Permalink
Saturday, May 9, 2020
Josh Hammer has written a characteristically thoughtful and engaging response to Common-Good Constitutionalism, arguing for an approach he calls “Common-Good Originalism.” I see Hammer’s approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common good (however defined) will prescribe an interpretation that cannot be justified in originalist terms. Towards the end of the discussion, I will examine some other ways of attempting to combine the two approaches, none of which is particularly convincing.
To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn’t be wholly shocked to see a position like Hammer’s become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.
Hammer’s main substantive argument is an appeal to the importance of oath-keeping, and to the associated clauses of the Constitution. But the argument from oath-keeping begs the question; it is necessarily parasitic on some independent account of constitutional interpretation, an account whose validity is itself the contested issue. The current debate isn’t over the question whether to respect the oath of constitutional fidelity, rightly understood; all concerned agree on that aim. Rather the whole debate is over what the Constitution is best taken to say, and how to decide what it says. What is at issue are rival conceptions of what counts as fidelity, rival interpretive approaches that all claim to embody fidelity. If the oath argument were valid at all, it would be valid for all sides, and each could accuse the others of violating fidelity by taking the wrong approach to interpretation. Their disagreement does not of course mean that there is no right answer to the question they are debating, but it does mean that an appeal to oath-keeping contributes nothing to finding that answer.
Hammer writes that “[t]o solemnly vow to support the Constitution, so help you God, is to make an unbreakable commitment to faithfully interpret and dutifully execute the Constitution’s commands. Unless we accept the Marxist-inspired ‘critical legal studies’ thesis that all text is hopelessly indeterminate, furthermore, we must accept that words maintain generally durable meanings over time.” The first sentence merely poses, rather than answers, the question of how to determine what the constitutional commands are. As for the second sentence, the core problem under debate isn’t whether “words maintain generally durable meanings over time,” but the antecedent question of how to determine those (durable) meanings in the first place. As Ronald Dworkin pointed out any number of times, most devastatingly in a review of Judge Bork’s jurisprudence, the level of generality at which to interpret “the meaning of the words” is the main problem in and for originalist interpretation, even if we attend solely to the meaning of the words as of the time of enactment. When self-described “living originalists” argue that the founding generation enacted texts whose original meaning embodies very general principles of political morality (“ordered liberty,” “antisubordination,” or what have you), from which these originalists proceed to deduce all sorts of rights that would make the founding generation stare in horror, and that Hammer would quite likely find objectionable, they aren’t somehow arguing against the durability of meaning, nor are they stepping outside the boundaries of the originalist method — as evidenced by their participation in the community of professional originalists.
Beyond the circular argument from oath-breaking, it isn’t clear what the case for common-good originalism is; the rest of the piece is mainly taxonomic and genealogical. Hammer says that common-good originalism is a species in the genus “Anglo-American conservatism,” which he associates with Burke, Hamilton, Story and other figures. There are any number of problems with this. I’m skeptical, for example, that Hamilton counts as any sort of “originalist,” unless we distend the word so widely that it has almost no outside. An entirely separate problem (presented here as a delightful troll with a grimly serious point) is that the Anglo-American conservative legal tradition is full to bursting with principles and practices one very much doubts that Hammer wants to defend.
But in any event nothing in this exercise in taxonomy and genealogy speaks to the critical question: how exactly does the originalism part of Hammer’s account relate to the common good part of the account? What happens if and when the original understanding and the common good diverge? (After all, the Constitution of 1789, even viewed in the best possible light, was shot through with grievous moral compromises, as were the later amendments in their own ways). Is the idea that somehow originalism is necessarily ordered to the common good, or conversely that the common good necessarily entails originalism? Or is the relationship contingent, such that originalism usually or sufficiently often yields the common good, or that the common good implies an originalist approach to interpretation, given specified empirical conditions? What exactly are those conditions, and what is the evidence for such claims, given various specifications of originalism and of the common good?
This is not a problem of “hard cases” or unusual boundary situations; it’s a problem about the intrinsic incompatibility between the two parts of Hammer’s enterprise. Roughly speaking, and bracketing whole forests of theoretical epicycles and curlicues, originalism is a positivist enterprise, one that (at least in a pure form) takes the meaning of the law to be solely determined by historical facts about what designated actors said and did, regardless of whether the resulting outputs happen to track or not to track the common good, however defined. By contrast, reading the Constitution to promote the common good is an interpretivist rather than a positivist enterprise. It reads our law and legal practices and institutional history in light of background principles of political morality, which are themselves understood to be legal principles.
For common-good constitutionalism (although not of course for Dworkin), the relevant background principles are those of the classical legal tradition, heavily influential in America until a surprisingly recent point in our history. Of course the classical legal tradition recognizes the legitimate authority of rulers to promulgate ius civile, positive law, as a determination or specification of background principles of natural law and the general law of nations (ius gentium) where those principles admit of multiple reasonable specifications. In this sense part of the law is a positive ordinance of the ruler, and indeed the classical legal tradition says that the text of the law and the intentions of the lawmaker are central considerations in the interpretation of positive enactments. (Respect for enacted texts is hardly unique to originalism). But on the classical approach, it is defined into the nature of law that law is not merely whatever ordinance the incumbent authority happens to create, but is rather an ordinance of reason, promulgated to promote the common good; and it is defined into the nature of the ius civile that it derives from higher law that it determines and specifies. Thus the ius civile is always interpreted in light of background principles of higher law. In the extreme limit the classical tradition holds that an unjust law is no law at all.
Nothing in originalism even purports to guarantee this concordance between civil positive law and background legal principles that embody commitments of political morality. (Hence originalism struggles to justify the decisions made at Nuremberg on the basis of higher law, as a critic of Justice Scalia’s positivism observed in a famous encounter). For theories such as Hammer’s, then, there is always a looming possibility that the original understanding will happen to diverge from the dictates of the common good. What then? Which prevails? In the end one has to choose, or at least one faces a standing threat of having to choose.
This is not the place for a comprehensive review of possible responses to this problem. Suffice it to say that some theories attempt to cope with it by grounding the common good in originalism, and others by grounding originalism in the common good. In the first category are theories that claim that in the United States the content of the original understanding just turns out to strongly track the natural law, so that originalism itself incorporates the natural law. Even if this is true — and I don’t for a minute think it is always or even usually true, under a Constitution as morally compromised as our own — it still leaves the natural law entirely dependent upon the grace and favor of the original understanding; it is all still just (a variant of) positivism. If the original understanding had been different, then on this view “the law” would have been different regardless of the claims of the natural law. As I said in Common-Good Constitutionalism, “th[is] approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing.”
A corollary is that this view yields only an ersatz form of respect for the natural law. On this view, one obeys the natural law only insofar as it happens to be picked up by an originalist command, not because it has binding force as natural law in its own right. But it is intrinsic to the natural law that it should be followed for its own binding force, not merely because some incumbent ruler commanded that it be followed. The natural law isn’t truly followed at all if it isn’t followed as natural law.
The converse view, which is more subtle and plausible, attempts to ground originalism in the common good. It argues, in second-order fashion, that the common good requires that society coordinate on a settled, stable and adequately just constitutional framework for common life, and that originalism provides the durability of legal meanings that allows such a framework to operate over time. Many things that might be said about this argument; I will merely gesture towards a few of them.
First, as mentioned above, durability is something of a red herring. The living originalists cheerfully deny, with a straight face and with real plausibility, that they argue for a “change in meaning” or any such thing. Rather they argue for reading the original and enduring meaning at a sufficiently high level of generality to encompass whatever moral novelties later generations have dreamt up. No amount of insistence that meaning must endure over time comes to grips with their argument.
Second, the argument that grounds originalism in the common good supposes that originalism conduces to stability and durability over time, but there is little reason to think this is true. It is an entirely contingent question whether originalism does or does not, in fact, promote systemic goods of settlement, stability and coordination; and the evidence from our world hardly suggests that it does. In our world, originalism is quite often practiced as a disruptive method, a Protestant method that, taken to its logical extreme, invokes sola scriptura to unsettle doctrines long established in the law. Now the method need not be taken to that extreme — the fainthearted interpreter may flinch from the logical consequences of originalist premises, or claim that the original understanding itself licenses the doctrine of precedent — but the potential for radicalism creates a kind of threatening overhang for any long-standing body of legal doctrine. (Consider the disruptive role of originalism in the spate of recent proposals, judicial and academic, to overturn longstanding doctrines of administrative law). Originalism’s disruptive quality should be unsurprising once we reflect that the original idea of originalism, as it were, was to oppose and unsettle the progressive law made during the Warren and Burger Courts. As with the Protestantism it instantiates, originalism is at bottom a mode of rebellion against an established order and its developing doctrine. This is not, of course, to say that disruption is necessarily bad — it depends on what is being disrupted, and why — but it does make it difficult to defend originalism as a guarantor of stability.
Third, and relatedly, the view we are considering needs to distinguish two very different questions: (1) whether the common good underwrites originalism as of 1789 or 1868; (2) whether the common good underwrites originalism as of, say, 1980 or 2020. These two situations turn out to be very different because in 2020 it is just true that much or most of our law, as practiced since 1789 or 1868, has been profoundly non-originalist. In the second situation, introducing originalism into a (largely) nonoriginalist system threatens the very kind of disruption and discoordination that the view aims to prevent through originalism.
Fourth, while settlement and coordination are important goods, they are hardly the only goods. Second-order considerations are important, but so are first-order ones. The classical tradition emphasizes that justice is the aim of law, and that peace without justice is no true peace at all. If the originalist regime supposedly underwritten by the common good produces a steady, predictable stream of morally horrid first-order results, or merely fails to prevent such results, then the common good condemns rather than supports originalism. At a minimum there should be some reflective equilibrium between the second-order goods of settlement and durability, on the one hand, and evaluation of the justice of first-order outcomes. Otherwise the praise of second-order goods threatens to become a kind of fetish, overriding all first-order considerations in the name of a partial and myopic account of what justice requires.
I have only briefly sketched my objections to the views that attempt to ground the common good in originalism or to ground originalism in the common good. The point of mentioning those views is merely to show that the combination Hammer wants to promote, however appealing it may seem at a political level, is intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water and in the end Hammer, like the rest of us, will have to choose.
There is much to admire in Hammer’s argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia’s modus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer’s piece, internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects “pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia,” one can almost feel the winds of change freshening.
May 9, 2020 | Permalink