Mirror of Justice

The Importance of Constitutional Norms, or “Why the Vice President’s Party Can’t Do Whatever It Wants in the Senate”

David Waldman at Daily Kos has advanced a proposal getting a good deal of attention on social media to have the Senate confirm Judge Merrick Garland to the Supreme Court on January 3rd at noon. The basic idea is to have Vice President Biden use his authority as presiding officer to recognize the Democratic leader (Senator Durbin, as Senator Reid’s and Senator Schumer’s terms will have expired) while there are only 66 senators (32 Democrats, 2 Democratic-caucusing independents, and 32 Republicans) and jam through Judge Garland’s confirmation (his having been renominated by President Obama that very moment) before the newly elected 34 senators have been sworn in (and bring with them a 52-48 Republican majority, assuming Republican John Kennedy wins the runoff in Louisiana).

Sean Davis argues in devastating detail why this would, among other things, flaunt the 20th Amendment (providing that Senate terms end and begin at noon on January 3rd) and a host of Senate Rules and practices, including Rule II.1 (providing that “the presentation of the credentials of Senators elect…shall always be in order” and take precedence over a motion to confirm a nomination) and Rule XXXI (providing that a nomination may not be acted upon the same day it is received). Waldman’s argument appears to rely on the view that the Senate is not a continuing body and that a majority (for a few minutes after noon on January 3rd anyway) can ignore or amend the Standing Rules of the Senate at will.

To Davis’s arguments and as a devotee of congressional procedure (everyone needs a hobby), I would add another based on a reductio. The Vice President is constitutionally the President of the Senate, and the presiding officer has the power of recognizing senators. But Rule XIX on recognition of senators by the presiding officer is just another rule. As long as Senate rules are amendable and disregardable from the chair, why couldn’t Waldman’s scheme be executed simply by having the Vice President recognize a Democratic senator (anytime, not just on January 3rd) for a unanimous consent request to confirm Judge Garland and ignore objections from Republicans? Or bring up the motion to confirm Judge Garland on a voice vote, assert that the ayes have it, ignore the request for a roll call vote, and table the motion to reconsider?

And then there are other problems, to put it mildly. For example, the President signs a commission for a judge upon notification from the Secretary of the Senate that the Senate has consented to a nomination. The Secretary of the Senate is a continuing office, presently held by a Republican appointee. If after all of this manipulation of the rules the Secretary objects and refuses (quite reasonably) to carry out the ministerial duty of transmitting to the President notification that the nomination has been confirmed, then what? Can the President sign a commission without notification from the Secretary that the Senate has consented to the nomination? (As an aside, there are also significant problems with a recess appointment to the Supreme Court in January, for the reasons spelled out in NLRB v. Noel Canning (2014) and because after January 20th Congress could enact a joint resolution ending its session, adjourn sine die, and reconvene for a new session, thereby causing the recess appointment to expire.)

This is all absurd, of course. But the larger point to make here is that the norms governing our institutions are partly a product of mores and practices (such as respect for established parliamentary procedure) reflecting underlying judgments about political and legal authority. I’m inclined to think these constitutional norms are still legal norms for reasons Jeremy Waldron has argued (Are Constitutional Norms Legal Norms?, 75 Fordham L. Rev. 1697 (2006)). We might all wish that those mores and practices--including the Senate’s consideration and confirmation of federal judges--were in better repair. But we would do well, I suggest, as lawyers and law professors amid these divisive times to foster the constitutional norms that have served us well, however imperfectly and however much we want "our" side to win. "And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?"

Saint Ambrose, Doctor of the Church (and Lawyer)

Reposting from 2011:

Thomas More is, to my knowledge, the only common lawyer ever canonized by the Catholic Church, but a number of civil and canon lawyers have been. Today is the Feast of Saint Ambrose, one of the four great doctors of the early Church (along with Augustine, Jerome, and Gregory the Great), who was trained in the law and an imperial governor under Valentinian before he was elected bishop of Milan by acclamation in 374 (Ambrose was a catechist at the time, so he was baptized and ordained bishop in the course of just a few days). In addition to his important contributions to Christian theology (particularly the refutation of Arianism) and music, he was also instrumental in the conversion of Augustine, who wrote that Ambrose "was one of those who speak the truth, and speak it well, judiciously, pointedly, and with beauty and power of expression" (On Christian Doctrine, IV.21).

John Courtney Murray and "The Primacy of the Spiritual": Lessons for the Law

That's the title of a book chapter I contributed to the recently published collection Public Theology and the Global Common Good (a Festschrift for my doctoral dissertation advisor, David Hollenbach, SJ). Based on Murray's writings in the 1940s and 1950s about the Supreme Court's early Establishment Clause cases, I argue that Murray was more pessimistic about the future of American public philosophy and constitutional law than he is usually regarded, and I draw out some lessons for the mission of legal education today. Critics of Murray (both traditionalist and radical) and readers only of We Hold These Truths (1960) are apt to miss this aspect of Murray. Here is a bit from my chapter (citations and footnotes omitted):

In Murray’s engagement with American constitutional law, an overlooked aspect of his thought was his focus on the particularities of the church-state question as it had played out historically in the United States. He did not so much develop a theory of church and state as use sources in the Catholic tradition to discern historical possibilities for how church and state could relate in ways that the tradition (shaped as it was primarily by continental, not Anglo-American, source) had neglected. This is evident both in Murray’s treatment of church and state in the teaching of Pope Leo XIII and in his discussions of the First Amendment.

A prominent example of this aspect of Murray’s thought is his engagement throughout the 1940s and early 1950s in a wide-ranging critique of the Supreme Court’s Establishment Clause jurisprudence as it emerged in early cases applying the First Amendment to state and local governments. Two cases from that period especially interested Murray. In Everson v. Board of Education, the Supreme Court took up the question of whether a New Jersey program of reimbursing the parents of schoolchildren traveling to and from school (including parochial schools) for transportation expenses was constitutionally permissible. While the Court concluded that the transportation reimbursement program did not violate the First Amendment, Justice Black’s majority opinion famously invoked the “wall of separation” metaphor that has bewitched Establishment Clause jurisprudence ever since. Justice Black’s opinion purported to rest on the original understanding of the First Amendment, but—in both Murray’s articles on Everson and in subsequent legal scholarship—that account has been called into serious question.

In McCollum v. Board of Education, decided shortly after Everson, Murray’s concerns were vindicated. In another majority opinion from Justice Black, the Court used the Establishment Clause doctrine adopted in Everson to hold that a release-time program for pubic school students to attend religious instruction was unconstitutional. In a talk delivered in Wilmington, Delaware shortly after McCollum was decided (discovered in the Murray archives by Joseph Komonchak and published in First Things in 1992), Murray excoriates the reasoning of McCollum: “Our original constitutional doctrine simply affirmed the equality of all religious faiths before the law of the land; our new constitutional doctrine affirms something much more radical and sweeping—it affirms the so-called principle of the ‘absolute separation of church and state.’”

Recently, Andrew Koppelman has invoked Murray’s view as an example of concerns about corruption of religion in First Amendment cases. “A rule against establishment of religion ought not itself to establish a religion,” Koppelman writes, “The point is a powerful one, and it is remarkable that so little has been made of it since Murray wrote.” For Murray, the Supreme Court’s Establishment Clause decisions in Everson and McCollum are “an irredeemable piece of sectarian dogmatism. And if there is one thing that the First Amendment forbids with resounding force it is the intrusion of a sectarian philosophy of religion into the fundamental law of the land.” As an alternative to this misguided interpretation of the Establishment Clause, Murray argued in his essay “Law or Prepossessions?” for “first, a return to the original political philosophy of the First Amendment” and “second, its realistic application in a situation wherein the alignment of forces and the conflict of values is substantially different from what it was in 1791.” Absent these developments, Murray warned that the consequences would be severe:

Join a rigidly negative concept of religious freedom, as sheer immunity from coercion by governmental power, to a rigidly absolute, end-in-itself concept of separation of church and state, as meaning absolutely no aid to religion by government, and you have opened the way to the subtle tyrannies of irreligion, secularist ideologies, false political and education philosophies, and the dangerous myth of “democracy as a religion.” Such a development is utterly foreign to the letter, spirit, and intent of the First Amendment, and will be consequently disastrous to American society.

National Constitution Center Event on "Is the Constitution Judeo-Christian?"

I am looking forward to being on a panel at the National Constitution Center in Philadelphia this Monday (Nov. 21) at noon on the question, "Is the Constitution Judeo-Christian?" (details and registration here) moderated by Michael Gerhardt (UNC-Chapel Hill) and joined by Menachem Lorberbaum (Penn and Tel Aviv) and Suzanne Last Stone (Cardozo). My answers to the question will be "yes, of course," "perhaps, but in a complicated way," and "no."

Dorothy Day on Politics

It seems somehow fitting that this Election Day falls on the birthday of Dorothy Day (1897). I usually include a unit on Day when I teach courses on Catholic social thought because she is wonderfully disruptive of our usual categories. And so here are some quotes for today from this remarkable woman on matters broadly political (Day, of course, was essentially an anarchist when it came to what we would count as "politics"):

From "Our Fall Appeal," The Catholic Worker, November 1955:

In the light of our present difficulties it is necessary to restate our position and tell our readers again just what it is we are trying to do–what it means to us to perform the works of mercy, spiritual and corporal. The most important thing in the world to us is to grow in the love of God, to try to do His will. Our Lord Jesus told us that what we do to the least, we do to Him. St. Paul told us we are “members one of another, and that when the health of one member suffers, the health of the whole body is lowered.”

We believe not only in St. Thomas’ doctrine of the common good, but feel it can be affected only if each one of us alone realizes his personal responsibility to his brother, that his love for God must be shown in his love for his brother, and that love must be expressed in the works of mercy, practiced personally, at a personal sacrifice. So we live together, here at the Catholic Worker, pool resources of money and abilities, and so are able to take care of far more than just ourselves.

People have so far lost that sense of personal responsibility that our country is becoming a country of institutions and a gigantic part of our income goes to support them. State responsibility has come to take the place of personal responsibility.

....

That love of brother, that care for his freedom is what causes us to go into such controversial subjects as man and the state, war and peace. The implications of the gospel teaching of the works of mercy, lead us into conflict with the powers of this world. Our love of God is a consuming fire. It is a fearful thing to fall into the hands of the living God. It is a living God and a living faith that we are trying to express. We are called to be holy, that is, whole men, in this life of ours.

From Loaves and Fishes (1963), p. 210:

One of the greatest evils of the day among those outside the proximity of the suffering poor is their sense of futility. Young people say, 'What good can one person do? What is the sense of our small effort?' They cannot see that we must lay one brick at a time, take one step at a time; we can be responsible only for the action of the present moment but we can beg for an increase of love in our hearts that will vitalize and transform all our individual actions, and know that God will take them and multiply them, as Jesus multiplied the loaves and fishes.

The greatest challenge of the day is: how to bring about a revolution of the heart, a revolution which has to start with each one of us? When we begin to take the lowest place, to wash the feet of others, to love our brothers with that burning love, that passion, which led to the cross, then we can truly say, 'Now I have begun.'"

From "For the New Reader," The Catholic Worker, December 1936:

THE CATHOLIC WORKER is strongly anti-Fascist because Fascism denies that man has a higher obligation than his obligation to the State, because Fascism believes that man is made for the State and denies that the State is made for man, because, although it believes and acts on these principles, as is apparent in Italy and Germany, it pretends to recognize religious, political, and economic rights, and is therefore more dangerous in many ways than the open enmity of Communism.

THE CATHOLIC WORKER is insistently anti-Communist, in spite of all you may have heard to the contrary, because Communism claims that “man lives by bread alone”; deifies comfort; denies religious, political, and economic freedom, though not as frankly as it did once; has replaced the capitalist and aristocrat with the Communist Party, but still enslaves and exploits the peasant and the proletariat; is, in short, no better than State Capitalism.

THE CATHOLIC WORKER is for Christian communism, as practiced in Catholic monasteries and by the early Christians, as an economy of perfection, possible only on a voluntary basis.

THE CATHOLIC WORKER is anti-capitalist, in the sense that it condemns the spirit of greed, of rampant materialism, that has become synonymous with that system and has led to the present abuses in production and distribution.

THE CATHOLIC WORKER is not opposed to private property, but on the contrary works for “the restoration of property” through co-operatives, credit unions, and the back-to-the-land movement. It supports private ownership of the means of production, except where such ownership is incompatible with the common good, as in certain public utilities, but opposes the concentration of productive power in the hands of a few, because that concentration has almost always been destructive of the common good.

THE CATHOLIC WORKER is not opposed to “saving for a rainy day” and for the support of one’s dependents, but is more interested in giving, not only because it is the duty of Christians to give their surplus to the poor, but also because it is good economics to distribute idle money among those who will spend it.

THE CATHOLIC WORKER does not condemn any and all war, but believes the conditions necessary for a “just war” will not be fulfilled today.

THE CATHOLIC WORKER admits the importance of political action, but is much more interested in the importance of private action, in the creation of order out of chaos.

THE CATHOLIC WORKER admits the importance of public responsibility for the poor and needy, but is much more interested in the importance of personal responsibility for the hungry, thirsty, naked, homeless, sick, criminal, afflicted, and ignorant.

Religious Liberty: Essays on First Amendment Law

Cambridge University Press has published Religious Liberty: Essays on First Amendment Law, which is a set of contributions that started in a lecture series at Brigham Young University's Wheatley Institution. My own contribution to the volume is "What Are We Really Arguing about When We Argue about the Freedom of the Church?" (or more salaciously titled "God, Groups, and Sex"), where I explore how differences about theological claims, the status of group personality, and sexual ethics underlie much of the recent debate about freedom of the church or institutional religious freedom. Other contributors include Akhil Amar, Roger Scruton, Robby George, Daniel Robinson, Hadley Arkes, Gerry Bradley, Brett Scharffs, and Michael Novak.

Arthur Ripstein, Private Wrongs

I’ve been reading Arthur Ripstein’s exceptionally interesting new book Private Wrongs the past few days, and there is a thoughtful review of it here by Lewis Kornhauser (NYU). One of Ripstein’s previous books was a deep and interesting engagement with Kant on law, and Private Wrongs applies a kind of Kantian view about moral independence to the law of torts. I agree wholeheartedly with Ripstein’s rejection of Holmes-esque invocations of “policy” in torts (more about which here), but I suspect Kornhauser is on to a possible problem in Ripstein’s argument:

Prevailing tort law plays a distinctive role in his argument. On his account, though tort law instantiates the moral idea of independence, "the law . . . appear[s] as an exporter rather than an importer of those [moral] ideas." (p. 21) Legal doctrine thus serves as a normative baseline. It is unclear, however, how doctrine can perform this function. At least in the context of wrongs to property, the legal rule itself determines the content of the property right. Trespass to land, for instance, requires a "wrongful" interference with an agent's interest in land. But the tort rule itself determines the structure of the agent's property right. One requires an independent ground to determine the baseline property right.

Or as Ripstein writes (when clarifying that his account is not “prescriptive in one familiar sense of that term”) a page before the sentence just quoted, “The prescriptions that I make are not from a standpoint outside of what is presupposed in the legal materials I seek to render intelligible” (p. 20). The key issue, it seems to me (ready? here comes the natural law point), is that a judgment of what counts as the relevant legal materials and their “intelligib[ility]” depends on some evaluative standpoint that legal doctrine can't provide on its own (though I'm not sure that Ripstein is committed to denying that given what he writes in the rest of the book).

Alfred the Great

For those thinking back fondly to the days when a nation's leaders spent time translating Augustine and Boethius, note that Alfred the Great died on this date in 899 (there's a nice short piece on Alfred here by A Clerk of Oxford). Alfred is, of course, one of the great figures in English legal history on account of his compilation of laws in the domboc. For an interesting discussion of Alfred's use of Christian sources in the prologue to his legal code, see this article by Michael Treschow, which ends on this hopeful note:

If Alfred was for the Victorians a mirror or icon of their own self-regard, of their empire, of their civic piety, he is becoming for us a mirror of our suspiciousness, of our mistrust of public virtue and piety, indeed of our disdain of anything that claims to be good. But let us be wary of any easy or hasty reduction of Alfred’s image to an opportunistic, even Machiavellian, guise. This prologue’s public use of piety reads as no mere calculated display. Reverence for the king of Wessex is beside its point. Its real work is to present Scripture that it may search the hearts of its readers and direct them to serve not themselves but live in charity with their neighbour — especially in the practice of public life. It allows that the good of the state is a harmony of love and justice. It allows that the state can seek to be gracious through obedience to basic principles of revealed truth.

The Martyrs of the English Reformation

On this date in 1970, Paul VI canonized 40 martyrs of the English Reformation, including Anne Line, 10 Jesuits, and an Augustinian friar (John Stone). Among the Jesuit martyrs are Edmund Campion, Henry Walpole (a lawyer who appears to have been brought to conversion by witnessing the execution of Campion in 1581), Robert Southwell, and Thomas Garnet. John Finnis and Patrick Martin have argued ("Another Turn for the Turtle," Times Literary Supplement, April 18, 2003) that the martyrdom of Line inspired Shakespeare's poem "The Phoenix and Turtle." A bit from their piece:

[Henry] Garnet, the Jesuit superior in England, reported Ann’s execution to Rome with priestly words of consolation and edification. This poem’s way of proceeding is different. More reticent, artificed, opaque and resonant than our discussion may suggest, it makes no display of Catholic belief, or even of common Christian hope for life beyond death: there is resting “to eternity”. But the poem’s Reason, while insistent that Love—pre-eminent to Jesuit teachers, as Faith to the Protestant—“hath reason” even where “reason hath none”, does not permit itself Garnet’s confidence: that Ann Line died a saint to (or through) whom, not for whom, one should sigh one’s prayers. “Death is now the Phoenix’ nest”: no retailing here of pagan-Christian phoenix allegories of rebirth and immortality. There is loss which, though not annihilating, is irreversible: from “now” on, “Truth may seem but cannot be . . . Truth and beauty buried be”.

And in a recent review in the TLS by Anna Whitelock of a book by John Guy on the later years of the reign of Elizabeth I, Whitelock notes the role of the Queen herself in all of this--gruesome reading, but a caution against whitewashing English history:

For many readers it will doubtless be Guy’s vivid account of Elizabeth’s cruel methods against Catholics or suspected traitors and the climate of terror amid economic crisis and political and social discontent that is most striking and unfamiliar. Guy convincingly argues that Elizabeth sanctioned, and even encouraged, the activities of the notorious Catholic-hunter and rackmaster Richard Topcliffe, who tortured suspects in a “strong room” in his house in Westminster. Indeed, “strong archival evidence exists that she knew him personally, thoroughly approved of his activities and received reports directly from him rather than through intermediaries”. The smoking gun which proves her acquiescence in some of Topcliffe’s worst atrocities lies buried in Burghley’s papers. When the Jesuit priest Robert Southwell was arrested in 1592, Topcliffe wrote to tell Elizabeth how the prisoner was shackled to the wall in his “strong chamber” and had responded to interrogation “foully and suspiciously”. Topcliffe sought the Queen’s permission to “enforce” the prisoner “to answer truly and directly”, by stretching him out against the wall using “hand gyves” (iron gauntlets). Although the Queen’s reply to Topcliffe’s letter was not written down, the fact that he proceeded with the torture methods he had described and with no further warrant as the law required, is in Guy’s view “chilling proof that she gave her consent in the full knowledge of what he was about to do. Topcliffe would not have dared to act as he did had the Queen forbidden it, and she was far from squeamish”. Moreover, when, after a two and a half years of solitary confinement in the Tower of London, Robert Southwell was finally brought to the gallows at Tyburn, Elizabeth specifically ordered that he be forced to endure extra suffering, and after being hanged, Southwell should be cut down while fully conscious and disembowelled. This was no one-off. Ten years earlier, she had issued similar orders when William Parry, a failed assassin, made the journey to Tyburn. After just one swing of the rope he was cut down from the gallows on Elizabeth’s order and while he was still fully conscious, had his heart and bowels ripped from his body with a meat cleaver. Finally, after he had let out a “great groan”, his head and limbs were severed from the corpse and the head set on London Bridge as a warning to others of the “terrible price of treason”. So much for Good Queen Bess.

Tradition and Reason

I was among the participants in the inaugural meeting this past weekend of the Tradition Project sponsored by the Center for Law and Religion at St. John’s University School of Law (with thanks to the hard work and hospitality of Mark Movsesian and Marc DeGirolami). It was a rich conversation over a couple of days on the place of tradition in law and politics, both in our formal sessions and in our social gatherings. A few initial thoughts about the project, with more to come as I continue to think about what we discussed.

One topic I kept coming back to was the supposed dichotomy (or at least tension) between “tradition” and “reason” one encounters in discussions of tradition (recalling Edmund Burke’s line about “wisdom without reflection”). On a crude formulation of this view, one either does “what has always been done” in a reflexively deferential way or subjects all decisions to a hard, calculating test of reason. That seems to me a poor way to understand the possible place of tradition in law.

The better view, I think, is to appreciate that rationality (including legal reasoning) is inescapably embedded in a tradition, even when the “tradition” is an emancipation from tradition itself. In the discussion I moderated on the American religious tradition, we read, among other things, pieces by Nathan Hatch and John McGreevy illustrating the ways in which American Christianity has a long tradition of rejecting certain forms of tradition (not least Catholicism) and placing an emphasis on “thinking for oneself.” This, in turn, has shaped in historically complex ways how the American religious, political, and legal traditions interact.

I’ve mentioned before (here) how much I think John Henry Newman’s treatment of tradition and argument might help us tackle some of these problems. Apart from straightforward demonstrations of, say, mathematics and logic, we come to arguments with a background constellation of beliefs and practices—a “tradition.” Achieving clarity about the traditions (even if one of emancipation from tradition) we bring to legal arguments is an important first step that the Tradition Project has undertaken.