Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, January 28, 2019

Herbert McCabe on Thomas Aquinas and Sanctity of Mind

For this Feast of St. Thomas Aquinas, I am reposting a bit from a homily delivered for this occasion at Blackfriars (Oxford) by my late friend Fr. Herbert McCabe, O.P.:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

“What is God?” It was the intellectual sanctity of Thomas that he here accepted defeat. Unlike so many  theologians before and since, he could in no way answer this most important of questions. Right through his life he accepted this crucifixion of the mind; his whole life was devoted to talking about God, to theology, and yet he was intensely conscious that he knew nothing, that God is the ultimate mystery, that we are peering into the dark. In Christ, he says, we are joined to God as to the utterly unknown. The most we can do is peer in the right direction; and all theology is about doing that. But we can never answer our basic question with any use of language, by any thought. We will understand what is God only when we have been taken even beyond language and thinking, and God brings us to share in his own self-understanding. Thomas was not making a new discovery when, at the end of his life, he said that all his writings seemed like straw. He had lived with this knowledge all the time he was writing.

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

God Matters (1987), pp. 236-37.

January 28, 2019 in Moreland, Michael | Permalink

Saturday, December 29, 2018

G.K. Chesterton on St. Thomas Becket

Reposting from 2015:

Becket

A reflection for today's Feast of Saint Thomas Becket:

Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.

It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.

Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.

G.K. Chesterton, A Short History of England (1917), 76-79.

December 29, 2018 in Moreland, Michael | Permalink

Wednesday, August 22, 2018

John Witte and Nicole Garnett at Villanova This Fall

The McCullen Center at Villanova (which I direct) will host two lectures this fall, in addition to other events. Next Tuesday, August 28 (the Feast of St. Augustine, as it happens), we will inaugurate an occasional lecture series on Law and the Augustinian Tradition with a visit from John Witte of Emory University speaking on "From Gospel to Law: Martin Luther's Reformation of Law, Politics, and Society." Details here (including CLE credit for lawyers). And looking ahead, on October 30 at 3:00pm Nicole Stelle Garnett of Notre Dame Law School will deliver the 42nd annual Giannella Lecture (details to come).

August 22, 2018 in Moreland, Michael | Permalink

Monday, August 6, 2018

Veritatis Splendor at 25 and Alasdair MacIntyre on What It Teaches Us

Pope John Paul II's mighty encyclical letter Veritatis Splendor was released on this date in 1993, and while it is probably best known in moral theology for its rejection of proportionalism (at ¶¶ 79-83: "circumstances or intentions can never transform an act intrinsically evil by virtue of its object into an act 'subjectively' good or defensible as a choice") there are a host of other vital aspects to the document. Here is a rich paragraph from an article by Alasdair MacIntyre, "How Can We Learn What Veritatis Splendor Has to Teach?," 58 The Thomist 171 (1994):

Yet as Catholics we have to listen first to what a very different set of voices have to say to us, those inspired and authoritative voices which declare the Word of God concerning those same moral matters about which our own culture speaks to us so vociferously and about which we have arrived at our own philosophical conclusions. Part of what we have to learn, or rather to re­learn, from Veritatis Splendor is that, at least so far as the fundamental and central precepts of the moral law are concerned, the truths about those precepts declared to us by God through Moses and the prophets, in the revelation by Jesus Christ of the New Law and in the teaching of the Catholic Church, culminating in this very encyclical, are no other than the truths to which we have already assented as rational persons, or rather to which we would have assented, if we had not been frustrated in so doing by our own cultural, intellectual, and moral errors and deformations. Yet the encyclical also teaches us that what we encounter in Jesus Christ is immeasurably more than this. We also have to learn of our forgiveness and our redemption and of the transformation made possible in our acknowledgment of law when we come to understand it in the light afforded by Jesus Christ. Nonetheless the law declared to us by God in revelation is the same law as that which we recognize in the moral requirements imposed by our own human practical understanding and reasoning, when they are in good order. So that when we become able to hear and to respond to what Jesus Christ has to say to us, we do not have to leave behind or discard anything that we had genuinely learned concerning the moral law through reasoning. Grace often corrects, as well as completes, what we have so far taken to be conclusions of reason, but, when grace does so correct us, it is always because we have in some way failed as reasoners. And therefore Veritatis Splendor, just because it is true to this biblical teaching, will be grotesquely misunderstood if it is understood as an act of coercive imposition by an external authority, rather than an invitation to become more thoughtful and more perceptive. It does indeed speak in the name of an authority external to us, God, but that to which it invites us--that to which He invites us--is in part an act of moral and rational self-recognition. And Veritatis Splendor as a work of philosophy does itself exhibit just that moral and rational awareness to which as an encyclical it invites its readers.

August 6, 2018 in Moreland, Michael | Permalink

Friday, August 3, 2018

Oliver O'Donovan on the Death Penalty

A shortcoming of the Catholic debate (the past couple of days certainly included) over the death penalty is a frequent lack of attention to distinctly theological questions and how they might inform the debate. The best alternative to that theological sterility, I think, is the Anglican theologian Oliver O'Donovan, who has written perceptively (and ambivalently) about the death penalty for many years. Here is a bit from the conclusion of his essay responding to John Paul II's discussion of the death penalty in Evangelium Vitae:

I return in closing to the theological issue raised at the start: the failure of the encyclical to achieve a clear focus on the resurrection and its tendency to put the cross in its place, central to the salvation history of life but unrelated to the phenomenology of death. Now I can suggest a reason for this. John Paul’s failure, on the side of civil justice, to identify the link between judgment and mortality is reflected in a failure, on the side of death, to link mortality and judgment. Politically we have justice without death, anthropologically death without judgment….

The symbolic links of judgment and execution stand at the heart of what we understand about Christ’s reconciling death. We may be rid of ordinary uses of the death penalty in most Western states; I am glad to live in one where we are. We may one day be rid of it elsewhere, in Third World countries, Muslim societies, and so on. If we can achieve that responsibly, it will be a fine achievement – though we must be on our guard against irresponsible, crusading attitudes which fail to take the context (legal, economic, social, and moral) seriously. But we cannot be rid of the symbolic role that the death penalty plays in relating death to judgment. There will always be a death penalty in the mind – if, that is, we are all to learn to “die with Christ,” understanding our own deaths as a kind of capital punishment.

Oliver O'Donovan, "The Death Penalty in Evangelium Vitae," in Ecumenical Ventures in Ethics: Protestants Engage Pope John Paul II’s Moral Encyclicals, eds. Reinhard Hütter and Theodor Dieter (Eerdmans, 1998), 213–36 .

August 3, 2018 in Moreland, Michael | Permalink

Thursday, August 2, 2018

Killing, Catholic Tradition, and the Law on Capital Punishment

A quick thought following today’s announcement from the Congregation for the Doctrine of the Faith that Pope Francis has approved a revision to Section 2267 of the Catechism of the Catholic Church.

Not much attention has been paid to the text of the letter from the CDF, which warrants a close reading. At Paragraphs 8 and 10 of Cardinal Ladaria’s letter, he states:

8. All of this shows that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.

….

10. The new formulation of number 2267 of the Catechism of the Catholic Church desires to give energy to a movement towards a decisive commitment to favor a mentality that recognizes the dignity of every human life and, in respectful dialogue with civil authorities, to encourage the creation of conditions that allow for the elimination of the death penalty where it is still in effect.

Much of the reaction on Twitter and elsewhere seems to be over whether the Pope is “changing” Catholic teaching, breaking with a long tradition in favor of the permissibility of the death penalty, and opening the door to all manner of mischief under the guise of doctrinal development. I think a better way of framing the question and to have a reasonable debate in light of the Church’s moral tradition is to note that the permissibility of the death penalty was understood (by Aquinas, for example) as an *exception* to an otherwise absolute norm against intentional killing, based on an understanding of the dignity of all human life. Summa Theologiae, II-II.64.7 (“As it is unlawful to take a man's life, except for the public authority acting for the common good…it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good.”).

And so the question becomes whether Aquinas (or anyone else in the Catholic moral tradition right up to today) can carry off a justification for such an exception—are there ends (pertaining to the common good, public order, and safety) that justify the use of what would otherwise be a forbidden means (intentional killing)? On that question, the prudential weight of doctrinal authority (over the past several pontificates) has swung from in favor (as in Aquinas) to against such justifications, and that is (merely?) what the CDF’s letter and the revision to the Catechism reflects. In at least this respect, then, the revision to the Catechism reflects and deepens the moral principle that one may not do evil that good may come. See John Finnis, Aquinas: Moral, Political, and Legal Theory at p. 282 (“Aquinas therefore fails to reply convincingly to the argument that capital punishment, since it involves the intent to kill as a means, is “doing evil that good may come,” i.e. the pursuit of a good end (the restoration of the order of justice) by inherently immoral means.”).

A final brief note: it is a separate (but timely!) question how, say, a federal judge who is Catholic and accepts that the Catechism is a “sure and authentic reference” (John Paul II, Fidei Depositum IV) regarding Catholic doctrine should understand his or her responsibilities in death penalty cases. A reasonable answer to that question, it seems to me, is that the Constitution (absent an implausible reading of the Eighth Amendment to prohibit capital punishment) leaves the resolution of the death penalty’s permissibility to the political branches and that the judicial role requires an impartial application of what the positive law provides as to criminal punishment.

August 2, 2018 in Moreland, Michael | Permalink

Friday, July 6, 2018

Justice Kennedy’s Best First Amendment Opinion?

Before the chaos surrounding the confirmation of his successor gets underway next week, a look back at the legacy of Justice Anthony Kennedy. Safe to say he will most be remembered for the series of cases involving LGBT rights from Romer v. Evans in 1996 through Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in 2015. He was in the middle of the Court on abortion, upholding the core of Roe v. Wade in the plurality opinion in Planned Parenthood v. Casey in 1992 while writing an opinion upholding restrictions on abortion in Gonzales v. Carhart in 2007. And he wrote important decisions on federalism questions, notably Boerne v. Flores involving Congress’s power to enforce Section 5 of the Fourteenth Amendment and Alden v. Maine regarding state sovereign immunity.

He also had an outsized influence in First Amendment law, both as to freedom of speech and the Religion Clauses: e.g., Citizens United v. FEC, Town of Greece v. Galloway, Lukumi Babalu Aye v. Hialeah, Sorrell v. IMS Health, and, most recently, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But what was Justice Kennedy’s best First Amendment opinion (“best” here just meaning my own subjective judgment blending together lasting doctrinal importance with soundness of result and analysis)?

My candidate: Rosenberger v. Rector & Visitors of the University of Virginia (1995). Recall that Rosenberger was about whether UVA could deny student activity funding (specifically payment for printing costs) to a Christian student publication as part of a policy that denied such funding to “religious activities.” UVA defended the policy on the grounds that there was no content or viewpoint-based restriction on speech in the policy and that the policy was required by the Establishment Clause (the case was argued by two academic luminaries--Michael McConnell for Rosenberger and John Jeffries for UVA). Writing for a 5-4 majority, Justice Kennedy held that the denial of funding was an unconstitutional violation of free speech that complying with the Establishment Clause did not excuse.

I won’t try to summarize all of the twists and turns in Rosenberger, but here are briefly what seem to me the two most important and lasting aspects of Justice Kennedy’s opinion:

1. Rosenberger placed an equality norm at the center of cases about religious speech and government funding of religious activities. Justice Kennedy’s opinion in Rosenberger doubled down on the Court’s equal access cases such as Lamb’s Chapel and refused to allow religion as a category to be treated distinctly or suspiciously when the state regulates expression or provides public benefits (seen most recently in Trinity Lutheran v. Comer). This comes about in Rosenberger through two moves in free speech doctrine: deeming the provision of funding by UVA a public forum (though more in a “metaphysical than in a spatial or geographic sense”) and holding that the exclusion of religious perspectives is unconstitutional viewpoint discrimination. And even though some cases (notably Locke v. Davey and CLS v. Martinez) might be hard to square with what I’m calling Rosenberger’s religious equality norm, Rosenberger still put that concern on a new footing.

2. Rosenberger marked an important departure from the Establishment Clause separationism of the 1970s and 80s in cases such as Lemon, Nyquist, and Aguilar. Of course, the issue in Rosenberger was in a sense the converse of the usual Establishment Clause funding case, i.e., not “may the government fund religious activities?” but “must the government not fund religious activities?” Justice Kennedy’s opinion states that so long as a program is neutral toward religion, the Establishment Clause does not require (let alone excuse) viewpoint-based restrictions on religious speech: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” And so while the Establishment Clause discussion in Rosenberger is subsidiary to the free speech claim, it also foretold the Court’s move away from strict separationism in later cases such as Agostini v. Felton in 1997 and Zelman v. Simmons-Harris in 2002 (which characterized Rosenberger as “involv[ing] an individual and insubstantial use of neutrally available public funds for a religious purpose”).

May Justice Kennedy enjoy many happy years in retirement—and with our gratitude for Rosenberger v. UVA.

July 6, 2018 in Moreland, Michael | Permalink

Monday, July 2, 2018

Clarifying Questions about Janus and Catholic Social Teaching on Unions

The holding in Janus v. AFSCME last week that compulsory public sector agency fees are unconstitutional ushered in some commentary about the relationship between Janus and the long tradition in Catholic social thought of supporting unionization. The USCCB filed an amicus brief in the case supporting the union side, Bishop Frank Dewane (Bishop of Venice, Florida and Chairman of the USCCB Committe on Domestic Justice and Human Development) issued a statement expressing disappointment with the decision in Janus, and Michael Sean Winters has a piece here condemning the decision. On the other side, Bishop Thomas Paprocki of Springfield, Illinois tweeted a message of approval for the outcome in Janus, which resulted in a series of replies with a tone and vehemence that are typical of Catholic Twitter.

I’ve already staked out my position (as has Rick Garnett here at MOJ), but here are a couple of clarifying questions about the issues in Janus as they pertain to Catholic social teaching that—I hope—might be the start of a better conversation than “unions—hooray!” or “unions—boo!”.

1. Do public sector unions pose distinctive issues from the concerns that ground the Catholic social tradition’s support for unions?

One of the consistent themes in the arguments for the outcome in Janus is that agency shop arrangements in the public sector are meaningfully different than such arrangements in the private sector. The “management” on the other side of the bargaining table in public employment is the state whose leaders are the subject of lobbying and political support from…the public employee union. Rerum Novarum and the ensuing line of Catholic teaching on unionization were primarily addressed to the urgent necessity of unions for trade workers in the private sector. In light of the rise of wage labor amid industrialization, Leo XIII focused on the problem of commutative justice and how the formation of workers’ associations would be ordered to the common good.

That does not entail, of course, that Catholic social teaching is irrelevant to public sector unions—but the more fruitful conversation, I think, would be somewhere in between the view that CST on unions applies simply and conterminously between public and private sector unions and the view that CST has nothing to do at all with public employee unions. Do the principles of CST supporting the rights of workers to organize apply with full or modified force in the public sector union context? There is a long scholarly literature about public sector bargaining that highlights the inelastic demand for services and bargaining power of public employee unions, with important policy and economic consequences. To my knowledge, Catholic social teaching has not engaged with that literature.

2. How should we understand the relation between the Catholic social tradition on rights of association and First Amendment freedom of speech?

As presented in litigation, Janus is foremost a case about the scope of First Amendment rights and not about whether unions are a good thing or a bad thing. Specifically, the case was about the claim by plaintiffs such as Mark Janus that the payment of an agency fee amounted to compulsory subsidization of political activity (and more precisely, that Abood’s distinction between chargeable expenses for collective bargaining activities and expenses for political activities was not sustainable, see pp. 28-31 of the slip opinion). Pace Eugene Volokh and Will Baude’s interesting and thoughtful brief, both the majority opinion by Justice Alito and the dissent by Justice Kagan assumed agency fees pose some plausible First Amendment burden on employees such as Janus. Their disagreement was over whether that burden runs headlong into a “no compelled speech” principle (Alito) or whether that burden is justified by a deferential, lower level of scrutiny derived from the government employee speech line of cases coming out of Pickering v. Board of Education (Kagan).

It seems to me that Catholic social teaching underdetermines the answer to this First Amendment problem, in large part because CST on rights of workers' associations begins with a thick understanding of the common good and civil society (which is served by maintenance of a living wage for laborers to support the family) and gets around belatedly to rights of freedom of expression. Catholic social thought has not developed much by way of an account of why and when freedom of speech should be legally protected, and Millian liberal or “marketplace of ideas” accounts presumably sit uneasily with the Catholic understanding of law and politics. Apart from a passing mention of freedom of speech in Pacem in Terris or perhaps by derivation from religious freedom in Dignitatis Humanae, there just isn’t much in the tradition (and the concerns about “indifferentism” in, say Pope Gregory XVI’s Mirari Vos did not lend themselves to a robust doctrine of freedom of speech, to put it mildly). Even John Courtney Murray—usually associated with an irenic assimilation of Catholic political thought and American constitutional law—struggles in this little known essay to square the Catholic commitment to the "moral basis of government" and "ordered liberty" with the then-nascent U.S. Supreme Court caselaw on free speech. All of which is—again—not to say that Catholic social teaching doesn’t speak to the question at all (and perhaps says all the worse for the individualism of American constitutional rights discourse), but only that CST does not resolve the constitutional question in a straightforward way.

July 2, 2018 in Moreland, Michael | Permalink

Thursday, June 28, 2018

Janus, Abood, and the End of the Free Speech Disco Era

Although much of the commentary about yesterday’s decision in Janus v. AFSCME couldn’t resist jumping right to politically partisan conservative/liberal descriptions of the case, it seems to me lawyers and law profs should spend a little time on the free speech doctrinal aspects of Janus. So here’s one rough take: Janus is a great vehicle for understanding the differences between formalism and functionalism (along the lines, say, of this piece by Bill Eskridge) in First Amendment law, or, stated otherwise, Justice Alito’s opinion overruling Abood v. Detroit Board of Education marks the ongoing demise of the disco era in free speech jurisprudence.

Reading the characterizations of Abood in the majority opinion by Justice Alito and the dissent by Justice Kagan, I was struck by how much Abood was a creature of the 1970s Supreme Court. There’s scarcely a doctrinal test or free speech category to be found in Justice Stewart’s opinion, but there is a lot of gesturing toward fairness (“free rider” problems), legislative judgments in the labor area, policy considerations (the concern with “labor peace”), and splitting the difference (in Abood, by separating out agency fees for chargeable collective bargaining expenses and fees that go to political activities). In those respects, Abood is broadly of a piece with other free speech cases from the era such as Buckley v. Valeo, Wooley v. Maynard, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, and the series of obscenity cases coming out of Miller v. California.

Following Eskridge’s description of functionalism, these cases employed standards rather than rules, favored multi-factor balancing tests (when a test is formulated at all), often discussed various policy “interests” that were in play as part of a process of induction from those interests to a holding, and sometimes invoked ad hoc principles that resisted wider application (such as the “secondary effects” doctrine of Renton v. Playtime Theatres, which is at the outer edge of the era in 1986). Even the case that has come to be seen as the beginning of the distinction between content-based and content-neutral regulation of speech, Chicago v. Mosley from 1972, is a gauzy discussion of free speech and the Equal Protection Clause. (There is probably a similar story about the Free Exercise Clause cases of that period, most especially Wisconsin v. Yoder.)

But just like Josh Neff in Whit Stillman’s The Last Days of Disco tries too hard in one of the final scenes of the movie to hold on to the era (“Disco was too great, and too much fun, to be gone forever! It's got to come back someday. I just hope it will be in our own lifetimes.”), free speech law has left behind the functionalism of the 1970s and 80s and moved in a decidedly more formalist direction. Cases now come in sharply delineated categories, the application of strict scrutiny to all content-based regulation of speech does a lot of work across a wide range of cases (as seen this week in NIFLA v. Becerra), and opinions often begin with a principle (in Janus, no compelled subsidization of speech) and reason deductively to the holding (Abood got around to a brief discussion of the "impact upon [employees'] First Amendment interests" after several pages of discussion about agency shop arrangements and labor policy). It's hard to know when the disco era started coming to an end, but Justice Scalia's opinion in RAV v. St. Paul in 1992 is a good marker.

This is all very general, of course, with a lot of details to be filled in. But in the opinions by Justices Alito and Kagan, I think we can see the difference between the functionalism of the free speech disco era and the formalism of today. For what it’s worth, my own views are strongly in the direction of formalism, and I think Justice Alito’s opinion is thoroughly correct—a topic for another day.

June 28, 2018 in Moreland, Michael | Permalink

Tuesday, April 3, 2018

Douthat and Kronman at Villanova This Month

Building on Villanova's astonishing basketball success and national championship victory, the McCullen Center for Law, Religion, and Public Policy at Villanova will be hosting two events over the next few weeks of interest to MOJ readers in the Philadelphia area (both events are free and open to the public):

Next Tuesday, April 10 at 4:00pm, Ross Douthat from The New York Times will speak about his new book on Pope Francis and the future of Catholicism. Details here.

Then on Tuesday, April 24 at 3:00pm, Anthony Kronman, Sterling Professor of Law and former Dean at Yale Law School, will deliver the annual Giannella Lecture on "Nicholas of Cusa: Prophet of Modernity." Details here.

 

 

April 3, 2018 in Moreland, Michael | Permalink