Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, July 30, 2016

Kaine Says He Still Supports Hyde Amendment

Since others have previously noted here the reports that Tim Kaine dropped his support for the Hyde Amendment--the ban on federal taxpayer funding for abortions--we should also note that he has now told CNN that he continues to support the Amendment and has not changed his position. 

It's legitimate, of course, to question whether this makes the slightest difference. The Clinton campaign says it does not; they seem to suggest (as reported by CNN above) that Kaine only "personally" supports the Hyde Amendment and will actually help support "carry out" efforts to overturn it. (This is an interesting, and not very comprehensible, extension of the "personal vs. political position" distinction concerning abortion.) It's far from unheard of, obviously, for a VP candidate to disagree with some aspect of the platform; but if he has to support "carry out" a given policy in his official acts, it's not clear what "personally" disagreeing could really mean. For example, what would he do if he had to break a tie in the Senate over Hyde? The Clinton campaign, as a tactical matter, may simply have OKed him to make this latest statement, in order to have out there a small symbolic nod toward the middle of the country on abortion without making any change in the announced policy.

Nothing more could be claimed for the effect of Kaine's position than this modest point: It is better, from the standpoint of affecting immediate policy, to have someone in a Democratic White House circle who has some qualms (however limited) about forcing others to support abortion, and is willing to express those qualms, than it is to have no one with any such qualms. When the Obama contraception mandate was amended in 2012 to make the first provision for the "accommodation" for nonprofit schools and charities--which, as refined and strengthened, may become the basis for resolving the issue--it was reported that Vice President Biden had led in expressing the need to do some such accommodation, prevailing over those on the side of the abortion-sympathetic groups, who had not expected any accommodation to be adopted. I would hope and urge that if Clinton is elected, Tim Kaine would play such a role, but I certainly don't know whether he would.

July 30, 2016 in Berg, Thomas, Current Affairs | Permalink

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils's Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of "attachment to a particular epoch or a particular deed or a particular generation in the past."

July 30, 2016 in DeGirolami, Marc | Permalink

Friday, July 29, 2016

Moreland and Moreland on Amoris Laetitia

Theologian Anna Bonta Moreland (who happens to be my wife) and I discussed Pope Francis's apostolic exhortation Amoris Laetitia at the University of Chicago Divinity School a few weeks ago at an event sponsored by the Lumen Christi Institute, and the video has been posted here. For MOJ purposes, I included some remarks about implications for the law raised by the document in the areas of marriage, education, and adoption.

July 29, 2016 in Moreland, Michael | Permalink

Divine Rights and Human Rights

That's the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning:

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine? “All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power: “For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons. Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

July 29, 2016 in DeGirolami, Marc | Permalink

Thursday, July 28, 2016

A “Man for Others” . . . Well, Some Others, But Not All

Tim Kaine -- DNC 2016

Tim Kaine had this to say last night in his speech (here) accepting the Democratic nomination for Vice President:

I went to a Jesuit boys high school, Rockhurst High School.


Wow, that’s a big line for the Jesuits.

Now we had a motto in my school, “men for others.” And it was there that my faith became something vital. My north star for orienting my life. And when I left high school, I knew that I wanted to battle for social justice.

No doubt later today, there will be many posts on social media and on various Jesuit, and Catholic, and political blogs extolling the virtues of a Jesuit education and repeating with pride the phrase that Pedro Arrupe made so famous: “Men for others.”

And no doubt many of these same commentators will hold up Tim Kaine as an exemplar -- beaming with pride at the fact that Kaine is both the product of Jesuit education and that he openly identifies himself as such. And, indeed, Kaine tied his Jesuit education to his vocation in politics – the “north star” that oriented his life and made him want to “battle for social justice.”

To truly be a “man or woman for others” is surely to follow the “north star” by which to set one’s course in life.  But to do so authentically and with integrity means acting with justice towards all the members of the human family.

And this includes the unborn. Child in the womb

Unfortunately, Tim Kaine’s political career is marked by a conscious disregard for the most vulnerable human beings.  He insists, of course, that he’s “kind of a traditional Catholic” in that “personally I’m opposed to abortion” (here), but he strongly affirms Roe v. Wade.  His rationale for this position is the same intellectual drivel and incoherence that Mario Cuomo offered back in 1984 that has become the pat answer of pro-choice politicians who claim to be Catholic. (For my critique of Cuomo’s address see here).

Kaine claims that abortion is in “the personal realm,” that abortion and other matters of “intimacy” are “moral decisions for individuals to make for the themselves and the last thing we need is government intruding into those personal decisions.”

This, of course, is not an argument as to why the abortion decision should not be a matter of public concern, only a reaffirmation that it should not be.  And it makes no sense if, as Kaine says (together with Cuomo, and Biden, and Pelosi, and many others) that he believes what the Church holds concerning the sanctity and inviolability of innocent human life in the womb.  Or rather this makes sense only if belief in the sanctity and inviolability of innocent human life is inherently religious, and so unfit as a goal of public policy.  This is intellectually vapid.  Seeking to protect the lives of unborn human beings is no more incapable of being described and justified in secular terms than the humanitarian work that Tim Kaine performed in the Jesuit Volunteer Corps in Honduras.

  IHS Jesuits
Indeed, the Society of Jesus bluntly disagrees with Kaine’s flawed characterization of the issue. In its prophetic document Standing for the Unborn, the Jesuits in the United States made plain that “abortion is a human rights issue.” As such, it stands on at least the same moral footing as the work that Tim Kaine did in Honduras.

Moreover, abortion is not, said the Jesuits, merely a “personal preference or private choice” precisely because the decision involves the killing of an innocent human being.

Further, opposition to abortion does not, says the Jesuits, involve “the imposition of a narrowly-confined religious position upon an unwilling majority” but “reasonable arguments accessible to people of all faith traditions and people of none.”

Moreover, because Jesuits are dedicated to “faith and the promotion of justice,” all Jesuits and Jesuit institutions “must seek an end to the injustice of abortion.”

Finally, Jesuits are committed to the process of respectful dialogue, confident that the truth will persuade and succeed in “narrowing the gap between the current civil law of our nation and the demands of the moral law.”  This “way of proceeding” of course precludes the kind of “go along, get along” approach of ignoring and renouncing the pro-life cause so common among Catholics in public life.

But Tim Kaine has not proceeded on the path of social justice set forth by the Society of Jesus. He has instead earned a 100 percent approval rating from Planned Parenthood and NARAL Pro-choice America (here).  And, as Rick has pointed out, Kaine has now repudiated his long held support for the Hyde Amendment (here).  Since becoming Hilary Clinton’s running mate he has embraced the view set forth in the Democratic Party’s platform calling for repeal of the Hyde Amendment and full federal funding for elective abortions under Medicaid, and for payment for abortion under all health insurance plans (p. 37).

There is no social justice in this perverse proposal for the subsidized killing of our youngest and most vulnerable relations.  To truly be a “man for others” one cannot exclude certain members of the human family either because it is politically expedient, or because it helps to advance one’s career.  To do so is the repudiate the very premise that purportedly animates one’s pursuit of social justice in the first place – the dignity of the human person.

Black Hole

Roe v. Wade is no “north star.” It is a black hole that has set our nation, our Constitution, and the moral lives of countless individuals on a calamitous course – a road to the heart of darkness.

Given all this – given the substance of his position on the most vital civil rights issue of our day, and not simply his rhetoric – Tim Kaine’s overt identification with the Jesuits should be a source not of pride but of embarrassment.  It is a sign of failure – in catechesis, in training in philosophy and reason, in the formation of character -- especially courage.

Of course as with any person, Kaine is not simply a product of his high school education and his service in JVC.  He has also been formed by his legal education, and practice, and government service, and party affiliation.  He has been formed by larger currents of moral an political thought operating in the culture.

One would like to think that he has also been formed by his life in the Church – his participation in the sacraments and parish life. But where is this in evidence when it comes to the issue of life?  Perhaps in ways unseen that (we hope and pray) will emerge.

Still, rather than the back-slapping that one is likely to see among the Jesuit fraternity of priests, alumni and alumnae, one would instead hope to see some genuine introspection.  If Tim Kaine is an exemplar – if he truly represents the best of what Jesuit education is all about – then I would suggest that the current leaders, teachers and alums of Jesuit institutions should ask themselves a few simple questions: “Where did we go wrong? How can we correct this?”

July 28, 2016 | Permalink

Wednesday, July 27, 2016

Character matters (especially for new lawyers)

Yesterday the Institute for the Advancement of the American Legal System released the results of a multi-year study in which 24,000 attorneys from all 50 states participated. One key conclusion is that new lawyers need not only IQ and EQ, but also “a high ‘character quotient.’ Integrity, work ethic, grit, and common sense are just a few of the necessary characteristics.” From the report:

[According to the lawyers surveyed, new law school grads] need to have a blend of legal skills and professional competencies, and, notably, they require character. In fact, 76% of characteristics (things like integrity, work ethic, common sense, and resilience) were identified by half or more of respondents as necessary right out of law school, while just 46% of professional competencies (like arriving on time, listening attentively, and teamwork) were identified by half or more as similarly necessary. Legal skills (like legal research, issue spotting, and legal analysis) were identified by half or more of respondents as necessary right out of law school to an even lesser degree than either characteristics or professional competencies. Specifically, fewer than half of the legal skills we asked about—just 40%—were identified as necessary right out of law school. This is not to suggest that legal skills were viewed as unnecessary by respondents. In total, 98% of the legal skills we asked about were identified as necessary, but they were identified as foundations that could be acquired over time and that were not necessary as the new graduate entered his or her career.

As Catholic law schools work to articulate how a school's Catholic identity can and should matter to students faced with a difficult job market, these insights are key.  Other law schools can build character too, of course, but if we've been taking seriously the relevance of whole-person education, meaningful community, mentoring, and moral formation to our Catholic legal education project, we should have a significant advantage. 

July 27, 2016 in Vischer, Rob | Permalink

Reporting on the murder & martyrdom of Fr. Jacques Hamel

At Get Religion, Terry Mattingly has an important post up on the importance of reporting the facts, including the "hellish details", of the story.  Here's hoping we see more, in terms of responses, than just a flurry of hashtivism.

July 27, 2016 in Garnett, Rick | Permalink

Well, that was quick: Sen. Tim Kaine flips on the Hyde Amendment

Sen. Tim Kaine, the Democrats' candidate for Vice-President, is a practicing Catholic, and his position on abortion has been described in some quarters as "nuanced," because, in the past, he signed legislation allowing modest regulations (like parental notice) and limiting partial-birth abortion.  Apparently, though, only a month after telling a magazine that he supports the Hyde Amendment . . . he no longer does.  The new Democratic platform is, with respect to abortion, the most aggressive and radical its ever been -- and this in a year where the VP candidate is described by some as a "Pope Francis Catholic."  (I imagine the Holy Father would say, "well, sure:  like me, and like all of you, he's a sinner.)

". . . for Wales?"

July 27, 2016 in Garnett, Rick | Permalink

The leaked DNC emails reveal big-money backing for anti-religious freedom efforts

Story here.

July 27, 2016 in Garnett, Rick | Permalink

Tuesday, July 26, 2016

More on Trump, Clinton, Willing, and Proportionality

Following up on Rick's quick reply to me, an even quicker sur-reply:

Actually, in discussing votes for either Trump or Clinton, we (I?) kind of went on a tangent about whether one was/wasn't "willing" the accompanying bad stuff in voting for either candidate. In fact, neither one of us is really talking about "willing" the bad stuff--and whether you will the bad stuff does not (I think) depend on whether the bad stuff is substantially certain to happen. Theologians correct us here, but ... Even if one knows that Trump's day-to-day outrages will happen, and even if one knows that Hillary's attacks on religious freedom etc. will happen, that doesn't mean one wills either of them. You can will the good things associated with your chosen candidate (which can include, as Rick has indicated, the good of stopping the other (horrendous) candidate), and conclude that those good things outweigh the bad that is likely to come with the chosen candidate. So, as seems most common in the voting context, we are  talking (I think)  about material cooperation and proportional reasons for voting, not about formal cooperation. Again, theologians set us right if needed.
So then the issue becomes how bad each candidate is, given all the factors, and the alternatives, including the alternative of voting for neither. Then the point of my original post's first half--the response particularly to Rick's leadoff post--was that in such a calculus, Trump will still be very seriously bad, day to day and in unknowable, uncharted ways, even with all the checks on him. (As for "laziness" as a check, he doesn't seem to be very lazy about the things--often petulant and idiosyncratic things--that interest him most; that's part of why he's so risky.) And the point of my original second half was the very serious bad things with Clinton, which for me are more isolated but nonetheless very serious.


July 26, 2016 in Berg, Thomas, Current Affairs | Permalink

A response to Tom Berg regarding Trump, voting, etc.

I appreciate Tom's response to my recent post .  Although, unlike Tom, I tend to think that most of the policy positions associated (at least, associated until recently!) with the Republican Party (though not with the current nominee!) better serve, on balance, the common good than those associated with the Democratic Party, I agree with very much of what he says in his post.  

I agree, to be clear, that Donald Trump "exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge."  I agree that many of his statements "have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse."  And, I agree that (quoting my earlier post) the "state of affairs that is likely to come to pass as a result of the election of [Donald Trump]" will almost certainly include many such statements and many erratic actions.  I suggested in my post, and I continue to think, that "Congress, the courts, the press, the bureaucrats, [and Trump's] laziness and ignorance" would meaningfully constrain him, were he elected, but I agree they would and could not completely constrain him.  It's a bad, bad situation.

All that said, I'm not convinced by what Tom says here:

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented.

It seems to me that it could be that what one "wills" (I guess I'm thinking Model Penal Code-type "purpose" here) when one votes for Trump is simply and only that the agenda of a Clinton Administration (which would be much less constrained by the press and by presidential laziness) be stopped.  What one "wills" need not include, it seems to me, the erratic behavior and offensive statements that one (with regret) expects.  (Cue the arguments among those who are smarter than I am about whether one "intends" what one "knows", etc. . . .)  

I also think, in response to Tom's statement that Clinton's "flaws are not in his category," that while Clinton's set of flaws is different than (though it overlaps with) Trump's, they are numerous, serious, and pervasive enough to make her (like him) unworthy of the office she seeks.  It's a shame, in my view, that, perhaps because of entirely justified disapproval of Trump, many seem to be accepting the notion that Clinton is simply a garden-variety politician with the usual flaws, slip-ups, and imperfections.  I don't think the evidence supports that view.  But, that's another issue . . .   


July 26, 2016 in Garnett, Rick | Permalink

Monday, July 25, 2016

The Unavoidable Problem with Trump

In response to Rick: The most serious problem with Trump is not his policy prescriptions. Several of them are awful; in my view, a few, like infrastructure rebuilding and probable Supreme Court appointments, have positive elements. But it is not enough to predict or hope that the awful announced policy prescriptions would be blocked by others--even if that would likely happen. (I realize Rick isn't adopting that position but is just saying it's reasonable.) The fundamental problem is Trump's personality: the man exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge. The latest confirmation--small but striking, and the latest of many--was his remarkable post-convention monologue last Friday, in which he said he didn't care about Ted Cruz and then proceeded to spend 10 minutes revisiting what Cruz did and the revenge that he, Trump, would take. There is absolutely no telling what Trump might do with the day-to-day powers of the Presidency, including the keys to the nuclear codes. We would be in virtually uncharted waters.

If Trump is elected, then even if other actors would block his bad policy initiatives, there would be no way to avoid putting the day-to-day power of the office in his hands. There is no way to avoid saying, "This is the man who will make the crucial judgments in whatever (unknowable) crises arise." In that sphere, military and other actors would presumptively obey his orders, some of which the press might not learn about in time to speak against them. Some officials might resign rather than enforce them, but that dynamic puts us on the short road to constitutional crisis. In addition, the day-to-day power of the office includes public statements; his have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse. No other actor--Congress, bureaucrats, press--can stop those, or their effects. They are inherent in electing him.

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented. #NeverTrump.

This argument does not entail voting for Hillary. Of course, those who think the Democrats are wrong on most issues will be disinclined to vote for her even to avoid Trump. That's not my situation: I am a Democrat who thinks that party's positions on many issues are better for the common good. But I nevertheless have a serious struggle. That's not because Clinton's personality flaws are as bad as Trump's: however significant, her flaws are  not in his category. It's primarily because of two (for me) very serious issues--familiar but sadly becoming even more pointed this year. First is the further intensification of the party's abortion position. As  a pro-life Democrat, I put a high priority on strengthening social supports in order to reduce economic pressures to abort; but the party's new attack on the Hyde Amendment, and its increasing tendency to view abortion as in no way regrettable, make the conflict for pro-life liberals more serious than ever.

Second, as a religious freedom advocate who also supports some of the policies that have come in sharp conflict with religious tenets (policies like sexual-orientation anti-discrimination laws and the Affordable Care Act), I am disturbed by having seen first-hand the unwillingness of more and more Democratic leaders to support any accommodations that would meaningfully balance these two goals--particularly accommodations that would allow faith-based service organizations to follow their tenets while continuing to do their work helping others. This dynamic has become very powerful, very suddenly, and there are reasons to think that the Clinton executive branch will be even less inclined to accommodate than the Obama executive branch has been. (Note that in some cases, such as hiring based on religious belief by groups receiving federal grants, Obama has preserved freedom for religious organizations to maintain their faith-based nature, against intense pressure from anti-accommodation progressives. I have no confidence that Clinton will do the same.)

But even with these serious (in my view) problems with Clinton's likely policies, I cannot in conscience vote for Trump. I can't tell myself it would be OK--even on balance--because others will check him in in office. There will be pervasive features of his presidency that they can't check. So if I ultimately cannot vote for Clinton, the only options for me would be to vote third-party (I'm not attracted to the current ones) or write in someone.

This is a pretty long-winded assertion of my judgments, and I know we don't want election discussion to take over the blog. But in responding to Rick's suggestion about avoiding Trump's problems, I thought I should explain my thinking more fully.

July 25, 2016 in Berg, Thomas | Permalink

Pro-Life Democrats on How the Platform "Betrays Millions of the Party Faithful"

My colleagues at Democrats for Life, Kristen Day and Charlie Camosy, spell it out in the L.A. Times. The platform not only attacks the Hyde Amendment, they point out; in addition, it calls for repeal of any regulation impeding access to abortion, acknowledging no considerations on the other side, and removes the 2012  platform's endorsement of religious liberty in the context of abortion. A bit more:

The abortion plank in the 2016 Democratic platform effectively marginalizes the voices of 21 million pro-life Democrats. It means the party that is supposedly on the side of justice for the vulnerable no longer welcomes those of us who #ChooseBoth; that is, those of us who want the government to protect and support prenatal children and their mothers....

The Democratic Party's abortion stances have already caused many to leave the party, and many more will drop out because of the platform wording. The percentage of extreme abortion rights advocates is increasing in the party, but only because the total number of Democrats has shrunk to its lowest level since the Hoover administration.

July 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Dualism & Doctrine

In light of arguments by Robby George and others that we are in a neo-Gnostic age, Dov Fox and Alex Stein have posted a fascinating new paper, Dualism and Doctrine. Here's the abstract:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.


July 25, 2016 in Vischer, Rob | Permalink

Friday, July 22, 2016

"A Vote's Consequences and a Voter's Choice"

My friend Matthew Franck has a depressingly timely piece over at Public Discourse, in which he maps out his thinking regarding the question "what to do with my vote in November, given the two awful major-party candidates?"  (As I've said here at MOJ before, both candidates are awful -- for various and varying reasons -- and one of many reasons each is awful is that each has the effect of inducing members of the opponent's political party to rationalize or normalize or minimize their own candidate's awfulness.)

I agree with much of what Matt writes.  I'm not sure about this, though:

[M]y conscience is more important to me than the outcome of this presidential election. I cannot in good conscience vote for either Clinton or Trump. What matters for me is that I cannot bring myself to intend, to will the victory of either of these ludicrously unacceptable presidential candidates. And that is what a vote for one of them would be—an act of willing that Clinton or Trump be president, carry out her or his stated policy aims, and bring his or her fundamentally bad character to the highest office in the land.

My hesitation is prompted, specifically, by the suggestion that voting for candidate X is "an act of willing that [candidate X] . . . carry out her or his stated policy aims[.]"  This seems wrong . . . or at least not necessarily true.  One could reasonably think (and, to be clear, I'm not saying that this is what I think) something like this:  "Look, candidate X has said all kinds of stupid and offensive things and also proposed stupid, dangerous, and immoral policies.  But, it is not the case that, if candidate X were elected, those policies would become operative because Congress, the courts, the press, the bureaucrats, candidate X's laziness and ignorance, etc., would prevent or obstruct them, or at least most of them.  Candidate Y, on the other hand, is smart and ideologically motivated, and would enjoy the support of the press and other opinion makers, and so would very likely be able to make operative a number of candidate Y's stupid, dangerous, and immoral policies.  So, I prefer candidate X, not because I intend that candidate X 'carry out his or her stated policy aims' but because I intend to do what I can to prevent candidate Y from carrying out his or her policy aims."

This is different, I think, from the usual "lesser of two evils" argument, because it is focusing more on the "state of affairs that is likely to come to pass as a result of the election of candidate X or Y" than on the merits of X and Y's character or proposals.

July 22, 2016 in Garnett, Rick | Permalink

A wonderful story about the Alliance for Catholic Education and Vocations . . . in the New York Times!

There are many, many reasons to be gloomy (or worse) today. Here's a story that might help, even if just a bit, you feel better.  If you were thinking of donating any money to either major-party candidate's campaign, consider re-routing that money to A.C.E.

July 22, 2016 in Garnett, Rick | Permalink

Steve Smith on Obergefell, religious freedom, and cultural transformation

Simply to say a piece is "by Steve Smith" is to recommend it.  Check out this short piece, from a few weeks ago, at the Cornerstone blog, called "Obergefell and the Reconstituting of American Community."  It ends with this:

The Christian legacy is manifest as well in the American approach to religious freedom, with its recognition that there are things we owe to Caesar and other things we owe to God. Over the latter category, Madison famously reasoned, civil society and government simply have no “cognizance” —no jurisdiction. This understanding has been central not only to religious freedom but, more generally, to our conception of our political community as (to quote Lincoln, and the Pledge of Allegiance) “one nation under God.” But that conception is today effectively renounced, even by many proponents of religious accommodation, and most vehemently by the opponents of such accommodation.

In sum, modern developments in the areas both of sexuality and of religious freedom are connected in a sustained campaign to reverse the fourth century transformation—to reconstitute the community by rolling back the Christian or biblical legacy that has been central to the American political tradition. “Progressivism” is in that sense profoundly reactionary. On its face, Obergefell was about marriage, but at a deeper level, given the cultural importance of marriage, the decision was a major symbolic victory for that reactionary campaign.  

And yet such transformations are not accomplished overnight, and surely not at the command of morally and intellectually insubstantial figures like the author of Obergefell. So we can expect the conflicts to persist for a long time to come.  


July 22, 2016 in Garnett, Rick | Permalink

Thursday, July 21, 2016

Should we change how we elect our President? To: James Hillhouse From: Your Obedt. Servt, J Marshall

In 1808, Senator James Hillhouse proposed a constitutional amendment to change how we elect our President.

Worried about the effect of party spirit as filtered through presidential elections, Hillhouse proposed picking the President by lot from the class of Senators who were finishing their terms. As explained by Richard Hansen, "Every year the retiring senators would meet and, after being blindfolded, each would draw a ball from a box. The senator drawing the colored ball would be President for the ensuing year."

Hillhouse's proposal went nowhere. He tried to revive it in 1830, thinking that experience with Andrew Jackson may have led people to realize the wisdom of his proposal.

He was mostly wrong.

But John Marshall was among those who saw some value in it, even while recognizing it would go nowhere.

Here's Marshall's 1830 letter to Hillhouse (emphases added). Worth reading now as an example of Marshall's judgment ... including his self-awareness that "[a]ge is perhaps unreasonably timid."

(N.B. Hillhouse was a member of the same military unit as Benedict Arnold and Your Obedt. Servt, A. Burr.)

* * *

Continue reading

July 21, 2016 | Permalink

What Does Laudato Si Mean For the Legal Professional?


This is the question my CUA colleague (and longtime friend of MOJ), Lucia Silecchia, endeavors to answer in her recent compelling essay in the Seattle Journal of Environmental Law. Professor Silecchia recognizes the value of Laudato Si beyond the constraints of a narrow reading which limits it to an environmental ethics papal letter. She invites us to glean so much more from it by describing the encyclical as:

an invitation for attorneys to reflect anew on their obligations toward each other, to the clients who entrust them with so many things, to the ideals of justice that profession and promise bind them to uphold, and to the passion for what is right and good that drew them to a common vocation a few, or many, years ago.

Capitalizing on Pope Francis's theme of stewardship, Professor Silecchia teases out from this document ten important "rules" for attorneys categorized under the dual concepts of Stewardship of Clients and Stewardship of Justice.

The notion of the law as a vocation is not novel, but Professor Silecchia injects into that idea a modern and contemporary framework well worth considering. This piece deserves a read and presents us with another excellent addition to her impactful body of work addressing issues of morality, ethics, and spirituality that face law students and young attorneys today. (See here, here, and here for a small sampling.)

July 21, 2016 | Permalink

A. Scalia, "Teaching About the Law"

Speaking of Justice Scalia, I have a short piece over at Liberty Law on a piece of his that (I think) has received almost no commentary, with the exception of a very good essay by Adam White, on "Teaching About the Law." Here's the beginning:

There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.

Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”

One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.

July 21, 2016 in DeGirolami, Marc | Permalink

"I do not think any of us, women included, will be better off for its destruction."

I've been revisiting some of Justice Scalia's predictions recently. This conclusion to his dissent in United States v. Virginia makes for an interesting juxtaposition with other goings on in American public life today. 

In an odd sort of way, it is precisely VMI's attachment to such old fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":

"Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.

A Gentleman . . .

Does not discuss his family affairs in public or with acquaintances.

Does not speak more than casually about his girl friend.

Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.

Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.

Does not hail a lady from a club window.

A gentleman never discusses the merits or demerits of a lady.

Does not mention names exactly as he avoids the mention of what things cost.

Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.

Does not display his wealth, money or possessions.

Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.

Does not slap strangers on the back nor so much as lay a finger on a lady.

Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'

Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.

A Gentleman respects the reserves of others, but demands that others respect those which are his.

A Gentleman can become what he wills to be. . ."


I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

July 21, 2016 in Walsh, Kevin | Permalink

Wednesday, July 20, 2016

"Lord I am not worthy....." as the root of all evil behavior???

A few days ago, Christine Horner posted an appeal to Pope Francis on Huffington Post (a site that no doubt the Holy Father has bookmarked on his computer), calling for "an end to the religious ritual of the declaration of unworthiness" during Mass.  She's talking about the Centurion's refrain of “Lord, I am not worthy to have you enter under my roof...”  She argues that "dialogue and constructs that perpetuate “I am not worthy” are the root of all evil behavior. It is divisiveness personified."

My colleague at St. Thomas, Deborah Savage from the Seminary/School of Divinity, has written a powerful response, published in Notre Dame's Church Life Journal.  She argues, among other things:

The cause of violence in our culture is not the call to admit my weakness, my uncertainties, my mistakes. The cause of violence in our culture is the refusal to accept the reality of sin and to recognize that, in that regard, we are all the same: in need of forgiveness and compassion. The cause of violence in our culture is our inability to see the humanity of another and to love them—to will their good—even if we think they might be flawed.

Deborah's essay contains a lot to chew on for these troubled times.


July 20, 2016 in Schiltz, Elizabeth | Permalink

John Marshall on the contamination of mind as one of the "multiplied evils generated by faction"

Sometimes people wonder why I'm so interested in John Marshall. The short answer is that I have learned a lot about American self-government from studying him and think I still have much to learn in that way. Here's Marshall in his Life of Washington, writing on party politics in the 1790s:

In popular governments, the resentments, the suspicions, and the disgusts, produced in the legislature by warm debate, and the chagrin of defeat; by the desire of gaining, or the fear of losing power; and which are created by personal views among the leaders of parties, will infallibly extend to the body of the nation. Not only will those causes of action be urged which really operate on the minds of intelligent men, but every instrument will be seized which can effect the purpose, and the passions will be inflamed by whatever may serve to irritate them. Among the multiplied evils generated by faction, it is perhaps not the least, that it has a tendency to abolish all distinction between virtue and vice, and to prostrate those barriers which the wise and good have erected for the protection of morals, and which are defended solely by opinion. The victory of the party becomes the great object, and, too often, every thing is deemed right or wrong as it tends to promote or impede it. The attainment of the end is considered as the supreme good, and the detestable doctrine is adopted that the end will justify the means. The mind, habituated to the extenuation of acts of moral turpitude, becomes gradually contaminated, and loses much of its horror for vice, and of its respect for virtue.

July 20, 2016 in Walsh, Kevin | Permalink

Thursday, July 14, 2016

Reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"

A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty.  It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs.  Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick).  And here, in the Journal of Law and Religion,  are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin.  The book, and the tickets, are -- like the man says -- "highly recommended"!  


July 14, 2016 in Garnett, Rick | Permalink

Wednesday, July 13, 2016

Emerson's "Why Faith? A Journey of Discovery"

My friend and former student, Matt Emerson (whose faith-and-education-related writing MOJ readers have probably encountered online before) has published a bookWhy Faith?  A Journey of Discovery, that I am pleased to recommend . . . especially to those (of us) with teenagers!

Why Faith?: A Journey of Discovery for the Modern Pilgrim tries to help men and women, particularly young adults formed by the modern world, work through some of the big questions and topics in faith that in the author's experience are especially pressing. It tries to meet someone in the midst of his or her confusions and struggles, rather than presupposing deep theological interest or knowledge. It addresses some specific theological matters (e.g., "How do I know God's will?") but it also addresses matters that are more philosophical or preliminary, for example: Why should I have faith at all? What is the basis for entrusting ourselves to something we cannot verify with certainty? Highlights: * It focuses on questions and the doubts of modern believers * It is grounded in the context of the 21st century; all the influences and distractions of the modern world, the allure of science, the rise of the New Atheists, etc. * It is not a work of apologetics or a general introduction, but it's more of a series of reflections that will help people better understand the Catholic, Christian faith * It doesn't presuppose theological knowledge; it's written for the average layperson, not an expert or a student of theology * It's accessible, and the chapters are short enough for dwindling attention spans.

July 13, 2016 in Garnett, Rick | Permalink