Monday, August 21, 2023
Dear Enrollees in Politics 315: Constitutional Interpretation:
Welcome to our course. My teaching team and I look forward to exploring with you the broad range of principles, issues, and arguments that are its substance.
Please don't be reluctant to speak your mind in our discussions! Even if you hold an unpopular view, please be willing to share and defend it. Also, please be willing to be "devil's advocate" on behalf of views that you do not hold or aren't sure whether you should hold. By robustly defending a controversial position to see whether, in the end, it can be successfully defended, or how far it can be defended, you will be doing all of us in the course a service.
On freedom of speech in our discussions, please see the statement on the syllabus, referencing the University's free speech policies set forth in Rights, Rules, Responsibilities. Princeton students and faculty enjoy the broadest possible free speech protections in all courses and other university activities, but surely free speech should be especially sacrosanct in a course on the Constitution and the rights and liberties it enshrines. At the same time, we value civility--but that does not mean or require that anyone hold or decline to hold any particular view, or that one submit to anyone else's ideas about the language in which issues are to be framed, the terms in which they are to be discussed, or the assumptions on which the discussion will proceed. What it does mean and require is that we all do business in the proper currency of intellectual discourse--a currency consisting of evidence, reasons, and arguments.
Some of the issues we will be discussing are not only controversial, but also sensitive and, to some people, personal. We nevertheless need to discuss them frankly. As our Dean, Jill Dolan, says, we need to be "resilient and brave" in discussing matters that engage our emotions. One thing I can guarantee is this: Whatever your political, moral, religious, and other opinions happen to be, you will encounter in our readings and discussions challenges to them. You may even be offended or scandalized by what some authors or some participants in the course believe and say. Please bear in mind that, as Cornel West has stated, "the very point of a liberal arts education is to disturb and unsettle us." I have deliberately chosen readings representing radically opposed positions on the issues we explore. There is not an official position in the course about who is right and who is wrong about anything. All positions and points of view, no matter how radical or even unjust or immoral they may seem to people who oppose them, are on the table for discussion, scrutiny, and assessment on equal terms. There is no orthodoxy in the course; there are no dogmas. There is no censorship or policing of thought. I hope there will be no self-censorship.
My philosophy of teaching is straightforward and rather simple: My job is not to tell students what to think or induce or encourage them to think as I do; it is, rather, to help students to think more deeply, more critically, and for themselves. What I ask of students is open-mindedness, tolerance of those whose opinions differ from yours, a willingness not only to challenge others but to be challenged in turn, and a genuine and deep desire to learn--and to learn by seriously engaging authors and fellow students whose ideas differ, even radically differ, from your own.
There is never a bad time to study and think hard about the meaning of the Constitution and its guarantees; but this is an especially good time--indeed, an exciting time. We are in the midst of massive national disagreements about issues having to do with the separation of powers, federalism, freedom of speech, the free exercise of religion, due process of law, the equal protection of the law, and more. In my opinion, though it need not be yours, some of these disagreements do not admit of obvious or straightforward answers, no matter how deeply certain partisans on the competing sides are of the righteousness of their causes. In any case, I hope that our deliberations together will enable us all to be better, more constructive participants in the debates, no matter where we come down in them.
August 21, 2023 | Permalink
Thursday, August 3, 2023
A very interesting read from The Washington Post about the "Justins," the two Tennessee Democratic legislators who have been expelled, returned to office, etc., based on their vocal protests in the legislative chamber. They've been compared to the vocal religious leaders of the civil rights movement.
Since their GOP colleagues voted them out of office this spring, state Reps. Justin J. Pearson (D-Memphis) and Justin Jones (D-Nashville) have quickly become 20-something icons whose style, faith and values ring some very familiar bells. They wear crisp suits, intone Jesus, see public protests as essential and define “biblical justice” as care for the poor and oppressed. ...
But 2023 isn’t 1968, including when it comes to the relationship between religion and politics. The Justins are facing a much less religious country, including segments that are cynical and even repelled by candidates who thunder from pulpits about God being on their side. Experts say the Justins’ unusual campaigns, and the strong reaction to them, could both benefit and threaten the progressive movement of which the men are a part.
In our polarized circumstances, the sharp percentage decline in Americans' active religious identification is seen by many as a boon to movements for progressive understandings of social justice. (Religion, that conservative thing, is losing ground.) But that remains a very uncertain matter, as this article indicates, among other things because the decline of active religion has been accompanied by an intensification of the position that religion should be a private pursuit.
Wednesday, August 2, 2023
My colleague, Prof. Gerard Bradley, has a must-read essay in the latest issue of First Things, called "Life After Dobbs." Bradley gives the Dobbs opinions very close reads, and identifies carefully what, on his reading, the case does, and does not, mean. After canvassing the current state of play with respect to abortion regulation, he reports that "post-Dobbs developments are worse than pro-lifers expected, and far worse than most hoped. They cannot but be sobering to pro-life Americans. . . . What, then, is to be done?," he asks.
In Bradley's view, Dobbs turns out to be not only a "neutral", "return the issue to politics", ruling but actually, in "five ways", a pro-life one, that establishes the basis of a legal strategy for protecting the unborn[.]" Check it out!
Sunday, July 30, 2023
As I'm preparing to embark on my thirty-ninth year as a scholar and university teacher, I'd like to share with a broader audience some advice I give to my students--especially those of my students who aspire to academic careers. I hope it's helpful. Here goes:
Although it is natural and, in itself, good to desire and even seek affirmation, do not fall in love with applause. It is a drug. When you get some of it, you crave more. It can easily deflect you from your mission and vocation. In the end, what matters is not winning approval or gaining celebrity. Your mission and vocation is to seek the truth and to speak the truth as God gives you to grasp the truth.
July 30, 2023 | Permalink
Friday, July 28, 2023
Prof. Thomas Kohler (Boston College) has an essay at Public Discourse called "Graduate Student Unions and Catholic Social Thought." Kohler is, of course, prolific and expert with respect to these topics.
Longtime readers of Mirror of Justice are, I suppose, way-past-familiar with my skepticism regarding efforts to enlist the Church's social teaching -- including its embrace of workers' associational rights and its affirmation of the dignity of labor -- in support of contemporary public-employee unionism. This is not the matter, though, that Kohler is focused on (although, I suppose, his discussion of graduate-students' unions applies to students at public universities). Check it out.
Saturday, July 22, 2023
Penalver and Greenfield on the First Amendment right of (some) religious universities to use racial preferences
Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action." They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. " (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.) In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case.
First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]" The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness." Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination. Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students. But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.
Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]" The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]" (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)
Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments." But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination. (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.) The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal. What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.
Finally, the authors write that "the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith. This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education." But again, the Court did not impose a "colorblindness requirement". Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions. And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"
I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people. Catholic universities need to do (much) better on both of these fronts. But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.
I'm pleased to report that my book project on traditionalism in constitutional law is now under contract with Cambridge University Press, with the tentative title "We Mean What We Do: The New Constitutional Traditionalism." The book will bring together many of the themes and arguments from a number of papers that I've been working on over the last several years, as well as some new papers I'll post soon. But most of it will be new material, and I hope to have a few posts in the coming months trying out some ideas at Mirror of Justice. More soon!
Friday, July 21, 2023
Since our former dean, MOJ-er Rob Vischer has ascended to the university presidency at St. Thomas (a belated blog hurrah to Rob!), we are now officially in a dean search at the law school. MOJ-er Lisa Schiltz co-chairs the committee; I'm a member.
Here is the position announcement on the search firm's (WittKieffer's) site. It also provides a full position profile. (I'll link to both files below as well.) The lede for the announcement:
The University of St. Thomas School of Law is seeking a Dean eager to capitalize on a pivotal moment in the Law School’s short but extraordinary history, and ready to guide it through the next stage of its emergence as a national leader in values-driven, whole-person-centered legal education and in scholarly and societal impact. In the two decades since its opening in 2001, the School of Law has outpaced all expectations, validating the hopes embedded in its mission: “The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice.”
As the announcement concludes: "Review of applicant materials has begun; for fullest consideration, candidate materials should be received by September 30, 2023 and submitted through WittKieffer’s candidate portal" (buttons at the bottom of the linked site above).
If readers (interested in the position themselves, or not) have suggestions for highly qualified candidates (JD required), deeply committed to and knowledgeable about legal education and enthusiastic about the mission above, let me know by email.
Thursday, July 20, 2023
It's become a tradition (HT: Marc DeGirolami!) to join my friend, Prof. Lenny DeLorenzo, of Notre Dame's McGrath Institute for Church Life, for an end-of-SCOTUS-term podcast. Here, if you are interested, in this year's. We discuss (inter alia) the Groff and 303 Creative cases.
Tuesday, July 4, 2023
My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher, at Amazon, and elsewhere It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:
Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]
Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.
From a blog summary I did on the book:
[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....
A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.
Get your copy for vacation reading!