Mirror of Justice

"Law's Abnegation" at Villanova Law

I am pleased to announce that MOJ's own Adrian Vermeule, John H. Watson Professor of Law at Harvard Law School, will deliver the keynote address at the annual John F. Scarpa Conference on Law, Politics, and Culture to be held at Villanova University Charles Widger School of Law on Friday, September 21, 2018.  The conference will focus on the topics and themes of Prof. Vermeule's Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press, 2018). There is something for everyone in Vermeule's searching account of law and how it works under our Constitution today.   

 

Details about the conference will be published in due course.  In addition to Prof. Vermeule, other speakers at the conference will include:

 

-- Jeff Pojanowski, Professor of Law, University of Notre Dame

-- Edward Rubin, University Professor of Law and Political Science, Dean emeritus, Vanderbilt     Law School

-- Colleen Murphy, Professor of Law and Professor of Philosophy, University of Illinois

-- Emily Bremer, Assistant Professor of Law, University of Wyoming College of Law

-- Adam White, Director, Center for the Study of the Administrative State, George Mason     University, and Hoover Institution.

-- Brian McCall, Merrill Professor of Law and Associate Dean, University of Oklahoma College     of Law

-- Patrick Brennan, Professor of Law and Scarpa Chair, Villanova University Charles Widger     School of Law

Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood

The annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova University on Friday, October 27. All are welcome to attend, and there is no cost to attend except for those seeking CLE credit.  Details about registering for CLE credit will be posted on the Villanova School of Law homepage as the date of the conference approaches.

The conference, "Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood," will focus on the new (not-yet-published) book by philosopher James Bernard Murphy, professor of government at Dartmouth, Humanhood: Beyond Childhood and Adulthood.  Many readers of MOJ will be familiar with Professor Murphy's earlier The Philosophy of Customary Law (Oxford 2014) and The Philosophy of Positive Law: Foundations of Jurisprudence (Yale 2007).  Here is a taste from the preface to the new book on which the conference will focus:

 

The study of a human life is intrinsically multidisciplinary. Although this book is framed by basic philosophical questions and arguments, I have drawn illustrative material from biology, psychology, political science, sociology, linguistics, biblical exegesis, anthropology, and literary theory. I have attempted to refer to studies reflecting major currents of scholarship in those fields. The questions we shall consider about the shape of a human life are timeless ones, but the empirical illustrations are undoubtedly time-bound. This book is thus perched between the eternal and the temporal, which is the story of every human life.

 

The timorous may stay at home!  

 

Professor James Murphy will deliver the keynote address, and the other speakers will include:

 

Shelley Burtt, Executive Director of the Camphill Foundation

Phillip Reynolds, Aquinas Professor of Historical Theology, Candler School, Emory University

Marya Schetman, Professor of Philosophy and member of the Law of Integrated Neuroscience, University of Illinois at Chicago

Harry Brighouse, Professor of Philosophy, University of Wisconsin-Madison

James Gordley, W. R. Irby Chair, Tulane University Law School

 

 

A Memorial for John T. Noonan, Jr.

My wonderful friend and former teacher, Robert H. Cole, has recently published (along with Boalt librarian Kathleen Vanden Heuvel) a memorial for John Noonan.  Bob and John were classmates at Harvard Law School, collaborators on the HLR, and then colleagues at Boalt Hall for decades.  I believe that Bob had a big role in enticing his friend John from Notre Dame to Berkeley (long before I was born!).  I thank Bob for giving us this moving appreciation of his late friend and especially for sharing his understanding, which I share, of John's impeccable integrity as a "locus of love." 

_________________

IN MEMORIAM John Thomas Noonan Jr. Milo Rees Robbins Professor of Law, Emeritus UC Berkeley 1926 – 2017 John T. Noonan Jr., a renowned scholar of remarkable vitality and moral purpose, a distinguished federal appellate judge, and an internationally influential Catholic layperson, died at his home in Berkeley on April 17, 2017, at the age of 90. He is survived by his wife of 49 years, the former Mary Lee Bennett, three children, John K. Noonan (Dixie), Rebecca Murray (Stuart), and Susanna Howard (Jim), seven grandchildren, and a sister, Mary Sabin. John Noonan was born on October 24, 1926, in Boston, Massachusetts, and grew up in nearby Brookline. In 1944, he graduated from Harvard College, which was on a wartime schedule, in two and a half years. He then spent a year at the University of Cambridge; earned an M.A. (1949) and Ph.D. (1951) in philosophy from Catholic University of America; graduated in 1954 from Harvard Law School, where he was book review editor of the Harvard Law Review; served a demanding year on the staff of the U.S. National Security Council; and then practiced law for six years at his father’s Boston firm. As a young lawyer, he had a formative experience as the elected chair of the Brookline Redevelopment Authority when it was the center of intense political conflict. He joined the law faculty at the University of Notre Dame in 1961, where he was editor of the highly regarded Natural Law Forum. Noonan came to Berkeley as a visitor in 1967 and was appointed professor of law that year. During almost 20 years on the faculty, he taught courses on professional responsibility and the role of lawyers, jurisprudence, and legal history, and was, among other interdisciplinary activities, chair of the Program in Religious Studies and the Committee on Medieval Studies. In 1985, he became emeritus after President Ronald Reagan appointed him to the United States Court of Appeals for the Ninth Circuit, sitting in San Francisco. He served for 31 years on that court, his last opinion being published in December 2016. He heard oral argument in 3,459 cases and authored 1,080 opinions, dissents, and memoranda decisions, all written by him in longhand on yellow pads. Among his many important opinions is a ground-breaking 1987 decision, Lazo-Majano v. Immigration and Naturalization Service, holding that a politically motivated sexual assault could be the basis for asylum for the victim. His 1995 decision, Compassion in Dying v. State of Washington, holding that Washington’s ban on assisted suicide was not unconstitutional, was affirmed by a unanimous U.S. Supreme Court. In 1999, he wrote a dissent in United States v. Kyllo, arguing that police use of a thermal imaging device to monitor a defendant’s home without a warrant violated the Fourth Amendment. In a 5-4 decision, the Supreme Court agreed with Noonan. In a controversial case in 1990, Noonan, sitting alone, issued a stay of execution for Robert Alton Harris, who was scheduled to die in California’s gas chamber. He held that Harris was entitled under the Constitution to a hearing on whether he had received competent psychiatric assistance during his trial. Ultimately, the Supreme Court allowed the execution, the first in California in 25 years. In an unusual action for a federal judge, Noonan wrote a scathing indictment of the Supreme Court’s decision in an op-ed for the New York Times. Noonan’s scholarly writing was prodigious, wide-ranging, and accessible. It was driven by beliefs in the importance of history, the moral importance of the subject itself, and the moral relation between scholar and reader in developing understanding. His first book, The Scholastic Analysis of Usury (1957), was the product of his dissertation; it focused on the process of development of moral, legal, and Church doctrine over time, setting something of a model for his later work. He wrote books on an impressive array of subjects, including abortion, contraception, euthanasia, marriage, divorce, religious freedom, slavery, bribes, the Magna Carta, and Shakespeare. Noonan’s 1965 book, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, was a turning point in his early career. It led to his appointment by Pope Paul VI as a consultant to the Papal Commission on Birth Control, which was at work in Rome at the time of the Vatican Council. This established him as a prominent Catholic layperson and led to his friendships with leading Catholic intellectuals. Brightly illuminating as all of his scholarship is, the book found contraception doctrine to be older, more nuanced, and less stringent than what had been generally thought. Although the liberal recommendations of the Noonan majority on the commission were not adopted, they have been influential. Persons and Masks of the Law (1976) is Noonan’s most intensive essay in jurisprudence. Quite appropriately, since it is concerned with the human beings behind formal systems of rules, it is deeply revealing of Noonan’s fundamental commitments to persons, their relationships, and to the power of historical understanding and candid thinking in promoting them. Persons illustrates the importance of the individuals who make and apply law as judges, help make it as lawyers, and are affected by it as litigants. The book takes its place in a never-ending history dating back to Aristotle of jurisprudential thought and judicial decisions exploring the tensions between formal rules, abstract principles, and structured roles on the one hand, all of which are necessary, and, on the other hand, the essential demands of humanity and the effects of laws on individuals in a context of social and moral realities. The book can be considered radical in its systematic argument that rules and the legal and social constructs that mask the humanity of participants are unduly dominant in legal thinking and legal education. Certainly, it is a legal philosophy quite at odds with that of the government that later appointed him to the federal bench. Writing some years later, he summed up his view of the personal in judging: “Americans are blessed with a much fuller literature on their judges’ lives, reflecting, I believe, an American appreciation of the truth that the law a judge makes is a projection of values that are inescapably personal – even while the judge labors to be impartial between the litigants and objective in his framing of the dispositive legal rule.” The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (1977) was first intended to be an illustrative chapter in Persons and Masks of the Law, but became a separate and powerful case study of how the American legal system used the mask of property to conceal and obliterate the humanity of enslaved Africans and their descendants. The book follows the capture of the slave ship, The Antelope, and examines not only the decisions by United States courts, but also what happened to the people aboard the ship, both during and after their detention. Bribes: The Intellectual History of a Moral Ideal (1984) has been called Noonan’s masterpiece. The book shows that in early society the aim of giving gifts to powerful strangers was to elicit reciprocity and create social coherence. There was no crime of bribery. Instead, the wrongdoer was the powerful person who accepted gifts but did not grant the favors they were meant to engender. Noonan examines the social, theological, and psychological implications of bribes, focusing on historical instances of persons giving and receiving bribes, rather than on rules that abstractly define ‘bribery.’ He concludes that a bribe is a breach of the fidelity that alone distinguishes public office from raw power. Central to everything in Noonan’s life were his family and his Catholic faith and connections to the Church. No account of his life, however brief, can omit the central importance of Mary Lee Noonan. An art historian, she was his partner in every aspect of his life. Their relationship to each other and their family life were remarkably happy. A man of traditional tastes, Noonan was nevertheless a lifelong adventurer. At the start, he took a year at the University of Cambridge simply to read, travel, socialize, and interview the likes of T.S. Eliot and George Santayana. He devised a curriculum of personal tutorials in Catholicism with distinguished mentors to prepare himself for the Ph.D. program in philosophy; took a Ph.D. even as he knew he was destined for law; always sought out the most daunting thinkers. An appellate judge, he volunteered to sit as a trial judge, a challenging task, in order to understand the whole system better. He followed his humane interests all the way through to publishing books on whatever they led to, including writing on Shakespeare near the end of a lifetime in law. His close personal and intellectual relationship with his older Law School colleague, David Daube, a towering figure in Jewish and Roman law, must have been an adventure in itself to the scholar of Church law. This was a pattern of seeking out challenges necessary for a man who trusted his considered convictions. This particular kind of trust in oneself is a form of integrity. Integrity defined John Noonan: integrity, in that he lived and acted as virtuously as one can ask of fallible human beings; and integrity in the sense of the integration of one’s self across all of life’s various roles and interests. He internalized the Catholic ethics and social teaching that absorbed him throughout his adult years, he acted on his beliefs, and he trusted his convictions. As a judge, he treated the individuals who were litigants and lawyers as persons. His concern for persons informed his judicial sympathy for immigrants. His opposition to abortion was principled, not political, and was coupled with adamant opposition to the death penalty. Slavery, the ultimate denial of personhood, haunts much of his work. He taught ethics and insisted on ethical behavior from the lawyers in his court, his students, his law clerks, and the government officials in the lawsuits before him. His judicial opinions were issued under his name and so he, never his law clerks, wrote them. If issues arose that he thought were important, he would pursue them in scholarship. His delight in friendship was inextricable from his delight in intellectual discourse and both, as well as his profound commitment to family, were inextricable from a belief in the pervading presence of goodness. Perhaps, then, the key to John Noonan’s remarkable capacity to integrate and so actively realize all aspects of his life, from family, to social life, to educating us, to work, to moral well-being, is that he took himself seriously — not as ego or in some frivolous sense — but because it was his responsibility to take his endowments seriously as a person, as a locus of the love that he believed animates everything.

Robert H. Cole

Kathleen Vanden Heuvel 

Judge John T. Noonan, Jr., R.I.P.

John T. Noonan, Jr., judge of the Ninth Circuit since his appointment in 1985, has died.  He was 90.  A good and faithful servant of our Lord first, he was a jurist of great distinction and a legal historian with a breadth approached by none.  If you haven't read his book, Persons and the Masks of the Law, now is the time --  it shows how love works in law.  Please join me in praying for the happy repose of the soul of John T. Noonan, Jr., a man who unashamedly communicated love wherever he traveled.    

"The Demon in Democracy"

I've just finished reading Ryszard Legutko's The Demon in Democracy: Totalitarian Temptations in Free Societies (2016).  "Hostility to Christianity in modern liberal democracies raises the question," according to Legutko, "of how religion should manifest itself in public life."  After considering two "strategies," one "conciliatory" and the other "capitulary," Legutko continues:  

No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue.  But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion.  Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for a religion to find a place in a society where it would be free from the pressure of liberal-democratic orthodoxy and where it would not risk a conflict with its commissars.  Even the issues generally thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity.  To give an example:  the Vatican declaration Dominus Iesus sparked anger in many groups -- more among secular and even atheist than Protestant and Orthodox -- and the direct cause was the following sentence:  "Therefore, there exists a single Church of Christ, which subsists in the Catholic Church, governed by the Successor of Peter and by the bishops in communion with him"  (Ch. IV, clause 17).  Those who protested claimed to defend the non-Catholics who presumably could not -- in light of the Declaration -- achieve salvation, and thereby had their eschatological status unfairly diminished in relation to the Catholics.  Why the atheists were so indignant  about the fact that they would not achieve salvation, in which they did not believe, through God, whose existence they denied, can be explained only by a case of total subjugation of the mind by politics and ideology:  they did not see salvation as a theological problem but as the Catholic Church's political instrument, cleverly camouflaged by theological rhetoric, to justify her domination over other religious and nonreligious groups.  In addition, the sentence in question offended their egalitarian sensibility: salvation, like anything people desire that is not recognized as a human right and distributed equally, must have appeared to them ideologically suspect.  (165-66)

The Church, of course, does not teach that only Catholics can be saved, and Dominus Iesus does not remotely suggest such a thing.  For that reason, among others, I'm not at all convinced that "the basic objectives of Christianity remain outside politics."  Politics, as I understand it, can help but also can hinder people's capacity to do what God asks of them to be saved, and if Christianity has "objectives" at all, its transcendent objective is that all be saved (1 Tim. 2:4).  Christianity offers -- indeed, has a right -- to correct and transform politics exactly for the sake of the salvation of as many as possible.    

Christian Legal Thought: Materials and Cases (Foundation Press, 2017)

It was a while in the making, but Brennan and Brewbaker's Christian Legal Thought: Materials and Cases will be published momentarily -- that is, any day now -- by Foundation Press, well in time for Fall adoption.  Here is Foundation's description of the book: 

This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.

Here is where the book's table of contents can be viewed and complimentary copies requested from the publisher.

It was a joy and an honor to collaborate with my dear friend and MOJ-friend Bill Brewbaker, William Alfred Rose Professor of Law at the University of Alabama School of Law, in writing this book.  The process itself was inspiring to the authors, and both Bill and I hope that the finished product reveals something of what the breadth of Christian thought offers to those who think or believe that law is something we should care about and that la should, in turn, convey our care to this needy world of ours.  Not a book about "law and religion," Christian Legal Thought: Materials and Cases is a book, for use in law school and other classrooms, about what Christianity, Catholic and Protestant, can tell us -- and has already told us -- about the ends and the limits of law.  The book does not shy away from differences between Catholic and Protestant thought, nor from historical and ongoing disagreements internal to the Catholic tradition or to the several Protestant denominations discussed; it does, however, look for common ground both among Christians and between Christians and contributors to our (legal) culture who are not Christians. 

I'll blog later more about the topics and themes of the book than the table of contents can reveal.  For now, though, I'd like to thank, on Bill's and my own behalf, all those MOJ bloggers, MOJ friends, and MOJ readers, as well as many, many others, for the guidance and encouragement they gave us in what turned out to be a more challenging project than we had imagined at its outset.  The book's index records just some of many familiar names, many of them familiar from MOJ itself, whose work in the Christian-legal-thought vineyard we have tried to harvest for the purposes animating our book.  We will be grateful to receive suggestions, as well as notices of omission or of corrigenda, for the next edition.  The current edition is obtainable not only from Foundation but also, of course, from here.

Finally, at least for now, I should add that Foundation will be publishing a thick Teacher's Manual to accompany the book. Although  running a little behind the book in the production schedule, the Manual will be out very soon.  We wrote the Manual with the goal, among others, of making it easier for those who otherwise might hesitate to offer a course in Christian legal thought.      

"Problems arise even within his [Fr. Murray's] own thought"

I reached the following "editor's footnote" in my re-reading this afternoon of J. Leon Hooper (ed.), Religious Liberty: Catholic Struggles with Pluralism (1993) (p. 226 n. 11); in the footnote, Hooper is describing, analyzing, and judging Murray's "The Issue of Church and State":

 

Murray's manner of restricting the socially significant meaning of religious freedom to an immunity right works well, if one considers the interaction of the church hierarchy and the executive branch of government.  Problems arise even within his own thought, however, when one considers the role of the laity in shaping governmental legislation.  For his argument to still apply, one would have to presume that the laity could bring no substantive content from their faith commitments to the laws that they shape -- that their faith remains simply motivational.  As discussed in the general introduction to this collection, some question whether Murray has adequately dealt with the laity's attempts to bring gospel values to the juridical structures of the state, much less to what is called the world.

John Rawls's imposition of "the proviso" was published in the very same year as Hooper's footnote was published.  

How the Constitution *in fact* gets rewritten, thank God

    A final, at least for now (as we disperse to celebrate "Independence Day"), contribution to Kevin's and my conversation (for which I am terribly grateful) about why, in my view, textualism gets it wrong, gets it wrong all the way down, like *all* the way down.   Here is an excerpt from some of my unpublished remarks on the occasion of honoring Henry Monaghan; my topic was the thesis of Henry's landmark article, "Stare Decisis and Constitutional Adjudication":         

 

   Answers cannot be any better than the questions to which they reply, and Immanuel Kant famously contended that all questions of human reason and speculation can be reduced to the following three: “What can I know? What ought I to do? What may I hope?” I would like to bring these three questions to bear on just a few of Henry Monaghan’s conclusions or suggestions about what I would encapsulate as legality, used here as an umbrella term for considerations bearing on legitimacy, constitutionality, precedent, stare decisis, judicial review, and more.

            “What can I know?”   I will begin by simply asserting what philosopher Bernard Lonergan, among others, has demonstrated: Much of Western theory, practice, and common sense has been riddled by roughly the same mistake, specifically, that knowing is like taking a good look with the eye of the mind. The mind has no eye, and knowing is not much like taking a good look. Knowing is a compound of potentially cumulative acts, and knowing what I ought to do – Kant’s second question – is not exempt from this fact about how we humans know, if we are to know at all.  The fact that knowing is not a simple act but a compound act applies, as it were, even when the knowing is done in service or in the name of law. Legal knowings are compound acts, each of which needs to be performed properly.

            To make these general points particular, recall Holmes’s influential contention on the first page of The Common Law: “The life of the law has not been logic: it has been experience.” Holmes was parodying Lord Coke, of course, who had taught instead that “reason is the life of the law; nay, the common law itselfe is nothing else but reason.” Holmes’s trick with his logic-versus-experience false dilemma was to block a third possibility, the one Coke and the larger tradition, including Edmund Burke, for example, meant by reason: not mere experience, not mere logic – but, instead, reason or intelligence rooted in experience, yes, but also unfolding itself through acts of understanding and acts of judgment, including acts of potential self-correction, in the crucible of a living tradition. Experience, in other words, is only a starting point in the life of the law, as in any rational, non-random life; experience takes or makes its place in law, as in the rest of life, based on reasonable judgments about whether our understandings of what we ought to do or not do are correct.

What I would suggest, still more concretely, is that the common law method as it actually functioned in the main – but certainly not as it was caricatured as a closed collection of axioms, syllogisms, and conclusions – is an exemplification writ large of the method of human practical reason writ small: it is potentially progressive, cumulative, and self-corrective, proceeding by acts of experience, through acts of understanding, to acts of judgment, and finally to acts of choice of value.   In other words, what above all recommends the common law is the fact that its method is more or less isomorphic with the method of human intelligence. The common law was methodical in the way any true human knowing is methodical. Generalizing, then, I would suggest that any system of law should be evaluated in large part by its success in embodying the method of human intelligence. Human intelligence not only discovers what is; it also discovers what is valuable or good, and these it proposes to the will to be pursued, including in the name of law.

            It is in this context, then, that I propose to take the measure of Monaghan on constitutional stare decisis. With respect to stare decisis in general, I would begin by suggesting that, when understood and applied in an appropriately flexible way, it gives effect to the human potential for progressive and cumulative judgments and then instantiations of value. I put to one side for the now the question of what I mean by the malleable term “appropriately flexible,” and turn directly to the question Monaghan confronted in his article “Stare Decisis and Constitutional Adjudication.” I am broadly sympathetic to Monaghan’s approval of constitutional stare decisis, first of all for the reasons I have given based on human cognition, though also, and relatedly, for the justificatory reasons identified by Monaghan himself, system legitimacy and the legitimating of judicial review, among others. In addition, however, I would also underscore and even bolster Monaghan’s thesis that “in the end, the written Constitution cannot sustain the absolute primacy of text over gloss” (770) and, further, that “originalism must confront a constitutional adjudicatory process in which, after two centuries, the original understanding of text is simply a factor in the process of decisionmaking, a factor to be considered and balanced against other factors. Indeed, frequently the text acts operates as little more than a boundary marker restraining judicial lawmaking. In each instance, the case law overwhelms the text and historical understanding.” (772) This it does because the questions raised by human intelligence and answered methodically outstrip the ability of the text to provide an answer.

            Monaghan’s admirable candor about how methodical human intelligence sometimes subordinates even portions of written text denominated “Constitution” leads him to acknowledge that “[t]he central problem is this: to accord status to stare decisis requires an acknowledgment that originalism plays a purely instrumental role by contributing to the establishment of legitimate government, which in turn promotes stability and continuity.” (772) He continues: “Neither originalism nor the constitutional text has mystical qualities that compel a return to the fold in the face of transforming departures from the original understanding.” (772) This further candor leads Monaghan to offer tentative affirmative answers to these hard questions: “[I]f the Court legitimately may prevent inquiry into original understanding in order to maintain transformative change, does this concession also license prospective disregard of original understanding when the Court is satisfied that change is necessary to maintain systemic equilibrium? Moreover, should the Court reject the precedent itself in favor of still further change when to do so will achieve the important values?” (772) Monaghan might make his own a favorite metaphor of Lonergan’s: the wheel of method not only turns, it also rolls along.  

            These remarkable concessions by Monaghan, at the expense of originalism in favor of stare decisis and what I have referred to as the methodical unfolding of human intelligence, are followed quickly by a caution that “in the end any temptation to dismiss the Constitution of 1789 from our view seems to be a mistake. Paul Brest is surely right in stating that ‘the written Constitution lies at the core of the American ‘civil religion.’” (773)

            This leads me back to Kant’s third question: “What can I hope?” Well, here I’m not going to pull any punches, and I’ll be brief: What I hope is for "us" to do collective justice of the sort deliberately BLOCKED by “our Constitution” and the embarrassing panoply of "religions" with which it systematically saddles and stymies our ability to live together how Christ teaches us to live together, or, more pointedly, to expose as idolatry what Michael Novak, a great, great, great enthusiast of the Constitution, boasted was an “empty shrine” at the Constitution's core.  The much-praised Godlessness of the Constitution sets our collective sights literally hopelessly low. So, while I agree that we should keep the Constitution in view, above all in constitutional adjudication, the first place where "gloss" should overtake "text" is by adding God (assuming arguendo that Omnipotence can take the form of "gloss," an assumption for which there is support in the defenseless baby in the manger in Bethlehem of Judea) and the possibility of God’s social recognition by the state both in public worship and by prudent conformity of human law with higher law.

            To move toward my conclusion.  I’m not delusional, so, yes, I recognize that nothing like what I've just described is about to happen, perhaps not before the great eschatological rectification of it all.  Meanwhile, I agree with Jeff Powell that fidelity to the Constitution is generally worthwhile because of its capacity to instantiate in us what Powell has referred to as the “constitutional virtues,” but I do so with my stated preference for methodism (with a lower-case m) over the virtue of acquiescence, as Powell calls it following Madison. As theologian David Tracy has observed, “when literate cultures are in crisis, the crisis is most evident in the question of what they do with their exemplary written texts.” Textualism would be Exhibit A. It proposes, as Justice Scalia says, that the text of the Constitution (and of other enacted law) be treated as “objectified intent” to be unlocked with the help of dictionaries, those schedules of probable meanings that are no one's meaning.   “There is always the temptation in law,” as Joseph Vining has observed, “ to approach a statute [or the Constitution] as if its words had meanings in themselves and by themselves,” but, as Tracy notes, “texts are not dictionaries. In texts, words do not have meaning on their own . . . .   We converse with one another. We can also converse with texts. If we read well, then we are conversing with the text. No human being is simply a passive recipient of texts. We inquire. We question. We converse. Just as there is no purely autonomous text, there is no purely passive reader. There is only that interaction named conversation.” The alternative known as textualism evinces, as Vining also observes, an “authoritarianism” justified by “maintaining the supremacy of democratic politics and legislative authority.” But there are values higher than democracy and fidelity to a given manmade text, and it is action in conformity with correct practical understanding.    

            On the last page of “Constitutional Adjudication and Stare Decisis,” Monaghan asks whether, if what he has argued is correct, “the political order [is] the ground of the constitutional order rather than vice versa,” and then, in a footnote, asks even more pointedly, “have we in effect reformulated our notion of what a constitution is, returning to the pre-Revolutionary War idea that . . . a constitution is essentially a description of the fundamental political arrangements?” My own answer to these questions that Monaghan leaves unanswered is “I hope so.” What can I hope: To quote Bernard Lonergan: “The state can be changed by rewriting the constitution. More subtly but no less effectively it can be changed by reinterpreting the constitution or, again, by working on men’s minds and hearts to change the objects that command their respect, hold their allegiance, fire their loyalty.” (212)

        "What can I hope?"  It's a question I wouldn't bury by the legal but lawless authoritarianism of another "ism" called textualism.  And not just for my sake, but for the common good God intends.    

McFixity (ONE Form of Authoritarianism by Quiet Colonization)

Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny.  Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know.  Two versus three or thirteen senators -- not a matter of natural  (let alone divine positive) law!  Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.

My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio.  My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is,  by substituting schedules of probable meanings  for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker.  I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.  

To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally --  decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power"  be a function of recorded (or speculative?) probabilities.  The compressed argument against textualism in my present paper presupposed (with benefit of citations)  earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)

My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can  deliver in aid of making what the lawmaker promulgated effective.  Textualism is a remote second best, if that, but certainly not the higher road.

McRestroom

Kevin's characteristically good-natured response to the abstract of my paper, "A Catholic Way to Cook a Hamburger? The Catholic Case Against McLaw," not yet to the paper itself, in which I argue that there is a Catholic way to do law, evoked memories of a wonderful trip I took long, long ago.  

The trip was memorable for many reasons, but the relevant one concerns toilets. A good friend and I took an overnight train from Budapest (where he was living) to Brasov, Romania, in  Transylvania, for several days of backpacking and camping.  The train ride, on that hot summer night, was long, especially so because the air-conditioning wasn't working in our car on the train and the windows in our cabin were stuck shut.  We were traveling "First Class," but in immediately post-Communist countries and the decimated infrastructure bad government had produced.  More to the point, the toilets on the train were not working.  I don't know why, but they weren't.  Naturally, this made things dicy for all concerned, and there were many concerned on that long train on that long trip on that long night.  I'll never forget it.  By the time we reached Brasov soon after dawn, my friend and I were each desperate to use the restroom.  Our first hope, to use the facilities at the Brasov train depot, was dashed by our not having the Romanian coins that would allow entry.  The adjacent fields were a possibility, we feared, but we started the walk from the depot to downtown Brasov hoping that there would be a more dignified alternative.  Shops and the like were not yet open.  Not ten minutes later, we saw a billboard for a McDonald's that was advertised to lie a kilometer or so ahead, at the heart of historic Brasov.  We were elated at the prospect of relief that would not occur in the wild.  Sure enough, McDonald's was open earlier than every other commercial establishment, the bathroom facilities at that McDonald's were *remarkably* similar to those of every other McDonald's I've visited.  We were grateful, indeed, not to be disappointed by what McDonald's had promised and then, in fact, allowed.  My friend said at the time, and I recall it distinctly, that this was part of the genius of McDonald's, its uniformity and, therefore, reliability.  

Kevin's desire for uniformity in the workings and products of federal courts, even, as I see it, at the price to be paid, inevitably, by doing things in a way that contradicts the way human intelligence is intransigently structured to deliver, if it is to deliver, progressive and cumulative instantiations of the good, doesn't cause me to doubt the good that the reliably working restroom at the McDonald's in Brasov delivered in the relevant respect.  On the other hand, (1) the McDonald's in Brasov, just as all others, did not serve food in the focal sense of the term "food"; (2) that McDonald's was a blight on the organic integration of the city; and (3) doing actual justice in law is not at all like the successful flushing of a toilet, even in a federal court.