Saturday, March 26, 2022
Most people today tend to associate purposive interpretation--of statutes, say, but it could be of anything--with "judicial activism" and therefore an absence of judicial restraint. The alignments seem to be: textualist interpretation--->restrained interpretation; purposive interpretation--->activist interpretation.
But I'm learning that it was the view of some legal process theorists (Bickel, Wellington, Jaffe, maybe Fuller) that purposive interpretation promoted and was in the service of judicial restraint. As Neil Duxbury puts it in his article on the Legal Process school (Faith in Reason: The Process Tradition in American Jurisprudence): "As with the articulation of reasons, they [legal process theorists] argued, the purposive interpretation of statutes fosters judicial restraint. For such interpretation allows not the imposition of any old purpose onto a statute, but only 'a purpose which may reasonably be imputed to those who uttered the words.' [citation here to a 1957 piece by Bickel and Wellington]....Judicial discretion in the interpretation of statutes, [Jaffe] argued, should be exercised...where the Court is uncertain of the clear purpose of the statute."
In fact, one can see the view that purposive interpretation is an appropriate judicial function in constitutional adjudication of the 18th and 19th century quite regularly. But I was surprised to see it as still so fully embraced by the Process theorists. As sifting out, through reasoned elaboration, the principles the lawmaker intended for the law. And yet, this way of thinking is so different from the way many think about judicial restraint today. Something like the opposite way.
Friday, March 25, 2022
Adrian Vermeule and Conor Casey have written an uncharacteristically pugnacious recommendation for a forthcoming article by Joel Alicea, The Moral Authority of Original Meaning. The primary thrust of Alicea's article is to provide "a natural-law justification for originalism grounded in the legitimate authority of the people-as-sovereign, authority that is necessary for achieving the common good." Alicea frames the paper as a response to Vermeule's argument, advanced emphatically here at MOJ, that originalism is "an essentially positivist approach." Judging from Vermeule's and Casey's response, Alicea's arguments have carried the day to the contrary.
In making his earlier claim about the essentially positivist nature of originalism, Vermuele acknowledged that some had previously defended the compatibility of classical natural law jurisprudence and original-law originalism. But he argued that combining originalism and common-good constitutionalism results in an approach that is "intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water ...."
My initial assessment of this claim about the incompatibility of originalism and common good constitutionalism was that it was wrong. After all, (1) common good constitutionalism just seemed to be another adaptation of the classical natural law tradition that, in comparison with other adaptations' emphasis on law's efficient and material causes (i.e., lawful authority and promulgation), placed greater emphasis on the final cause of law (i.e., for the common good of the community for which it is promulgated); and (2) Jeff Pojanowski and I had already established the compatibility of the classical natural law tradition with what we called original-law-ism, or original-law originalism. Our arguments complemented argumentation in a similar vein by Lee Strang, who had been expounding the compatibility of the classical natural law tradition and constitutional originalism before we published our contribution to this literature.
It seems my initial assessment was correct and that Vermeule has backed off the claim that originalism is "an essentially positivist approach." This latest blog post about Alicea's paper is the most recent indicator of this salutary development. (I'm not aware of co-author Conor Casey having previously advanced the same "essentially positivist" claim as Vermeule.)
Rather than press the claim that originalism is essentially positivist, Vermeule and Casey dispute neither that Alicea's approach is originalist nor that it is non-positivist. They argue not that Alicea is wrong, but rather that he has justified "uncontroversial generalities." They contend that what they call Alicea's "generic, lowest-common-denominator version of originalism" amounts to "thin gruel." More particularly, they say Alicea establishes only that:
[F]irst, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.
Vermeule and Casey assert that these two propositions of generic originalism are "what we take the classical legal tradition to entail." If the classical legal tradition is not essentially positivist, then neither is this generic originalism.
As for whether this generic originalism amounts to "thin gruel," that may be more a matter of taste than anything else. If Alicea's arguments are correct—and Vermeule and Casey do not dispute them—they exclude many non-interpretivist theories of the sort that proliferated through the 1970s, 1980s, and 1990s. (Believe it or not, young 'uns, that's how these arguments were once framed: "interpretivist" versus "non-interpretivist" theories.) Originalism's success in this regard may be why some theorists jumped off the non-interpretivist track and relabeled the previously non-interpretive aspects of their approaches as interpretive. If one believes that there's nothing that interpretation just is, then this amounts to little more than marketing the same old non-interpretivism under a different label. But whether interpretation is a distinctive activity with a distinctive object is a question for another day.
Vermeule has previously acknowledged the existence of nonpositivist originalism by sometimes more carefully limiting his criticisms to "originalist positivism."  It would be helpful to the cause of argumentative clarity if he would do this more consistently. In the light edits that he did for the book version of the MOJ post in which he made his "essentially positivist" claim, for example, Vermeule left that claim in. As a result, Vermeule was still insisting as of the book's publication that "views that attempt to fuse the common good with originalism ... are intrinsically unstable, because they attempt to combine an essentially positivist approach with the classical approach." 
It is a welcome development that the "essentially positivist" claim no longer appears to be the considered position of Vermeule or Casey. Their claim now is that the stability of any combination on originalism and common good constitutionalism depends on the substantive insignificance of any version of originalism that is compatible with common good constitutionalism. Evaluating that claim depends, of course, on the relative insignificance of posited law in the comparator version of common good constitutionalism.
In any event, Vermeule's and Casey's recognition of the incorrectness of treating generic originalism as "essentially positivist" is why I began by describing Vermeule's and Casey's post as an uncharacteristically pugnacious recommendation of Alicea's paper. They are in heated agreement with Alicea's titular claim about The Moral Authority of Original Meaning.
March 25, 2022 | Permalink
Today's Feast of the Annunciation is both somber and hopeful. Pope Francis will lead an Act of Consecration of Russia and Ukraine to the Immaculate Heart of Mary. We should accept the invitation he has extended to all the faithful to join him in praying this prayer:
O Mary, Mother of God and our mother, in this time of trial we turn to you. As our mother, you love us and know us: No concern of our hearts is hidden from you. Mother of mercy, how often we have experienced your watchful care and your peaceful presence! You never cease to guide us to Jesus, the prince of peace.
Yet we have strayed from that path of peace. We have forgotten the lesson learned from the tragedies of the last century, the sacrifice of the millions who fell in two world wars. We have disregarded the commitments we made as a community of nations. We have betrayed peoples’ dreams of peace and the hopes of the young. We grew sick with greed, we thought only of our own nations and their interests, we grew indifferent and caught up in our selfish needs and concerns.
We chose to ignore God, to be satisfied with our illusions, to grow arrogant and aggressive, to suppress innocent lives and to stockpile weapons. We stopped being our neighbor’s keepers and stewards of our common home. We have ravaged the garden of the earth with war, and by our sins we have broken the heart of our heavenly Father, who desires us to be brothers and sisters. We grew indifferent to everyone and everything except ourselves. Now with shame we cry out: Forgive us, Lord!
Holy Mother, amid the misery of our sinfulness, amid our struggles and weaknesses, amid the mystery of iniquity that is evil and war, you remind us that God never abandons us, but continues to look upon us with love, ever ready to forgive us and raise us up to new life. He has given you to us and made your Immaculate Heart a refuge for the church and for all humanity. By God’s gracious will, you are ever with us; even in the most troubled moments of our history, you are there to guide us with tender love.
We now turn to you and knock at the door of your heart. We are your beloved children. In every age you make yourself known to us, calling us to conversion. At this dark hour, help us and grant us your comfort. Say to us once more: “Am I not here, I who am your Mother?” You are able to untie the knots of our hearts and of our times. In you we place our trust. We are confident that, especially in moments of trial, you will not be deaf to our supplication and will come to our aid.
That is what you did at Cana in Galilee, when you interceded with Jesus and he worked the first of his signs. To preserve the joy of the wedding feast, you said to him: “They have no wine” (Jn 2:3). Now, O Mother, repeat those words and that prayer, for in our own day we have run out of the wine of hope, joy has fled, fraternity has faded. We have forgotten our humanity and squandered the gift of peace. We opened our hearts to violence and destructiveness. How greatly we need your maternal help!
Therefore, O Mother, hear our prayer.
Star of the Sea, do not let us be shipwrecked in the tempest of war.
Ark of the New Covenant, inspire projects and paths of reconciliation.
Queen of Heaven, restore God’s peace to the world.
Eliminate hatred and the thirst for revenge, and teach us forgiveness.
Free us from war, protect our world from the menace of nuclear weapons.
Queen of the Rosary, make us realize our need to pray and to love.
Queen of the Human Family, show people the path of fraternity.
Queen of Peace, obtain peace for our world.
O Mother, may your sorrowful plea stir our hardened hearts. May the tears you shed for us make this valley parched by our hatred blossom anew. Amid the thunder of weapons, may your prayer turn our thoughts to peace. May your maternal touch soothe those who suffer and flee from the rain of bombs. May your motherly embrace comfort those forced to leave their homes and their native land. May your sorrowful heart move us to compassion and inspire us to open our doors and to care for our brothers and sisters who are injured and cast aside.
Holy Mother of God, as you stood beneath the cross, Jesus, seeing the disciple at your side, said: “Behold your son” (Jn 19:26). In this way, he entrusted each of us to you. To the disciple, and to each of us, he said: “Behold, your Mother” (Jn 19:27). Mother Mary, we now desire to welcome you into our lives and our history.
At this hour, a weary and distraught humanity stands with you beneath the cross, needing to entrust itself to you and, through you, to consecrate itself to Christ. The people of Ukraine and Russia, who venerate you with great love, now turn to you, even as your heart beats with compassion for them and for all those peoples decimated by war, hunger, injustice and poverty.
Therefore, Mother of God and our mother, to your Immaculate Heart we solemnly entrust and consecrate ourselves, the church and all humanity, especially Russia and Ukraine. Accept this act that we carry out with confidence and love. Grant that war may end and peace spread throughout the world. The “fiat” that arose from your heart opened the doors of history to the Prince of Peace. We trust that, through your heart, peace will dawn once more. To you we consecrate the future of the whole human family, the needs and expectations of every people, the anxieties and hopes of the world.
Through your intercession, may God’s mercy be poured out on the earth and the gentle rhythm of peace return to mark our days. Our Lady of the “fiat,” on whom the Holy Spirit descended, restore among us the harmony that comes from God. May you, our “living fountain of hope,” water the dryness of our hearts. In your womb Jesus took flesh; help us to foster the growth of communion. You once trod the streets of our world; lead us now on the paths of peace. Amen.
None of this makes any sense, of course, if the only reality in this world is material reality. But materialism is so ingrained, primarily as a practical rather than speculative stance, because our spiritual senses have been deadened and dulled. Perhaps this Feast of the Annunciation can be an occasion for a renewed commitment to prayer for the grace of enlivened and sharpened spiritual senses.
As a matter of "intellectual engagement," a good place to begin is with the reality of spiritual reality. This is where Frank Sheed begins in Theology for Beginners. He relates an exchange that a Catholic Evidence Guild member had with "a materialist, who asserted the the idea of justice was the result of a purely bodily activity, produced by man's material brain":
Speaker: How many inches long is it?
Questioner: Don't be silly, ideas have no length.
Speaker: O.K. How much does it weigh?
Questioner: What are you doing? Trying to make a fool of me?
Speaker: No. I'm taking you at your word. What color is it? What shape?
[Sheed continues:] The discussion at this point broke down, the materialist saying the Catholic was talking nonsense. It is nonsense, of course, to speak of a thought having length or weight or color or shape. But the materialist had said that thought is material, and the speaker was simply asking what material attributes it had. In fact, it has none, and the materialist knew this perfectly well. Only he had not drawn the obvious conclusion. If we are continuously producing things which have no attribute of matter, it seems reasonable to conclude that there is in us some element which is not matter to produce them. This element we call spirit.
Oddly enough, the materialist thinks of us as superstitious people who believe in a fantasy called spirit, of himself as the plain blunt man who asserts that ideas are produced by a bodily organ, the brain. What he is asserting is that matter produces offspring which have not one single attribute in common with it, and what could be more fantastic than that? We are the plain blunt men, and we should insist on it.
Occasionally a materialist will argue that there are changes in the brain when we think, grooves or electrical discharges or what not. But these only accompany the thought; they are not the thought. When we think of justice, for instance, we are not thinking of the grooves in the brain; most of us are not even aware of them. When I say that mercy is kinder than justice, I am not comparing mercy's grooves with the stricter grooves of justice.
Our ideas are not material. They have no resemblance to our body. Their resemblance is to our spirit. They have no shape, no size, no color, no weight, no space. Neither has spirit, whose offspring they are. But no one can call it nothing, for it produces thought, and thought is the most powerful thing in the world—unless love is, which spirit also produces.
Let us consider this passage in light of today's Act of Consecration. The category of spiritual reality is necessary to make sense of it. Without this category, we would have no adequate way to conceive of the reality of the Annunciation itself, of the angel Gabriel, or of the injustice of the Ukraine invasion. Each of these events, persons, or states of affairs is real. Each only makes sense as real in light of spiritual reality. As an event in the material world, the Annunciation was manifest through the appearance of the angel Gabriel to Mary. But what is an angel? What does it mean for a purely spiritual creature to "appear"? What was announced in the Annunciation? None of this makes any sense, and there is no possibility of salvation through the Incarnation, Life, Death, and Resurrection of Jesus Christ, unless spiritual reality is real reality.
And now we return to this day, March 25, 2022. Spiritual reality grounds the claim that the injustice of Russia's invasion of Ukraine is real injustice. The act of invasion was the act of a real vice, of objectively disordered human will. Again, something important is missing if we think of justice and injustice as simply subjective opinions lacking any basis in reality. Yet if the only reality is material reality, then that's where we are.
Mary, Queen of Angels, pray for us.
Friday, March 18, 2022
Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?
The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021. The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”
The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought." The letter also states:
We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.
I have written before about the issue of Catholic universities, honorees, and outside speakers before. Among other things, I said:
[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.
That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university. It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate. As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research.
Again: This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights. And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one. But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university. And again: I say a bit more about why this suggestion is incorrect, here.
Monday, March 14, 2022
The Center for Law and Religion, which Mark Movsesian and I co-direct, is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students.
This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).
Sunday, March 13, 2022
Our first post here at Mirror of Justice went live just over 18 years ago. ("Wait, grandpa . . . they had the Internet 18 years ago?" "Yes, m'boy, and there was content besides homemade dance videos, too!") Here's the opening graf:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations. There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read. And yet: Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!
One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise. I continue to think this is a linch-pin issue. That is, it matters -- a lot -- for law what human persons are and what they are for. Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets? If we have "dignity", what makes it so that we do?
Wednesday, March 2, 2022
I'm happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I'll present a paper called "Traditionalist Disestablishments," a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:
Thursday, February 24, 2022
February 24, 2022 | Permalink
Sunday, February 20, 2022