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.

Friday, January 26, 2024

Preziosi on Biden (and Trump) on the Federal Death Penalty

Dominic Preziosi has a piece in Commonweal called "Executioner in Chief" in which, inter alia, he criticizes the decision by the Biden Administration's Department of Justice to seek the death penalty for Payton Gendron, shot and killed ten black people at a Buffalo supermarket. As Preziosi observes, this decision seems inconsistent with Biden's stated (although not always consistent) opposition to capital punishment and his promises to do what is within his power to abolish the federal death penalty (or, at least, to restore the effective moratorium that had been in place on federal executions until 2020.

Like Preziosi, I would welcome legislation that repealed the death penalty at the federal level. (I would be less enthusiastic about a judicial decision that purported to invalidate the federal death penalty, because I am confident that the Constitution, correctly understood, permits the use of capital punishment for at least some federal crimes. And, while prosecutorial discretion is, appropriately, a fact of life, I am not entirely comfortable with executively-annouced moratoria that amount to non-enforcement of duly enacted federal law. But, put these reservations aside.)

There was a time, during the early years of the Obama administration, when abolition of the federal death penalty was politically possible, and that administration failed to take advantage of that opportunity.  At present, abolition is probably not politically feasible. And, in any event, it seems that -- given all the political givens -- the administration has decided (perhaps, for reasons like those that motivated then-Governor Bill Clinton in the Rector case) to shelve, at least for now, its earlier professed abolitionism.

January 26, 2024 in Garnett, Rick | Permalink | Comments (0)

Wednesday, January 17, 2024

USCCB releases report on threats to religious freedom

Thanks to my local bishop, Kevin Rhoades, for his leadership on this new report from the USCCB.  As he said, "Catholics have a vital role to play in defending religious freedom and promoting the common good”. 

Here is a bit from "The State of Religious Liberty in the United States":

This report identifies the top five threats to religious liberty in 2024 as follows:  

  • attacks against houses of worship, especially in relation to the Israel-Hamas conflict  
  • the Section 1557 regulation from the U.S. Department of Health and Human Services, which will likely impose a mandate on doctors to perform gender transition procedures and possibly abortions  
  • threats to religious charities serving newcomers, which will likely increase as the issue of immigration gains prominence in the election  
  • suppression of religious speech on marriage and sexual difference 
  • the EEOC’s Pregnant Workers Fairness Act regulations, which aim to require religious employers to be complicit in abortion in an unprecedented way 


January 17, 2024 in Garnett, Rick | Permalink

Monday, January 15, 2024

Title IX and the Assault on Hillsdale College

In the Wall Street Journal, Tunku Varadarajan has a piece called "Title IX and the Assault on Hillsdale College."  It's important.  Here's a bit:

The lawsuit seeks to impose Title IX’s strictures on Hillsdale, arguing that the college’s tax-exempt status under Section 501(c)(3) of the Tax Code “operates as a subsidy, which is a form of federal financial assistance.”

Mr. Arnn sees a darker ideological intent in this claim. “This is about the kind of society some people want us to have,” he says. “The principle that because you have a tax deduction you’re spending government money can’t mean anything other than that all money, in principle, belongs to the government.” This “tax-deduction thing,” as he calls the argument, “would be a massive expansion of government authority in one go. And of course, there are many people who seek that in America.”

Arnn is correct.  The notion that a tax exemption -- that is, a decision by the government not to impose a tax -- "counts" as a subsidy is a dangerous one, in a community that attaches any importance to civil society.

January 15, 2024 in Garnett, Rick | Permalink

Rob Vischer on "Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice"

Our own Rob Vischer ("el presidente" now, I guess!) published, a few years ago, a book called Martin Luther King Jr. and the Morality of Legal Practice:  Lessons in Love and Justice.  Here is the Amaz-n blurb:

This book seeks to reframe our understanding of the lawyer's work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King's success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality's relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

January 15, 2024 in Garnett, Rick | Permalink

Wednesday, January 10, 2024

Steve Smith on "Was Thomas More a Hypocrite?"

The title of this essay, by Steve Smith, in the latest issue of The Lamp, might seem designed to jar, even to scandalize, Mirror of Justice readers.  But, press on!  First, it's by Steve Smith so . . . 'nuff said.  Smith reminds us that many of More's friends thought him -- at the time -- less a heroic martyr than one wallowing in (his words) “stubbornness and obstinacy.”  Later, some would sniff at the talk of More, the champion of "conscience", given that he had, well, punished heretics.  Hypocrisy?

Smith explores the possibility that More meant something by "conscience" very different than what we mean today (i.e., "I gotta be me."):

But if we understand conscience more substantively as acting on beliefs based on the collective understanding of Christendom, as More did, then it seems that he was not being inconsistent after all. That is because, sincere or not, the Protestants were not acting on conscience—not as he understood it. Rather, they were acting against conscience. Indeed, they were openly and unapologetically acting against conscience by setting up their own personal judgement in opposition to and in defiance of the doctrines held by the Church and by Christians generally. Martin Luther had been proudly explicit at Worms on exactly this point (“Here I stand, I can do no other”). For More, this course was not only hubristic and reckless and self-contradictory; it was precisely the opposite of what it meant to act on conscience.

But in More’s view the Protestants were acting against conscience in an even more basic and threatening way. They were not merely acting against conscience themselves; they were working to make it impossible for Christians generally to act on conscience.

Check it out.

January 10, 2024 in Garnett, Rick | Permalink

Friday, December 29, 2023

Happy Feast of St. Thomas Becket

I'm re-printing a Becket-Day post from our own Michael Moreland:

Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2023 in Garnett, Rick, Moreland, Michael | Permalink

Friday, December 15, 2023

A Misguided Attack on Educational Choice in Commonweal

A recent issue of Commonweal includes an unfortunate, and unsound, attack on school choice called "The Battle Against School Vouchers", by Luke Mayville.  Let's start with the fact -- and, to be clear, it is a fact -- that Catholic Social Teaching clearly supports policies that not only permit Catholic schools to operate as Catholic schools but also that make it possible for parents to choose such schools.  To put the matter differently, the standard anti-pluralism argument of school-choice opponents that, somehow, school-choice programs "take money away from public education" is unsound:  Public education, correctly understood, is the education of the public; it is not limited to education delivered by government employees in state-owned buildings.

Mayville draws on a variety of tropes in the first paragraph:  "In place of a school system that is publicly funded, democratically governed, and accessible to all, policy entrepreneurs have sought to transform American education into a commodity—something to be bought and sold in a free market."  Let's put aside that systems of state schools in the United States are not, in a meaningful sense, "democratically governed."  Let's also put aside the notion that using market mechanisms, and permitting choice, insidiously transforms education (from what?) into a "commodity." The fact is that the "policy entrepreneurs" in question have sought to expand the range of "publicly funded" educational opportunities and options and thereby to better meet the needs, reflect the values, and empower the decisions of "all".

Mayville also gets the law quite wrong:  "Meanwhile, voucher proponents were energized by landmark decisions of the United States Supreme Court, most notably Espinoza v. Montana in 2020 and Carson v. Makin in 2022, both of which appeared to remove constitutional obstacles to the use of public dollars for private religious education."  In fact, as MOJ readers probably know, "the use of public dollars for private religious education" (again, this misstates the issue:  school choice involves using "public" dollars, to which parents who choose religious rather than government schools are no less entitled, for education, provided by non-state schools) has been, in various circumstances, constitutionally permissible for decades.  Espinoza and Carson -- correctly -- affirmed that governments may not single out religious private schools, as opposed to other non-state schools, for discriminations.

The piece continues with various false political-advocacy claims, and recounts efforts to block school-choice (and preserve the interests of those who benefit from the current monopoly), and descends into various teacher-union talking points.  None of this kind of thing is new, but what does seem new, and disappointing, is that the piece -- without any engagement with Catholic Social Teaching -- ran in one the longest running Catholic journals.

December 15, 2023 in Garnett, Rick | Permalink | Comments (0)

Tuesday, December 12, 2023

Coming up on 20 years (!) of Mirror of Justice

This blog launched a gabillion years ago -- well, on February 3, 2004 -- with this post.  My own first (substantive-ish) post was this one, on "Law and Moral Anthropology". A bit:

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

According to the Robots, we've had going-on 7 million pages views and over 16,000 posts here.  Not all of them have been about New Urbanism, or Christ the King, or the judicial murder of Henry Garnet (even if, from my own blog-work, it might seem that way). 

We all (because of Twitter/X, Facebook, arthritis, etc.) blog less than we used to; some past contributors have moved on; the "issues" have changed . . . heck, we are on our third pope! (And, several of our original bloggers are now presidents of Catholic universities!)  Many of us have changed institutions, and jobs . . . and retired. And, of course, may eternal light shine on our former co-blogger, Fr. Araujo.

For my own part, I continue to obsess over questions having to do with Catholic institutions, and with the way these institutions are shaped, pushed, supported, thwarted, etc. by the law.  I continue to be interested in the ways that law mediates the relationships among "church," "state," and "society." Certainly, in recent years, the renewed interest in "integralism" has . . . affected the conversations about these relationships. 

The "anthropological" question still seems central, to me.  Any "Catholic legal theory" has to include, or incorporate, it seems, an account of what it means to be human, of what a "person" is.  (My friend Carter Snead's recent book on this question, in the context of public bioethics, is outstanding.) Today, even more so than in 2004, it seems as though the Catholic account is contested -- maybe even on the ropes.  Rather than being "everlasting splendours" -- created, loved, and sustained by God -- we are loosely connected, shifting, coagulations of identities, preferences, and performances.  What can law do -- how can law deal -- with such things? I'm not sure. Stay tuned! 

December 12, 2023 in Garnett, Rick | Permalink | Comments (0)

Thursday, November 30, 2023

Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"

Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond."  (I should note that, unlike far too many University presidents, our own president, Fr. John Jenkins, was a lead signatory on a strong statement condemning the 10/7 terror-murders by Hamas and supporting Israel's right to exist and to defend itself.) (The event will be live-streamed.)

n November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.

The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.

The panelists include:

Ken MarcusEsq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey VeidlingerJoseph Brodsky Collegiate Professor of History and Judaic Studies at the University of Michigan

The event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.

The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.

Attendees will be asked to present their Notre Dame ID card. Backpacks and bags will not be allowed in the courtroom.

1140 Eck Hall will be reserved as the overflow room where the livestream of the event will be playing.

November 30, 2023 in Garnett, Rick | Permalink | Comments (0)

Tuesday, November 21, 2023

Pushaw on "Defending Dobbs"

Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.

The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.

November 21, 2023 in Garnett, Rick | Permalink