Sunday, April 11, 2021
As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another. We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together.
I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run. What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health.
So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea? She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends. When she asks our graduate for advice regarding compliance, how should our graduate respond? With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing? Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law? Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?
This is not just about COVID, of course. Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps. Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring. Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits.
This is one reason why I believe that legal education is absolutely essential to our nation’s future. Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation. And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them. If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.
We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days. We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo. However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.
Friday, March 5, 2021
Saturday, February 20, 2021
Thursday, February 18, 2021
Wednesday, February 17, 2021
a reminder of the direction of our existence: a passage from dust to life. We are dust, earth, clay, but if we allow ourselves to be shaped by the hands of God, we become something wondrous. More often than not, though, especially at times of difficulty and loneliness, we only see our dust! But the Lord encourages us: in his eyes, our littleness is of infinite value. So let us take heart: we were born to be loved; we were born to be children of God. [Lent is thus] a time of grace, a time for letting God gaze upon us with love and in this way change our lives. We were put in this world to go from ashes to life. So let us not turn our hopes and God’s dream for us into powder and ashes. . . . Ashes are sprinkled on our heads so that the fire of love can be kindled in our hearts. . . . Our earthly possessions will prove useless, dust that scatters, but the love we share – in our families, at work, in the Church and in the world – will save us, for it will endure forever.
Friday, February 5, 2021
(This is an op-ed published by Religion News Service.)
One unfortunate aspect of the American culture war is the tendency to weaponize words in ways that stretch them beyond any semblance of their original meanings. Terms such as “woke,” “PC” and “cancel culture” are now deployed to signal that something is bad without shedding meaningful light on the reasons why it’s bad.
The latest term to meet this fate may be “Christian nationalism.” Since the attack on the U.S. Capitol, it’s showing signs of becoming an all-purpose condemnation of any effort to integrate Christian beliefs with civic engagement, even perfectly peaceful ones.
So what is Christian nationalism, and what is it not?
Paul Miller, a Georgetown University professor and author of a forthcoming book on Christian nationalism, explains that Christian nationalism is a political ideology that holds that “the American nation is defined by Christianity and that the government should take steps to keep it that way to sustain and maintain our Christian heritage.”
If America was founded for a unique purpose by God, then the Constitution was divinely inspired, and displaying the American flag in church sanctuaries is not a blurring of American and Christian identity but a natural marker of faith. In the rhetoric of Christian nationalism, power is emphasized over principle.
Why is Christian nationalism so dangerous?
Put simply, when we merge our religious identity with our political identity, we will do anything to ensure that our political tribe prevails. We are no longer debating ideas about which reasonable people can disagree; we are defending Christianity against its enemies.
It’s why Eric Metaxas said, in reference to his claims of a stolen election, that it’s “God’s will” for America to keep spreading liberty around the world, and so, “Who cares what I can prove in the court?” Regardless of what the courts say about election fraud, “we need to fight to the death, to the last drop of blood because it’s worth it.”
When a particular political outcome becomes a tenet of my Christian faith, there’s nothing left to argue about. And when there’s nothing left to argue about, that’s a very dangerous place for democracy to find itself.
So there you have the broad outlines of what Christian nationalism is. What is it not?
Christian nationalism is not Christian patriotism. Love of country is a healthy aspect of being human, a reflection that the particularity of place matters to our identity and values. Patriotism becomes unhealthy when we reimagine our national identity as an expression of divine will, elevating our nation above others on some sort of God-ordained hierarchy.
Christian nationalism is not Christian political engagement. We are not a “Christian nation” in the sense that Christian nationalists mean. We are a nation in which our political discourse has long been shaped by Christian values, on both the left and the right. The civil rights movement was infused with Christian images and principles. The progressive push for immigration reform prominently features Christ’s admonition about welcoming the stranger.
Christian ideas should only be an entry point to a broader conversation with Americans of any (or no) faith tradition, not as a sledgehammer to stop their contribution to the debate. On the issue that’s been the most contentious over the past half-century, abortion, the most effective pro-life voices have been steeped in Christian principles. But the core of their arguments has been grounded in observations about fetal development and articulations of life’s value in terms that are accessible beyond Christianity.
On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to rational disagreement.
The dangers of Christian nationalism are real, but let’s not let tribal posturing confuse those dangers in ways that marginalize the values-based arguments that have been — and hopefully will continue to be — central to American democracy.
Wednesday, February 3, 2021
What does Catholic social teaching have to say about America’s collapsing levels of social trust, which underlie the rise of conspiracy theories, the rejection of expertise, and the hollowing out of the political center? Put differently, if we read David Brooks’ recent essay on our nation’s moral convulsion through the lens of CST, what insights might we gain? (Last year, [non-Catholic] Brooks called CST “the most coherent philosophy that opposes a philosophy of rampant individualism,” but I don’t think he’s addressed this topic at any length.) We often invoke elements of CST in debates about particular policy issues, but what light might CST shed on a prudent path forward through this cultural moment?
Two questions might be helpful conversation-starters. First, while solidarity compels us to care about and for others, what does it tell us about the primacy of trusting -- and of being trustworthy -- as a necessary condition of such care? As we know, solidarity “is not a feeling of vague compassion or shallow distress” at others’ misfortunes, but rather “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all.” (Sollicitudo rei socialis ¶ 38) What is needed is “a commitment to the good of one’s neighbor with the readiness, in the gospel sense, to ‘lose oneself’ for the sake of the other instead of exploiting him, and to ‘serve him’ instead of oppressing him for one’s advantage.” (Id.) The freedom made possible by solidarity is not “achieved in total self-sufficiency and an absence of relationships,” but only “where reciprocal bonds, governed by truth and justice, link people to one another.” (CDF, Instruction on Christian Freedom and Liberation ¶ 26) The freedom made possible by solidarity “can be articulated only as a claim of truth.” (Id.) Do we need to talk more about solidarity and social trust?
Second, does subsidiarity require us to pay attention to expertise as part of identifying the appropriate level of society at which problems should be addressed? The importance of the free, meaningful, and efficacious operation of mediating institutions presents the “most weighty principle” of subsidiarity:
Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy or absorb them.
(Quadragesimo anno ¶ 79) What does this mean, if anything, for a rising tide of anti-expert populism?
I'm just starting to think about the answers, and I welcome suggestions of helpful resources (rkvischer [at] stthomas.edu). These and related questions will be a significant component of CST's relevance to American life for the foreseeable future. As Brooks observes,
The cultural shifts we are witnessing offer more safety to the individual at the cost of clannishness within society. People are embedded more in communities and groups, but in an age of distrust, groups look at each other warily, angrily, viciously. The shift toward a more communal viewpoint is potentially a wonderful thing, but it leads to cold civil war unless there is a renaissance of trust. There’s no avoiding the core problem. Unless we can find a way to rebuild trust, the nation does not function.
I believe that Catholic social teaching will provide important insights as we navigate these painful cultural shifts. We need to discern and articulate those insights, and convene conversations that give the insights broad visibility and optimal opportunities to gain traction in the debates to come. This could and should be a years-long project.
Thursday, January 28, 2021
Friday, January 22, 2021
Like many Americans, I'm concerned about the power Big Tech wields over our economy, over the ways we obtain (and are influenced by) information, and over our personal data. That said, Amazon’s termination of Parler from its web-hosting service after the attack on the U.S. Capitol appears to have been sensible and legal. Yesterday a federal district court judge rejected Parler’s request for a preliminary injunction, and it may be helpful to summarize the judge’s decision before the legal merits get spun beyond recognition in the never-ending tumult of our culture wars.
The facts: starting in mid-November, Amazon began notifying Parler of problematic content on its platform. (I won't offer examples of the many posts encouraging violence against specific individuals, but you can see for yourself if you search for Amazon's response brief to Parler.) After the U.S. Capitol attack on January 6, content encouraging violence continued to grow on Parler. The Parler CEO acknowledged a backlog of 26,000 posts that violated its community standards yet remained on its service. On January 9, Amazon announced that it would suspend Parler’s account, and Parler sued.
Note that this case has nothing to do with the First Amendment, which applies only against the government, not against a private company like Amazon. Parler did not even allege a First Amendment violation. So what did Parler claim?
First, Parler alleged that Amazon’s termination of service violated the Sherman Act because it was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” To prove a violation of the relevant portion of the Sherman Act, Parler needed to show 1) the existence of an agreement; and 2) that the agreement was an unreasonable restraint of trade. Unfortunately for Parler, there was no evidence of an agreement between Amazon and Twitter to harm Parler in order to help Twitter. Contrary to Parler’s allegation, Amazon does not currently provide online hosting services to Twitter. According to the court, Parler has provided “only faint and factually inaccurate speculation.”
Second, Parler alleged that Amazon breached their contract by failing to give Parler 30 days’ notice before terminating services. Parler did not deny that content on its platform violated Amazon’s Acceptable Use Policy, and Parler failed to note that the contract permits Amazon to terminate immediately in the event of a breach.
Third, Parler alleged that Amazon intentionally interfered with its business expectancy, which requires evidence of interference with its business “for an improper purpose or [using] improper means.” The court ruled that Parler raised no “more than the scantest speculation” of improper purpose, and the evidence suggests that Amazon’s action “was in response to Parler’s material breach.”
The court concluded that “the likelihood of Parler prevailing on its claims is not a close call,” as Parler’s allegations “are both inaccurate and unsupported.” Further, the court “rejects any suggestion that the public interest favors requiring [Amazon] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” Parler’s motion for a preliminary injunction was accordingly denied.
We need to sort through difficult issues regarding the power that a few large technology companies have accumulated, and we need to try to do so without reflexively grabbing for the familiar lenses provided by our highly partisan political environment. Catholic legal theory should have something to say about all this. Amazon's decision to stop hosting Parler is not the proper vehicle for that conversation – based on the evidence offered, the decision appears to have been morally prudent and legally justified.
Wednesday, January 20, 2021