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.

Friday, June 7, 2024

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition

Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here.

First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity.

Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.

June 7, 2024 in DeGirolami, Marc | Permalink

Monday, April 29, 2024

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.

April 29, 2024 in DeGirolami, Marc | Permalink

Wednesday, April 3, 2024

"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.

Freedom and Truth Schedule

April 3, 2024 in DeGirolami, Marc | Permalink

Tuesday, April 2, 2024

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.


April 2, 2024 in DeGirolami, Marc | Permalink

Tuesday, March 5, 2024

Sub Deo Ep. 2: In Which We Discuss the Alabama Supreme Court IVF Ruling With a Colleague

That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!

March 5, 2024 in DeGirolami, Marc | Permalink

"The Death and New Life of Law and Religion"

I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

March 5, 2024 in DeGirolami, Marc | Permalink

Friday, March 1, 2024

"Sub Deo et Lege": A New Podcast About Law and Learning Under God

Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.

For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!

March 1, 2024 in DeGirolami, Marc | Permalink

Thursday, February 1, 2024

"Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn"

The Center for Law and the Human Person is delighted to host Professor Daniel Mahoney this coming Wednesday, February 7, from 5:15-6:15 in the Slowinski Courtroom of the Columbus School of Law. Professor Mahoney is the author most recently of "The Statesman as Thinker" and "The Idol of Our Age," as well as other insightful work in the history of political ideas. He is one of the world's foremost experts on the thought of Aleksandr Solzhenitsyn and what it has to tell us today. 

Please join us for his lecture, Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn.

Solzhenitsyn Lecture v. 1.5

February 1, 2024 in DeGirolami, Marc | Permalink

Tuesday, January 16, 2024

"Tolle et Lege": Our Reading Group at the CLHP at Catholic

I'm delighted to announce "Tolle et Lege," an initiative of the Center for Law and the Human Person at Catholic University. This is a reading group that invites (gently urges?) students to "pick up and read" classic literature in the Catholic intellectual tradition. We'll meet on selected evenings for discussion and fellowship. We have an edifying slate of reading this semester. 

First, on January 29, and in preparation for Professor Daniel Mahoney's lecture on Aleksandr Solzhenitsyn, we'll be discussing two of Solzhenitsyn's essays, "Live Not By Lies" (1974) and his Harvard University address, rather timely again, "A World Split Apart" (1978).

Second, on March 25, we'll consider C.S. Lewis's wonderful tale of heaven and hell, The Great Divorce (1945).

All readings not otherwise available on the web are provided for free to students. Join us!


January 16, 2024 in DeGirolami, Marc | Permalink

Saturday, January 13, 2024

On Freedom: The Center for Law and the Human Person's Spring Theme

One of the great joys of my new position at The Catholic University of America is to co-direct the Center for Law and the Human Person with the excellent Elizabeth Kirk. We have very big plans for the Center in the coming months and years. 

Those plans begin with our program for the spring. We have chosen to explore the theme of freedom. We will do that in a series of lectures and conferences. Here is the schedule, which I will be writing about and detailing here in the future. Join us!

  • February 7, 2024: 5:00 p.m. • Columbus School of Law
    “Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn” Download
    Plenary Lecture by Prof. Daniel Mahoney, Assumption University, and Senior Fellow, Claremont Institute
    Reception to follow

  • February 13, 2024: 12:30 p.m. • Columbus School of Law
    Faith in Action Lecture: “The Truth Shall Set You Free: Seeking Truth and Finding Your Calling”
    Fr. Dominic Legge, O.P., Pontifical Faculty of the Immaculate Conception, and Director, Thomistic Institute

  • March 19, 2024: 12:30 p.m. • Columbus School of Law
    Faith in Action Lecture: "Top Ten Tips for Living and Lawyering Authentically"
    Jennie Bradley Lichter,  Deputy General Counsel, The Catholic University of America

  • April 4, 2024: All day • Columbus School of Law
    “Freedom & Truth”: Second Annual Spring Symposium
    Speakers include: Prof. Carl Trueman, Grove City College; Prof. Catherine Pakaluk, The Catholic University of America; Prof. Gerard Bradley, Notre Dame Law School.

January 13, 2024 in DeGirolami, Marc | Permalink