Tuesday, May 3, 2022
This review essay, in The New Atlantis, connects nicely with the moral-anthropology theme that has been a part of the Mirror of Justice conversation for nearly two decades (!) now. Here's the opening:
In thinking about technology, three questions are fundamental. What is technology for? What are we for? And how is our answer to the first question related to our answer to the second?
Since the Enlightenment, we have come to take for granted that there really is no relation, because we cannot publicly agree on what humans are for. We can answer that question only privately. But technology is public, not private. We create it for common use, ostensibly in the service of the common good. If we cannot broadly agree on what we are for, then how can we reason together about what our technology is for?
It appears that we cannot.
It's a long piece, and I cannot do justice to it here. But again: We've often observed, and reflected on the observation, that one cannot really "do law" without engaging the question, "what are human persons?" Certainly, a "Catholic legal theory" must be one that gives priority to this question.
On this day, in 1606, Henry Garnet, S.J. was hanged near St. Paul's Cathedral in London. (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.) He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot." (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.") Ora pro nobis.
Friday, April 29, 2022
I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things). A bit:
Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.
Friday, April 1, 2022
The Pillar has the story, here. Read the whole thing, but it seems clear that the Congregation is rejecting a notion of Catholic schools according to which they are merely schools like others, but with a sprinkling of religiously themed art or character-focused programming. At a Catholic school, the "Catholic" must be about more than heritage, tradition, or affiliation; it is about character, charism, mission, and "identity." And, the relevance to cases in the United States involving the so-called "ministerial exception" (which is neither limited to ministers nor an exception) is clear:
As the document turns to the role of teachers, the congregation lines up behind an argument which has been advanced by several American dioceses in recent years which defines all teachers, regardless of subject, as ministers of religion, for the purposes of U.S. law:
“In a Catholic school, in fact, the service of the teacher is an ecclesiastical munus and office,” it says, which they exercise not only by teaching in the classroom but “also bearing witness through their lives, [through which] they allow the Catholic school to realize its formative project to witness.”
The extent to which teaching is described almost as an ecclesiastical vocation is further emphasized by the instruction, which says they must all be “outstanding in correct doctrine and integrity of life,” and requires the “initial and permanent formation of teachers.”
“Following the doctrine of the Church, it is therefore necessary for the school itself to interpret and establish the necessary criteria for the recruitment of teachers,” the instruction says. “This principle applies to all recruitments, including that of administrative personnel. The relevant authority, therefore, is required to inform prospective recruits of the Catholic identity of the school and its implications, as well as of their responsibility to promote that identity.”
Wednesday, March 30, 2022
The Catholic University of America has named (my former Notre Dame colleague) Peter Kilpatrick as its next president. (Kilpatrick will succeed my other former Notre Dame colleague, John Garvey.) Here, thanks to The Pillar, is an interesting interview with Kilpatrick about (among other things) the nature and importance of a distinctively Catholic university and the challenges that exist to the building and thriving of such an institution. Here's a bit:
For me, a Catholic university is a unique place of higher learning, where we embrace the fusion — the integration — of faith and reason, where we celebrate that there is only one truth about the world and about the human person in the world, and that’s that it all flows from God.
And it's only possible to do that at a university like a Catholic university or another religious university really authentic to its faith principle.
I think the other important thing about a Catholic university is that you integrate the disciplines because knowledge is not bite-sized pieces. Disciplines, which came about in the late 19th century at the German universities, are not intended to be in isolation. They are intended to be in context of the global society and the society in the culture that you're in.
And unfortunately, so much of what’s done at many other universities is to silo the disciplines. And that's not what a Catholic university is about. We're about integrating the disciplines and putting it all in context. So my understanding of Catholic universities is that they have this unique role to play integrating faith and reason and integrating the disciplines.
Friday, March 18, 2022
The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021. The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”
The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought." The letter also states:
We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.
I have written before about the issue of Catholic universities, honorees, and outside speakers before. Among other things, I said:
[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.
That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university. It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate. As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research.
Again: This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights. And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one. But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university. And again: I say a bit more about why this suggestion is incorrect, here.
Sunday, March 13, 2022
Our first post here at Mirror of Justice went live just over 18 years ago. ("Wait, grandpa . . . they had the Internet 18 years ago?" "Yes, m'boy, and there was content besides homemade dance videos, too!") Here's the opening graf:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations. There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read. And yet: Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!
One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise. I continue to think this is a linch-pin issue. That is, it matters -- a lot -- for law what human persons are and what they are for. Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets? If we have "dignity", what makes it so that we do?
Tuesday, February 8, 2022
Adrian Vermeule's much anticipated book, Common Good Constitutionalism, is coming out soon, and is available for purchase on Amazon, etc. MOJ readers are likely familiar with the project, not only from Adrian's MOJ contributions in the past, but also from writings at, e.g., Ius et Iustitium (also here) and The Atlantic and, recently, The New York Times.
I expect that Adrian's book and argument will be of interest to MOJ writers and contributors, and I hope that many of my co-bloggers will read the book, and share their thoughts about it. Given (inter alia) St. Thomas's well known definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated", there can be no doubt that the idea/aim/end of "the common good" -- which is, of course, not understood in the Catholic tradition as "the greatest good for the greatest number" or in merely utilitarian terms but instead as the network/sum of social conditions which enable human persons and societies to flourish -- is crucial to any Catholic legal theory and, it would seem, to any Catholic account of the enterprise of constitutionalism.
The questions that I have about Adrian's proposal, and about others to which "common good constitutionalism" is attached, have to do not so much with the question whether those who are authorized to make laws should do so with an eye toward promoting and protecting -- to the extent possible and feasible, this side of Heaven -- the common good of the relevant political community. Instead, my questions have to do more with these proposals' implications for constitutional interpretation by federal judges who, in our context, are authorized to decide cases and controversies only by virtue of the positive-law-fact that the federal judicial power has been vested as it has. To have such questions is not, of course, to be a "positivist" or "relativist." But it is not clear to me why (as I gather Adrian argues) that an appropriate appreciation for the fact that a political community's positive laws should promote and protect the common good, correctly understood, means that "originalism" is not the appropriate methodology for identifying the judicially enforceable content of the positive laws that we have.
In any event . . . I look forward to reading and learning more.
Wednesday, December 29, 2021
Thursday, December 2, 2021
Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent. A bit:
To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.
The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .
At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.
Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.