Mirror of Justice

A critique of "free speech" in the university

I offer some thoughts over here. One matter that provoked this post concerns the question of constitutional law creep. The frameworks of law, especially constitutional law, seem to be spilling over as guides in areas of human life where they do not belong. Perhaps because they are the only ones that are taken to be authoritative any longer. That is certainly the case for free speech in the university context. It would also be true if we instead used a First Amendment associational model. Universities really are not, per my friend Paul Horwitz, "First Amendment institutions" (to take nothing away from Paul's superb book). They are institutions precedent to--and different in kind, purpose, and function than--the American Constitution.

Cavadini on "Research and the Catholic Intellectual Tradition"

It's by John Cavadini (Notre Dame) so "self-recommending," etc., but I also highly recommend this piece at Church Life Journal.  In particular, it should be a must-read for all administrators and leaders and benefactors and faculty of Catholic universities that might be tempted to imagine that the path to flourishing, or "relevance", is to relegate "Catholic" stuff to residential life and campus ministry, or to water down Catholic universities' mission, character, and charism to vague and unobjectionable nice-words like "sustainability", "inclusion", and "justice".  As many of us have said, many times, on this blog over the last 20 (!) years, a Catholic university is only interesting if, and to the extent that, it is Catholic.  And, as every reasonable and informed observer knows, but as many still need to be reminded, there is no dissonance between the well-functioning (correctly understood) of a university and the (meaningfully) Catholic intellectual tradition.

Cyril O'Regan on the Legacy of Benedict XVI

My colleague at the University of Notre Dame, Cyril O'Regan, has a great essay up at Church Life Journal on "The Legacy of Benedict XVI".  Here's a bit:

A fundamental element in speaking the truth is to expose the systemic inhospitality of the modern secular state towards Christianity that can at inopportune moments verge into open hostility. This is not to say that the secular world is always wrong in its criticisms of the behavior of the Church that has at times been both reprehensible and scandalous (e.g. the sex abuse crisis) and that the secular world has not been justified in pointing to the way in which the Church—similar to most worldly institutions—is too often guided by the instinct of self-preservation and self-reproduction. For Benedict, as for John Paul II, the world can provide moments for Christian self-inspection and ample opportunities for repentance. Still, overall, for Benedict, the “neutrality” of the modern secular world is as a matter of fundamental principle “armed”: it constructs the Catholic Church as irredeemably authoritarian both in its basic structure and in its public performance towards the world; as substituting an irrational faith for reason, which if objectionable in itself becomes more objectionable as it serves to sponsor violence. Further, it constructs the Church as recommending ways of thinking that straightjacket free inquiry (thereby making it incomprehensible how the university came into being under the tutelage of Catholicism) and engender unfree forms of living contrary to genuine human flourishing.

For Benedict, to respond critically to secular modernity is first to avoid being provoked by it; it is to exercise discernment and discriminate between what is hale and harmful in it; what can be sanctioned by reason understood against the backdrop of its full philosophical amplitude and what in it agrees with the Wisdom (reason as both substantive and holistic) that Christianity attempts both to honor and perpetuate. Demonization of secular modernity is reaction-formation, thus hostage to what it would deny as well as betraying a lack of confidence in the ultimate persuasiveness of truth it would proclaim. Benedict understands that the dominant narrative of secular modernity, to the effect that everything valuable concerning the ratification and protection of human rights depends upon reason’s critique of and separation from Christianity, is entirely self-serving, and deliberately ignores the insights bequeathed to it by the Christian tradition.

The Anniversary of Smith

(Posted one day late)

Employment Division v. Smith was decided 34 years ago today: April 17, 1990. Someone born after Smith still couldn't assume the presidency in January 2025 after winning election this cycle--but it's getting close. And Smith set off a long chain of events: The passage of the Religious Freedom Restoration Act and its state equivalents. The switching of sides by many people on the question of religious exemptions--many conservatives becoming proponents, many progressives becoming opponents--when issues involving the sexual revolution came to dominate public debate over religious freedom. The current Court's reading of Smith in ways that are relatively protective of religious freedom. What a long strange trip it's been.

John Inazu at Notre Dame on "Learning to Disagree"

 

"Freedom and Truth": Tomorrow at The Catholic University of America, Columbus School of Law

Please join us, if you are able, for the Center for Law and the Human Person's second annual spring symposium tomorrow. The conference is Freedom & Truth, with lectures by Professors Gerard Bradley ("Freedom of the Church"), Catherine Pakaluk ("Freedom of the Family"), and Carl Trueman ("Freedom of the Human Person"). The schedule is below and attendance is free. And please say hello if you come.

On Traditionalism, in the NYT

I have a piece from last Friday's New York Times reflecting on what I've called traditionalism in constitutional law, including various thoughts about some of its challenges and strengths.

One additional thought here, and that perhaps is not as clear as it might be: this piece, like some of my other work, concerns traditionalism as something distinctive. But it does make claims about traditionalism as a monistic or total theory of constitutional law, either as a descriptive matter or as a prescriptive one. On that question, I tend toward a pluralistic view. As a matter of description, that seems to me the most accurate way of understanding things. On the prescriptive side of things, while I believe traditionalism has many attractions, I do not argue that any court should be traditionalist and only or exclusively so.

The piece is behind a paywall, but here is a bit:

This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call “traditionalist”: In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.

The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court’s traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.

Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country...

Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.

Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.

Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.