Mirror of Justice

Smith on "Christians and/as Liberals?"

Friend of the Show Prof. Steve Smith (San Diego) has posted the article-version of a talk he gave at a Notre Dame conference last fall on "Liberalism, Christianity, and Constitutionalism." (Here is an op-ed version of the remarks I delivered at the same event.)  Here is Steve's abstract:

Recently, as part of a more general examination and criticism of liberalism, the relation between Christianity and liberalism has been much discussed. Some critics, sometimes associated with the label “integralism,” argue that Christianity and liberalism are fundamentally incompatible. Examining both consistencies and inconsistencies, this article argues to the contrary that liberalism may be, for now, for us, in our historical circumstances, the alternative that prudent Christians should prefer.

In the paper, Smith engages, inter alia, the versions of liberalism-criticism offered in recent years by Adrian Vermeule, Patrick Deneen, etc.  Here's something from the concluding pages (which, FWIW, seems right to me):

From this point of view, a properly governed and genuinely liberal regime might indeed be the best that a Christian should hope for, short of the end time when (Christians believe) the true King and Prince of Peace will rule. Liberalism might be, to borrow from Winston Churchill, the worst form of government except for all the others. In a genuinely liberal regime, people would be governed by ideals that at least derive from basic Christian beliefs, and by a regime that adopts as its central purpose protecting and promoting the ability of people (including Christians) to live and even to proselytize in accordance with their beliefs. At the same time, such a regime would not adopt the un-Christian and self-defeating tactics of using force and violence to enforce Christian beliefs that are efficacious only if sincerely and voluntarily embraced. The novelist Walker Percy, when asked why he was a Catholic, used to answer “What else is there?” Asked why he or she is a liberal, a Christian today might respond with the same question.

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!

 

Moreland on Liberalism and Christianity

Our own Michael Moreland has posted on SSRN a new paper, which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Friend of the Blog John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I, along with MOJ-er Lisa Schiltz, participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:

 

 

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by 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. 

Congratulations to Robby George!

This past weekend, the DeNicola Center for Ethics and Culture at the University of Notre Dame presented our own Prof. Robert George with its 2023 Evangelium Vitae medal, "the nation’s most important lifetime achievement award for heroes of the pro-life movement, honoring individuals whose efforts have advanced the Gospel of Life by steadfastly affirming and defending the sanctity of human life from its earliest stages."  (Learn more about the medal and its history here.)  Here is the really nice video that the Center put together, as part of the evening's program.  Congratulations, Robby!

Prof. Dan Philpott on a "Christian Case for Reparations."

Here is the abstract from a new paper by my friend and colleague Dan Philpott:

National healing for the persistent wounds of racism, America’s original sin, can be advanced through a national apology, reparations and forgiveness. The frequent practice of apologies and reparations around the world in the past generation provide precedent for such measures. Christianity’s teaching of reconciliation and accompanying notions of sin, repentance, forgiveness, and atonement provide a strong moral basis for these measures and resonate with the rationales through which the United States’s greatest champions of civil rights and equality have fought against racism and slavery. Because racism and slavery were supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body. Questions of who pays, who receives, and what form reparations take are important ones and can be answered adequately. Through collective apology, reparations, and forgiveness, the United States would enact and renew its national covenant, acting in the tradition of Abraham Lincoln, Frederick Douglass, and Martin Luther King, Jr.

I'm inclined to agree with Prof. Philpott that, in some cases, when wrongs were "supported with the sanction of the state, in the name of the collective body, measures of repair may now be performed by the state, in the name of the collective body."  I am not convinced, though, that the "important" "[q]uestions of who pays, who receives, and what form reparations take" are "answered adequately" in the piece.  See for yourself!

Prof. Gerard Bradley on Prosecutorial Discretion and Judgment in the Trump Case

My friend and colleague, Prof. Gerard Bradley -- a former Manhattan prosecutor, as it happens -- shared with me a short essay on the recent indictment in New York of Donald Trump.  Here it is:

Abuse of Discretion: The Trump Indictment

• • Gerard V. Bradley*

It’s now official: Donald Trump is the first ex-President to face criminal charges.  The People of New York, by a majority vote of twenty-three residents randomly summoned for grand jury duty, lodged a thirty-four count indictment against him.  The misconduct alleged consists of falsified records of ten or so payments, made throughout 2017 by Trump entities to Michael Cohen.  All of them were apparently reimbursements to Cohen for “hush money” he gave Stormy Daniels to keep her quiet about a sexual tryst that Mr. Trump says never happened.  Paying the money is no crime.  Entering the payment on the Trump company’s books as a business or legal expense, could be.  The grand jurors accused Mr. Trump of doing just that, “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof”.

Many politicians and pundits denounce the charges as “politically motivated”.

My worry is that the denunciations are “politically motivated”. Although there is a circumstantial case suggesting that the Manhattan District Attorney Alvin Bragg might have a political agenda, the simple fact is that there is no evidence of what his motivations actually are.  Denunciations of him are meant to fan political conflict. They do. They also further divide, and more bitterly, an already rent body politic.

The politicized criticism is not only mischievous.  It is unnecessary. The Trump indictment is a grave abuse of a prosecutor’s discretion. It should be denounced for that reason. The partisan gamesmanship can stop.

Now, one plausible motive for charging Trump could be that Mr. Bragg believes that Trump’s willingness to falsify records to cover-up an adulterous affair renders him unfit to serve (again) as this nation’s chief law enforcement officer.  Let’s suppose for a moment that this judgment is sound. It still should play no role in Bragg’s decision to prosecute Trump. Bragg’s overall opinion about Trump’s fitness to be the nation’s top cop is entitled to no more authority or amplification than anyone else’s opinion.  Bragg should never use the powers of his office to handicap the next Presidential election.    

One could ask whether Mr. Bragg would seek to indict any other businessman who falsified records for the same amount or any amount for the same tawdry reason, that Trump allegedly did. One could ask as well whether the Manhattan District Attorney’s Office does typically prosecute cases similar to Trump’s.

The problem with this thought experiment is that there are no true comparators.  Donald Trump is not singularly rich or famous, though he is both. But no grand jury target could be more prominent than he is.  None has a more vociferous constituency.  And Trump is, well, Trump: he has relentlessly tried to intimidate the District Attorney and to discredit his investigation – in colorful and often crass terms. 

This mix of factors rightly makes Trump a priority target of law enforcement.  The prominence of any individual should be considered when a prosecutor decides who to charge. It is imperative that prosecutors not only believe that no one is above the law.  They must try to make that truth evident to all. The central ethical justification for prosecuting Trump is the same as for prosecuting anyone: to vindicate the rule of law by imposing just punishment. But the main practical effects are two. One is to hold this powerful man accountable, so that rest of us do not conclude that we are suckers for following the law, to show that playing by the rules is not just for chumps. This is especially true for crimes like those for which Trump was indicted, matters involving the integrity of business records.  Many are tempted to play fast-and-loose with those laws from time to time. The other effect is deterrence; when the rest of us see that the rich get their deserved comeuppance, we are more likely to fall in line too.

Even so: the Trump indictment is a gross abuse of the DA’s awesome but necessary power of prosecutorial discretion.

First, the alleged criminal behavior at the heart of the Trump indictment – falsified invoices and vouchers and checks issued to make good on them – amounts to a misdemeanor in New York, punishable at the same level of severity as shoplifting.  Considered in itself, even someone exemplary (like Trump) would not be prosecuted for falsifying these records.  And Trump was not: the statute of limitations ran out years ago on the misdemeanor charge because the DA did not pursue it. The business records at stake are, moreover, those of a privately held, family company. No one within the company made money off the scheme either; there was no skimming or side-payments to insiders. The public interest in prosecuting this false business entry is slight, at most.

Second. Trump is charged with thirty-four felonies.  The enhancement from misdemeanor is based on a novel legal theory that evades the statutory limitations bar.  That theory is not only untested.  It is unsound. To date, New York prosecutors have upgraded misdemeanor business records frauds into felonies by linking them to acts which are crimes under New York law.  The indictment ties each of the thirty-four specific misdeeds to Trump’s (alleged) attempts to aid in the commission or conceal the commission, of another crime. Nowhere does the indictment say what those further crimes are. But it is almost certain that the proof at trial will reveal them to be federal offenses.

The animating public harms in the indictment are thus not peculiar to New York.  They have to do with the federal election of 2016 and campaign finance laws. Those laws and the common goods they protect are serious matters.  Federal prosecutors should and do enforce those laws. In Trump’s case, Bragg is prosecuting a misdemeanor as a felony when the actor intended (by hypothesis) to conceal the commission of an act that New York does not regard as a crime.  

A case of this magnitude and political consequence is not the occasion to field-test creative interpretations of the criminal law.

Third.  The experimental legal theory coupled with the cratered credibility of the state’s chief witness – Trump “fixer” Michael Cohen – calls into question whether he could properly be convicted on the constitutional standard – proof beyond a reasonable doubt.   This is not mainly a question about whether Manhattan jurors will in fact convict Trump.  Many potential jurors would probably convict hm on no evidence at all.  It is instead a question of honest professional judgment about the quality and quantity of the People’s proof.  It is a question to be answered in one’s best professional judgment ex ante; that is, before proceeding to the grand jury or at least before asking the grand jurors to vote for an indictment. 

As a matter of ethics, a conscientious prosecutor must seriously consider, even in the case of a repulsive defendant, the risk that a jury will convict on less than the quantum of evidence that the Constitution requires.  Persuading a majority of twenty-three grand jurors on the basis of a non-adversarial presentation that there is reasonable cause to accuse someone of a crime is easy. Getting a conviction by the unanimous vote of a jury after a contested trial where the burden of proof is “beyond a reasonable doubt” is hard.

It is almost unfathomable that Bragg’s prosecutors could be sure of their proof.  Combining the second and third factors makes for an especially adventurous prosecution, one that has succeeded in obtaining an indictment without the requisite professional confidence that a conviction is warranted.

Here the titanic political repercussions of indicting an ex-President running to regain the office come into play.  Any prosecutor charging Donald Trump should be all the more confident about the proof and that the legal theory being used are beyond reproach.  Alvin Bragg appears to think it works the other way around: take your best shot at the big game when you get it, even if your best shot is not professionally a sound one.

Fourth. Bragg’s is not the only game in town. There are several other potential Trump prosecutions in the pipeline. They all concern acts which more directly reflect Trump’s fitness to be President. Georgia authorities are investigating whether President Trump criminally interfered in that state’s electoral college returns in 2020.  Specially appointed federal prosecutor Jack Smith (who, coincidentally, began his career as a Manhattan ADA), is looking at possible criminal wrongdoing in Trump’s retention of presidential papers at Mar-a-Lago and, more importantly, in his involvement in the January 6 riot.  The simultaneous pursuit of criminal charges in other jurisdictions is a sound, everyday consideration for prosecutors deliberating about pursuing an investigation and indictment. Usually, local prosecutors like Alvin Bragg stand down when the federal government is so seriously pursuing more serious charges against someone the local DA is targeting.

 “Politically motivated” turns out to be a red herring.  If the Manhattan DA had solid proof that Donald Trump had committed almost any other felony – say, possession of child pornography or selling drugs or defrauding investors of millions – few would criticize his politics, even though he would be the same progressive Democrat that he is today.   The “politically motivated” charge arises precisely because so many people sense that this prosecution of Donald Trump is dubious. It is dubious, an abuse of discretion that ought to be redressed.  That criticism stands on its ground.  It does not need incendiary ballast, which boils our already hot politics.

What then is to be done?

If Trump’s were a more typical defendant and his case an ordinary one of gross unprofessional judgement, the answer might conclude right here: criticism. One would make the case that the prosecutor made a serious error and that the indictment should be dismissed -- and move on. But Trump’s case is not typical.  This abuse of discretion has ignited a political firestorm, one which threatens to seriously damage our country’s common good.  For that reason, in this extraordinary case, all lawful avenues of correction should be considered.

Trump has been indicted in the name of the People of New York.  In reality, the charges are the production of one man, the District Attorney of one county – Alvin Bragg.  One remedial avenue is set out in New York’s Executive Law, section 63(2).  It introduces the entire population if New York into the picture.  This law authorizes Governor Kathy Hochul is to “supersede” Alvin Bragg, to take the Trump case away from him and to assign it to the office of the state Attorney General.  Both Hochul and the Attorney General (Letitia James) are Democrats, of course.  But we should not indulge without evidence the temptation to conclude that their actions in taking over Trump’s case, would be “politically motivated”.

An important religious mission / freedom of association decision

The United States Court of Appeals for the Second Circuit has handed down an important decision, vindicating the First Amendment right of a pro-life pregnancy-resource center to hire-for-mission.  You can get the opinion in Slattery v. Hochul here.  I was pleased that the court cited, quoted, and relied upon a paper of mine, from a while back, which was written as a tribute to my former boss, Judge Richard S. Arnold.  That paper relied, in turn, on an earlier one, called "The Story of Henry Adams's Soul: Education and the Expression of Associations."  Here's the abstract:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.

Garnett on "Why Liberalism and Constitutionalism Need Christianity"

Here's a short essay, based on a talk at Notre Dame Law School a few weeks ago, on Liberalism, Constitutionalism, and Christianity.  A bit:

[T]he suggestion is that “liberalism” and “constitutionalism” rely for their success, both in theory and in fact, not only on the separation and limitation of the powers of the political authority, but also on the existence and the health of authorities and associations outside, and meaningfully independent of, the state. As I and many others have argued, our tradition of constitutionalism was made possible, and might still depend today, on the independence of the church from secular control, an independence that it is fair to say Christianity first proposed and insisted upon.

The “distinction,” as Pope Benedict XVI put it, “between what belongs to Caesar and what belongs to God (cf. Mt 22:21)” is “fundamental to Christianity.” It is this core tenet of Christian political theology—the differentiation between “church” and “state,” along with the freedom of the former and the limits on the latter—on which, it seems to me, both liberalism and constitutionalism depend. This differentiation, the late pope contended, “came into the world first through Christianity. Until then,” he observed, “the political constitution and religion were always united. It was the norm in all cultures for the state to have sacrality in itself and be the supreme protector of sacrality.” Christianity, however, “deprived the state of its sacral nature.”

Again: constitutionalism and liberalism—and liberal constitutionalism—need Christianity. Indeed, the “separation” between church and state that has long been treated, with more or less care, as a foundation of the American law of church and state is better regarded as a limit imposed by the former on the latter than vice-versa. Correctly understood—and, to be sure, it often is not—this “separation” stands as a safeguard against governments tempted to assume for themselves the power to direct religious life. It is a limit on government and such limits, again, are essential to liberal constitutionalism. Our Constitution separates church and state to curb the ambitions and reach of governments. In and through our constitutionalism, “Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God’s.” The differentiation between religious and political authority means that Christianity is not merely a recipient of constitutional protection; it is a safeguard for the enterprise of constitutionalism.