Wednesday, May 6, 2020
The Supreme Court will hear oral argument this morning in the consolidated cases of The Little Sisters of the Poor Saints. Peter and Paul Home v. Pennsylvania and United States v. Pennsylvania. I am cautiously optimistic that a Court majority will ultimately endorse some version of the interpretation of RFRA advanced by Michael Stokes Paulsen twenty-five years ago in A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249 (1995). I teamed up with him and a group of excellent attorneys here in Richmond (John P. O'Herron, John D. Adams, and Brian D. Schmalzbach) to submit a brief amici curiae applying "A RFRA Runs Through It" to this case. In something of a preview for oral argument, I discussed some of the key issues in the case with Marc DeGirolami and Mark Movsesian in a Legal Spirits podcast.
On a personal note, the unusual circumstances of today's telephonic oral arguments bring me back to the somber, sad circumstances of oral argument in the first Little Sisters of the Poor case at the Supreme Court. That argument took place March 23, 2016, approximately six weeks after Justice Scalia's February 13 death. His absence hovered over the proceedings. Curiously enough, the primary effect of Justice Scalia's absence was to transform a likely 5-4 win for the religious nonprofits into an 8-0 punt back to the lower courts.
On another personal note, I cannot help but think of the juxtaposition of the austere legalism of Supreme Court oral arguments with the gritty fight against COVID-19 that is happening right now in the Little Sisters' homes for the elderly poor across the country. Let us pray for the residents, the staff, and the Sisters. May the Holy Spirit accompany them and bring them peace and happiness.
-- "What happiness for us, to be a Little Sister of the Poor! Making the poor happy is everything …” (St. Jeanne Jugan)
Tuesday, May 5, 2020
Recent developments in Lighthouse Fellowship Church v. Northam, a fast-moving challenge to the application of Virginia's ban on gatherings over 10
National media recently began reporting on Lighthouse Fellowship Church v. Northam (E.D. Va.) after the U.S. Department of Justice filed a statement of interest supporting the church's challenge to the application of Governor Northam's orders banning gatherings of more than ten persons. The issue will be fully joined on Thursday, when Virginia will file its first detailed response. I'm still working my way through the filings, which should be of interest to anyone thinking hard about the way the issues raised by Marc's recent post about equality and church-closure issues. Here's a quick timeline with links:
April 5: Chesapeake Police issue criminal summons against Pastor Kevin Wilson in connection with 16-person worship service at Fellowship Baptist Church (seating capacity > 290 persons).
April 24: Fellowship Baptist Church files a complaint and motion for TRO and PI in Eastern District of Virginia.
May 1: Judge Wright Allen denies motion for TRO and preliminary injunction with 33-page opinion and order.
May 2: Fellowship Baptist Church files a motion for emergency injunction pending appeal.
May 3: Department of Justice files a Statement of Interest supporting Fellowship Baptist Church's motion for injunction pending appeal.
May 3: Virginia files notice of intent to respond by Thursday, May 7.
May 4: Judge Wright Allen takes motion for emergency injunction under advisement. Orders Virginia to respond by Thursday, May 7.
Saturday, May 2, 2020
The rejection and unmasking of an uncreated order of values, together with "management technique at the service of the strongest"
In his essay, The Dead End of the Left: Augusto Del Noce’s Critique of Modern Politics, Carlo Lancelloti describes Del Noce's intervention into a debate between two well-known Catholic intellectuals of the time, one a representative of the "right" and another of the "left." Lancelloti includes an extended quotation from Del Noce, which I reproduce here not so much for the specific purposes that Del Noce or Lancelloti had in their writings, but because it arrestingly captures what has been happening at elite and not-so-elite universities in the United States for at least the last few decades:
If by “right” we mean faithfulness to the spirit of tradition, meaning the tradition that talks about an uncreated order of values, which are grasped though intellectual intuition and are independent of any arbitrary will, not even the divine one; and if by “left” we mean, on the contrary, the rejection not merely of certain historical superstructures but of those very values, which are “unmasked” to show their true nature as oppressive ideologies, imposed by the dominant classes in order to protect themselves, well, then it seems that in no other historical period has the left advanced so dramatically as during the last quarter of a century…. And yet, one has to say that Domenach is right: if by “right” we mean “management technique at the service of the strongest,” regardless of what ideologies are used to justify this management, we have to say that its victory has never been so complete, because it has been able to turn completely the culture of the left into its own tool.
Saturday, April 25, 2020
Adrian's post provides an occasion to share this essay by this essay by Moorehouse F.X. Millar, S.J.: Bellarmine and the American Constitution, 95 Studies: An Irish Quarterly Review 361 (1930). Fr. Millar is an intriguing figure in the history of American Catholic thought about the U.S. Constitution.
Jesuit Trivia: Fr. Millar's nickname (which he seems not to have liked very much) was "Father Mixie." For an explanation of the transition from I.X. to F.X. in Millar's scholarly self-identification, and more on Millar's life and thought, see this extensive obituary by R.C. Hartnett, S.J., LXXXVII Woodstock Letters 135 (1958) ("For circulation among our only").
Thursday, April 23, 2020
Report: Common-good constitutionalism been spreading in Cambridge, Massachusetts for decades, maybe centuries
Some of the recent alarms about a flare-up of common good constitutionalism in Cambridge, Massachusetts may have underestimated its prior spread. Recent research in the U.S. Reports confirms that high legal authorities deployed common good constitutionalism over a century ago to overcome the resistance of Cambridge resident Henning Jacobson:
The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned." Railroad Co. v. Husen, 95 U.S. 465, 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 628, 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont, 140, 148. In Crowley v. Christensen, 137 U.S. 86, 89, we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men." The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84.
Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905)
Asked for comment on these findings, area law professors disagreed with this diagnosis of Mr. Jacobson's losing liberty interest. One said this diagnosis mistakes common good constitutionalism for standard police powers analysis rooted in social contract theory. Another claimed compatibility with, and ultimate justification in, John Stuart Mill's "harm principle." A third commented cryptically, "Harlan was no Hercules, but this is the Constitution in 2020."
Wednesday, April 15, 2020
A correspondent recently reminded me of a 2013 blog post that highlighted a 1992 student note analyzing Justice Brennan's jurisprudence: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (19920.
In this note which is "of a quality that far surpasses most faculty-produced scholarship," Joel Friedlander "applies [Philip] Rieff's theory of kulturkampf to Justice Brennan's jurisprudential transition from Roth to Pacifica." It is an eye-opening exercise.
Perhaps of most relevance to the recent wrangling over Adrian Vermeule's anti-originalist Atlantic essay is Friedlander's description of cultural conservatives engaged in the cultural warfare that encompasses but exceeds "the longstanding jurisprudential debates between origirialism and non-originalism or between natural law and positivism." These cultural conservatives, Friedlander contends, are "largely constrained by their positivism, if not by their originalism."
If Friedlander is correct, then one can understand part of the alarm sounded in response to Vermeule's essay. If the jurisprudential debates are but one component of a broader kulturkampf in which what is at stake is "the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion," then the cultural conservatives' removal of their self-imposed constraint of legal positivism should be of concern to those on the other side from them of this kulturkampf.
Contrary to the framing of both Vermeule's essay and the responses to it, more fundamental than the debate between originalism and nonoriginalism (whatever that is) is a debate between legal positivism and natural law as each is taken to undergird our constitutional order. The problem may be not that we're all originalists now, but that we're all legal positivists now. If that's right, then we can't begin to have the debate we ought to be having.
Friday, April 3, 2020
I've been working on multiple-choice questions for the University of Richmond Law School one-Ls in my Constitutional Law class this semester. Inspired by Adrian Vermeule's "Beyond Originalism" to think more deeply about the relationship between U.S. constitutionalism and Catholic Social Teaching, here's a multiple-choice question for the broader universe of MOJ readers.
* * *
Four key commitments of the Constitution of the United States of America are (1) popular sovereignty, (2) writtenness, (3) federalism, and (4) separation of powers. Which, if any, of these key commitments of American constitutionalism does Catholic Social Teaching endorse as an essential aspect of a sound theory of the State?
A. Popular Sovereignty
D. Separation of Powers
E. All four.
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Wednesday, November 13, 2019
Fortunately, Ahmari has already walked back any idolatry-accusing implication of his "burning incense" tweet. Ahmari didn't mean to say Hall was an idolater, he clarified, but that he was willing to join Hall in paying civic reverence.
This clarification in place, we can think about a hard question surrounding a stance on which Ahmari, French, Hall, and many others agree. That stance is that it is appropriate to pay some civic reference to the Founders. A hard question about it: How do we establish and maintain appropriate boundaries around this civic reverence?
Suppose, for example, you are as anti-Jefferson as Ahmari and I are. It only makes sense that you would make your anti-Jeffersonian case by reference to Alexander Hamilton (as Ahmari has) or John Marshall (as I have). One might even try to rally people around a symbol of one aspect of our current constitutional order in which one set of powerful American Catholics is positioned over the next decade or so to repair damage done by other powerful American Catholics in the past several decades.
We all need to make sure, though, that whatever-the-word-is-for-appropriate-filiopietism does not slip into idolatry. Civic reverence must be subordinated to reverence for the one true God. And it is here that things can be exceedingly tricky in a polity in which "law is king." With that function spoken for in the realm of civic orthodoxy, what about priest and prophet?
To simplify, perhaps oversimplify, Ahmari's exercise of a prophetic function appeared to cast Hall in the role of priest for an idolatrous cult of the Founders. Ahmari then clarified that he meant paying reverence of a different sort. This is very challenging. How, if at all, can we maintain a prophetic stance from the point of view of true reverence, while also performing and policing priestly functions in the subordinate realm of maintaining civic orthodoxy?
Monday, November 11, 2019
It is useful for anyone interested in the maintenance of orthodoxy to bear in mind the difference between heresy and apostasy. The Code of Canon Law sets forth this distinction in Canon 751, which differentiates among heresy, apostasy, and schism:
Can. 751 Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.
The distinguishing factor here seems to be rejection of part of the faith ("some truth which is to be believed by divine and Catholic faith), as compared with rejection of the whole ("total repudiation of the Christian faith"). There are different ways in which heresy and apostasy may each be more damaging than the other in certain respects. But from the point of view of maintaining orthodoxy within a community, heresy seems more dangerous in that it might travel under the appearance of orthodoxy precisely because it differs from orthodoxy only in some truth rather than in repudiation of the faith itself.
Monday, October 14, 2019
In a couple of posts last week, I began to introduce a three-ingredient recipe for overruling Roe v. Wade. The first post identified the three ingredients: Prenatal Equal Protection, Judicial Incapacity, and Catholic Guilt. The second post discussed Prenatal Equal Protection. This post continues by discussing the ingredient of Judicial Incapacity.
Consideration of this ingredient begins with what Peter Westen has labeled "The Empty Idea of Equality." By "equality," Westen means the basic principles that "people who are alike should be treated alike" and "people who are unalike should be treated unalike." When we ask how people should be treated, the question then becomes in what respects they are like and what respects they are unalike. Some of the ways in which people are unalike matter in considering how they are to be treated.
In his article, Westen sought to establish that statements of equality entail and collapse into simpler statements of rights, and that transforming the simpler statements of rights into statements of equality is unnecessarily complicated and engenders confusion. One need not accept all the particulars of Westen's use of rights to appreciate the force of his claim that equality is a formal concept, a way of stating moral and legal propositions whose substance derives from more fundamental judgments.
Once we recognize that "person" as used in the Fourteenth Amendment is not limited to postnatal human beings, we next have to determine what it means for a state to provide to unborn persons within its jurisdiction "the equal protection of the laws." At a minimum, this means not treating the unborn as non-persons. But it does not mean treating them identically to the born in all respects. Nor does it mean categorically prohibiting the intentional taking of their lives. As self-defense against lethal violence is a justification more generally in the law, a state does not run afoul of its equal protection duty through declining to criminalize or by providing an affirmative defense for abortions performed to save the life of the mother.
What about other types of limitations on the reach of criminal abortion laws? Right now, a two-drug combination can be used to induce medication abortions. This two-drug combination is approved by the FDA , with certain limitations, through ten weeks of pregnancy. Suppose a state decides not to criminalize medication abortion because of enforcement- and privacy-related concerns. Would this amount to a denial of the equal protection of the laws to unborn persons ten weeks and under? In one sense, yes, and in another sense, no. The answer depends on whether the reasons the state has for structuring its laws the way that it has are good enough reasons. And an appeal to the formal ideal of equality will not help in answering that question.
It could provide a baseline of sorts, a presumption that the difference in location between born and unborn persons is not itself a justification for differential treatment. But once we move beyond that baseline and allow for the potential relevance of factors such as enforcement-related concerns, maternal-safety concerns, and so on, any doctrinal implementation of the equal protection of the laws by judges should be informed by their very limited capacity for making judgments of this sort. That is why the default standard for judicial review of legislative classifications is rational basis review.
Both proponents and opponents of acknowledging the Fourteenth Amendment of personhood have often assumed that this acknowledgment would have obvious consequences for the substantive content of the law--either that all abortion must be criminalized with rules equivalent to those governing infanticide (because of personhood plus equal protection or personhood plus right to life) or that all questions about abortion are simply a matter of state policy judgment as modified by judicial overlay through substantive due process for mothers (because the Fourteenth Amendment does not protect the unborn as persons). But even if we stop treating the unborn as constitutional zeroes when it comes to personhood, there is ample room for a variety of reasonable legislative judgments about abortion regulation compatible with recognition of the personhood of the unborn.
This recognition would rule out some of the most radical state-law regimes that authorize the taking of unborn life all the way through pregnancy based on the unreviewed decision of one physician and one mother for any reason. And this recognition would also require a reorientation of the law that requires a justification for differential protection of the laws for the born and unborn. But this reorientation would not change the judicial incapacity for making value judgments on the relative weights of justifications that underlies rational basis as the doctrinal default in this area.