Monday, October 7, 2019
Thursday, October 3, 2019
As Alexandra DeSanctis and others have reported, there was at Notre Dame recently an unfortunate series of connected incidents -- involving an outdoor poster display, then a poem of sorts in the student newspaper, and also a performance-art video posted online -- of what I think can fairly be called anti-Catholic hate speech. You can read DeSanctis's article for the details, but -- in a nutshell -- in addition to contending that various writers, publications, and organizations have "blood on their hands" by virtue of writings and activities that support and defend Catholic theology, morality, and anthropology, the performers/authors of the attacks engaged in what can reasonably be regarded as a kind of fantasy about inflicting violence (using a crowbar) against the offending writers, some of whom are their fellow students.
These incidents are particularly upsetting, not only because the attacks aim at the University's animating and foundational Catholic mission and commitments, but also because Notre Dame has been (thankfully) relatively untouched by the fever-swamp excesses of our overly politicized and excessively polarized academic culture.
Although Notre Dame is a private institution, and not subject to the First Amendment's constraints, it's my view that, as a general matter, "Chicago statement"-type rules and norms should be observed by students, faculty, and administrators. As important as civility and charity are, I am inclined to agree with the Chicago Statement that "[a]lthough the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community." At the same time -- and while I reject the tendency to equate "discourse" with "violence" and the claim that criticism and disagreement make one "unsafe" -- it seems clear that actual threats of or incitements to violence are not only legally unprotected (while "hate speech" is), they are also morally excludable, and punishable, even in a university setting.
It's too bad (or, perhaps, it is fitting?) that this week is also Respect Life Week at Notre Dame (and at many other places). Even as the spirit of community and care -- the Week's theme is "authentic love, authentic freedom" -- was attacked by the series of hate-speech incidents, this beautiful student-led week of prayer, speakers, celebration, and conversation reminds us of the radical Christian call to solidarity and of the radical Christian claims regarding human dignity and equality. Here's hoping hearts and minds -- including those of the people who engaged in the expressive attacks -- will be touched and healed.
Monday, September 30, 2019
A very helpful essay, by Paul Marshall (Baylor), at the Religious Freedom Institute's Cornerstone Forum:
One reason that institutional religious freedom has become so controversial in the United States in recent years relates to the American people’s historical understanding of rights as applying only to individuals. Contentious U.S. Supreme Court decisions such as Citizens United and Hobby Lobby have also contributed to widespread suspicion about the general idea of institutional rights, especially in the form of recognizing the legal personhood of corporations.
To begin to grasp the meaning and scope of institutional religious freedom requires outlining its main aspects and considering how they fit together. Growing uncertainty over the very nature of rights presents a key challenge in this regard so we will address that first. . . .
Read the whole thing!
And then -- why not? -- read this.
David Cloutier (CUA, Theology) has a helpful piece in a recent issue of Commonweal called "The Paid Family Leave Impasse: How Catholic Social Teaching Can Help." Among other things, he explores the issue, and some policy proposals, using the principles of Subsidiarity and Solidarity. Here's a bit:
Catholic social teaching can help us understand, and perhaps correct, the failure of both parties to address this issue. The problem is not that each party fails to balance solidarity and subsidiarity—as if some fifty-fifty compromise could be worked out. Rather, neither party understands the way solidarity and subsidiarity ought to be related to each other. That relation is one of means to ends. Solidarity is meant to govern the end of social action, while subsidiarity is the principle that determines the best means to that end. As John Paul II puts it in Centesimus annus, subsidiarity means that “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it…always with a view to the common good.” Understood in this way, subsidiarity is not just another name for libertarian individualism; rather, it is about the importance of genuine participatory structures for achieving solidarity.
It's entirely true, of course, that "subsidiarity is not just another name for libertarian individualism" or, as Cloutier says later, "atomistic individualism." (It's also not simply about devolution or federalism, as others have pointed out.) That said, I'm not sure that it's quite right to say that the subsidiarity principle is (only?) about identifying the "best means to [the] end" (i.e., "Solidarity"). I take the subsidiarity principle to (also?) be about pluralism, social ontology, the reality of group personhood, and the moral and legal rights and duties of non-state societies.
I found this essay by Russell Hittinger, "The Coherence of the Four Basic Principles of Catholic Social Doctrine," really helpful on this (and many other!) point(s).
Monday, September 23, 2019
Here is news about an (I think) striking proposal in the United Kingdom:
"[T]he motion passed by Labour . . . said the next Labour manifesto should include a 'commitment to integrate all private schools into the state sector'. That would see the 'withdrawal of charitable status and all other public subsidies and tax privileges, including business rate exemption', the motion said. It also demanded that universities only admit 7% of students from private schools, to reflect the proportion of all pupils who attend them. The motion also called for 'endowments, investments and properties held by private schools to be redistributed democratically and fairly across the country’s educational institutions'.
The primary target of this proposal seems not so much to be religious and parochial schools (in the U.K., the state sector includes a variety of "faith schools"), but rather elite institutions like Eton, etc. That said, calls to "abolish Catholic schools" are regular and recurring.
Tuesday, August 27, 2019
I have a short piece, posted at Public Discourse, with "some thoughts for new law students." Comments and reactions welcome! Here's a taste:
With apologies to Douglas Adams, this is the “meaning of life, the universe, and everything” Layer. Here, we ask not only about the “legislative intent” underlying a particular provision, but also about, for example, “who and what we are, what we were made for, and why it might matter.” Layer Four is where we think about not only the most efficient default rules and the “cheapest cost avoiders,” but also about the nature and destiny of the human person, and the connection between our human nature and the legal enterprise. St. Augustine famously wrote that “you have made us for yourself, O God, and our hearts are restless until they rest in thee.” This is a fact about us. We need to ask, “what differences does this fact make?” What does it mean for the law, and for lawyering, that we have, as C.S. Lewis suggested, a “God-shaped hole”?
We have traveled a long way from learning to report the implications of a fee simple or to recite the Model Penal Code’s hierarchy of culpable mental states. At the end of the day, it all comes down to Layer Four. Whether we realize it or not, this is where “the law” is. Yes, some law schools, teachers, judges, and scholars will insist or pretend otherwise; some will propose that the law in fact is, and must be, “neutral” with respect to Layer Four matters. However, it cannot, and should not, be.
Thursday, August 22, 2019
Over at First Things, George Weigel has these comments about the recent (split) decision affirming the sex-abuse conviction of Cardinal George Pell. I realize there are those who claim that skepticism about the fairness of the proceedings against Cardinal Pell simply reflects ideological or ecclesiological agreement with him, but this claim is misplaced. As a former criminal-defense lawyer, and as one who has been teaching Criminal Law for 20 years, I am committed, across the board, to the deeply rooted and foundationally important rule that imposes an exceptionally demanding burden of proof on the government before a criminal conviction. I do not believe that burden was met here, or that any reasonable, unbiased factfinder could have concluded that it was. That "something might have happened" or even that "something probably happened" (and, to be clear, I am not saying I believe that either of these is the case here) is not, and should not be, enough, in the criminal context.
Tuesday, August 20, 2019
Open Rank Faculty Position in Constitutional Studies
Department of Political Science
University of Notre Dame
The Department of Political Science at the University of Notre Dame invites applications for an open-rank full-time, tenure track/tenured faculty position in Constitutional Studies. The department seeks applications from promising and distinguished scholars with a research focus in American constitutionalism, which includes but is not limited to public law, the history and philosophy of American democracy, and American constitutional development.
The successful candidate will be a member of and offer graduate-level courses in the Department’s Ph.D. subfield in Constitutional Studies and core classes in the University’s undergraduate minor in Constitutional Studies, such as: “American Constitutionalism,” “Constitutional Government & Public Policy,” and “The History and Philosophy of Constitutional Government.”
The successful candidate will also contribute to Notre Dame’s thriving Program in Constitutional Studies, a center of research and teaching devoted to the production of distinguished scholarship and the cultivation of knowledgeable and civically-minded citizens. The Program directs the University’s growing 100+ student minor in Constitutional Studies and sponsors many lectures, seminars, and colloquia each academic year.
All applicants are required to submit a letter of interest, a C.V., three letters of reference, and a teaching statement which includes a summary of any teaching evaluations available.
Apply by October 1, 2019 at https://apply.interfolio.com/66463
Equal Employment Opportunity Statement
This appointment is contingent upon the successful completion of a background check. Applicants will be asked to identify all felony convictions and/or pending felony charges. Felony convictions do not automatically bar an individual from employment. Each case will be examined separately to determine the appropriateness of employment in the particular position. Failure to be forthcoming or dishonesty with respect to felony disclosures can result in the disqualification of a candidate. The full procedure can be viewed at https://facultyhandbook.nd.edu/?id=link-73597.
Equal Opportunity Employment Statement
The University of Notre Dame seeks to attract, develop, and retain the highest quality faculty, staff and administration. The University is an Equal Opportunity Employer, and is committed to building a culturally diverse workplace. We strongly encourage applications from female and minority candidates and those candidates attracted to a university with a Catholic identity. Moreover, Notre Dame prohibits discrimination against veterans or disabled qualified individuals, and requires affirmative action by covered contractors to employ and advance veterans and qualified individuals with disabilities in compliance with 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).
Monday, August 19, 2019
Monday, August 12, 2019
I have an op-ed in the Indianapolis Star about the recent round of lawsuits that have been filed by former teachers against Catholic high schools and dioceses. Here's a bit:
Every summer, the Supreme Court closes its work-year with a flurry of high-profile opinions dealing with controversial questions. The commentary and headlines about these decisions tends to focus on disagreement, division, and dissent. We should remember, though, that there are important, bedrock principles that unite the Court.
One such principle, the justices unanimously reminded us just a few years ago, is that our country’s constitutional commitment to religious freedom does not allow the government to interfere with a church’s decision about its teachings or its teachers. The Court’s liberals and conservatives agree: If church-state separation means anything, it means this. . . .
If we value real diversity and meaningful pluralism in that sector, it is essential to respect both the freedom of religious schools to be distinctive and the decisions of religious schools about how to carry out, and who should carry out, their mission.
Reasonable people in good faith can and will disagree about particular employment decisions, and it is appropriate to criticize what one regards as unfair, unjust, or uncharitable discrimination. In the United States, though, just as no one is forced to embrace a particular faith, no one is entitled to teach, lead, and minister in a particular religious school. The Constitution protects the right to reject a church’s teachings but does not permit the government to reshape them