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.

Thursday, April 29, 2021

"Infrastructure", Georgia's voting rules, and Catholic Social Thought

It has become something of an online joke that "_______ is infrastructure", the point being that the Biden Administration's current "infrastructure"-funding proposal includes funding for a whole lot of things that have not generally been regarded as "infrastructure."  This is, of course, an entirely understandable marketing move, given the relative popularity of public spending on roads and bridges (remember the Trump Administration's recurring "Infrastructure Weeks"?) and the, perhaps, lesser popularity of some of the spending items that are included in the proposal.

I was reminded of this "let's call everything we like 'infrastructure'" move when I read John Gehring's recent piece, "Vow of Silence?", in Commonweal.  Gehring contends that the Catholic bishops in the United States have been "quiet on voting restrictions."  He writes:  "The silence from Catholic bishops when it comes to systematic, partisan, and racist efforts to undermine voting rights is a failure to apply Catholic social teaching to one of the most brazen injustices of our time."

Now, let's acknowledge, and put aside for the moment, what I take to be the facts that (a) former President Trump attempted to interfere in Georgia's election (and, indeed, in the presidential election) and lied repeatedly about asserted, but made-up, election-law violations in Georgia, thereby (probably) swinging that state's Senate seats to Democrats and (b) at least some of the Georgia legislators who supported that state's recent election-related law did so for partisan reasons and because they believe Trump's (and others') false claims about "stolen" elections, etc.  Nevertheless:  "Catholic social teaching" does not, in fact, tell us much about, say, how many days of early voting should be permitted and does not, at all, rule out, say, requiring state-issued identification for voting.  Indeed, given the high regard for political participation on display in the documents Gehring cites, it would seem that those documents call for careful attention to the important work of ensuring the integrity of elections and the regularity of voting procedures.  (Again, and to be clear:  There is no basis for partisans' claims that Georgia's election, or the national presidential election, was meaningfully compromised or undermined.)   

Gehring's piece does not reveal much familiarity either with the specifics of the Georgia law or with voting- and election-related regulations in the United States generally.  In fact, Georgia's rules are not outliers, and they do not "restrict[]" anyone's right to vote.  There is, among people who embrace the Church's social teaching, (plenty of) room for reasonable and good-faith disagreement about how the time, place, and manner of elections should be regulated and there is nothing about, say, regulating absentee and mail-in ballots that is contrary to that body of teaching, let alone "racist."  Comparisons to "Jim Crow" (or, in the President's words, "Jim Eagle") are tone-deaf and historically ignorant.  Not everything we like is "infrastructure" and not every policy arrangement we prefer is dictated by Catholic social teaching.

April 29, 2021 in Garnett, Rick | Permalink | Comments (0)

Tuesday, April 27, 2021

The University of Notre Dame's vaccination requirement

My friend and colleague, Gerry Bradley, along with Bishop Thomas Paprocki, have published a letter to the editor in which they challenge the University's announced policy that (nearly) all students arriving or returning in the Fall will be required to have been vaccinated against COVID-19.

Although I have the greatest respect for the authors, I (think I) disagree with the letter.  Assuming (a) that it is morally permissible to use these vaccines, (b) that we ought, to the extent we can and to the extent it is (reasonably) safe and prudent, and even when we'd rather not, to do morally permissible things to help others, (c) that a vaccine requirement will help others because only with such a requirement will the onerous and damaging restrictions on students' lives and our classroom teaching be lifted, and (d) that Notre Dame is entitled to impose morally permissible conditions on admission to the community . . . it seems to me that, all things considered, students may and should bear witness to the horrors of abortion in other (more visible and so, probably, more effective) ways.  If (a)-(d) are warranted assumptions, then it strikes me as prideful -- even though, of course, students themselves are not really at risk and, in any event, are generally entitled to assume risks -- to refuse vaccination.   And, if these assumptions are warranted, then it seems wrong to say, as Prof. Bradley and Bishop Paprocki do, that "any undertaking to exclude from campus every student who declines to be vaccinated . . . would be immoral."

I should emphasize that my conclusion depends on these assumptions -- including (c) -- being correct.  If it turns out that, even with (near) universal vaccination, the University elects to continue (contrary to evidence, data, sound cost-benefit analysis, and "science") with what would be fair to characterize as (again, onerous and damaging) "safety theater", then things would (to me) look quite different.


April 27, 2021 in Garnett, Rick | Permalink | Comments (0)

Thursday, April 8, 2021

The USNWR rankings and law-school debt

Insert here [       ] all of the usual (and correct) criticisms of the USNWR law-school rankings.   And, insert here [     ] the necessary caveats relating to the fact that the rankings' new incorporation of student-loan-debt matters did not help my own institution.  All that aside, it's far from clear to me why this incorporation makes much sense.  Just two, not-at-all-original concerns, for now:  First, as others have noted, it could create incentives to (all things considered) prefer admitting wealthier students.  And (a more abstract point, I guess), it seems to neglect the likelihood that higher student-debt loads at graduation are related to students' calculations/predictions regarding the value of education, networks, credentials, etc., in which they are investing.  We should care more, it seems to me, about whether those predictions are well-grounded than about the fact of student loans.

On the other hand:  I kind of like the possibilitythat the new metric could disincentivize the practice of using transfer-admissions (and strategically-small first-year classes) as a revenue-enhancing mechanism.  We'll see, I guess . . . 

April 8, 2021 in Garnett, Rick | Permalink

Monday, March 15, 2021

"Joe Biden and Catholicism in U.S. Politics"

The Berkley Center at Georgetown has posted a collection of short essays on the subject of "Joe Biden and Catholicism in U.S. Politics."  In my view, the authors (as a general matter) overstate the consonance between (a) President Biden's stated views and (b) the policies the Biden administration is likely to pursue with (c) plausible operationalizations of Catholic proposals and social teachings.  Among other things, there is in the essays a -- for me -- disappointing tendency to equate present-day public-sector unionism with the Church's longstanding emphasis on the dignity of work and the rights of workers.  And, the significance of Biden's and his administration's rejection of the Church's teachings -- that is, the truth -- about the rights and dignity of unborn children is downplayed.  (In fairness, I should note that I was invited to contribute one of the essays, and failed (multiple times!) to meet my deadline!)

In any event, check out the collection and, MOJ-ers, please weigh in with your thoughts on the topic!

March 15, 2021 in Garnett, Rick | Permalink

Saturday, February 27, 2021

Prof. Seidman on Georgetown's "residual Catholicism"

An . . . interesting take on Georgetown University Law Center's Catholic character and mission, from Prof. Louis Michael Seidman:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

February 27, 2021 in Garnett, Rick | Permalink

Wednesday, February 10, 2021

Congratulations to Dean Vince Rougeau

MOJ-veteran Vince Rougeau -- the longtime dean of Boston College Law School, and also my former colleague at Notre Dame -- has been named the new president of the College of Holy Cross.  Congrats to both Vince and the College!  More here.  

February 10, 2021 in Garnett, Rick | Permalink

Wednesday, January 20, 2021

"What Joe Biden . . . owe[s] John Courtney Murray."

I don't think this piece, in America, is actually about what is in the title.   I am, to be sure, a fan of John Courtney Murray's work, and I agree with the piece's author, Prof. Massimo Faggioli (Villanova) that:

One of Murray’s most important contributions . . . is the principle of the distinction between state and society, and the conviction that the state is limited in its role toward society. “State is distinct from society,” he asserted, and “government submits itself to judgment by the truth of society; it is not itself a judge of the truth in society.”

Faggioli goes on to say that "[i]n the present moment, Murray’s assumption must be revised: Our societies have become more pluralistic and more secular, while political identities have often become more strongly linked to religious belief." I'm not sure what this means.  That is, it's not clear to me why these observations about our "societies" and "identifies" have any implications for Murray's emphasis on the aforementioned "distinction." 

In any event, the distinction matters.  Faggioli, strangely, seems to think that the threat to this distinction is (again) "the culture wars" or the asserted emphasis by "culture war[riors]" on "non-negotiables."  In fact, though, the most potent challenges to this distinction, and all that it protects and facilitates, are coming (and will increasingly come) from "progressives" who believe that the state should insist on, and use its various tools to bring about, congruence between (a) the egalitarian rules that constrain state action and (b) the practices, norms, and commitments of non-state communities and institutions.  In other words, the "healthy secularity" that Murray supported never meant, for Murray, that the Church should welcome being re-made by licensing and funding conditions.

January 20, 2021 in Garnett, Rick | Permalink

Tuesday, December 29, 2020

Barron on the Use and Misuse of "Culture Warrior"

I recommend this short post by Bishop Robert Barron, "'Culture Warrior' and the Fallacy of Misplaced Correctness."  It opens with this:

One of the least illuminating descriptors that makes its way around the Catholic commentariat is “culture warrior.” 

Barron is, in my view, correct.  One encounters this descriptor -- "culture warrior" -- all too often in Catholic commentary, and it is almost always used by more "progressive" Catholics as a way to express disapproval of things that more "conservative" Catholics say and do.  As Barron describes, the label is, often, unhelpfully contrasted with dialogue, mercy, humility, and accompaniment.  As I noted a few years ago, in this post:

There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality.  It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.

As Barron notes:

[C]onsider the abstraction “culture warrior” as used . . . as a negative characterization of his opponent. [It] can’t possibly name anything real, since the accuser is every bit as much a culture warrior as the accused. It therefore functions as a smokescreen for what the accuser really wants to say, and I can think of at least two possibilities: either he doesn’t think that the issues his opponent is criticizing should in fact be criticized, or perhaps he feels that the way his opponent is characterizing the issue is unfair. In either case, the real matter is obscured, and the use of the term doesn’t move anyone even a bit closer to the truth. Infinitely preferable to trading in insulting abstractions that apply as much to oneself as to one’s opponent is to engage in the tough work of authentic argument.

December 29, 2020 in Garnett, Rick | Permalink

Happy Feast of St. Thomas Becket!


December 29, 2020 in Garnett, Rick | Permalink

Thursday, December 10, 2020

Snead's "What It Means to Be Human" makes Wall Street Journal's "Books of the Year" list

The new book by my Notre Dame friend and colleague Carter Snead, What It Means to Be Human:  The Case for the Body in Public Bioethics, has been included in the Wall Street Journal's "10 Best Books of 2020" list.  As I've mentioned before, Snead's book is an outstanding reflection and exposition of the content and implications of Christian moral anthropology, and a model, in my view, of what "Catholic legal theory" should look like.

December 10, 2020 in Garnett, Rick | Permalink