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.

Saturday, February 27, 2021

Prof. Seidman on Georgetown's "residual Catholicism"

An . . . interesting take on Georgetown University Law Center's Catholic character and mission, from Prof. Louis Michael Seidman:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

February 27, 2021 in Garnett, Rick | Permalink

Thursday, February 25, 2021

A Catholic approach to diversity, equity and inclusion at Notre Dame: 10 Theses

A Catholic approach to diversity, equity and inclusion at Notre Dame: 10 Theses

 | Thursday, February 25, 2021

Daniel Philpott

Professor of political science

Like many other universities, Notre Dame is promoting diversity, equity and inclusion in the aftermath of the killing of George Floyd on May 25, and of Ahmaud Arbery, Breonna Taylor and many others. Unlike most universities, Notre Dame is a Catholic university whose mission statement holds that “our Catholic character informs all our endeavors.” How can Notre Dame manifest its mission in these efforts?

Full letter at the Notre Dame Observer: https://ndsmcobserver.com/2021/02/a-catholic-approach-to-diversity-equity-and-inclusion-at-notre-dame-10-theses/

February 25, 2021 | Permalink

Sunday, February 21, 2021

Hankins on the Historical Past as a Source for Origins and Foundations Today

I thought this fragment from Professor James Hankins' Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019), was very interesting and well put (64-65):

A conceptual framework motivated by present concerns may distort the past, but questions about origins and foundations are surely not "temptations" but the lifeblood of historical inquiry. A methodology that cripples the ability to ask such questions needs rethinking. Historical questions and metahistorical questions are indeed different and should be kept separate, but this fact need not be taken as a source of epistemological despair. Rather it is, or it should be, a call to exercise our imaginative understanding of human phenomena in relation to the entirety of past cultures, their Lebenswelt, the long-faded structures of practical constraints and inherited values that shaped those cultures and still renders them legible, with disciplined research, to the attentive mind. In practical terms this means exercising ceaseless vigilance against anachronism: something easier said than done. To see the past in its own terms goes against our naïve or interested desire to make use of the past for our own purposes. It also requires hard work, imagination, and (dare one say it) a certain kind of love. We want to root our own identities as individuals or groups in a glorious past, or (more often these days) we want to preen ourselves on our superiority to a benighted past, and this desire sometimes blinds us to difference, to anachronism, to moral universes other than our own. But sometimes we have to transcend our own needs in order to do justice to the reality of other persons and times. And sometimes it is the truth we cannot see that is precisely the one we need.

February 21, 2021 in DeGirolami, Marc | Permalink

Saturday, February 20, 2021

"Deeply rooted in white supremacy"

How should we argue about deeply contested issues? This morning our local newspaper published an op-ed repeating an argument I’ve seen several times in recent weeks: warning that the pro-life movement is “deeply rooted in white supremacy.” That would come as a surprise to Clement of Alexandria (who expressed Christian opposition to abortion more than 1500 years before the United States even existed), to Mother Teresa (who criticized political leaders for their permissive abortion policies and their treatment of the poor), to Cardinal Wilton Gregory (America’s first Black Cardinal who has long advocated against both white supremacy and abortion), to Planned Parenthood founder Margaret Sanger (acknowledged recently by the organization as contributing a “racist legacy” through her eugenics ideology), and to millions of Black Americans today who oppose legal abortion at about the same rate as other Americans. To dismiss today’s anti-abortion advocacy as “rooted in white supremacy” disregards history and inflames an already difficult issue.
The point I want to make is not about abortion, it’s about how we argue. The effort to label anti-abortion advocates as white supremacists follows efforts to label proponents of single-payer health care as communists. Are there white supremacists who oppose legal abortion? Sure. Are there communists who support single-payer health care? Sure. But there is nothing intrinsic to single-payer health care or anti-abortion advocacy that compels an embrace of communism or white supremacy, and to suggest so is to adopt an approach to political debate designed to shed considerably more heat than light.
These are not isolated examples. Increasingly, our political disagreements on particular issues are being absorbed into a broader war between two vast tribal identities. Those who disagree with us on abortion don’t just disagree with us on abortion (or health care or immigration or police reform); they are “the other” – enemies in a winner-take-all battle of good versus evil. If they’re not actually white supremacists (or communists), they might as well be. There is no point in searching for common ground because they are evil, all the way down. Whatever we fear or hate most in the world gets attached to whoever stands in the way of our political objectives.
I think this approach to argument is actually a cop-out, a lazy excuse to avoid the hard work of engagement. If I can dismiss those who disagree with me as white supremacists or communists, I don’t have to listen to their arguments, much less offer a substantive response. This is no way to conduct a democracy.
There are strong arguments on both sides of the abortion debate, and we should engage them. There are strong arguments on both sides of the health care debate, on the immigration debate, on the police reform debate, and on many other vexing public policy challenges. That’s why they are difficult issues. Simplistic narratives and name-calling don’t make these issues any less difficult, just more toxic. We can do better.

February 20, 2021 in Vischer, Rob | Permalink

Thursday, February 18, 2021

We're All In This Together

OK, let’s talk about Ted Cruz’s trip to Cancun, not because it’s an easy target for social media outrage, but because I think it offers helpful insight into why we have become so frustrated with our political leaders. I fully understand a father’s desire to give his daughters a vacation in the midst of a challenging year, and I agree that Senator Cruz could have worked from Mexico via phone and Zoom. The vacation wasn’t a failure of logistics, and it wasn’t just a case of bad optics – it was a disregard of a core element of leadership: affirming through word and deed that, no matter the challenge, we are all in this together. Living out this affirmation as a leader has several dimensions:
First, leaders must be willing to share in the risk. If you are leading an organization that requires some employees to be on site during COVID, and you are working remotely from the safety of your home office, that sends a strong message to your employees who are on site. If your state is suffering through widespread power outages during frigid weather, and you remove yourself from those risks for sunnier climes, you’re not leading effectively. Ted Cruz needed to tell his daughters that the vacation would have to wait until the crisis was over.
Second, leaders must be willing to share in the sacrifice. Knowing that sacrifice is shared is a remarkably powerful motivator and encouragement for a community in crisis. When a leader doesn’t share in the sacrifice, there is no faster path to cynicism. When California Governor Gavin Newsom was photographed at a fancy dinner party, and it appeared that his group was not following the COVID protocols imposed on everyone else, that was a crushing blow to his ability to lead his state through the pandemic.
Third, leaders must be subject to the same accountability. When members of the public screw up, they usually have to make amends. Especially when they have influence over the tools of accountability, leaders have to make sure that they are transparent about their mistakes. When New York Governor Andrew Cuomo made misjudgments about placing people suffering from COVID in long-term care facilities early in the pandemic, that was bad, but given what little we knew about the disease at the time, it was arguably an understandable mistake. Working to conceal that mistake in the months since – for a leader – is inexcusable.
Fourth, leaders must show that we possess the same dignity. Leaders will invariably disagree about ideas with those whom they are called to lead. Disagreement should be open, direct, and respectful. Disagreement never justifies leaders characterizing those they are called to lead in ways that are demeaning or characterize a person as “the other.” That is why Hilary Clinton’s “deplorables” comment was so inappropriate, and it’s why so many of President Trump’s comments were inappropriate.
Looking for a good counter-example? While she was far from the most memorable leader in Chicago's colorful history, something Mayor Jane Byrne did has stuck with me ever since I learned about it as a kid. She moved into the Cabrini Green housing project. Like other mayors before her, she pledged to improve public safety, but then she backed it up by actually living in a spot that was perceived as being among the most dangerous in the city. That’s a powerful example of how to say, “we’re all in this together,” and leave no uncertainty that you mean it.
The tendency to extend preferential treatment to ourselves over others is not a partisan problem - it's a human problem. It's one I struggle with as well, and when it's left unacknowledged and unaddressed, it's an obstacle to effective leadership.

February 18, 2021 in Vischer, Rob | Permalink

Wednesday, February 17, 2021

Will Supreme Court Expand Religious Rights? (Podcast)

Rick Garnett, a professor at Notre Dame Law School, discusses a divided U.S. Supreme Court ordering California to let indoor church services resume. Jimmy Gurule, a professor at Notre Dame Law School, discusses the case for the second impeachment of former President Donald Trump. June Grasso hosts.


February 17, 2021 | Permalink

The Common Good Project

The Common Good Project was launched yesterday by Professor Ryan Meade of Oxford Law. It begins with a series of conversations with legal theorists, law-makers, philosophers, economists, and others. Honored to be on the Advisory Board. 

Here's the description:

The Common Good Project seeks to foster a discussion of the relationship between law and the common good. The Project will begin its efforts by exploring the common good from an array of perspectives.


Many legal theorists assert that law must be directed to the common good, but few agree on what the common good is. Even those who might agree on the same formulation for the common good have nuanced differences in how the common good plays out in practical relationship with specific law.


Of course, not everyone holds to the notion that law must be directed to the common good, and some legal theorists find the term 'common good' dubious in itself. The Common Good Project will also explore theories of law and society that deny there is a discernible common good or dismiss the common good as impractical or an imperfect anchor for law.


In relating law to the common good, the Project takes as its framing point a key criterion in Thomas Aquinas' definition of law as 'an ordinance of reason for the common good, promulgated by the one who is in charge of the community.' For Aquinas, a 'law' must be directed to the common good to have the character of law.


The Project will address questions such as whether the common good is focused on material well-being of individuals or ideals of justice, whether material conditions and ideals are one in the same, to what extent imperfect but well-meaning laws might be considered sufficiently directed to the common good in the context of constraints in culture and politics, and how the classical and contemporary notions of equity interact with the common good. The Project will examine the common good in drafting legislation, crafting regulations, judicial decision-making, the growth of administrative law, and foundational constitutional questions, among many others.

The first conversation will be on February 22nd, 7:30pm Oxford time (2:30pm EST) with Adrian Vermeule. You can register here

February 17, 2021 in Bachiochi, Erika | Permalink

Ash Wednesday

Today we observe Ash Wednesday, which marks the beginning of Lent, the time in the Christian calendar that commemorates the 40 days Jesus spent being tempted by Satan in the desert. The ashes sprinkled on our foreheads remind us that we are mortal: we are dust, and to dust we shall return. As Pope Francis explained last year, though, “we are dust loved by God,” and the ashes are:
a reminder of the direction of our existence: a passage from dust to life. We are dust, earth, clay, but if we allow ourselves to be shaped by the hands of God, we become something wondrous. More often than not, though, especially at times of difficulty and loneliness, we only see our dust! But the Lord encourages us: in his eyes, our littleness is of infinite value. So let us take heart: we were born to be loved; we were born to be children of God. [Lent is thus] a time of grace, a time for letting God gaze upon us with love and in this way change our lives. We were put in this world to go from ashes to life. So let us not turn our hopes and God’s dream for us into powder and ashes. . . . Ashes are sprinkled on our heads so that the fire of love can be kindled in our hearts. . . . Our earthly possessions will prove useless, dust that scatters, but the love we share – in our families, at work, in the Church and in the world – will save us, for it will endure forever.
This year, it may seem like the last thing we need is a reminder of our mortality. Life’s fragility has probably not been far from any of our thoughts since the pandemic upended our world one year ago. The temptation to feign blissful ignorance of our mortality may sound pretty refreshing right about now. And it’s a temptation that may be within sight as vaccines roll out and something closer to "normalcy" looms over the horizon.
But, as Ash Wednesday reminds us, disregard of our mortality is not so blissful, and it is not without cost. As vaccinations become more widespread, I hope I don’t trade anxiety about my at-risk loved ones for complacency about each day’s significance. Pre-pandemic, I was adept at distracting myself from big questions with a never-ending blur of activities. While Ash Wednesday is not intended as an impetus to wallow in the stark fact of life’s brevity, it is an invitation to reflect: in light of my mortality, how shall I then live?
We do not achieve significance through impressive accomplishments; we honor our significance by living as though we truly believe that the “littleness” of each person we encounter is “of infinite value.” As we enter Lent, what would it look like for “the fire of love” to “be kindled in our hearts?” And what is the “something wondrous” we were called – indeed created – to become?

February 17, 2021 in Vischer, Rob | Permalink

Friday, February 12, 2021

An Open Letter About/To Senator Marco Rubio on the Eve of the Senate Trial Verdict

In 2016, I was a proud supporter of Senator Marco Rubio’s campaign for the Republican nomination for President. I put a Rubio sign in my front yard. I blogged about my support for Rubio. I encouraged people I knew to turn out for Rubio at the Minnesota caucuses. I attended the Minnesota caucuses, where my precinct voted overwhelmingly for Rubio. Although Donald Trump carried primaries nearly everywhere else that day, the good people of Minnesota stood for principle and character, giving the strong win to Marco Rubio.

In 1980, I was a delegate to the Republican National Convention, as part of the Montana delegation that put Ronald Reagan over the top for the nomination. In 2016, I thought I saw in Marco Rubio another powerful leader of principle and character. Rubio integrated conservative values with equal opportunity. Rubio spoke openly of his Christian faith and how it provided moral guidance to his political role. He saw faith and people of faith as playing a key role in promoting the common good for people of all faiths and beliefs. I saw him as offering us the best of a person of deep faith and positive spirit in seeking political office.

After the tragedy of Trump’s nomination and then the start of the long four-year downward spiral of the Trump presidency, Rubio’s moral standing appeared to falter, not by words or action but too often by silence. From time to time, Rubio would return to his first values and separate himself from this or that of the worst of Trump’s outrages. Indeed, I often defended Rubio to others who were dismayed by the Trump perversion of the conservative movement.

No more.

Barely a month ago, we watched a defeated president call for his extremist followers — the White Nationalists and conspiracy theory crazies that Trump had welcomed for four years — to join him at what he promised would be a “wild” rally on January 6 to overturn the election results. Once again drawing on his repertoire of violent imagery, Trump enraged the crowd and then sent his crazed mob down Pennsylvania Avenue to the Capitol. Repeating word-for-word what Trump had told them, the mob chanted Trump’s slogans and lies as they attacked the citadel of democracy. We watched the Trump mob beat police officers with Trump flags.

When Trump’s long-delayed response came hours later, he said of these domestic terrorists who were acting in his name, “We love you. You’re very special.”

Documenting history is a moral obligation if we are ever to learn from mistakes and aspire to something better. Over the past few days, the impeachment managers have done exactly that. As graphic and disturbing as was the video and documentary evidence, we as citizens were rightly called to bear witness along with the Senate to Trump’s inflammatory words and to the Trump mob attack on the Capitol.

Then we learn what Marco Rubio thinks about this. He branded the whole thing as “stupid.” To be sure, he said that Trump bore responsibility for what happened. But he nonetheless said that he wanted to end it as soon as possible and, indeed, even before any evidence was presented. And Rubio promised to join most of his fellow Republicans in the Senate in giving Trump a pass for the most dangerous attack on American democracy in more than a century. In fairness, however, Rubio said this before we saw the full story in living color.

I pray that Marco Rubio will think carefully about what he now has seen. I hope that he did not turn his eyes away, but watched carefully and thoughtfully. I urge him to draw on the conscience that he spoke of during his 2016 presidential run. Please consider, Senator Rubio, that you may be on the wrong side in dismissing the infamous events of 1/6 as something to rush past “at the first chance” to “end” this. Do not allow others behind the scenes to sweep away the broken glass, while you fail to demand that justice be rendered against the president who shattered the windows of American democracy.

Now is the time. Later recognition that this opportunity was lost is simply too late. It’ll be too late for history, which will not look kindly on those who hastened to move past this outrageous episode. It’ll be too late for our country which needs a new beginning. It’ll be too late for the Republican Party which has tolerated a faction that accepts political violence and desperately needs to move on to a different and more uplifting path.

Please surprise me, Senator Rubio. Please let us see the same man of principle, character, and conscience that inspired me in 2016. Prayerfully and regretfully, but firmly, vote to convict Trump. Let the truth set you free.

February 12, 2021 in Sisk, Greg | Permalink

Thursday, February 11, 2021

Notre Dame Law School Religious Liberty Initiative files amicus brief in support of Apache Stronghold in Oak Flat litigation

The Notre Dame Law School Religious Liberty Initiative has filed an amicus brief in the United States District Court in the case Apache Stronghold vs. United States of America. The brief argues in favor of religious liberty protections for Oak Flat, an Indigenous sacred site in Arizona being threatened with destruction.

The brief was filed by Notre Dame Law Professor Stephanie Barclay, a First Amendment scholar who directs the Law School’s Religious Liberty Initiative, along with the Religious Liberty Initiative’s student cohort. “Our brief highlights a history of callousness and coercion against Indigenous sacred sites like Oak Flat. Our religious freedom laws wouldn’t allow the government to demolish churches with impunity, and the same should be true of a site that has been sacred to the Apache people for generations,” Barclay said. The brief represents Ramon Riley, the White Mountain Apache Tribe Cultural Resource Director, the Morning Star Institute, and the MICA Group (Multicultural Initiative for Community Advancement).

“Notre Dame’s campus is blessed with many sacred places: from the Grotto of Our Lady of Lourdes to the Basilica of the Sacred Heart. But for the Apache people, there is only one Oak Flat,” said Dan Loesing, a 2L student who took a lead role on this brief. “It's an honor to work to protect this historic sacred site and the free exercise rights of those who gather there for prayer and religious ceremonies.”

In Apache Stronghold vs. United States of America, the District Court of Arizona may decide whether the ramifications of the Resolution Copper project meet the “substantial burden” requirements of the 1993 Religious Freedom Restoration Act. The anticipated physical destruction of Oak Flat will leave an empty crater where religious gatherings and ceremonies once took place. The amicus brief filed by the Notre Dame Law School Religious Liberty Initiative pushes back against arguments by the government that would provide basically no religious freedom protections for Indigenous sacred sites, and that would result in disparate treatment between those sites and other similar types of non-Indigenous religious exercise.

About the Notre Dame Law School Religious Liberty Initiative:

Notre Dame Law School recently launched its Religious Liberty Initiative under the leadership of Stephanie Barclay. The Initiative will involve promoting more religious liberty scholarship, coordinating events for thought leaders in this space, and starting a new Religious Liberty Clinic aimed at promoting religious liberty for people of all faiths. In just the past six months, students in the Religious Liberty Initiative cohort have already helped write briefs filed in the Northern District of New York, the Second Circuit Court of Appeals, and the U.S. Supreme Court, defending the rights of Muslims, Evangelicals, and Orthodox Jews.

Additional Quotes on the Amicus Brief:

The amicus brief was supported by Mona Polacca, President of the International Council of the Thirteen Indigenous Grandmothers. She stated, “The Oak Flat Stronghold is not just a place, but a home to spiritual powers. ... For centuries, Oak Flat has remained an active place where Indigenous people come to pray, harvest, and gather where holy beings reside and holy springs flow. The San Carlos Apache cannot have this spiritual connection with the land anywhere else on Earth.”

Alexandra Howell is a third-year law student at Notre Dame who also helped with the brief, and she explained, “While what is sacred to majority culture and religion is generally safe from government interference, minority religious groups do not have this same guarantee. Our amicus brief made me think about how the Apache burial site located at Oak Flat is akin to Arlington National Cemetery in Washington, D.C. This section of the brief is a crucial reminder of how easy it is to disregard the need for others’ beliefs to receive protection when they look different from our own.”

Ramon Riley, a respected Apache elder, has spent the last two decades working to defend Oak Flat. He opposes the proposed mining project for Oak Flat, because he believes it is wrong to “destroy sacred land that made us who we are.”

The troubling pattern of lack of protection for Indigenous sacred sites is something of particular interest to Professor Barclay. Together with co-author Professor Michalyn Steele, Barclay just yesterday published a Harvard Law Review article that argued Indigenous people should be able to more easily make a claim of a substantial burden under RFRA in order to correct certain inequalities in the law. “Allowing Indigenous peoples to demonstrate a substantial burden on their religion on the same basis as other religious groups does in any way guarantee that they will always win their case. Rather, it simply requires government to actually justify its burdens, and it incentivizes government to be more protective of sacred sites if it can be,” the article argues.

“We are so grateful and honored that Notre Dame is helping the Apache in our time of greatest need," said Apache Stronghold leader and former San Carlos Apache Tribal Chairman Dr. Wendsler Nosie, Sr. "The government is saying that destruction of Chi'chil Bildagoteel will not be a serious problem for us when its destruction will force us to stop practicing our religion.”


February 11, 2021 | Permalink