Tuesday, June 30, 2020
Here's my article on the June Medical case up at SCOTUSBlog today. After a technical discussion of Roberts' concurrence -- and its restoration of the "undue burden" standard in Casey -- I write:
As much as Roberts is right to correct the missteps of Whole Woman’s Health, he makes a few rather obvious missteps of his own. In rather passively joining the plurality on the standing issue, he misses the opportunity to reckon with the deep contradiction at the heart of this case and really at the heart of abortion jurisprudence as we know it. Not only is Thomas correct that the Supreme Court has had it wrong constitutionally from the start, but allowing abortion providers to sue on behalf of women puts women’s interests in the hands of abortion providers with adverse economic interests. A jurisprudence that treated women’s interests as distinct from those of abortion providers might come rather to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more, more of men, more of employers, more of medicine, more of the community at large. From this perspective, it’s no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down yesterday, is an African-American “whole life” Democrat who sees abortion, touted by Casey as a means for economic and social progress, as actually a “tool of racial and economic oppression.”
As in Whole Woman’s Health and in Roe itself, doctors’ interests take center stage here again, with the five justices in the majority – including three women! — maintaining that a regulation meant to protect women’s health and safety is unduly burdensome to women simply because it places significant requirements upon doctors who would serve them. And yet, as Justice Samuel Alito’s questioning loudly hinted at oral argument and as he now argues in dissent, “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.” In any other case involving business regulation – say, tobacco, or better yet, gun regulations — we would readily see the clear conflict of interest. If gun manufacturers attempted to stand on gun owners’ Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation of the manufacturers, we would not think courts should so readily strike down the law; indeed, requiring the manufacturers “be limited to [their] own rights,” in Alito’s words, would mean that the law would need to pass only very deferential rational basis scrutiny, and that’s it.
My gratitude to Steve Gilles for an article he wrote for a symposium in which I participated in his honor a few years back. Though the Chief did not entirely follow Gilles' suggestions in "Restoring Casey's Undue-Burden Standard After Whole Women's Health v. Hellerstedt," he came darn close. See also Gilles' excellent 2016 ND Law Review article where he argues how to take the next steps. The title kind of gives it away: Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters.
Thursday, June 11, 2020
I've been thinking about Yuval Levin's most recent book, A Time to Build, during the last few weeks, especially as just (albeit very risky) protests too often have been hijacked by those who would not build but destroy.
Levin's book is a robust defense of institutions: "durable forms of our common life...frameworks and structures of what we do together." If it wasn't clear when the book was published just months ago, it is crystal clear today: American institutions at every level are crumbling.
His claim -- illustrated over chapters on Congress, journalism and the professions, academia, social media, and the family and church -- is that our formative institutions have been deformed into organizations used for individual performative self-expression. This wordplay repeated throughout the book makes for a memorable thesis and one that seems perfectly true to our time.
We trust institutions when they routinely perform certain social functions integral to their very purpose -- as when police protect lives rather than brutally take them. But we also rely on institutions to intentionally shape the people within them to live according that purpose. Institutions mold individuals -- or they fail to be what they are. But today we too often deny that individuals are even in need of such molding.
To see institutions as platforms for performance is to deny them their role as molds of character, and by extension to deny our very need for such formation. Our culture now often does deny that need. Both the libertarian and progressive ideals of freedom assume a human person already fully formed requiring only liberation from oppression of various sorts....
The vision of the human person underlying these assumptions is loaded with very high expectations of the individual, but it therefore makes only modest demands of institutions. Left to himself, the individual can exercise his capacities and pursue the good; our institutions need only to enable him -- if not, indeed, to display and promote him.
But this vision has always been opposed in our traditions by a far more skeptical view, which assumes that a person begins imperfect and unformed -- not to say fallen....It assumes that each of us is born deficient but capable of moral improvement, that such improvement happens soul by soul, and so cannot be circumvented by social or political transformation, and that this improvement -- the formation of character and virtue -- is the foremost work of our society in every generation. To fail to engage in it is to regress to pre-civilizational barbarism. This work is the essential, defining purpose of our institutions, which must therefore be fundamentally formative....
Many Americans are not lucky enough to have the benefit of a flourishing family or the opportunity for rewarding work or an uplifting education or a thriving community or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings.
Let's get to work.
As politicos speculate about Joe Biden's pick for VP, I'll just put my suggestion out there: Katrina Jackson of Louisiana, smart, courageous, "whole life" African American Democrat and chief sponsor of the law that is now before the Court in June Medical. She took down the house at the March for Life this year, singing the praises of the pro-life legislature of her state: "Every day that I walk into the state capitol, I am greeted by pro-lifers regardless of whether they’re black, white, Republican, Democrat, male, female.”
The Advocate reports:
Throughout her eight years in the state Legislature, the Monroe Democrat has been a leader in the Legislative Women's Caucus and Legislative Black Caucus. She's made impassioned pleas for restoring voting rights to convicted felons. She has sided with gun restrictions. She's joined efforts to abolish the death penalty. And she supports increasing the state’s minimum wage -- just to name a few of the positions she shares with the more liberal wing of her party.
But when it comes to abortion, she’s established herself as a leading voice —not just on the state level but on a national stage — in the fight to bring an end to what she has said she considers "a modern-day genocide."
The state senator "sees no conflict between her opposition to abortion and the core values of her party since she sees abortion as a tool of racial and economic oppression."
It's just that Biden seemed to understood all this himself back when. Testifying in favor of the Pregnancy Discrimination Act in 1977, Biden said, "In a very real-world-sense what this denial of freedom [because of discrimination] means is that many women, especially low income women, may be discouraged from carrying their pregnancy to term. To put it bluntly they will be encouraged to choose abortion as a means of surviving economically."
But I suppose abortion can't be a tool of oppression any more because, well, it's "health care." Hogwash.
Thursday, April 2, 2020
Last summer, Angela Franks and I co-taught the inaugural session of this intensive summer seminar, "Man, Woman, Body, Soul in the Western Tradition." Sponsored by the Abigail Adams Institute and hosted in the government department at Harvard University, the seminar is open to advanced undergrads, graduates students, and young professionals. This summer, it will take place during the first week of August, assuming things are a bit back to normal. Here's more.
Application deadlines have been extended until April 17th.
Monday, March 9, 2020
Friday, February 28, 2020
Just a note for any who were interested: due to the coronavirus threat, this event has been postponed until next fall. We'll post the date as soon as it's available.
Elizabeth Schiltz, Kim Daniels, Melissa Moschella, Rachel McNair and I (among others) are participating in an all day symposium with pro-choice feminist scholars on March 28th at Columbia University. Pro-choice scholars include Reva Siegel, Robin West and Eva Feder Kittay. The event is sponsored by Feminists Choosing Life of New York with support from both pro-life and pro-choice student groups.
Monday, July 29, 2019
Jeffery Rosen invited Tracy Thomas of Akron Law and me on the National Constitution's Center's podcast, We the People, to discuss the Constitutional Legacy of Seneca Falls. It's a wide-ranging discussion of the Declaration of Sentiments of 1848 -- and whether that remarkable document's legacy can be claimed by those who favor Roe v Wade. I think not.
Sunday, November 25, 2018
On this Feast of Christ the King, I wanted to share the homily delivered at my parish, St. Catherine of Siena in Norwood, Massachusetts by our holy and learned parochial vicar, Fr. Thomas Sullivan:
The Feast of Christ the King is of fairly modern origin in the liturgical life of the Church, having been established in only 1925. Pope Pius XI had good reason to remind the world of the Sovereign Kingship of Jesus Christ. For centuries, the united Christendom that grew from the remains of the Roman Empire was fracturing along national lines. Divisions were accelerated terribly by the Protestant Reformation and greedy rulers all too willing to sever ties with Pope and Emperor for their own gain. The following centuries saw bloody wars of religion, violent revolutions hostile to Faith, and the rise of secular and atheistic regimes. Everything came to a head with The Great War, the so-called War to End All Wars, the First World War.
Pope Pius XI witnessed Europe’s near suicide -- nominally Christian nations tearing each other apart in an utter failure of Justice, and Mercy, and Charity. Had these Christian men heeded the Holy Father’s warnings and recalled their baptismal brotherhood, perhaps they could have avoided what was soon to follow in an even more horrifying World War. Instead, godless Communism and National Socialism wrought havoc in the ruins of Christian Civilization.
Ideas have consequences… and those who would impart their own brand of order on the world, disconnected from the Truth about God and the human person, wind up imposing disorder and misery. Our Lord warns us of this in his words to Pilate when he says, “You say I am a king. For this I was born and for this I came into the world, to testify to the Truth.”
Pope Pius didn’t establish this great feast only to rebuke world powers. He provided it for the benefit of his spiritual children. The lessons of this feast apply to every human being. Christ’s kingly testimony to the truth is just as relevant to us. And we should listen attentively lest we introduce chaos into our own souls.
The One who comes to testify to the Truth about man is the One who created man. The One who reveals the truth about God, is God himself, incarnate in human flesh. Original sin brought with it the ultimate disorders: body separated from soul in death, and soul separated from God. Christ the King extends the scepter of his clemency to us. The King of the Universe overcomes sin and death as he mounts the throne of his cross. If we submit ourselves to his gentle rule, we will find our way into his heavenly courts.
What does the governance of Christ look like? As Creator he gives order to the whole universe, and everything from the stars in the sky to the smallest seed in the earth follow the course he has set for them. He writes the natural law upon our hearts, inclining man to the good, to life over death, truth over lies, and relationship over isolation.
Christ the King gives us Commandments to obey, laws laid down for our own happiness. Christ the King sits as Judge of the living and the dead, but as King he also extends his mercy towards us. But in his governance, Christ the King is not distant; he doesn’t rule only by dictate. Christ the King has become our exemplar. He willingly submits himself to the same rule.
If we were to describe the ideal earthly king, we’d speak of a man who was of high moral character, not exempting himself from the laws he enforces, just in his decisions and generous to the poor. A man of deep faith who, while occupying a high office, humbles himself before God. In war, we admire the king who leads his men in battle, fighting for a just cause and the protection of the innocent and weak. We want a king who is one of us, so we can aspire to be like him, but also a king who is greater than us, inspiring our confidence and devotion. That’s exactly who Christ is.
Christ the King lives what he commands; he keeps the Commandments without the slightest offense against Charity. Christ the King fights the good fight as one of us, willing to suffer in order to console the sorrowing, even laying down his life for our sake. Though he was the Son of God "he did not deem equality with God something to be grasped," and so in his human nature, Christ the King humbles himself in obeying the will of his heavenly Father. He inspires us to imitate him out of love, and gives us the grace to persevere in that likeness.
By virtue of our baptism, all the faithful share in the Kingship of Christ. How do you exercise that governance? As parents you raise your children to follow the commandments: loving God and giving him due worship, honoring father and mother, and loving your neighbor as your very self. In civil society, you seek to establish an order based on truth, enacting laws in harmony with the order God has put into the world, never violating human dignity. But most fundamentally of all, you exercise your share in Christ’s Kingly office by governing yourselves, by exercising virtue and avoiding sin.
The human soul is a battleground on which occurs a fight for your lives, eternally-speaking. If we allow Christ to rule in our hearts, we will find peace in this life and happiness in the next. If we finally cast down the idols we’ve enthroned in our hearts, then Christ will enter in and never leave us. It’s in the hearts and souls of men that Christ wishes to rule. And when such people come together in Love and Truth, a new Christendom is founded atop the old. The Kingdom of God is at hand.
Wednesday, September 26, 2018
Robert George and RJ Snell have edited a book of interviews, set for release by TAN publishers on October 31st, entitled, "Mind, Heart, and Soul: Intellectuals and the Path to Rome." The volume includes the conversion stories of such luminaries as Bishop James D. Conley, Sister Prudence Allen, Adrian Vermeule, Fr. Thomas Joseph White, and Hadley Arkes. Honored to have my own story included too.
From the inside flap:
In a series of fascinating interviews, a cradle Catholic (Robert P. George) and an adult convert (R. J. Snell), offer the stories of sixteen converts, each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church.
Mind, Heart, and Soul is a Surprised by Truth for a new generation. It will reinvigorate the faith of Catholics and answer questions or address hurdles those discerning entering the Church may have…by people have had the same questions and the same road.
While some of the converts are well-known, their stories are not. Here they speak for themselves, providing the reasons for belief that prompted these accomplished men and women to embrace the ancient faith.
Included are interviews with a bishop, a leading theologian and priest, a member of the International Theological Commission, a former megachurch pastor, a prominent pro-life scholar, professors from Harvard and other universities, as well as journalists and writers, novelists and scholars. Each are interviewed by another leading scholar, many of whom are themselves converts and familiar with the hesitations, anxieties, discoveries, and hopes of those who discover the Faith.
These conversion stories remind us that the Catholic Church retains her vitality, able to provide answers and reasons for hope to new generations of believers, always sustained by the Holy Spirit. It is all too-easy to become discouraged in our day and age, but God never fails to call people to Himself, as evidenced by these remarkable stories.
Upcoming at Harvard: Peter Berkowitz on Mill and Education, Sr. Mary Madeline on the Wisdom of St. Catherine, and Justice Gorsuch on Christianity and the Common Good
Some exciting upcoming events at Harvard University, aptly responsive to current crises in academia, the Church, and our nation.
First, the Abigail Adams Institute's Third Annual Lecture will feature Peter Berkowitz next Thursday afternoon on "John Stuart Mill's Liberal Education." From the announcement:
It is increasingly rare for colleges and universities to explain to students the purpose, structure, and content of liberal education, let alone provide one. John Stuart Mill's writings on liberty of thought and discussion, Socratic inquiry, and the aims and substance of liberal education provide an excellent introduction to the subject and illuminate the importance of the reform of higher education to liberal democracy.
That same evening, the Thomistic Institute will host Sr. Mary Madeline Todd on "The Wisdom of St. Catherine in Times of Crisis." Sr. Mary Madeline is a Dominican Sister of Saint Cecilia Congregation who serves as Assistant Professor of Theology at Aquinas College in Nashville.
Finally, on October 19th and 20th, the Thomistic Institute will host a conference at Harvard Law School on "Christianity and the Common Good." Justice Gorsuch will keynote the event on Friday afternoon, followed by a full day of presentations on Saturday. Register here.
Speakers and panelists include the following: Prof. Gerard Wegemer (University of Dallas), Prof. J. Budziszewski (University of Texas, Austin), Prof. Gladden Pappin (University of Dallas) Prof. Sarah Byers (Boston College), Fr. Dominic Legge, OP (Pontifical Faculty of the Immaculate Conception and the Thomistic Institute), Prof. Jacqueline Rivers (Harvard University) and Prof. Adrian Vermeule (Harvard Law School).