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.

Wednesday, December 29, 2010


I like essays -- writing and reading them.  In law, the essay is kind of a hybrid creature and a still-emerging stylistic form.  The essay is missing some of the stolidly self-conscious seriousness of the article but it's so much more fun than the review.  For me, the distinguishing feature of the essay -- what separates it from the prideful autonomy of the article -- is its reactive quality.  It's a writing form that is somehow more socially connected, as what begins as a discrete counterpoint can blossom into broader, but still comparatively narrow, reflections.

For Christmas, my dear mother-in-law gave me the "Best American Essays of the Century" (a little late, you say?  Maybe, but I still prefer it to similar collections of the past decade).  Most of the essays are by American-born writers, but not all (e.g., John Muir).  I have not read many of the essays and have only really read the work of about half the authors.  Some of my favorites are in the book -- T.S. Eliot's Tradition and the Individual Talent, Henry Adams's A Law of Acceleration, Susan Sontag's Notes on "Camp."  Others I care less for (Updike's The Disposable Rocket is the usual from him: "From the standpoint of reproduction, the male body is a delivery system, as the female is a mazy device for retention.").

With only a few exceptions, I noticed that there are almost no Catholic essayists on the roster (difficult for me to count Mary McCarthy or Annie Dillard).  One is Richard Rodriguez -- a new author for me -- here's something from his essay, Aria: A Memoir of a Bilingual Childhood, "Supporters of bilingual education imply that students like me miss a great deal by not being taught in their family's language.  What they seem not to recognize is that, as a socially disadvantaged child, I regarded Spanish as a private language." 

But how about it, knowledgeable MOJ writers and readers: who are your favorite Catholic essayists?  Definitions are always tricky, so please construe the labels broadly -- writers of short, non-fiction pieces who have been influenced by their Catholicism in one way or another.  Fire away!     

December 29, 2010 in DeGirolami, Marc | Permalink | Comments (10) | TrackBack (0)

Monday, December 27, 2010

Smith on Government Speech: Neutrality vs. Institutional Capture

Rick mentioned this article by Steve Smith some time ago, but since I'm always behind in my reading, I only got to it yesterday.  I wanted in this post to note again that the piece is a worthwhile read and highlight some of Steve's interesting and (I think) elegant moves.

The doctrine of government speech recently has crept into cases whose facts implicate Establishment Clause issues.  Pleasant Grove v. Summum will be familiar to MOJ readers, and there has been a flurry of scholarly writing directed toward this development (for a good summary of the issues and a careful take on the question of government speech, see this paper by my friend, Mary Jean Dolan).  In a nutshell, here's the issue: if the "speech" of erecting a monument is private, then isn't it illegitimate for a municipality to discriminate for content-based reasons as to which monuments get public real estate?  If the same speech is public, then doesn't the municipality violate the Establishment Clause by putting up, say, a monument of the Ten Commandments and not putting up other religious monuments?

After the jump, some description of and thoughts on Steve's paper.

Continue reading

December 27, 2010 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Friday, December 24, 2010

Notes on Screwtape: Past, Present, and Future

From the fifteenth letter:

Our business is to get them away from the Eternal, and from the Present.  With this in view, we sometimes tempt a human (say a widow or a scholar) to live in the Past.  But this is of limited value, for they have some real knowledge of the Past and it has a determinate nature and, to that extent, resembles eternity.  It is far better to make them live in the Future.  Biological necessity makes all their passions point in that direction already, so that thought about the Future inflames hope and fear.  Also, it is unknown to them, so that in making them think about it we make them think of unrealities.  In a word, the Future is, of all things, the least like eternity.  It is the most completely temporal part of time -- for the Past is frozen and no longer flows, and the Present is all lit up with eternal rays . . . . Gratitude looks to the Past and love to the present; fear, avarice, lust, and ambition look ahead.

They are different in tone and meaning, but I remembered Eliot's lines about time past and time future pointing to one end -- time present.  Buon Natale, MOJ friends!

December 24, 2010 in DeGirolami, Marc | Permalink | Comments (1) | TrackBack (0)

Thursday, December 23, 2010

The Religious Left and Its Diminishing Democratic Relations

Here's what seems to me a balanced article about the waning courtship of religious liberals by the Democratic party and President Obama's administration.  It will be interesting to see whether efforts pick up in advance of 2012.

This is Steve Shiffrin territory, and maybe he will have some thoughts about these developments.

December 23, 2010 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 22, 2010

Notes on Screwtape, Part I

This Christmas season, I wanted to patch up one of the many holes in my reading and picked up a copy of The Screwtape Letters (for New York readers, there's a theater performance of it in town that I've heard some good things about, but please weigh in if you've caught it).  The book is clever and very enjoyable, and I thought it might be fun to share some passages over the next few weeks with the MOJ community for comment, discussion, remonstration, silently satisfied rumination, etc. 

Here's a passage from the second letter.  Screwtape, a highly placed demon, is describing to his nephew, the novice demon Wormwood, the best way to prey on the sensibilities of the recent Christian convert -- to direct him back to the devil's fold:

Work hard, then, on the disappointment or anticlimax which is certainly coming to the patient during his first few weeks as a churchman.  The Enemy allows this disappointment to occur on the threshold of every endeavour.  It occurs when the boy who has been enchanted in the nursery by Stories From the Odyssey buckles down to really learning Greek.  It occurs when lovers have got married and begin the real task of learning to live together.  In every department of life it marks the transition from dreaming aspiration to laborious doing.

I was reminded of the statement (I can't remember where) that for the convert, the first experience of Christianity is like the first experience of the Post Office.  How marvelous!!  One's mail is picked up and is actually (by some sorcerer's magic?...no...but how, then?) delivered in timely fashion all over the world?  Not to be believed!  For the ordinary church goer, by contrast, the Post Office performs its regular, necessary and vital labor, just as it ever has and ever will.

December 22, 2010 in DeGirolami, Marc | Permalink | Comments (10) | TrackBack (0)

Monday, December 20, 2010

Viconian Echoes?

My friend and colleague Chris Borgen flagged this fascinating little project undertaken by some sanguine Harvard data jocks to uncover the human "culturome" -- the social scientific equivalent of the human genome -- by systematically analyzing the evolution of language patterns in the roughly 5-odd million books that Google Books has scanned and drawing conclusions about the history and future of culture.  I enjoyed this bit:

As the team says, the corpus “will furnish a great cache of bones from which to reconstruct the skeleton of a new science.” There are strong parallels to the completion of the human genome. Just as that provided an invaluable resource for biologists, Google’s corpus will allow social scientists and humanities scholars to study human culture in a rigorous way. There’s a good reason that the team are calling this field “culturomics”.

Some of my favorite findings: "Contrary to warnings about its imminent demise at the hands of teenagaers and Americans, English is booming. In the last 50 years, its vocabulary has expanded by over 70% and around 8500 words are being added every year."  Well, that settles it!!  Expansion is to linguistic health as cleanliness is to godliness.

And another: "When the team looked at the frequency of individual years, they found a consistent pattern. In their own words: “'1951' was rarely discussed until the years immediately preceding 1951. Its frequency soared in 1951, remained high for three years, and then underwent a rapid decay, dropping by half over the next fifteen years.” But the shape of these graphs is changing. The peak gets higher with every year and we are forgetting our past with greater speed. The half-life of ‘1880’ was 32 years, but that of ‘1973’ was a mere 10 years.  The future, however, is becoming ever more easily ingrained."

Poor forgotten 1973 (and 1880)...but here's to 2011!  And here's hoping that "culturomics" does for cultural studies all that empirical legal studies has done for law.  But I digress.  Didn't Giambattista Vico try to do something similar in The New Science?  (Scanned here, as culturomicists will know, by Google)  To be sure, his empirical instruments were slightly less refined, but perhaps "culturomics" will inspire the revival  of the sort of historicist philosophy that Vico fathered and which flourished in 18th-19th century Germany.  One can only dream.  Thoughts, philosophers or culturomic wannabes?  [p.s., -- I know most people say Vichian, but I can't bring myself to bastardize Vico's name like that...at least not until I see more usage data from the study].

December 20, 2010 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Friday, December 17, 2010

Judicial Bias As Proxy for Substantive Critique

I have been noticing an increasingly common move in journalistic and popular accounts of judicial decision-making.  A politically charged policy issues in a judicial decision either striking it down or upholding it.  Because it is politically charged, the decision garners the attention of the public.  Oftentimes the legal issues are complex, but members of the public, and certainly the media reporting on the decision, feel quite strongly about what the proper outcome ought to be.  When the writer disagrees with the outcome of the case, rather than attempting to engage with the substance of the decision -- or even try to make the issues digestible for the public -- the writer will instead focus on the judge's background -- her "biases."  That is why one always sees prominently in these kinds of accounts the political affiliation of the president who nominated the judge.  It is also why one sees, increasingly, an analysis of any possible personal conflicts -- no matter how remote -- that a judge might have that would tilt his or her mind.  In this way, the outcome can be explained -- understood by the public for what really motivates it.

In this column, Washington Post columnist Ruth Marcus begins by rightly criticizing the increasingly popular notion that a judge cannot be fair merely because he or she has developed the kinds of "political" contacts that got him or her nominated in the first place.  

Because I agree with that view, it was all the more disappointing to see Marcus breezily elide the issue of whether or not Judge Henry Hudson's views on the mandate were legally convincing (something she spends one sentence doing -- "I happen to believe that the individual mandate passes constitutional muster, but I also believe a credible argument can be made the other way") with the question of whether Judge Hudson is a "partisan hack[]" because he retains an ownership interest in a Republican consulting firm [addendum -- a firm which at one time, though not at any time during which Judge Hudson considered the case, provided services to the Virginia AG, who brought the challenge].  Marcus goes on to extend this claim to a judge's decision to address a political group: she says that Justice Scalia's decision to address a Republican group is "a terrible idea" because while addressing "ideological[ly]" oriented groups is ok, this is just one step too far. 

For myself, I don't see how making a speech to a group is analogous to having a financial interest in the outcome (which Judge Hudson did not have here) [addendum -- a conclusion, for me, unaffected by the fact that the AG bringing the case, at some point in time before the judge heard and decided the case, received services from the consulting firm], but let's set that aside.  The larger point is that if it's true that reasonable minds can disagree about the legal merits of the mandate (and I have no opinion about this issue, since I'm not sufficiently familiar with the legal arguments), then it's unfortunate to see Marcus using personal bias as a proxy for substantive criticism.  I've written on this page before about the use of recusal motions as weapons, and I expect the use of such motions to increase, just for this reason: it's so much easier to cast aspersions at a judge's integrity than to engage with complicated legal questions.  It is also a highly effective way of attacking the merits of a decision without actually addressing them.  I should add, should it be necessary, that it's no less objectionable to me when this kind of denigration happens to judges who are ideologically oriented left-ward. 


December 17, 2010 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Thursday, December 16, 2010

The Tudors and Catholicism

G.J. Meyer'sThe Tudors: The Complete Story of England's Most Notorious Dynasty [Deckle Edge] [Hardcover](2010)

I just finished listening in my car to this wonderful history of Henries VII and VIII, Edward VI, Mary I, and Elizabeth I (and all of the supporting cast).  I recommend it -- a deeply critical portrayal of this dynasty, a bit in the style of Eamon Duffy's also quite good The Stripping of the Altars

Part of what makes Meyer's account so interesting is his special focus on the plight of Roman Catholicism in the Tudor era, culminating in a riveting treatment of the slaughter of Edmund Campion, a shining light snuffed out by Elizabeth and her acolytes.  An excellent antidote to the hagiographies of the period in television and the movies that have appeared over the last few years. 

December 16, 2010 in DeGirolami, Marc | Permalink | Comments (2) | TrackBack (0)

Saturday, December 11, 2010

Poking at the Establishment Clause?

Here's a column by Gail Collins making fun of Tulsa's decision to allow a Christmas parade to proceed notwithstanding the absence of the word "Christmas."  Or making fun of the attendant protest.  Or making fun of Senator Inhofe.  She's definitely making fun of something.  "I know you've been worred," winks Collins: "We live in a time of so many terrifying, insurmountable problems. It’s comforting to return to arguing about whether the nation’s moral fiber is endangered if Tulsa downplays the religious aspects of a parade full of Santa Clauses that is currently sponsored by a popular downtown pub."  Difficult to cut through the confusing combination of earnestness and mockery to understand exactly what Collins means to criticize.

Be that as it may, the column had me wondering what Collins would have to say about Establishment Clause cases dealing with government sponsored religious symbols, texts, and displays.  Would she find the fights in Lynch, Stone, County of Allegheny, Pinette, Van Orden, Buono (to the extent people fought the EC fight), and the rest similarly ridiculous (or "comforting")?  Does she think that the "under God" battles now, or the issue of legislative prayers, or even what I predict will be the future question about the word "God" on the coinage -- are all of these and so many others just as mock-worthy?  After all, these disputes, no less than the one in Oklahoma, involve conflicts over what the government ought to be permitted to say about powerful and culturally important symbols and texts.  I'll admit that I, too, sometimes find them not quite as substantial as Collins's undescribably "terrifying, insurmountable problems," but I hope they are not regarded as objects of ridicule.  At least, I don't regard them that way.


December 11, 2010 in DeGirolami, Marc | Permalink | Comments (6) | TrackBack (0)

Friday, December 10, 2010

CST, l'Italia Nell'Ottocento, e l'Infarinatura

In my Catholic Social Thought and the Law seminar this year, one of the biggest questions was that of focus.  Should we read philosophical work?  Theological texts?  A close reading of the papal encyclicals?  Contemporary American cases that engage the issue of the Church and political life?

CST was born at a distinctive European geo-political moment.  It was deeply influenced by the turbulent history of Italy in the mid-19th century.  It is not possible, in my view, to understand properly what Pope Leo XIII was up to without understanding the situation in which Pope Pius IX found himself.  Victor Emmanuel, Cavour, Garibaldi -- and the tectonic shift in Italian politics that they brought with them (and the consequences for the Papal States) -- represent as large a part of the story as any other event.  These are the root causes that prompted what John Coleman so ably describes as the kind of delicate and sophisticated political moderacy that burgeoned in Leo's writing and would be developed thereafter.

Except by a very few, the history of Italy is, in this country, completely unknown.  Most people vaguely remember something about the Roman Empire and suppose that Italy, as a nation, must therefore be ancient.  That Italy is actually a good deal younger than the United States comes as a shock.  And that its becoming a nation coincides almost exactly with the emergence of CST (and CST's engagement with the concept of the nation-state) is no less surprising to many students.

How, then, to incorporate this history and its profound influence on the Church into the CST course?  One could spend a whole class learning about and discussing this history.  I assign Russell Hittinger's "Introduction to Modern Catholicism" (in the Witte and Alexander book), but it is difficult for the students, as it presumes a fair bit of sophistication with 19th century European history.  So something more is needed, but how much more before other features of a two-credit course are sacrificed?

It's here that I take refuge in an Italian cooking metaphor (I love to cook, and I love cooking metaphors, particularly those that involve marination): l'infarinatura, which means, literally, en-flouring, but is probably best translated as a dusting, or a light coating.  Un infarinatura is all that there is time for in the CST class -- just a light coating with respect to some of the main points, histories, ideas, and doctrines.  At the end, it would be nice to hope that the dusting will be enough for students to remember a little something as their lives go on.  But mostly, I just enjoy when they talk about a facet of CST that surprises them -- something totally unexpected.  The history of Italy, and the birth of contemporary Catholic political and social thought as a reaction to (and negotiation with) the struggles of the modern nation-state, was such a moment. 

December 10, 2010 in DeGirolami, Marc | Permalink | Comments (13) | TrackBack (0)