Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, December 19, 2014

Sin, forgiveness, and the Post Office -- not a love affair

Among the peculiarities of our constitutional arrangement is its indifference to love.  A traditional Christian polity would be structured around the common obligation to worship God, a sacrificial act of love, and from that would follow many other obligations to be particularlized by the polity.   Our Constitution, however, rooted and limited in the project of power-checking-power -- whatever the respective faiths of the men who framed it -- designedly sidelines love, particularly in the form of public worship.  No public worship here, that's for sure.  With love goes forgiveness, however.  Again, with love goes forgiveness.  I confess, therefore, uncertainty about how modern states can do anything involving forgiveness.  The suggestion that the Post Office can forgive is risible; it commits a category mistake.  But it's not unthinkable, is it, that the governing authority could, one day yet, announce, introduce, and advance the ends of love, including in the form of forgiveness.  The sorry, ongoing celebration of pluralism per se could yet yield to a collective life rooted in the truth of love and the forgiveness it alone grounds.  Love has become a Hallmark term that almost preempts the field, and so the manifestation of love in the form of forgiveness merits special reconstruction, here in the words of Remi Brague:

A mistake that, perhaps, is even more freighted with consequences [than the mistakes of confusing sin with pleasure or misunderstanding the way in which sin "offends" God] is the one that consists in separating the two terms, "remission" and "sin," which are united in the Christian confession of faith.  Once they are separated, the two ideas are placed in a certain order, according to which the idea of sin occupies the first place.  A certain Christian apologetics has succumbed to this temptation.  It proceeds by attempting to convince man (and above all, "modern man," who is deemed more difficult to convince . . .) that he is a sinner and that he therefore has need of redemption (which, then, would be proposed to him, in second place).  [] In this optic, one can lament the purported "loss of the sense of sin," as if it complicated the matter, even made it impossible, because depribiving sin of its foundation.  

In doing so, one allows oneself to be misled by an analogy.  Most often, of course, the evil precedes the remedy, and it is necessary to become aware of the evil in order to experience the need for the remedy.  Thus, because I see that my teeth are crooked, I know that I need to go to the dentist.  However, the Creed confesses faith in "the remission of sins," not in sin.  What is an article of faith is not sin, but rather its remission.  


R. Brague, On the God of the Christians (and on one or two others) (St. Augustine's Press, 2013), 144-45.


December 19, 2014 in Brennan, Patrick | Permalink

Thursday, December 18, 2014

"The Fate of Unreasonable People"

I came across, while looking for a citation, this paper, by Fuat Gursozlu, a philosopher at Loyola University Maryland, "a Jesuit Catholic university committed to the educational and spiritual traditions of the Society of Jesus and to the ideals of liberal education and the development of the whole person."  The paper is called "Political Liberalism and the Fate of Unreasonable People."  I suppose it could be seen as simply yet another of the many, many exercises in Rawls exegesis but . . . I actually found it more than a little chilling (in part because it is hard to avoid the unsettling apparent fact that the position defended in the paper is probably entirely mainstream, at least in the academy).  Here is the conclusion:

The practical political task of containing unreasonable doctrines is primarily concerned with the reformation of unreasonable citizens over time. Rawls is aware that when unreasonable doctrines grow so strong, it may be too late for the liberal democratic regime. The argument for the normative stability of the regime and the account of containment as transformation points out the need to prevent the unreasonable from becoming strong enough to overwhelm the liberal political regime. Steven Macedo points out that liberalism constitutes a regime that cannot help but shape citizens’ lives “deeply . . . and relentlessly.”  For Macedo, political liberalism should shape people’s commitments and habits “without exactly announcing that purpose on their face.”  This is a necessary political work that is beyond any “regret, apologies, or adjustment.” The account of containment as transformation centers on the idea expressed by Macedo: transformation of the unreasonable people living in a liberal political order without announcing that purpose in their face. 

"Forced to be free," redux.  Justice Jackson, no doubt, would have had some appropriate things to say about this . . . . 

December 18, 2014 in Garnett, Rick | Permalink

"Catholic Midwives Must Supervise Abortions, Supreme Court Decides"

That’s the title of this report, though I would welcome more information from readers who may have it. The Supreme Court is that of the United Kingdom, and the case involves the issue of accommodation for objection to performing abortions on the basis of religious conscience. The statute interpreted by the Court is the Abortion Act of 1967, which provides that “no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.” The issue before the Court was the scope of the statute: it was clear that the objecting midwives would be under no obligation to participate in abortions themselves, but it was not clear whether they could be compelled to supervise other staff who did participate in abortions. “Participate,” ruled the Court, demands a “hands on” role in the abortion, and any supervisory role was insufficiently “direct” to come within the statutory definition.

The midwives claimed that it would have been very easy to accommodate them, because the number of abortions on their ward was only a very small fraction of the work, supervision of which could readily have been assigned to others with no risk that anyone desiring an abortion would go without care. But that sort of compromise was unavailing to Ann Furedi, chief executive of the British Pregnancy Advisory Service: “[E]xtending this protection to tasks not directly related to the abortion would be to the detriment of women needing to end a pregnancy and the health care staff committed to providing that care. There are enough barriers in the way of women who need an abortion without further obstacles being thrown in their way.”

UPDATE: More information on the case and a link to the decision may be found at Religion Clause Blog.

December 18, 2014 in DeGirolami, Marc | Permalink

Wednesday, December 17, 2014

The Proctor: A Legal Note from David Copperfield

The more substantial novels of Charles Dickens represent a regrettably sizable hole in my reading, one which with time I hope to plug up. I've started with David Copperfield and am enjoying it greatly. The writing, as much or more than the story itself, is truly magnificent.

Unlike with some of Dickens's other work in which it is generally portrayed unflatteringly, the law and legal practice is not an absolutely central theme in David Copperfield, though it does show up from time to time. The ingratiatingly servile Uriah Heep has already been described poring over some legal treatises, and this detail is sure to resurface by and by. But the law does make something of an appearance when David, now a young man of 17 and at the urging of his aunt, selects the profession of "proctor."

I had not before known what a proctor was. Apparently the proctor was a special kind of solicitor who dealt with both ecclesiastical and admiralty matters, an unexpected pair! The position of proctor was merged with solicitor in the late 19th century. Here is a charming bit from Chapter XXIII about proctors and their practice (as relayed only slightly in jest by David's prepossessing friend, Steerforth):

"What is a proctor, Steerforth?" said I.

"Why, he is a sort of monkish attorney," replied Steerforth. "He is, to some faded courts held in Doctors' Commons--a lazy old nook near St. Paul's Churchyard--what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.”

“Nonsense, Steerforth!” I exclaimed. “You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?”

“I don’t, indeed, my dear boy,” he returned; “but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons. You shall go there one day, and find them blundering through half the nautical terms in Young’s Dictionary, apropos of the ‘Nancy’ having run down the ‘Sarah Jane,’ or Mr. Peggotty and the Yarmouth boatmen having put off in a gale of wind with an anchor and cable to the ‘Nelson’ Indiaman in distress; and you shall go there another day, and find them deep in evidence, pro and con, respecting a clergyman who has misbehaved himself; and you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise. They are like actors: now a man’s a judge, and now he is not a judge; now he’s one thing, now he’s another; now he’s something else, change and change about; but it’s always a very pleasant profitable little affair of private theatricals, presented to an uncommonly select audience.”

December 17, 2014 in DeGirolami, Marc | Permalink

The Pernicious Endorsement Test, Part 287

My colleague, Mark Movsesian, comments on what he observed in the New York City subway.

December 17, 2014 in DeGirolami, Marc | Permalink

Schulman on parents rights, Pierce, barbarism, etc.

Prof. Jeffrey Schulman has posted a new paper (which appears to be part of new book, The Constitutional Parent), called "Meyer, Pierce, and the History of the Entire Human Race:  Barbarism, Social Progress, and (the Fall and Rise of)  Parental Rights."  Here is the abstract:

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority. 

The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play. 

Part I of this article looks at what might be the most formative application of stage-theory to family relations, John Millar’s The Origins of the Distinctions of Ranks (1771). Drawing on the sociohistorical work of David Hume and Adam Smith, Millar provides an empirical account of how rights of personal authority (the right of husband over wife, father over children, and master over servant) arise out of and evolve in response to changing socioeconomic conditions. For Millar, there is little doubt that parental authority “has been reduced within narrower bounds, in proportion to the ordinary improvements of society.” 

A product of the Scottish Enlightenment’s focus on sociability, Millar’s historical critique of paternal authority translated comfortably to the individualistic currents of the nineteenth century. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural and legal historian Henry Maine and the British moral philosopher Herbert Spencer. Though these writers took different routes through the emerging sociological territory of the nineteenth century, they all agreed that the historical record dictated the conclusion that there is no social progress without the repudiation of patriarchalism. 

With its focus on economic conditions and its pragmatic approach to rights, stage-theory could be put to far more radical uses. In the socialist utopia imagined by Marx and Engels, the private family would vanish along with private property and profit. Part III of this article has two goals: to remind readers that 1) socialist historymaking considered the dissolution of the bourgeois family as a key step toward a stateless state, and 2) this repudiation of the family was no mere doctrinal abstraction for American legal professionals. As the Supreme Court weighed the competing claims of parent and state, the threat of a socialist takeover of the family — “the principle of the soviet” — was always close at hand. 

In response to this unhappy prospect, the Court drew from the murky, mysterious well of state-constraining liberties we refer to as substantive due process. Repudiating the communistic models of ancient states — Sparta being the poster-child of historical statism — the Court began to write it own story of social progress. Social primitivism lay not in the patriarchal family but in the paternalistic state, and progress did not lie in a movement from personal rights to public responsibilities, but just the reverse. With regard to domestic life, this narrative of progress was one of struggle: a struggle of parental rights against the ever encroaching state. For the modern Court, regulation of the family would no longer be one of the proper functions of government. If history has an ash heap, and if the Court had its way, Sparta would once and for all be relegated to it.

One of the first papers I published, as a law professor, was a defense of Pierce and of a relatively strong view of parents' rights, or of what Prof. Stephen Gilles calls "liberal parentalism."   Here is the abstract to that paper:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

Interesting readers might also want to check out our own Mike Scaperlanda's take, here.  

December 17, 2014 in Garnett, Rick | Permalink

Tuesday, December 16, 2014

New Edition of Dawson's "The Gods of Revolution"

Here is a new edition of a work by the brilliant historian, Christopher Dawson--The Gods of Revolution--first published in 1972. The book was Dawson’s last monograph, published posthumously The Gods of Revolution with an introduction by Arnold Toynbee, with whom Dawson shared both a wonderfully sweeping methodological style and an interest in certain overarching religious themes--a style and a set of interests that quite went out of fashion in the work of many subsequent historians. The volume has been reissued by CUA Press with a new introduction by Joseph Stuart. In a college course in the intellectual history of western civilization many years ago, one of the required readings was the final part of Dawson’s book. I went back and looked at it, and have the following line highlighted: “And a free society requires a higher degree of spiritual unity than a totalitarian one, hence the spiritual integration of western culture is essential to its temporal survival.” Here is the publisher's description.

In The Gods of Revolution, Christopher Dawson brought to bear, as Glanmor Williams said, “his brilliantly perceptive powers of analysis on the French Revolution. . . . In so doing he reversed the trends of recent historiography which has concentrated primarily on examining the social and economic context of that great upheaval.”

Dawson underlines the fact that the Revolution was not animated by democratic ideals but rather reflected an authoritarian liberalism often marked by a fundamental contempt for the populace, described by Voltaire as “the ‘canaille’ that is not worthy of enlightenment and which deserves its yoke.” The old Christian order had stressed a common faith and common service shared by nobles and peasants alike but Rousseau “pleads the cause of the individual against society, the poor against the rich, and the people against the privileged classes.” It is Rousseau whom Dawson describes as the spiritual father of the new age in disclosing a new spirit of revolutionary idealism expressed in liberalism, socialism and anarchism. But the old unity was not replaced by a new form. Dawson insists the whole period following the Revolution is “characterized by a continual struggle between conflicting ideologies,” and the periods of relative stabilization such as the Napoleonic restoration, Victorian liberalism in England, and capitalist imperialism in the second German empire “have been compromises or temporary truces between two periods of conquest.” This leads to his assertion that “the survival of western culture demands unity as well as freedom, and the great problem of our time is how these two essentials are to be reconciled.”

This reconciliation will require more than technological efficiency for “a free society requires a higher degree of spiritual unity than a totalitarian one. Hence the spiritual integration of western culture is essential to its temporal survival.” It is to Christianity alone that western culture “must look for leadership and help in restoring the moral and spiritual unity of our civilization,” for it alone has the influence, “in ethics, in education, in literature, and in social action” sufficiently strong to achieve this end.

December 16, 2014 in DeGirolami, Marc | Permalink

President Obama's Immigration Action Unconstitutional According to U.S. District judge

A United States District judge has concluded that President Obama's Executive Action on Immigration is unconstitutional as beyond the president's prosecutorial discretion. The opinion is here.

December 16, 2014 in Scaperlanda, Mike | Permalink

Monday, December 15, 2014

An important case in Colorado

Once again, the Blaine Amendments threaten to play Grinch and undermine creative education reform, this time in Colorado.  More here.

December 15, 2014 in Garnett, Rick | Permalink

Program Director sought for LMU's "Academy of Catholic Thought and Imagination"

More info is here.  Spread the word:

The Academy of Catholic Thought and Imagination (ACTI) is a community of scholars who work in dialogue with the Catholic intellectual tradition by developing, critically examining, communicating, or otherwise engaging the rich resources of Catholic thought and imagination, especially as it is informed by Jesuit thought tradition and Ignatian spirituality. The director will oversee all aspects of the Academy which serves as a hub for scholarship, interdisciplinary research, innovative pedagogy, and creative outreach across LMU’s campus, in the greater Los Angeles community, and beyond. The Academy is a strategic priority at Loyola Marymount University and the director reports directly to the provost. 

December 15, 2014 in Garnett, Rick | Permalink

Saturday, December 13, 2014

Upcoming conference (AALS overlap!): "The Vocation of a Christian Law Prof"

For everyone planning on attending the AALS Annual Meeting in DC -- and for any law professors or law students who'll be in the area in early January! -- here's information about the upcoming Lumen Christi / Law Professors Christian Fellowship event, featuring our own Rob Vischer and Prof. Barbara Armacost (U. Virginia).  Sign up now!


December 13, 2014 in Garnett, Rick | Permalink

"Public Schools and the Wall of Separation"

Over at First Things, Mark Bauerline has a helpful report about a recent lecture by Philip Hamburger -- author of (among other things) the crucially important book, Separation of Church and State -- on the "wall of separation" metaphor, public schools, religious freedom, and anti-Catholicism.

December 13, 2014 in Garnett, Rick | Permalink

Friday, December 12, 2014

Great job opening: Direct of Center for Catholic Studies, UST

The University of St. Thomas is searching for a Director for its Center for Catholic Studies, which, among many other wonderful things, is the co-sponsor (along with UST Law School) of the Murphy Institute for Catholic Thought, Law, and Public Policy (which I co-direct).  Here's the description of the enterprise of the Department & Center for Catholic Studies, from the job posting:

The Department and the Center for Catholic Studies comprise an integrated project at St. Thomas. While the Department focuses principally on degree-granting activities, the Center oversees the work of three major institutes and a quarterly journal. It also sponsors multiple lectures and faculty development programs. The director of the Center will be responsible for coordinating the work of these institutes as well as other forms of outreach within the university and the broader community. This will include work with benefactors and other development activities.


The Department offers an undergraduate major and minor as well as a graduate degree (M.A.) in Catholic Studies.  In our teaching and scholarship, we are committed to the complementarity of faith and reason across all academic disciplines, to sustaining and developing the richness and breadth of the Catholic intellectual tradition, and to the general principles articulated in Ex corde ecclesiae.  We seek candidates who share these commitments. 


More details here.

December 12, 2014 in Schiltz, Elizabeth | Permalink

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here's the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

December 12, 2014 in DeGirolami, Marc | Permalink

Thursday, December 11, 2014

"The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History." (Lord Acton)

Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances. 

The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:

No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.

Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.

Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.

Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.

If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.

The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.

Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.

Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.

Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.

December 11, 2014 in Walsh, Kevin | Permalink

A Swing and a Miss (Times Three)


It’s that time of year again . . . when Major League Baseball hosts its Winter Meetings.  At the same time that many people are shopping for Christmas presents for their loved ones, professional baseball clubs are shopping for players to improve their rosters.

Here in the Second City, the Chicago White Sox are looking to improve from a dismal season in 2014, whereas the Chicago Cubs are looking to recover from a dismal century.

One of the Cubs most famous fans is retired Supreme Court Justice and Chicago native John Paul Stevens.  It would be wrong to criticize Justice Stevens’ judgment for being a Cub fan – a burden and a joy that he inherited from an early age.  But he can most definitely be faulted for his errors in judgment as a member of the Court.

Three of Stevens’ most flawed opinions concern abortion: Thornburgh, Webster, and Casey.  In each of these opinions Stevens embraced a mantra repeated again and again by pro-choice advocates, viz., that the pro-life position on abortion is “inherently religious” such that legal efforts to protect the developing human embryo or fetus constitute an establishment of religion in violation of the First Amendment.  The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one. 

The claim that the pro-life position is religious has a long pedigree going back to Glanville Williams’ The Sanctity of Life and the Criminal Law (1957) and Lawrence Lader’s “Catholic strategy” at the founding of NARAL, but Stevens is its most prominent spokesperson.  Surprisingly, however, a close, critical reading of Stevens’ opinions in Thornburgh, Webster, and Casey is almost entirely absent from the scholarly literature.

In a recently published article entitled “Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens Opinions in Thornburgh, Webster, and Casey, I seek to remedy that absence. 

The article demonstrates that Stevens simply takes for granted the central claim upon which the conclusion of establishment turns – the religious character of pro-life legislation.  He then employs this assumption rhetorically in order to dismiss a point of view he never squarely confronts.

In this regard, Stevens’ approach is exemplary of the vast majority of academic commentators who have put forth the same claim.  (Two commentators on abortion, Peter Wenz and Ronald Dworkin, at least recognize that an argument needs to be made to show that a particular proposition possesses some quality that renders it “religious” and so unsuitable as a basis for law.  Their arguments also fail, as I intend to show in a subsequent article, but at least they recognize the issue).

The article also shows that Stevens’ characterization of religious establishment is so broad that it would render any attempt to define who is a human being worthy of legal protection (including Stevens' own) unconstitutional.  Although Justice White made this very point in Thornburgh, Stevens never responds to it in any of his opinions, echoing the silence in the academic literature to the same argument that John T. Noonan, Jr. put forth years earlier in his book, A Private Choice (1979).

The article also argues that Stevens’ cryptic invocation of the “endorsement” test in Webster fails, and that he covertly repudiates the principle of McGowan v. Maryland.

Although Stevens has many admirers, the naked assertions and inconsistencies that he offers in these opinions must constitute the intellectual low-point of his tenure on the bench.  As a Cubs fan, Stevens knows all about low points, but unlike the Cubs record, these are of his own making.


December 11, 2014 | Permalink

Wednesday, December 10, 2014


It should be obvious that the project here, "Catholic legal theory," requires or depends upon, if it is to be (even) coherent, several reliable (if contestable) definitions. One of those defintions pertains to "law" and, derivatively, "legal."  The Catholic tradition isn't impoverished when it comes to the question of what it takes for something to stand as law or legal.  In the (correct) view of that holy tradition, what the civil legislature does that fails to serve the common good also fails, for that reason, to be law in the full or focal sense of "law" (and therefore can and, subject to the control of the virtue of prudence, must be disobeyed in circumstances in which disobedience would serve the common good).  Also in the view of that same holy tradition, law is not only, or in the first instance, the deliverance of the civil authority.  There is always and earlier the higher law, that of Christ the King.  Given Christ's kingship over all, His higher law (authoritatively interpreted by the Church) must serve as the governing norm if the civil polity is to seek the common goods, earthly and eternal.  Law, even Christ's, doesn't exhaust the field, however.  Mercy and forgiveness have their respective places in the divine economy, thank God, but they do so because the same God first (and thereafter His civil viceregents) ordered humanity to the common goods.  Mercy and forgiveness, in their true respective senses, depend upon an antecedent architecture in which the legisator has truly legislated (necessarily for the common goods).  It's high time certain discussants of the current predicament, including those souls dissecting, promoting, etc., the incessant (and oddly ultramontanist) soundbites issued from a guesthouse at Rome, recall that the human mind is in virtue of Creation itself a legally "measured measure."  Forgiveness, therefore, is (as it were) graciously parasitic on law.  Thank God for His forgiveness, but first for His law.   

December 10, 2014 in Brennan, Patrick | Permalink

Monday, December 8, 2014

Herbert McCabe, OP on the Immaculate Conception

We often remark here at Mirror of Justice that the central questions of Catholic legal theory are those of human anthropology and human nature. (Even if, like Elizabeth Anscombe, I'm not at all sure that [modern] reflection on "the self" is a meaningful or important philosophical question, see Faith in a Hard Ground: Essays on Religion, Philosophy, and Ethics at p. 67.) On what it means for said human nature to be redeemed, here is an excerpt from a homily by my late friend Herbert McCabe, OP on today's feast:

In Mary the redemption reaches down to the roots. In us it is not yet radical, but through our death in Christ and our resurrection in him it is to become so. So far we are only sacramentally redeemed, in the sacramental death and resurrection of baptism - this is something real, it is not merely play-acting, but it is only sacramental, it is not yet in our flesh. The redemption of Mary is pre-sacramental, she does not need baptism or Eucharist, she needs Christ only and has him in her existence in her very flesh. For this reason her redemption, which is pre-sacramental, is a sign and foretaste of the post-sacramental, the life of the risen body, the future kingdom. Her Assumption is the beginning of the resurrection of all who are taken up into Christ’s resurrection.

This, then, is how we are to cash the doctrine of the Immaculate Conception. This is the difference in practice that the doctrine makes. We are not to look for this difference in the biography of Our Lady, in her character or in her behaviour. In this sense the doctrine is not about that. It is not, for instance, about the fact that she committed no sin. You could hold, as Thomas Aquinas did, that she was sinless and still deny, as he did, the Immaculate Conception. The Immaculate Conception does not make that sort of difference to Mary; it did not make any noticeable difference to her - as I have suggested there is no reason to suppose that she knew about it. What it makes a difference to is our understanding of what it means for her to be redeemed and therefore what it will eventually mean for us to be redeemed. To assert this doctrine is to assert the mysterious fact that our holiness will not stop short of the roots of our being, that we too are to become radically holy. 

And this is a strange doctrine. At the moment we are forgiven sinners; we are forgiven but we are people who have been sinners, we have been subject to the sin of the world, moreover we have at times opted for the sin of the world. Both things are true: we have contrition for our sins even as we celebrate our forgiveness. Being realistic and honest and therefore contrite about our sins is the sign and result of our being forgiven. (That is why confession is an important part of the sacrament of Penance.)

What we celebrate on the feast of the Immaculate Conception is that Christ’s love for us brings us further than this. What he wants for us is not just that we should be forgiven sinners but that we should be as though sin had never been. Redemption for us will involve a rebirth from an immaculate conception. Our redemption will not just be the successful end of a journey, the triumphant culmination of the history of man, but in some utterly mysterious way we will be freed from our history, or our history will be taken up into some totally new pattern in which even our sins become part of our holiness. We will somehow be able to accept them as God accepts them. There will be no more sorrow for sin, no more remorse over the past, no more contrition; we will be radically and totally free: ‘And all things shall be well and all manner of things shall be well ... when the fire and the rose are one’ (God Matters, pp. 213-14).

December 8, 2014 in Moreland, Michael | Permalink

Timely (and timeless?) wisdom from Justice Brennan

From his concurring opinion, in McDaniel v. Paty (1978):

That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife, does not rob it of constitutional protection. . . .   The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally.


Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches, as much as secular bodies and private citizens, have that right. . . .


The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals, and therefore subject to unique disabilities . . . .  Government may not inquire into the religious beliefs and motivations of officeholders -- it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction . . . ..


In short, government may not, as a goal, promote "safe thinking" with respect to religion, and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists, no less than members of any other group, enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion as it has done here . . . .  It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life. . . .


Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion, or from becoming drawn into ecclesiastical disputes. [n26] These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines, and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas, and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best.

December 8, 2014 in Garnett, Rick | Permalink

Oral argument before Tenth Circuit panel to be held this morning in the Little Sisters of the Poor mandate challenge

A three-judge panel of the United States Court of Appeals for the Tenth Circuit will hear oral argument this morning in three cases brought by religious nonprofits seeking relief under RFRA and the First Amendment from compliance with the federal government's contraceptives mandate. These three cases are Little Sisters of the Poor v. Burwell, Southern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. The three judges are Judge Scott M. Matheson, Jr., Senior Judge Monroe G. McKay, and Senior Judge Bobby R. Baldock.

Of these three cases, the Little Sisters of the Poor case is probably the highest profile because the Little Sisters' case was only of only two in which religious nonprofits who sought preliminary relief were without it by late afternoon on New Year's Eve 2013. Justice Sotomayor's grant of temporary relief to the Little Sisters that evening , followed by the full Court's provision of such relief a few weeks later, was covered by national press. (The other case was Notre Dame's, but Notre Dame did not seek the same emergency Supreme Court relief that the Little Sisters sought.)

Although the complaint was filed over a year ago, this morning's hearing is the first time that lawyers for the Little Sisters of the Poor (as well as two Christian Brothers entities with whom the Little Sisters offer a health benefits plan) will appear in a courtroom with government lawyers to argue in person. Everything else has been done on paper.

The arguments were originally scheduled for September, but ended up being moved back to today. As the Little Sisters have noted: "December 8th is the feast of the Immaculate Conception, the patroness of the United States and our Congregation’s patroness. Little Sisters around the world renew their vows each year on the feast of the Immaculate. Please be assured of our prayers for you on this beautiful feast day." 

This kind of correspondence is not without precedent. The Supreme Court heard oral arguments in Hobby Lobby on March 25, the Feast of the Annunciation. (Admittedly, the Catholic Church does have many feast days.) In any event, even if you can't make it to the Byron White United States Courthouse in Denver this morning, please keep the Little Sisters, Christian Brothers, and their lawyers in your prayers. (If you're Catholic, you can do this while discharging your duty to attend Mass on this holy day of obligation.)

December 8, 2014 in Walsh, Kevin | Permalink

Sunday, December 7, 2014

Martha White Price, UST Law: "Why I Fell in Love with Rural Legal Practice"

There is a crying need for lawyers in rural areas, especially the rural Midwest. Despite the opportunities there to serve people, opportunities available in a tight job market, students often are reluctant because they wonder whether the practice will be satisfying. Here is a wonderful piece from St. Thomas law student Martha White Price (class of 2015) on why it is satisfying. Martha currently clerks in the public defender's office for Owatonna, MN (population 25,600) and surrounding rural areas, doing highly substantive legal work. She concludes her article:

Volunteering to clerk in a rural area was a game changer for my law school career.  I encourage every law student to give it a shot.  Even if you don’t fall in love like I did, you will certainly sharpen your skills, make friends, and help people who desperately need it.

I hope her experience inspires other students. MOJ-ers, I encourage you to pass this--or some experience like it--on to your students.

December 7, 2014 in Berg, Thomas | Permalink

America the Supranational

The recent edition of Modern Age includes a welcome symposium devoted to "American Foreign Policy."  The essay contributed by  James Lucier, "former staff director of the U.S. Foreign Relations Committe," stands out.  Lucier presses for the US Constitution on the ground that it recognizes that "man is a fallen creature and ... human nature will never change."  It's true, of course, that human nature will never change.  It's also true that we humans are all fallen creatures.  What Mr. Lucier refuses to acknowledge, because he is out to defend the Anglo-American legal indifference to salvation, is the power of the supernatural.  Lucier rages that under civil (as opposed to common) law, "[t]he right of the individual is subordinated to the order of the common good."  The priority of the common good should have been clear to Mr Lucier, but his preference for "the individual" (his term) triumphed.  

December 7, 2014 in Brennan, Patrick | Permalink

MOJ and Father Robert Barron’s Reflections on the New Evangelization (Part 2)

Illuminated bible

Some months ago I published a post (here) in which I recounted two of the seven themes on the New Evangelization that Father Robert Barron addressed in a lecture at the Union League Club in Chicago sponsored by the Lumen Christi Institute.  (An earlier version of the talk that Father Barron delivered can be found here).  These first two themes were to (1) “lead with beauty” rather than goodness or truth and (2) a warning not to “dumb down Catholicism” but to explore the riches of the Catholic intellectual tradition and to share it with others.  In the prior post I tried to connect these themes to the MOJ project and the work of Christian law professors.  Here I take up the third of Father Barron’s themes concerning the New Evangelization.

3.  Preach with New Ardor

The injunction to “preach with new ardor” comes from Pope John Paul II.  In March 1983 the Pope addressed the Latin American Bishops Conference (“CELAM”) gathered in Port-a-Prince, Haiti.  He said that the Church needed a “New Evangelization that is new in ardor, new in method, and new in expression.” (The quotation can be found here).  The new evangelization is not new in content in that the Church passes on the faith in its integrity as she has received it.  Although our understanding of the faith deepens through the process of development over time, “Jesus Christ is the same yesterday, today, and forever” (Heb. 13:8).  However, the New Evangelization is new in that it is a self-conscious encounter with modern men and women in their contemporary culture and circumstances.

The need for ardor, Barron said, goes back to Aristotle’s comment in the Rhetoric that people only really listen to an “excited speaker” – to someone genuinely convinced of the importance of that which he or she is trying to communicate. 

I think we have all encountered the truth of this in the classroom – whether as students or teachers.  Enthusiasm can be infectious and indifference breeds indifference.

The source of this ardor is the good news, the glad tidings of the Christian message: Jesus Christ is risen from the dead!  Declaring this good news is evangelization, and evangelization is, as Paul VI declared in Evangelii Nuntandi (¶ 14), the Church’s reason for being:  “She exists in order to evangelize.”  This good news is not a myth or a literary device or a symbol of the fulfillment of human longing.  It is a fact in human history.  Proclaiming the historical fact of Jesus’ bodily resurrection has proven to be a stumbling block to some men and women of every age, but this astounding and radical claim is the heart of the Gospel message. 

Expressing ardor for the Gospel as a law professor (whether as a teacher in the classroom, as a scholar, or as a faculty colleague) is a delicate matter full of risk – risk of ridicule (because religion is viewed in the contemporary academy as anti-intellectual, and Catholicism in particular is seen as corrupt, patriarchal and misogynist), and risk of being misunderstood (i.e. where the ardor of conviction is taken as intolerance for the views of others).  The law school classroom is for teaching students the substance of the law, the skills of legal analysis, and the various theories behind law.  Because law is a normative discourse, teaching the law invariably involves discussions of a normative nature.  Still, one shouldn’t see the law school classroom primarily as a platform for teaching theology, scripture, or catechesis, although there are occasions when this will and ought to take place as anyone who has taught a course on Catholic social thought and the law, the Bible and the law, or canon law can attest. 

Rather, the ardor for the faith should be apparent to students and colleagues alike in what one holds to be true and how this is reflected in how one lives his or her life.  Because “[m]odern man listens more willingly to witnesses than to teachers” the “first means of evangelization is the witness of an authentically Christian life” (Evangelii Nuntandi ¶ 41).  The hope is that others will see one’s faith not as a badge of cultural identity or family heirloom all but forgotten and safely ignored, but as a thing of beauty – as something that inspires ardor, as something worth living for and (if need be) dying for.

Here Father Barron reminded the audience that, at its root, Vatican II was a missionary council.  Its primary aim was not the reform of the Church but the “Christification” of the world.  The Council did, of course, institute several reforms (most notably the liturgy) and laid the groundwork for several others (e.g. the Synod of Bishops).  Some of these reforms were begun under Paul VI and John Paul II, but others may only now be brought to fruition (i.e. Pope Francis’ reorganization of the Roman Curia).  The point of all these institutional changes is to not to help the Church conform to the world and its times, but to make the Church a more apt vehicle for the proclamation of the Gospel.

I would add that, consistent with Vatican II, it is incumbent on those institutions that identify themselves as “Catholic” to reflect this ardor for the Gospel.  Too often, it seems, Catholic institutions see their professed identity as a burden to be endured rather than a joy to be celebrated.  At least, that is what I have generally observed in my study of American law schools operating under Catholic auspices.  (There are, of course, a few discrete exceptions).

These law schools regard their affiliation as so many rocks that act as ballast to be tucked away, out of sight in the hold of the ship – ballast that weighs them down and keeps them from moving “forward” at the desired pace.  True, ballast is something that that must be carried, but in the case of a genuine Catholic identity the burden is light (cf. Matt. 11:30).  It is a weight that does not impede but enables.  It keeps the ship from listing on a calm day, and steadies it in stormy seas. 

Not a millstone (Luke 17:2), it is the pearl of great price (Matt. 13:46).  It is also both a lodestone and the North Star (the immanent and the transcendent) that gives the school a sense of direction.  It alerts passengers and crew alike “This is who we are and where we are going” but leaves the specific route to its current occupants. 

That some in contemporary culture will reject this identity (“pearls to swine” Matt. 7:6), that some will walk away is to be expected (John 6:60-65).  That some colleagues in the academy will think less of a school because it overtly and meaningfully identifies itself as “Catholic” is an inevitable part of the price of discipleship.  But many wander through Chartres cathedral or Sainte Chappell and stare up in amazement for a few moments and then walk away.   But some lookup and want to know more, and the Church in her ardor must be prepared to share the good news that she has learned with joy.

I suspect that Barbara Armacost and Rob Vischer will address at least some of these themes at the Law Professors Christian Fellowship-Lumen Christi Institute program at the University Club in Washington, D.C. on January 2, 2015 on “The Vocation of a Christian Law Professor” (see here).  It will be interesting to hear what they have to say.

December 7, 2014 | Permalink

Mourning The New Republic--at Slate!

At Slate, media professor David Greenberg mourns the effective death of The New Republic, which he attributes not so much to digital-media economics as to the fact that the magazine's one-time  "heterodox liberalism--the willingness (indeed the eagerness!) to test liberal thinking from within the liberal family—is now being squeezed":

Internet journalism has made it easy to find opinions that confirm one’s own beliefs and flatter one’s prejudices... The left and the right are retreating into cocoons of information and opinion, on cable TV and social media....

[The end of TNR is regrettable because:] Conservatives need a liberal magazine that’s unpredictable enough to make them want to read it. Liberals and leftists need a magazine that will prod them to question their beliefs, and revise or strengthen them.

I'm glad Slate was willing to publish a piece that scores a bullseye on exactly what's wrong with ... Slate. I'm refusing to read the comments to the piece, but I can only imagine they will validate everything Greenberg says about Internet readers expecting "cocoons of [confirming] opinion." 


December 7, 2014 in Berg, Thomas | Permalink

Saturday, December 6, 2014


In a world in which whatever doesn't violate the harm principle goes, forgiveness is a mostly idle concept.  In the real world, however, where we sin in all kinds of ways and degrees that elude Mill's impoverished and arbitary norm, forgiveness is the gift of life.  Literally.  Forgiveness, often mistakenly analyzed as an optional piece of supererogation, is required by the very requirements of proper self-love itself, and it is therefore required without condition.  The refusal to forgive works an abominable self-annihilation.  The free and respectful granting of forgiveness liberates.  Forgiveness does not entail reconcilation --  forgiveness is sufficient unto itself, as all of us who have been forgiven by the Divine Judge should be quick to announce.  I argue the (controversial) case for UNconditional forgiveness here 

December 6, 2014 in Brennan, Patrick | Permalink