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.

Tuesday, February 28, 2023

An important religious mission / freedom of association decision

The United States Court of Appeals for the Second Circuit has handed down an important decision, vindicating the First Amendment right of a pro-life pregnancy-resource center to hire-for-mission.  You can get the opinion in Slattery v. Hochul here.  I was pleased that the court cited, quoted, and relied upon a paper of mine, from a while back, which was written as a tribute to my former boss, Judge Richard S. Arnold.  That paper relied, in turn, on an earlier one, called "The Story of Henry Adams's Soul: Education and the Expression of Associations."  Here's the abstract:

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

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

February 28, 2023 in Garnett, Rick | Permalink

Tuesday, February 21, 2023

Garnett on "Why Liberalism and Constitutionalism Need Christianity"

Here's a short essay, based on a talk at Notre Dame Law School a few weeks ago, on Liberalism, Constitutionalism, and Christianity.  A bit:

[T]he suggestion is that “liberalism” and “constitutionalism” rely for their success, both in theory and in fact, not only on the separation and limitation of the powers of the political authority, but also on the existence and the health of authorities and associations outside, and meaningfully independent of, the state. As I and many others have argued, our tradition of constitutionalism was made possible, and might still depend today, on the independence of the church from secular control, an independence that it is fair to say Christianity first proposed and insisted upon.

The “distinction,” as Pope Benedict XVI put it, “between what belongs to Caesar and what belongs to God (cf. Mt 22:21)” is “fundamental to Christianity.” It is this core tenet of Christian political theology—the differentiation between “church” and “state,” along with the freedom of the former and the limits on the latter—on which, it seems to me, both liberalism and constitutionalism depend. This differentiation, the late pope contended, “came into the world first through Christianity. Until then,” he observed, “the political constitution and religion were always united. It was the norm in all cultures for the state to have sacrality in itself and be the supreme protector of sacrality.” Christianity, however, “deprived the state of its sacral nature.”

Again: constitutionalism and liberalism—and liberal constitutionalism—need Christianity. Indeed, the “separation” between church and state that has long been treated, with more or less care, as a foundation of the American law of church and state is better regarded as a limit imposed by the former on the latter than vice-versa. Correctly understood—and, to be sure, it often is not—this “separation” stands as a safeguard against governments tempted to assume for themselves the power to direct religious life. It is a limit on government and such limits, again, are essential to liberal constitutionalism. Our Constitution separates church and state to curb the ambitions and reach of governments. In and through our constitutionalism, “Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God’s.” The differentiation between religious and political authority means that Christianity is not merely a recipient of constitutional protection; it is a safeguard for the enterprise of constitutionalism.

February 21, 2023 in Garnett, Rick | Permalink

Sunday, February 19, 2023

Q&A: Andrew Walker and Robert George on Natural Law

Some time back, Andrew Walker, PhD, of Southern Theological Seminary in Louisville posed to me some questions on natural law. I'm here posting those questions and my answers. (More recently, Dr. Walker has published a collection of essays by distinguished Protestant scholars engaging my work: Social Conservatism for the Common Good: Protestants Engage Robert P. George.)


Andrew Walker:  First, what is your definition of natural law and natural law theory?

Robert George:  Natural law is the body of reasons (including moral reasons) for action and restraint accessible in principle to human reason even apart from special revelation. The first principles of practical reason and basic precepts of natural law direct our choosing and acting towards ends that are intelligibly choiceworthy not merely as means to other ends but as ends-in-themselves. Natural law theorists call these ends “basic human goods.” They are the constitutive aspects of human well-being and fulfillment. Moral norms, from the most general to the most specific, are identified by reflection on the integral directiveness of the first principles of practical reason. 

AW:  To what extent is natural law learned versus innate and intuitive?

RG:  Reasons for action (like reasons for belief) are neither innate nor intuitive. They are grasped in intellective acts. They are the fruit of insights which, like all insights, are insights into data supplied by experience. It is, for example, in the experience of true friendship--where friends genuinely will the good of the other for the sake of the other--that we grasp the intelligible point of friendship making possible the sound judgment that the activity of friendship is inherently fulfilling of ourselves as human persons--that friendship is indeed intrinsically and not merely instrumentally valuable.

AW:  If there is a natural law, why do even natural lawyers disagree on its content?

RG:  For the same reasons people disagree about matters in other fields of philosophy or, more generally, in other domains of inquiry. There is nothing special in this respect about moral philosophy, as opposed to logic, aesthetics, philosophy of mind, etc.; or about natural law theory, as opposed to utilitarianism, Kantian (or “deontological”) ethics, virtue ethics, or even moral skepticism; or about philosophy generally, as opposed to history, sociology, literary studies, and even the natural sciences. 

AW:  What’s the distinction between that which comes naturally versus natural law? Are you saying we should follow and obey what comes naturally to us?

RG:  The word “natural” has various meanings, and the term is used differently for different purposes or in different contexts. There is no magic in the term, and it certainly has proven to be misleading on some occasions. The natural law is natural, as opposed to being conventional. It “exists” or “obtains” as a body of reasons that are in no way artefactual. These reasons are accessible to unaided--and in that sense “natural”--human reason, but they are not human creations. By contrast positive law, which may be morally good or bad, just or unjust, is a cultural artifact. It is man-made. When it is just--when it is properly fashioned--it will be in line with and even in a sense (actually, in one of two distinct senses) be derived from natural law; but it is nevertheless conventional. As natural law thinkers from Cicero to Aquinas to Martin Luther King have all pointed out, the positive law of any community stands under the judgment of the natural--the moral--law. That is what makes it possible for us to speak of, and identify and condemn, unjust laws.

AW:  Do you see any future in which Western civilization self-corrects from its move away from natural law and returns to sanity? Or, are we destined for civilizational collapse?

RG:  This one is above my pay grade. Ask God. Whatever the future holds, it is our job to do what’s right--what the natural law and divine law require. As the late and very great Richard John Neuhaus never ceased reminding us, our job is not to produce the final victory--that’s up to God and will come in his time and on his terms. Our job is to be faithful. Ever faithful.

AW:  A consistent criticism from Protestants when it comes to natural law is that natural law is not persuasive on its own terms — that it needs revelation for its authority. What’s your response to this criticism?

RG:  It’s sure persuasive to me. I doubt that people who don’t “find it persuasive” will find the proposition that God exists, has authority over us, and has revealed his will or law to be very persuasive.

AW:  Do natural theorist like you see your project as one opposed to revelation?

RG:  No. Nor do I know of any other natural law theorist, past or present, who sees the project as one opposed to revelation. As Pope John Paul II taught, “faith and reason are the two wings on which the human spirit ascends to the contemplation of truth.” That teaching holds true, in my opinion, whether the truths we are contemplating or seek to understand are in the domain of ethics or in other domains of inquiry in which Christian faith offers guidance.

AW:  Can you give a succinct explanation of the difference between New Natural Law theory and Classical Natural Law theory? Are the schools of thought in competition or complementary to one another?

RG:  Actually, there’s not much “new” about the “new natural law theory.” It’s a misnomer, though we seem to be stuck with it. In any case, it is distinguishable on some points from neo-scholastic theories of natural law. People in both camps claim the mantle of Aquinas, though all should treat the question of what Aquinas held or didn’t hold as a secondary matter. What is primary is the question what is true. The most important point of debate, I believe, is how the intellect gets hold of the first and most basic principles of practical reason. Are they understood in non-inferential acts of understanding in which one grasps the point of, say, pursuing intellectual knowledge (of say, pure mathematics, or Shakespeare, or the history of agriculture), or friendship, or aesthetic appreciation, or other intrinsically worthwhile activities for their own sake? (That’s what the so-called “new natural law” theorists hold.) Or are they provided by methodologically antecedent theoretical inquiry (as opposed to practical reflection) into, say nature or human nature? (That’s what neo-scholastic natural law theorists hold.) If the former, then the first principles of practical reason and most basic precepts of natural law are, truly, first principles--like the principle of non-contradiction. They are underived and stand in no need of formal derivation. They are, as Aquinas said, per se nota and indemonstrabilia. If the latter, they are derived. From what? Methodologically antecedent theoretical knowledge.

AW:  What emerging concerns do you see in culture and public policy that further implicate natural law?

RG:  The natural law is the moral law insofar as it can, in principle, be known by unaided (“natural”) human reason. Thus, it pertains to all moral questions, even when it is supplemented, clarified, etc. by divine revelation. These, of course, include questions of justice, human rights, and the common good. 

AW:  A Protestant objection to Catholic moral theory is what we perceive as a reticence to cite Scripture in moral argument. Is that a fair criticism?

RG:  I admire and wholeheartedly endorse the Protestant love of the Bible and the use Protestants, far more than Catholics, make of scripture in their devotions and in their spiritual lives. This is a gift that Protestant Christianity gives to the universal Christian church. Over the course of the last half-century--since the Second Vatican Council--Catholics have become more Bible-oriented, and that is to the good. But we Catholics can and should make even more progress on this front--deepening our love (and understanding) of God’s word. Protestants, especially Protestant intellectuals, have made similar progress in appropriating more fully the great tradition of philosophy--from Plato and Aristotle to the present--and making use of its insights and tools to illuminate the landscape and even better understand the Christian faith. This should not be regarded as a “Catholic thing.” Here’s an area where growth can and should be sought among Protestants. I personally know that there is a strong desire for it out there. My own philosophical writings are read and appreciated and wrestled with as much by Protestants (especially Evangelicals--black and white) as by Catholics.

February 19, 2023 | Permalink

Thursday, February 16, 2023

Jim Stoner on "Catholicism and Constitutionalism: An American Perspective"

You can watch, here, an engaging and interesting lecture that Prof. Stoner delivered at Notre Dame today, thanks to the Center on Citizenship and Constitutional Government and Prof. Phillip Munoz.

February 16, 2023 in Garnett, Rick | Permalink

MacIntyre on Reconceiving the Contemporary University

From "Reconceiving the University and the Lecture," in Three Rival Versions of Moral Enquiry 230-31.

The preliberal modern university was a university of enforced and constrained agreements. The liberal university aspired to be a university of unconstrained agreements and hence its abolition of religious and moral tests, and hence also, so I have argued, its present endangered state. Such reformers as those who propose some version of the Great Books curriculum ignore the fundamental character of our present disagreements and conflicts, presupposing possibilities of agreement of a kind which do not at present exist. What then is possible? The answer is: the university as a place of constrained disagreement, of imposed participation in conflict, in which a central responsibility of higher education would be to initiate students into conflict. In such a university those engaged in teaching and enquiry would each have to play a double role. For, on the one hand each of us would be participating in conflict as the protagonist of a particular point of view, preserving and transforming the initial agreements with those who share that point of view and so articulating through moral and theological enquiry a framework within which the parts of the curriculum might once again become parts of the whole. The second task would be to enter into controversy with other rival standpoints, doing so both in order to exhibit what is mistaken in that rival standpoint in the light of the understanding afforded by one's own point of view and in order to test and retest the central theses advanced from one's own point of view against the strongest possible objections to them to be derived from one's opponents. So systematically conducted controversy would itself contribute to systematically conducted moral and theological enquiry, and both would inform that teaching in which students were initiated into both enquiry and controversy.

On the other hand, each of us would also have to play a second role, that not of a partisan, but of someone concerned to uphold and to order the ongoing conflicts, to provide and sustain institutionalized means for their expression, to negotiate the modes of encounter between opponents, to ensure that rival voices were not illegitimately suppressed, to sustain the university -- not as an arena of neutral objectivity, as in the liberal university, since each of the contending standpoints would be advancing its own partisan account of the nature and function of objectivity -- but as an arena of conflict in which the most fundamental type of moral and theological disagreement was accorded recognition.

February 16, 2023 in DeGirolami, Marc | Permalink

Wednesday, February 15, 2023

Garnett & Garnett on Religious Charter Schools in Oklahoma

Along with Prof. Nicole Stelle Garnett (Notre Dame), I have a short piece up at the First Things website, discussing the recent application of a Catholic program for status as a charter school in Oklahoma.  Big doings are afoot!  Here's a bit:

The premises of St. Isidore’s application are clear and straightforward. The First Amendment to the Constitution guarantees the “free exercise” of religion and so prohibits anti-religious discrimination by governments. As Chief Justice John Roberts put it in last summer’s Carson v. Makin decision, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Accordingly, the justices ruled, it was unconstitutional for Maine to exclude “sectarian” schools from a program that helped pay the private school tuition of kids who live in rural areas without government-run schools. By the same token, the Oklahoma attorney general’s letter correctly reasons, a state may not open up a charter school program—one that permits private entities to accredit and operate a wide variety of schools—but exclude otherwise qualified schools simply because of their religious character or affiliation. 

Note that St. Isidore’s argument is not that secular, civil governments in the United States may or should operate religious enterprises. After all, the First Amendment also protects religious freedom by outlawing religious establishments. Under our Constitution, religious and political institutions and authorities are distinct. They may and often do cooperate, to be sure: Governments have long funded religious agencies’ healthcare and social welfare services, asylum resettlement and anti-human trafficking efforts, and schooling and research. What our “separation” of church and state means, though, is that secular governments do not decide matters of religious doctrine or interfere with churches’ religious affairs. 

In practice and on the ground, however, charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really “state actors.” And so the conclusion follows neatly from Carson: Once a state decides to engage and cooperate with non-governmental actors to educate its residents, it cannot single out for exclusion actors whose motives or methods are “religious.”

February 15, 2023 in Garnett, Rick | Permalink | Comments (0)