Mirror of Justice

Steve Shiffrin, Rest in Peace

I'm very sorry to note that Professor Steve Shiffrin has died. Steve was the author of some wonderful work in law and religion and the freedom of speech, well known to many of us at Mirror of Justice and from which I learned a great deal. He was also a kind and generous man. He was, as my colleague Mark Movsesian writes, "a scholar of the first rank who remained humble and helpful to everyone. A rare combination of virtues. May he rest in peace."

My intro to "When Professions Go Woke, Can Dissenters Survive?"

As its contribution to Princeton University's 2023 reunions, the James Madison Program in American Ideals and Institutions hosted a panel discussion entitled "When professions go Woke, can dissenters survive?" Our panelists were Kristen Collier of the University of Michigan Medical School; J. Joel Alicea of the Columbus School of Law of the Catholic University of America; Ramesh Ponnuru of National Review magazine, the American Enterprise Institute, and the Washington Post; and Ryan T. Anderson of the Ethics and Public Policy Center.

In my introduction to the discussion, I addressed the origins and meaning of the word "Woke."  

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Introduction

Is there a word to describe the attitude of a person who regards his or her opinions as so obviously correct—and so profoundly enlightened—that they may not legitimately be challenged or questioned, and that only hate or bigotry can explain others' holding different beliefs?

Sure there is. That word is “woke”?

Of course, it’s a contested word. And the word, even as a slang term, didn’t always have those connotations. These days the connotations of the term are mainly negative; it is now mostly used pejoratively. But it didn’t begin that way. The word began with people who believed in racial justice and prioritizing the elimination of racial discrimination and other forms of injustice applying it to themselves and those who shared their beliefs and priorities. It was broadened, however, to be a term that applied to those who held ultraprogressive and, especially, identitarian ideas about race and, especially, sexuality and gender.

For the Woke, “anti-racism” is not the philosophy of Dr. Martin Luther King. It is the ideology of Professor Ibrahim X. Kendi. And gender ideology of the sort that constructs and sacralizes innumerable gender identities is unquestionable dogma. Those holding these beliefs themselves embraced the term “woke” until their critics—a coalition of conservatives like me and old school liberals like the comedian Bill Mahr—began following their linguistic practice and referring to them and their ideology as “woke.” Soon the term had become almost an epithet—and nobody wanted to be “labeled” as “woke.” Mind you, their views didn’t change, nor their aggressiveness in asserting them and in labeling people who don’t share them as “racists,” “homophobes,” “bigots,” etc., etc., etc. But they no longer accepted the term, and began charging anyone who used it in referring to them as … yes, you guessed it:  “racists,” “homophobes,” “bigots,” etc.

Now it’s a free country. You’re free not to use the term "woke." But others are free to use it. You’re free to criticize those who use it. But they’re free to criticize you. We’re using it for this panel—it’s right there in the title—because we’re interested in the phenomenon for which it has become the label: an ideology, a set of beliefs, that its partisans regard as so enlightened that it may not legitimately be questioned, and as so obviously correct that dissent from it can only be explained as a manifestation of hatred and bigotry.

What do you do if you are a dissenter, and your profession or institution has gone woke? In the face of intolerance of your opinions, is it possible to survive without either capitulating or going silent? That is the question we’ve asked our distinguished panelists to address.

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!

 

Moreland on Liberalism and Christianity

Our own Michael Moreland has posted on SSRN a new paper, which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Friend of the Blog John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I, along with MOJ-er Lisa Schiltz, participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:

 

 

An interview on the future of the pro-life movement

Here is an interview I gave to the Trenton Monitor, the diocesan newspaper of my home diocese of Trenton, New Jersey, after receiving Notre Dame's Evangelium Vitae medal.

A conversation with Professor Robert George

The Monitor caught up with Professor George following the Notre Dame University event to discuss the pro-life movement and his particular affinity for defending the unborn.

The Monitor: Over the course of your career, what led you to champion the pro-life cause in particular?

RG: I have devoted myself to the pro-life cause for a very simple reason:  My parents taught me that each and every member of the human family, from the newly conceived child in the womb to the frailest elderly person, as a creature made in the very image and likeness of God, is inestimably precious and is therefore to be honored, protected, and loved. They taught me that, despite the many respects in which people are different and unequal – in, say, strength, beauty, intelligence, talents of various sorts, wealth, power, social status – everyone is equal in fundamental worth and dignity. All, therefore, must enjoy the equal protection of the laws. We may not treat some people as inferior in worth, or others as superior, based on race, sex, ethnicity and so forth; nor may we treat some as inferior or others as superior based on age, size, location, disability, stage of development or condition of dependency.

TM: What do you believe needs to happen in order for society to change its outlook and behavior toward abortion?

RG: Those of us who recognize the profound, inherent and equal dignity of everyone, beginning with the precious child in the womb, must speak out courageously, and work with unflagging determination, to persuade our fellow citizens that killing is not the answer; the “solution” to a challenging pregnancy can never be to offer a woman the ghoulish pseudo-compassion of the abortionist’s knife. Rather, we must “love them both,” reaching out with genuine compassion and loving care to mother and child alike. As we work to reform the law – something we absolutely must do – we must also attend lovingly to the real needs of women for whom pregnancy and motherhood do bring serious difficulties and challenges. The pro-life movement has always done this, though the media refuses to give our movement credit for it, but we must redouble our efforts as we work in the political and legal spheres, now that Roe v. Wade is gone, to extend the mantle of the law’s protection to our tiny brothers and sisters at the dawn of their lives.

TM: How does having these public discussions, particularly in the wake of the Dobbs decision, help bring about change in society? 

RG: I believe that the truth has luminosity and power. St. Pope John Paul the Great spoke of “the splendor of truth.” And truth does have a splendor! But truth must be spoken; truth does not speak itself. People will not perceive its luminosity – its splendor – unless people speak it. It is up to us to have the courage to speak the truth about the sanctity of human life, the inherent dignity and equal worth of every member of the human family. Every single one of us is called to bear witness to truth, and today there is no truth more in need of being boldly spoken than the truth about the precious child in the womb.

TM: Do you often speak with people who disagree with the pro-life stance, and if so, have you been able to convince them of the validity of the pro-life perspective?

RG: Well, doing what I do, working where I work, you won’t be surprised by the answer to this question! Yes, I spend a great deal of my time speaking with people who disagree with the pro-life stance. What I try to do is speak the truth in love, just as St. Paul instructs us to do. (Sometimes, as you can imagine, the love is not reciprocated, but that’s OK.) I also try to listen – and learn. I know I’m not infallible. (That’s one thing I’m absolutely certain about.) So, if I’m wrong about something, I want to be corrected. But, honestly, the arguments for abortion (and euthanasia) are weak – they cannot survive sustained, rigorous rational scrutiny. Now that doesn’t mean my interlocutors are always persuaded, but usually I can at least get them to worry about clinging to the pro-abortion (or pro-euthanasia) position. And I have had many gratifying experiences of people coming to embrace the pro-life cause on the basis of rational reflection and discussion. Many of today’s most determined and effective pro-life advocates were, earlier in their lives, supporters of abortion.

Bray on the Catholic tradition (or is it the catholic tradition?) and the Common Law

Permit me to flag a very interesting article by Professor Samuel Bray: The Influence of the Catholic Tradition on the Common Law.The piece (drawn, I believe, from a talk on the same subject that Sam gave at Catholic University of America, Columbus School of Law, at the Center directed by Kevin Walsh and Joel Alicea) discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little on-the-fly reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the "anachronistic narrowness" point quoted above in the abstract. On what he calls the "generative" influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law--the Western Christian or Christian apostolic tradition unbound by today's anachronistic divisions.

There are some comparatively small questions I had about some of Sam's more specific claims. He says, for example, that each "side"--"Roman" and "non-Roman"--argued in "Newmanesque" fashion that "whoever did not change or augment the deposit of faith was the truly catholic side." But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist (perhaps Sam is one). But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman's own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam's perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). "[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters," Sam contends, "it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time." As I say, just when that "later time" began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive. Check out this very fine piece.

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Statius On What Authors Hope and Fear

Authors hope and fear for their work. Will it endure? Will it be forgotten? Will it be read and considered, or crumble away as if it never had been written?

Here is the Roman poet, Statius--a magnificent writer in his own right, but today largely forgotten--at the conclusion of his masterpiece, the Thebaid (concerning the travails of the Seven Against Thebes), with a lovely reflection on these perennial anxieties:

Wilt thou endure in the time to come, O my Thebaid, for twelve years object of my wakeful toil, wilt thou survive thy master and be read? Of a truth already present Fame hath paved thee a friendly road, and begun to hold thee up, young as thou art, to future ages. Already great-hearted Caesar deigns to know thee, and the youth of Italy eagerly learns and recounts thy verse. O live, I pray! nor rival the divine Aeneid, but follow afar and ever venerate its footsteps. Soon, if any envy as yet o’erclouds thee, it shall pass away, and, after I am gone, thy well-won honours shall be duly paid.

Congratulations to Robby George!

This past weekend, the DeNicola Center for Ethics and Culture at the University of Notre Dame presented our own Prof. Robert George with its 2023 Evangelium Vitae medal, "the nation’s most important lifetime achievement award for heroes of the pro-life movement, honoring individuals whose efforts have advanced the Gospel of Life by steadfastly affirming and defending the sanctity of human life from its earliest stages."  (Learn more about the medal and its history here.)  Here is the really nice video that the Center put together, as part of the evening's program.  Congratulations, Robby!