Mirror of Justice

Garnett & Graziano on the Kennedy case (and "endorsement")

I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things).  A bit:

Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.

There they go again ... Vermeule & Casey on Pryor in Ohio

There they go again. Law professors Adrian Vermeule and Conor Casey have co-authored an impressively lengthy, effectively footnoted, and aptly titled "Argument by Slogan" piece up at Harvard JLPP's Per Curiam. Its rhetorical framing brings to mind a critical and pointedly understated observation that Professor Richard Helmholz recently made in Marching Orders. In his largely positive review at First Things of Vermeule's compact call to arms, Common Good Constitutionalism, Helmholz expressed surprise at "the harshness of debate in this area of the law," and described Vermeule's outlook as that of one engaged in "a no-holds-barred sort of contest."  "It does seem a shame," Helmholz observes, "that the argument about constitutionalism has become as shrill as it has."

Helmholz is likely right about the shrillness being a shame; he is definitely right about the shrillness being shrill. Consider how Vermeule and Casey frame their response to the published version of Judge William Pryor's address to the Federalist Society’s 2022 Ohio Chapters Conference, Against Living Common Goodism:

• "Judge Pryor's advocacy of public meaning originalism is infected by a horror of judgment—a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law." [p. 4]
• "In the end, Judge Pryor's core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory." [p. 4]
• "To understand Judge Pryor's commitments, one must begin with the animus that galvanizes his argument." [p. 5]
• "The consequence of this core enmity is simple: Judge Pryor's argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor's arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism."
• "In the end, Judge Pryor's core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan's style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. ... Enmity is not a theory. Slogans are not arguments." [p. 19]

Just so. 

If one wishes to take seriously the ideas at issue instead of being distracted by the framing and motivational attributions, there's not much one can do about this rhetorical state of affairs in the short term. One can attempt to absorb or deflect, though, and then at some other time put forward a more positive vision. So for now, I'll just gesture toward that famous debater's trick from the Gipper and combine it with the professors’ favored rhetorical technique of repetition: There they go again.

Anyone want to teach Torts? In Minneapolis?

I apologize for bursting in after such a long absence for something with something that someone might argue has only the slightest relationship with Catholic Legal Theory, but this is urgent, and this is an audience I'd like to reach!  As some of you may know, the University of St. Thomas is in the midst of some leadership changes.  Our President is moving to Santa Clara University,  our beloved Law School Dean, Rob Vischer, will be serving as Interim University President, our equally beloved Associate Dean for Academic Affairs, Joel Nichols, will be serving as Interim Dean of the Law School, and I will be serving as Interim Associate Dean.

These rather sudden transitions are complicated by the fact that our first year Torts classes were being taught by Rob and Joel, so we are looking for Torts coverage.   Here's the announcement Joel is posting:  please forward to anyone you think might be interested:

The University of St. Thomas School of Law (MN) is looking to hire a visiting professor for Fall 2022 to teach Torts. The ideal candidate would have experience teaching Torts and be able to teach two sections of Torts in the fall term, due to leadership changes at the school. Torts is a 4 credit, fall-only 1L class. Courses will be taught fully in-person, unless the public health situation changes significantly.

We would consider a full year visit for 22-23 (courses in spring term TBD based on the visitor’s expertise) and would also consider a visitor who can teach one section of Torts plus another course in an area of expertise. Please send inquiries and statements of interest to Joel Nichols, incoming Interim Dean, at [email protected]. Review of applications will begin immediately.

I know the timing means that most faculty are already committed for the fall, but I would appreciate it if you would share with colleagues who might be interested and available. People should feel free to reach out to me directly at [email protected] or by phone at 651-962-4827.

 

Seminar: Competing Visions of the University

I'm posting below the syllabus for a seminar I am teaching this semester with historian Allen Guelzo on competing visions of the university.

PRINCETON UNIVERSITY
Department of Politics

Politics 491:  The Politics & Principles of Higher Education: Competing Visions of the University

Instructors: Robert P. George (Politics) & Allen C. Guelzo (Humanities)

Description/Objective: This course will examine the history, contemporary reality, and likely future of higher education, especially in the United States but also abroad. We will consider the changing and often conflicting ideals and aspirations of parents, students, instructors, and administrators from classical Rome to Christian institutions in the European Middle Ages to American athletic powerhouses today, seeking answers to fundamental practical, economic, and political questions that provoke vigorous contemporary debate.

Free Speech:  As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this seminar 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.

Texts:

Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (Rowman & Littlefield, 2019)

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019)

Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (Yale University Press, 2007)

John Henry Newman, The Idea of a University, ed. Frank M. Turner (Yale University Press, 1997)

Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)

Digital Reader:

• Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997)
• William Deresiewicz, “Don't Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)
• Plato, Protagoras, 320c-328d
• Aristotle, Politics, 7.13-8
• Quintilian, Institutio oratoria (Book 10)
• Petrarch, “The Ascent of Mt. Ventoux,” ed. Henry Reeve (Edinburgh, 1878), 84-89
• Vergerio, De ingenius moribus (1472)
• John Dewey, Democracy and Education (1916), chs. 6 & 7
• Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963)
• Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920,” in Wechsler, Goodchild & Eisenmann, The History of Higher Education (1997), 473-498
• Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)
• Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)
• Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999)
• William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” University of Dayton Law Review 44 (2018-2019)
• Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999);
• Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998)
• Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021)

Online Readings:

• James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971) - https://www.learningoutcomesassessment.org/wp-content/uploads/2020/01/Axtell-1971.pdf
• Patsy Parker, “The Historical Role of Women in Higher Education” -- https://files.eric.ed.gov/fulltext/EJ1062478.pdf
• AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color” -- https://www.aaup.org/news/data-snapshot-full-time-women-faculty-and-faculty-color#.YZQwRL3MJVo
•  C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018) -- https://www.americanprogress.org/article/neglected-college-race-gap-racial-disparities-among-college-completers/

Weekly Schedule

1. January 26 – What Is the Purpose of a University, and especially the kind of education we call “liberal arts”? This will be a general get-acquainted session, with a detailed review of the syllabus and readings, some preliminary questions about why, exactly, we’re all here at Princeton and what we expect Princeton to be, what Princeton has been in the past, and then the distribution of assignments as per above.

1. February 2 -- The Ancient Model of Learning – What we call ‘higher education’ today takes its earliest form in in classical times. But what was its purpose? To whom was it addressed, and what were its ‘graduates’ expected to do with it?

Readings: Plato, Protagoras, Aristotle, Politics, Quintilian, Institutio oratoria (Book 10)

1. February 9 -- The Renaissance Model of Learning – If the classical education gives us many of the questions we associate with ‘higher education,’ then the Middle Ages and Renaissance gives us its forms, in the monastery schools and then the universities. What did those universities aspire to teach, and how did the emphasis on virtue emerge in the Renaissance?

Readings: Petrarch, “Ascent of Mt. Ventoux”; Vergerio, De in genius moribus (1472)

1. February 16 -- The Victorian Model of Learning – The medieval universities evolved in the 19^th century into models of research, especially in Germany. That emergence was both challenged and accommodated in one of the most famous modern texts ever written on university life.

Readings: John Henry Newman, The Idea of a University (1852/58)

1. February 23 -- The Progressive Model of Learning – By the turn of the 20^th century, government had begin to look to higher education as a source of administrative expertise. How did this change the functioning of higher education, especially in the United States? Modern mass society has changed, not only what is taught, but also how universities are supposed to serve the public interest. It has, however, created serious questions about whether higher education has become purely instrumental.

Readings: John Dewey, Education and Democracy (1916), chs. 6 & 7; James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971); Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963), 1-34

1. March 2 -- Women in the University – Until the later 19^th century, women were almost entirely absent from higher education. How have women challenged and changed university life since then?

Readings: Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920”; Patsy Parker, “The Historical Role of Women in Higher Education;” Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (2019)

Spring break – March 5-13

1. March 16 -- The Color of the University – Higher education in the United States, and at Princeton, was a closed door to people of color. This, too, has changed since the 19^th century. But are its implications different than those posed by the entrance of women at the same time into American colleges and universities? What challenges do race pose today? – AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color;” Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019); C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018); Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)

1. March 23 -- What is a Curriculum?– Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (2007), Chs 1-3; Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)

1. March 30 – What is the Purpose of an Education?  -- Readings: Donald P. Verene, The Art of Humane Education (2002); Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020); Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997) Ch 1; William Deresiewicz, “Don’t Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)

1. April 6 -- Law and the University: Dartmouth, Gott, Dixon, Healy, Furek, Bakke, Grutter -- Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999); Kronman, Education’s End, Ch 4; William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” U. Dayton Law Review 44 (2018-2019)

1. April 13 -- Academic Freedom & Its Purpose -- Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999); Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)

1. April 20 -- How Will Universities Change? -- Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998); Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021); Kronman, Education’s End, Ch 5

Requirements:

In addition to regular, often substantial, reading, there will be a take-home midterm examination and a final 15-20-page paper. Each student will also be responsible for helping lead one class meeting.

Grading: Midterm Exam 20%

Paper In Lieu Of Final Exam 50%

Class/Precept Participation 20%

Oral Presentation(s) 10%

Prerequisites and Restrictions: This seminar is open to all Class years. There are no prerequisites or restrictions

On C.S. Lewis' "Learning in War-Time"

Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of our Reading Society gatherings at the Center for Law and Religion, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below.

One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.

2022-04-01-14-20DOWNLOAD

The Congregation for Catholic Education issues new instruction on Catholic schools

The Pillar has the story, here.  Read the whole thing, but it seems clear that the Congregation is rejecting a notion of Catholic schools according to which they are merely schools like others, but with a sprinkling of religiously themed art or character-focused programming.  At a Catholic school, the "Catholic" must be about more than heritage, tradition, or affiliation; it is about character, charism, mission, and "identity."  And, the relevance to cases in the United States involving the so-called "ministerial exception" (which is neither limited to ministers nor an exception) is clear:

As the document turns to the role of teachers, the congregation lines up behind an argument which has been advanced by several American dioceses in recent years which defines all teachers, regardless of subject, as ministers of religion, for the purposes of U.S. law:

“In a Catholic school, in fact, the service of the teacher is an ecclesiastical munus and office,” it says, which they exercise not only by teaching in the classroom but “also bearing witness through their lives, [through which] they allow the Catholic school to realize its formative project to witness.”

The extent to which teaching is described almost as an ecclesiastical vocation is further emphasized by the instruction, which says they must all be “outstanding in correct doctrine and integrity of life,” and requires the “initial and permanent formation of teachers.”

“Following the doctrine of the Church, it is therefore necessary for the school itself to interpret and establish the necessary criteria for the recruitment of teachers,” the instruction says. “This principle applies to all recruitments, including that of administrative personnel. The relevant authority, therefore, is required to inform prospective recruits of the Catholic identity of the school and its implications, as well as of their responsibility to promote that identity.”