Mirror of Justice

RELIGIOUS FREEDOM: BLEACHED, BLANCHED, AND RINSED OUT

Father Richard John Neuhaus put two Big Ideas into play in American public life. The first was that the pro-life movement (of which Neuhaus was an intellectual leader) was the natural heir to the moral convictions that had animated the classic civil rights movement (in which Neuhaus was also deeply involved). The second was that the First Amendment to the Constitution did not contain two “religions clauses” but one religion clause, in which “no establishment” (i.e., no official, state-sanctioned Church) was intended to serve the “free exercise” of religion. Neither of those Big Ideas is welcome in today’s Democratic Party, in which Neuhaus (then a Lutheran pastor) was once a congressional candidate, and of which he remained a registered member until his death in January 2009. 

Full essay by George Weigel at First Things.

How Distinctive Should Catholic Law Schools Be?

I've just posted a new paper, "How Distinctive Should Catholic Law Schools Be?," which is my contribution to the St. John's symposium exploring the forthcoming new book by John Breen and Lee Strang, "A Light Unseen: A History of Catholic Legal Education."  From the abstract:

In what ways should a Catholic law school be distinctive? To what extent should Catholic and non-Catholic law schools share similar criteria for judging institutional success? Are there circumstances under which a preoccupation with distinctiveness might distract a Catholic law school from focusing on its mission? While Catholic law schools will approach these questions from a diversity of perspectives, we should be careful neither to ignore the importance of distinctiveness nor to equate worthy manifestations of Catholic identity with only those qualities that are not also exhibited by non-Catholic law schools.

The entire symposium was first-rate, though I'm pretty sure my paper was the only one to draw lessons from the artistic merits of Metallica versus Stryper.

First Things on Vice Presidential Candidate Kamala Harris and Religious Liberty

Kenneth Craycraft at First Things has provided a timely and troubling reminder of Senator Kamala Harris’s narrow views on religious liberty, her legislative proposal to weaken the protections of the Religious Freedom Restoration Act,  and her past suggestions that belonging to a Catholic organization may disqualify someone from public office.

Please understand, and my Mirror of Justice colleagues may recall some of my past posts to confirm as much, I do not offer this link to un-endorse Joe Biden, much less indirectly endorse Donald Trump. Rather, I think it important that those of us who cherish religious liberty and rightly condemn anti-Catholic statements have our eyes wide open as we go into this election and anticipate a possible transition of power. If Joe Biden is elected President, we may hope that Vice President Harris will come to a more inclusive attitude toward Catholics and a more robust view of religious liberty. And it will remain important for us to remain vigilant and speak out when necessary. Joe Biden has insisted that he wants to unit Americans and will resist attempts to divide us. His support for religious liberty, for Catholics and others, may be a test for him as to whether that promise holds true.

Free Speech language on the syllabus

This semester, I'm teaching Princeton's undergraduate course "Constitutional Interpretation."  It's a course that has been offered at the University for more than a hundred years, including by my predecessors as McCormick Professor of Jurisprudence, Walter F. Murphy, Alpheus T. Mason, and Edward S. Corwin. Many students who have taken the course over the years have gone on to illustrious careers, including in law (a couple of those are sitting on the Supreme Court). I've had the honor of teaching it since Professor Murphy's retirement in the mic-1990s. This time I've placed on the syllabus a statement concerning freedom of speech. I intend to place the statement on the syllabus of all courses I teach going forward. I claim no copyright to the statement and encourage others--in courses of any type and in every field--to use it. It can easily be adapted for use at other colleges and universities. Here it is.
 

As set forth in Princeton University's Rights, Rules, Responsibilities section 1.1.3, this institution strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply MOJ with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

Faithful Citizenship, "Equally Sacred", the 2020 election, etc.

I was struck, the other day, by the realization that the upcoming presidential election in the United States is the fifth one since the launch of this blog, back in 2004.  Skimming through old posts, I was reminded that the "for whom should Catholics vote?" and "what considerations should guide Catholics' electoral decisions?" and "what are 'prudential' considerations, anyway?" questions were consistently, sometimes energetically, engaged.

This has not been the case this year, and not only because these conversations and arguments migrated to Twitter.  And, I'll confess to not missing them very much. Very little seems to change (although, in 2016 and 2020, unlike -- in my view -- 2004, 2008, and 2012, candidates' manifest and deep character defects might add new ingredients to the mix).

There was some controversy, a few days ago, about former V.P. Biden having been referred to as a "fake Catholic." No, he's baptized, and the sacrament, we believe, works. (Questions about scandal, excommunication, etc., are different.) And, there was a published account that, on the contrary, his "Catholic roots have shaped his public life." Interestingly, that account stated that "[Biden's] is . . . a faith that has come into conflict with Democratic policy positions, forcing him to change and evolve along the way to keep up with shifting uniform stances within the party."  "Forcing him"?

Pushing back on the "fake Catholic" charge, John Gehring conceded (phew!) that it is "legitimate for Church leaders and others to challenge Biden on his positions, including his support for abortion rights," if it's done with "civility." (Gehring claims that this requirement rules out "distorting Biden's position as “pro-infanticide”, but one suspects that the entirely accurate statement that "Biden believes that American positive law should protect abortion on demand, for any reason, at any time, at public expense" wouldn't make him much happier.)

There's been an interesting contest about how to read the USCCB's "Faithful Citizenship" document , and about that document's explicit emphasis on the immorality and injustice of our abortion regime, and about the significance of Pope Francis's statement in Gaudete et exsultate that "equally sacred [to the lives of the "innocent unborn"] are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection.” Of course, the Holy Father's statement is precisely the heart of the pro-life, anti-abortion position:  All human persons, because they are human persons, are radically equal in dignity.  It is precisely because of this "equal[] sacred[ness]" that abortion -- and its legal protection -- is gravely unjust. Nothing about Pope Francis's statement could plausibly be understood as in tension with the bishops' observation that, given the American legal givens, the need to remedy our unjust abortion regime remains "preeminent", and efforts to suggest otherwise seem opportunistic and misplaced.  Similarly, efforts to suggest that the regular and longstanding emphasis on "prudence" in the Catholic approach to politics calls into question the immorality of the American abortion-regulation regime are sophistical.

The launch of a "Catholics for Biden" looks to make the case (in Michael O'Loughlin's words) to Catholic voters that, all things considered, the policy-outputs of a Biden-Harris administration would be better, in terms of Catholics' "shared values", than those of another Trump-Pence administration.  There's the rub (once again), I guess. Even assuming "shared values" among American Catholics, it is not at all clear that we share a "metric" for identifying better or worse policy outputs. The "Catholics for Biden" effort, for example, probably does not weigh too heavily the clear and negative effects a Biden-Harris administration would be for Catholic schools and school choice. The "Catholics for Trump" analogue (I haven't checked) probably does not put into the balance, say, the downsides of deregulation.  And so it goes.

St. Thomas More, patron of statespersons and politicians, pray for us!

 

The Uyghur Genocide

Chinese Communist Party officials say that the Uyghurs, a Turkic minority in the Xinjiang region, are the “happiest Muslims in the world.” The evidence trickling out of western China tells a different story. In July, U.S. customs officials intercepted a 13-ton shipment of beauty products made out of human hair from the region and a video of blindfolded prisoners being led onto train cars went viral. Over the past couple of years, some have compared the human tragedy unfolding there to North Korean totalitarianism and South African apartheid. More recent evidence has inspired comparisons to the Holocaust. “Genocide” is a word that packs a punch, spurring action by connecting “the solemn commitments of the past and a new atrocity unfolding before the world’s eyes,” as a report by the U.S. Holocaust Memorial Museum’s Simon-Skjodt Center put it last year. This word, sadly, is now an apt descriptor for the situation in Xinjiang.

Full article at National Review.

On Originalism and Stare Decisis

I have an essay on the difficulty of integrating them at the Liberty Law blog--more an effort to chew over what I take to be a problem than to offer a definitive resolution, though my tentative approach to the issue depends upon other methodological moves that I did not discuss at length in this piece.

There are many others who are more committed to originalism than I am, and even more who have thought much more deeply about the relationship of originalism and stare decisis. Among them are Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who will respond to the essay by and by. A bit from the end:

Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.

Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like Gamble, Mesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.