Sunday, July 14, 2019
Here is a book chapter I did a few years ago, for a NOMOS volume on "American Conservatism", called "The Worms and the Octopus." I admit, I like the title. here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Friday, June 28, 2019
This could be very big news. For more -- an older, but still worth-reading essay, by me -- on the Blaine Amendment(s), go here. This case gives the Court to embrace what seem to me to be the obvious implications of its recent decision in Trinity Lutheran, e.g., the Constitution neither requires nor permits discrimination in the context of secular-purpose-serving social-welfare programs against religious beneficiaries and institutions.
Saturday, June 22, 2019
Tuesday, May 28, 2019
In his opinion concurring in the Supreme Court's summary reversal of the Seventh Circuit's (clearly incorrect) ruling invalidating an Indiana law requiring appropriate disposal of fetal remains, Justice Clarence Thomas provided an important and timely, even if (for some) uncomfortable and unwelcome reminder about the inescapable connections between Planned Parenthood and the rise of the abortion-rights movement, on the one hand, and eugenics and discrimination, on the other. Scroll down to p. 13 of the Court's order list to read his powerful opinion. He ends with this:
The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. . .
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
Thursday, May 23, 2019
Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms. I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate. Here is the abstract:
What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.
Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.
Wednesday, May 22, 2019
Call for nominations: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019. The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2019.
Monday, May 20, 2019
My dear friend and colleague, John Nagle, passed from this life over the weekend. He was a great teacher and legal scholar, and also -- and more importantly -- a deeply good, generous person. (I recommend this wonderful reflection, by his former student, Derek Muller. Here is something I did at Prawfsblawg. And, here is the announcement on Notre Dame Law School's page.)
MOJ readers might remember the project, "Catholics and Evangelicals Together on Law." John was one of the signatories.
John wrote and taught about so many things, it's not possible to do justice to his academic work (let alone his personal gifts) here. If you haven't read his stuff before, take a look.
Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace.
Thursday, May 9, 2019
Here, at Public Discourse, is an essay by Elizabeth Kirk in which she underscores the many missteps in the recent majority opinion of the Kansas Supreme Court which, in a "failed attempt at serious philosophy," discovered/created a natural right to abortion, protected by that state's constitution. Kirk also highlights the clear dissenting opinion of Justice Caleb Stegall.
Ukrainian Archbishop the Rev. Borys Gudziak will be presented with the Notre Dame Award at a ceremony June 29 in the Ukrainian city of Lviv, the University of Notre Dame announced Monday.
Gudziak is the founder of Ukrainian Catholic University in Lviv. He recently was elevated by Pope Francis to become metropolitan-archbishop of the Ukrainian Catholic Archeparchy of Philadelphia (the equivalent of an archdiocese).
Ukrainian Catholic University was the first Catholic university to open in territory of the former Soviet Union and the first university opened by one of the Eastern Catholic Churches. It was formally founded in 2002.
The Notre Dame Award is presented to “men and women whose life and deeds have shown exemplary dedication to the ideals for which the University stands: faith, inquiry, education, justice, public service, peace and care for the most vulnerable,” according to the university.
Learn more about Archbishop Gudziak in this moving piece by George Weigel in First Things.