Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, January 18, 2017

Don't count on CNN for a good title (my real thoughts on the WMW)--and thinking ecologically

CNN contacted me before Christmas to ask if I'd weigh in on Trump and abortion. I was thankful for the invitation as I'd really not said much about his candidacy during the general election. (Rick was thoughtfully expressing many of my own sentiments.)  Like many others, I was more relieved by Hillary's loss than I thought I would be. I am now also hopeful for solid judicial nominations [identity politics warning: perhaps a woman to eventually overturn Roe!] and the life-changing possibilities for poor schoolchildren in a Department of Education that favors school choice. Still, like so many on the left and right, I remain deeply concerned about Trump's character. (I'm hoping Kellyanne Conway provides as much counsel as possible...it'd help as a start if she just took away his phone.)

CNN held the piece for weeks, well, until the Women's March on Washington became a...thing. So I contextualized. CNN then took the liberty of suggesting in their title that I was among those concerned about not being included in the march.  Just for the record, though I understand the desire for some pro-life feminists to be represented--to give voice to another perspective--I would never have attended their march to protest a fair election, especially one that so extolled abortion and even linked it with human rights; my serious concerns with Trump put me too in the wait and see (and pray and write) category. And to further aggravate this pro-lifer, this "women's march" (for half the country's women anyway) is getting far more press than the annual March for Life which generates hundreds of thousands of protesters each year! Thus, my friend Carol Crossed's piece in today's Washington Post is more aptly titled for my way of thinking about all of this. Alas, here's my piece at CNN.


More happily titled is the two part series also published yesterday at Public Discourse on how to think ecologically about our culture's current...mess. I think the concepts of human and social ecology are especially helpful in responding to the ubiquitous Millian worldview that considers the "harm principle" as the only just way to think about cultural issues. (JS Mill, by the way, said this:  “[M]isplaced notions of liberty prevent moral obligations on the part of parents from being recognized, and legal obligations from being imposed, where there are the strongest grounds for the former always, and in many cases for the latter also....")

I hope these articles--mining social commentary from the 1990s--help a bit. More to come in months ahead in the form of a law review article... and, if all goes as planned, a book.

January 18, 2017 in Bachiochi, Erika | Permalink

Tuesday, January 17, 2017

“Follow the Money” – The Planned Parenthood Videos, “Fake News,” Congress, and the new DOJ (Part 1)

Deep Throat -- APM


Recently, the topic of “fake news” has garnered enormous attention in the national media, with some on the political left going so far as to attribute the outcome of the 2016 presidential election to it.

President Obama has described “fake news” (here) as “active misinformation [that is] packaged very well and it looks the same when you see it on a Facebook page or you turn on your television.”

No doubt, bogus news stories made up out of whole cloth – such as the horrendous story that Hilary Clinton and John Podesta operated a vast child molestation and sex-trafficking network out of a popular D.C. area pizzeria (see here) – can both hurt the individuals who are maligned, and poison our national politics.

Still, as Mollie Hemingway has pointed out (here), the public’s is not so much concerned about stories that are wholly fabricated, which have always existed and always will. Rather, citing polling data, Hemingway notes that the public’s “concerns about fake news are really concerns about the spread of false information – something that just as well describes mainstream media as sites that more overtly craft fake news.”

With all this talk of “fake news” and its significance, it is easy to overlook the biggest fake news story of the last year-and-a-half, namely, the widely publicized claim that the undercover videos obtained by the Center for Medical Progress (CMP) showing Planned Parenthood officials negotiating and otherwise discussing the sale of human tissue and organs from recently aborted children were “doctored” or “deceptively edited” and so untrustworthy, and undeserving of the public’s attention. By uncritically repeating this abortion industry talking-point, the media parroted the worst kind of “fake news” and failed the American people abysmally. At the same time, it justified it own lack of interest in a story of enormous importance.

This lack of interest by the media (although perhaps instinctive) was not immediate as initially the videos caused a huge sensation. Indeed, because of their availability on social media, they could not be entirely ignored. Questioned shortly after the first two videos were released, Cecile Richards appeared with George Stephanopoulos on This Week (here) and insisted that Planned Parenthood had “broken no laws” and that the videos were “highly selectively edited” and “sensationalized,” designed to “impugn and smear the name of Planned Parenthood.” Richards further insisted that certain statements captured on video – showing Planned Parenthood officials haggling over the price to be paid for human tissues and organs and admitting that they alter abortion procedures to obtain more intact specimens – were “completely taken out of context.” Although she could not identity the context that would make those statement licit.

Planned Parenthood repeated this blanket allegation (that that the videos were “highly edited,” “deceptively edited” with statements “taken out of context”) again and again – an allegation that was allowed to stand without any serious questioning from the media.

Thus, a full year after publication of the first video, Salon’s Amanda Marcotte (here) dismissed the videos as a “right-wing hoax” pandering a “self-evidently idiotic conspiracy theory” and “lurid urban legend.”

Others were less colorful in their retort. MSNBC’s Joy Reid (here) could only stammer: "That story was false. That story was false. That story was absolutely false. It was a false story . . . that story was false, so that's not a factor."

Whereas George Stephanopoulos (here) blandly murmured "There was never any proof of selling fetal parts."

Of course, there was ample proof to be had, if only Stephanopoulos and his colleagues in the fourth estate had been willing to exercise a modicum of the curiosity that all journalists are thought to possess and investigated the matter. But they did not, choosing instead to carry water for Planned Parenthood by ignoring or mischaracterizing the questions raised and the facts brought to light by the videos. (Fortunately, as noted below, committees in both the Senate and the House did investigate the matter, resulting in a host of criminal referrals to the FBI and other law enforcement organizations. Sadly, even the fact of these referrals and the contents of the committee reports have managed to escape the notice of the mainstream media).

What is particularly infuriating in all this is that some of those in the media who repeated the bare accusation of “deceptive editing” against CMP have themselves engaged in the most brazen, deceptive editing imaginable – a charge leveled and proven by some of their fellow journalists (see, for example, here, here, and here).

CMP released the videos in two formats – a shorter version and a full-length version on YouTube. The shorter versions of the videos are indeed edited – just like any interview or investigative video aired on a broadcast news program. Moreover, to see the full context in which the damning quotes from the Planned Parenthood officials occurred, CMP made the full, unedited version of each video available contemporaneous with the edited version. This fuller context does not alter the meaning of what the Planned Parenthood officials said. If anything, it shows these individuals in an even worse light. Both versions of all the videos, together with transcripts of the videos, are available on CMP’s website (here).

Shortly after Richards' embarrassing appearance on This Week, after only two videos had been released, Planned Parenthood hired the public relations firm SKD Knickerbocker which, as Hemingway reported in The Federalisit (here and here), “sent out a memo to journalists trying to keep them from reporting on the undercover videos, on the grounds that they were obtained under false identification and violated patient privacy.” (A copy of the memo is available here and here).

Whether the media responded directly to Planned Parenthood’s entreaties or out of a baked-in predisposition to favor the “pro-choice” cause, the response was overwhelming. Despite the release of several subsequent videos, confirming what the initial videos showed and adding new damning information, the mainstream media responded by ignoring them – a case study in abject disinterest. (See here and here). What would have surely been a front-page above-the-flap story for weeks or even months had the subject not been Planned Parenthood, became a non-story, something that didn’t happen because it wasn’t acknowledged to have happened by those who see it as their job to dictate the national conversation. Not only did they not cover the videos, they also failed to cover the public’s response to the videos -- thousands and thousands of Americans protesting against Planned Parenthood in rallies across the country.

What did garner enormous attention in the media was a report commissioned by Planned Parenthood on the authenticity of the videos. Planned Parenthood retained Fusion GPS, a firm that does opposition research for the Democratic Party, and on August 25, 2015, it issued its report (available here). Although Fusion GPS “found no evidence that CMP inserted dialogue not spoken by Planned Parenthood staff” and that its review “did not reveal widespread evidence of substantive video manipulation, but we did identify cuts, skips, missing tape, and changes in camera angle.” Nevertheless, it dutifully concluded “that CMP edited content out of the alleged ‘full footage’ videos, and heavily edited the short videos so as to misrepresent statements made by Planned Parenthood representatives.”

This was sufficient for the media to declare the videos “altered” and “manipulated.”

Indeed, the media devoted as much or more attention to the Fusion GPS report – to the breathless claim that the videos had been discredited – than to the videos themselves (here).

Alliance Defending Freedom commissioned Coalfire Systems, Inc., an independent firm specializing in digital forensic analysis, to review the videos. Coalfire examined not only the short edited versions, and the full length versions available on YouTube, but the original raw video footage and audio recordings captured by CMP investigators. Moreover, Coalfire examined not only the four videos that Fusion GPS reviewed, but subsequently issued videos, and the original source material. In its Nov. 5, 2015 report (here), Coalfire refuted Planned Parenthood’s talking points, concluding that “the video recordings are authentic and show no evidence of manipulation or editing. This conclusion is supported by the consistency of the video file date and time stamps, the video timecode, as well as the folder and file naming scheme. The uniformity between the footage from the cameras from the two Investigators also support the evidence that the video recordings are authentic.”

In reviewing the raw footage Coalfire further found that the “edits made to [the published] videos were applied to eliminate non-pertinent footage, including ‘commuting,’ ‘waiting,’ ‘adjusting recording equipment,’ ‘meals,’ or ‘restroom breaks,’ lacking pertinent conversation. Any discrepancies in the chronology of the timecodes are consistent with the intentional removal of this non-pertinent footage as described in this report.”

It would have been easy for anyone to miss the story of Coalfire’s report in the media for the simple fact that the press did not report on it. As Mollie Hemingway notes, although a host of reporters “tripped over themselves to publicize the Democrat opposition firm’s report” they managed to ignore the Coalfire report in its entirety (here).

Of course, the story surrounding the videos didn’t end there. The media did report when the Department of Justice announced that it would be investigating the Center for Medical Progress (here), and when the Attorney General of California raided the apartment of David Daleiden (the head of CMP) (here), and when Daleiden and his fellow CMP investigator Sandra Merritt were indicted in Houston (here). The charges in Texas were subsequently dismissed, ostensibly on a technicality (here).

The media also widely reported that Planned Parenthood had been “exonerated” of wrong doing in twelve state-level investigations (here). What has not been reported is whether these “investigations” were in fact serious inquiries – with a grand jury impaneled, documents subpoenaed, warrants issued, and witnesses compelled to appear and testify or exercise their 5th Amendment rights. Or were these faux investigations, with an exchange of letters between friends, satisfying the pro forma requirements, and accompanied by the voluntary production of documents generated for the occasion?

It is “fake news” of the most pernicious kind to repeat the patently false allegation that the videos were “doctored,” or “highly edited,” or “deceptively edited” and as such unworthy of attention. It is “fake news” of the worst sort to suggest that the videos do not show what they plainly do show, namely, Planned Parenthood officials and others involved in the abortion industry discussing how aborted baby parts might be sold while evading the law that prohibits such transactions.

It is “fake news” of another sort to suggest that the rule of law has been satisfied when no real investigation has been conducted.

Notwithstanding the protests and obfuscations of Planned Parenthood’s defenders, the Judiciary Committee in the Senate (here) and a Select Committee in the House (here) conducted real investigations into the market in aborted baby parts revealed in the videos. What they uncovered (though unreported in the press) is truly disturbing. Each committee made criminal referrals to the Department of Justice.

Donald Trump is someone whom, I fear, has more faith in “the art of the deal” than in “the rule of law.” Still, each new beginning is a time for hope, and it is my hope that the new Department of Justice will take these matters up in earnest.

To do so, the DOJ must follow the path that other successful investigations of deep seated corruption have followed.  They must “follow the money.”  The place to begin this task is with the content of the videos themselves and with the Congressional reports. (More to follow in Part 2 of this post).

January 17, 2017 | Permalink

Sunday, January 15, 2017

Donald Trump, John Lewis, and the importance of our national story

Donald Trump's criticism of John Lewis is discouraging, not just because it came as the nation prepares to celebrate Martin Luther King Jr., or because of Trump’s eyebrow-raising assumptions about Lewis’s congressional district, but because the criticism is another example of Trump’s failure to show any interest in, much less deference to, a story of America that extends beyond himself. 

In his op-ed today, Michael Gerson puts it well:

[A] president-elect attacking a hero of the civil rights movement less than a week before he takes the oath of office is not normal. There is some strange inversion of values at work. Because Vladimir Putin praises him, Trump defends Putin. Because Lewis criticizes him, Trump attacks Lewis (as “talk, talk, talk — no action or results”). The only organizing principle is the degree of deference to Trump himself. It is the essence of narcissism.

Some commentators complained that President Obama’s farewell address sounded like a speech he could have given in 2008. Well, yes, that’s the point.  He invoked George Washington, Atticus Finch, Iwo Jima, Selma, Stonewall – hardly ground-breaking references.  There are themes and moments that need to be sounded again and again, not just across the span of an eight-year administration, but across the breadth of the American experience.  Whether or not we agree with how a particular President has interpreted or contributed to the national story, the construction and stewardship of shared meaning within a community is essential.  That shared meaning must transcend the individual without lapsing into an abstract universalism that lacks resonance with particular lives and histories.   The stories of a nation that are handed down across generations matter, and the heroes of those stories matter.  Virtually all of our Presidents have recognized that a central aspiration of their leadership must be to integrate their administration’s priorities into the broader narrative, building on the legacies of those who came before us, no matter the party.  Martin Luther King Jr. did the same when he appealed to the better angels of his fellow Americans; in his "I Have a Dream" speech, he cited the Constitution, the Declaration of Independence, and the Emancipation Proclamation.  King did not believe that he was creating something from nothing -- he was claiming a place for his people in our national story.

The importance of our shared story does not mean that criticism of our nation’s heroes is off-limits, but it does mean that the criticism should be focused and substantive, not dismissive or demeaning. We can and should discuss Thomas Jefferson's relationship with his slave Sally Hemings when we account for his part in our national story, for example, but his part remains important and should be honored.  The current clamor to rename university buildings and municipal monuments can be problematic in this regard, suggesting that the individual’s sins override the importance of the broader story.  In many of those cases, though, the renaming effort springs from a desire for more Americans to participate fully in our shared story – the story remains central, though its driving themes of tolerance and inclusion can, if not handled carefully, erase other messy but important elements.  The battles over “political correctness” are still battles premised on the relevance of story, shared meaning, and heroes.

In my view, John Lewis spoke imprudently when he said that Trump is not a legitimate President. By responding to Lewis as he did, Trump showed more than a lack of prudence – he showed categorical disdain for one of the last remaining public figures who was instrumental in a key chapter of our national story.  Among the many concerns I have about our new President is that he has no interest in stewarding our shared story, pushing instead the cult of personality and the overriding power of now.  I hope and pray that I am proved wrong. 

January 15, 2017 in Vischer, Rob | Permalink

Thoughts on Conference on "Faith, Sexuality, and the Meaning of Freedom"

I am just back from a conference at Yale Law School organized jointly by Professors Robin Wilson and Bill Eskridge on "Faith, Sexuality, and the Meaning of Freedom," and I offer here some general thoughts about the presentations and the nature of the conference. While the conference's rules do not permit me to get into specifics about who said what, my overall impression is that it was a gathering of academics, politicians, religious leaders, and practitioners drawn from a comparatively broad spectrum of political, religious, and cultural opinion. Robin and Bill are to be commended, in my view, for that balance--always difficult to achieve to everyone's satisfaction.

One of the conference's launch points was the fairly recent report by the US Commission on Civil Rights entitled, "Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties," but which did not contain, in my view, very much sound advice for achieving peaceful coexistence or reconciliation. All of the panels concerned the topic of achieving modus vivendi arrangements for the proper legal accommodation of rights of religious liberty and rights of sexual freedom and equality. This has been a large and important part of Robin's own policy work over the last few years, and the so-called Utah Compromise was studied and considered in this respect. 

Two things stood out for me in particular.

First, one of the more interesting debates among the group, and, it seems to me, going forward, is about the baseline question of what constitutes the sort of discrimination that the law ought to proscribe in the first place. Once a particular judgment is found to be proscribable discrimination (I suppose the term is "invidious"), the result is all but foreordained. Some argued that the motivation for a particular discrimination is irrelevant; so long as the effect is adverse action against a person within a designated protected category, that ought to be sufficient. Others returned that this was in effect stacking the deck. The first question must be whether somebody has engaged in invidious discrimination at all, and that this is not a question about motivation but about how we properly describe the discrimination that the person has made. Barronelle Stutzman's case is one example of this sort of debate, and this brief authored by Professor Steve Smith addresses the question. But the larger issue of the baseline affects many sorts of discriminations that people make in other contexts. Suppose, for example, that a hospital refuses to perform a surgery to remove the healthy uterus of a woman who identifies as transgender and desires to become a man. Is that the sort of discrimination on the basis of sexual orientation that the law should condemn? Or is it nothing of the kind--is it simply a judgment that hospitals do not remove healthy uteruses--and certainly nothing like a hospital's refusal to perform heart bypass surgery on a woman who identifies as transgender? 

Second, one of the pervasive themes of the conference was the conflict between perfectionist and anti-perfectionist accounts of liberalism, and whether perfectionist liberalism is in its ascendancy at the moment. As is well-known, Robin, in her work with others like Professor Douglas Laycock and some of our own MOJ colleagues, has worked tirelessly to hammer out compromises that reflect a judicious anti-perfectionist liberalism. But my sense, in some ways confirmed by this conference, is that perfectionist accounts of liberalism (indeed, perfectionist accounts of politics in general) cannot really ever be sidelined. My own inclinations have always been rather pessimistic when it comes to true pluralism in a liberal democratic nation, even as I deeply appreciate the work of Robin and others. I believe strongly that the expressive and symbolic power of the law is an extremely important feature of it--what the law says about its people, what its people are proud of it to say, always lurks as a sort of subtext beneath the surface of whatever modus vivendi arrangements we might achieve. It is a mistake to ignore that subtext, as it will otherwise only come frothing and bubbling up at unexpected moments.

My own presentation involved what is seemingly a somewhat esoteric topic--Article XI of the Treaty of Tripoli--which begins with the statement that "[T]he government of the United States of America is not, in any sense, founded on the Christian Religion." Part of my talk involved the history of Article XI (which is fascinating) but part suggested that the fight over American identity that the phrase (and many phrases like it) has come to represent--and the symbolic and expressive force of the law--is both a substantial impediment to anti-perfectionist liberal democratic governance and an inevitable and important feature of any government worth the name. More on this soon, I hope.

January 15, 2017 in DeGirolami, Marc | Permalink

Thursday, January 12, 2017

Catholics, DeVos, and teachers unions: A short reply to Michael Sean Winters

In this recent post, over at Distinctly Catholic, Michael Sean Winters -- who, like me, supports school vouchers and, like me, thinks the case for school choice is not merely a libertarian one -- contends that Donald Trump's nominee to serve as Secretary of Education, Betsy DeVos, should worry Catholics:

The worry about DeVos is twofold. First, surely with Pope Francis' frequent, and powerful, reiterations of the Catholic church's support for organized labor, it would be better if bishops reached out to unions and tried to lower the temperature around the issue of vouchers for Catholic schools, maybe look for ways for Catholic and public schools to collaborate on summer arts programs and the like, and enter into debate about vouchers with an acknowledgement of the good faith concerns of both sides. I do not anticipate anything DeVos does will make a more workable long-term solution likely. I suspect she will poison that well thoroughly.

Secondly, there are few things as immoral as the right thing done for the wrong reason. Most Catholic children attend public schools, a fact that is not likely to change anytime soon. Bishops and other Catholic leaders should be concerned about making public schools a success too. It is a tall order and I will grant that the teachers' unions are not always helpful. But, an argument based on "choice" should alert Catholics who are worried about the consumer mentality of the culture, and how that mentality leads to other pernicious results, before embracing DeVos' advocacy for "school choice."

A few quick thoughts in response (I'll refrain from re-hashing here my view that it is a mistake to conflate or equate, for Catholic Social Teaching purposes, workers' right to associate, coordinate, strike, etc. with public-sector unionism, especially in the K-12 context, as it is practiced in the United States today).  First, I think it is as clear as anything that Catholics who embrace and apply the Church's social teachings should support school choice (by which I mean "public support, on an equal basis to that provided to children who attend state-operated public schools or charter schools, for children who attend qualified religious schools), and not for reasons having to do with a "consumer mentality" but instead because a decent and just political community ought not to, in effect, financially penalize parents for exercising what the Church teaches is their human right.  Next, it would indeed be a good thing if bishops were able to get teacher unions to dial back their (self-interested, common-good-undermining) hostility to vouchers, but -- as someone who has been in and around this fight for almost 25 years - the high temperature around the issue is certainly not the fault of school-choice supporters or the bishops and I don't see collaboration on summer arts programs as very likely to provide the meaningful support that Catholic schools and the parents who choose them are in justice entitled to.  (It's 25 years old, but still spot on:  John Coons's essay, "School Choice as Simple Justice.")

As Albert Shanker, a longtime teacher-union leader, once candidly put it, "When school children start paying union dues, that’s when I’ll start representing the interests of school children.”  Too often, the financial and other interests of public-school teachers and administrators align very poorly with the needs of children, families, communities, and taxpayers.  My hope is that DeVos will do what she can to put the Department of Education's emphasis on the latter.

January 12, 2017 in Garnett, Rick | Permalink

Wednesday, January 11, 2017

Mary Eberstadt and I on Human Ecology this Saturday on EWTN

Mary Eberstadt and I gave back to back presentations at last spring's Human Ecology conference at the Busch School of Business and Economics. EWTN was on location and is airing our talks this Saturday, January 14th from 2-3pm.  Mary's excellent presentation is on religious liberty. A bit from my presentation, which will also be published in Public Discourse later this month: 

When John Paul II used the term “human ecology” in Centesimus Annus, he was entering a robust conversation that was already taking place among social thinkers here in the U.S., and perhaps across the Western world. Since the beginning of the last century, social scientists had been making use of the term to describe the now common idea of society as a complex organism, and to study the myriad ways in which various human surroundings influence the human person. The Russian-American psychologist Urie Bronfenbrenner notably wrote in 1977 of an “ecology of human development” in which one seeks to understand the human subject from within his “nested,” varied and ever-changing arrangement of environmental structures. An ecological approach is one that is intrinsically interdisciplinary, that seeks to integrate diverse perspectives to achieve a wider angle.


And so by the 1990s, social theorists from across the political spectrum were thinking ecologically about the dynamic interaction among familial, political, economic, and social influences and how these “mutually conditioning systems” affected children, families and communities across America. The ecological analogue helped a diverse group of thinkers to diagnose, even without agreeing to causes, the growing deterioration of once stable families and communities, the deleterious impact that was having upon the nation’s children and the nation’s poor, and in turn, the consequences of this cultural, or ecological, disintegration upon American institutions. In particular, communitarians such as Michael Sandel, Amitai Etzioni, and our own Mary Ann Glendon, worried together that America’s celebrated free economic and political institutions were actually at great risk of undermining their own foundations due to an erosion of the “moral ecology” or, in Robert Putnam’s term, “social capital” that these free institutions needed to thrive.

January 11, 2017 in Bachiochi, Erika | Permalink

Advice for Prospective Law Students

I often receive inquiries from undergraduates (in my case, women) asking what I recommend they read--or what sorts of summer institutes to attend--to prepare them for law school.  I thought I'd post what I tell them, or some of what I tell them anyway, in the hopes that other MOJers might add their two cents as well. 

As a devoted student (albeit never in the classroom) of Mary Ann Glendon,  I always recommend Rights Talk and Nation Under Lawyers ahead of almost anything else (The Forum and Tower is also quite good for undergrads just cutting their teeth on the Western tradition). I am now happy to add Michael Stokes Paulsen's masterful book, The Constitution: An Introduction to my list of recommended readings. All of the aforementioned are admirably accessible, deeply interesting (well, for one interested in these things!), and perhaps most importantly, clarifying of the debates that have raged up and down the decades in the courts and legal academy throughout our nation's history. 

As for summer institutes, the secret is now out:  Catholic legal thinkers and others conservatives tend to receive much of their intellectual formation beyond the confines of their colleges and law schools. I found the Tertio Millenium Seminar really wonderful when I was a graduate student -- and that was well before the great Russell Hittinger joined the faculty. Other excellent seminars are offered by the Intercollegiate Studies Institute and the Witherspoon Institute. Liberty Fund, Acton Institute and Institute for Justice all have summer seminars too--more libertarian than the others, but worthwhile for the intellectual rigor and companionship. And, of course, we must not forget Notre Dame's Vita Institute

American conservatives--like other Americans-- can be tempted to an unyielding activism (more threatening than ever due to ubiquitous technology) that is unbefitting of conservative ideals. To lead others to take delight in the highest things, and in order to truly be of service to those in need, we must take time for silence, study and contemplation. One hopes these seminars encourage students to form the habits of the intellectual life--habits best articulated in Fr. Sertillanges' great work--so they can meet the coming challenges of our world with clear-mindedness, charity, and wisdom.  

From the Intellectual Life

Do you want to do intellectual work? Begin by creating within you a zone of silence, a habit of recollection, a will to renunciation and detachment which puts you entirely at the disposal of the work; acquire that state of soul unburdened by desire and self-will which is the state of grace of the intellectual worker. Without that you will do nothing, at least nothing worthwhile.

January 11, 2017 in Bachiochi, Erika | Permalink

Saturday, January 7, 2017

"Sobering Thoughts" and Catholic universities: A short reply to Mary Leary, Rob Vischer, and Timothy Snyder

In her recent post ("Sobering Thoughts for 2017"), Mary writes that "America appears to be facing such a test starting in 2017. The scene is set for the masses to excuse the normalization of the objectification of other human beings by those in power."  And, she links to a piece by Timothy Snyder called "What You Can Do to Save America from Tyranny," which lists a number of "lessons from across the fearful 20th century, adapted to the circumstances of today," that the author hopes will help Americans "learn from [Europeans'] experience" and so not "yield to fascism, Nazism or communism."  Building on some of Mary's thoughts, Rob Vischer posted here about the role and responsibilities of "Catholic universities in the Trump Era."

It's not news that that I did not support the candidacy of Donald Trump and I think I've been clear-eyed about what I take to be the facts that he is unsuited for, unprepared for, and unworthy of the Presidency.  Many of the proposals he endorsed, proposed, or flirted with are immoral and/or foolish; they should be opposed and I hope they will be rejected. 

As I see it, the "normalization of the objectification of other human beings by those in power" -- which Mary strongly and correctly reminds us must be resisted -- and also what Mary rightly calls "harmful efforts to silence debate on important issues" were underway before the election and during the Obama administration, and were supported by Mrs. Clinton and many of her supporters.  There's a case to be made, in fact, that support for this "normalization" and "objectification", and a commitment to silencing debate on certain questions, have become non-negotiable, bedrock positions -- positions more important than, say, constraining the use of military force through law, responding to material and social poverty, or protecting the human rights of vulnerable populations in other lands -- for the base and funders of her party.  The demonization and "othering" by Trump and some of his supporters of, say, immigrants or Muslims is wrong and inexcusable, but so was and is the no-small-amount of "othering" in the smug dismissals by activists and comedian-commentators of religious conservatives and Rust Belt-dwelling so-called "downscale voters."  This is not a "tu quoque" or equivalence point; it is intended only as a suggestion that 2017 might not so much be bringing new challenges for Catholic citizens as re-presenting ongoing challenges in different forms.    

In addition, in my view, much of the advice shared by Snyder (e.g., "Be Kind to Our Language", "Defend an Institution", etc.) has been appropriate for the last eight years -- a time in which celebrity culture, the academy, and the press were strikingly complacent regarding undemocratic and overreaching exercises of executive and administrative power -- and would have been valuable and important had Mrs. Clinton been elected.  (His identification of the Southern Poverty Law Center -- which regularly identifies mainstream religious beliefs and traditional moral positions as "hateful" and "bigoted" -- as a "good cause" to which we should donate seems like bad advice, regardless of the election's outcome.)  I tend to think that -- notwithstanding the enthusiasm for Trump among the repulsive "alt-right" -- it is unhelpful and inaccurate to equate the election of Trump with (quoting Snyder) 20th century Europeans' "yield[ing] to fascism, Nazism or communism," but, in any event, "making eye contact" and "believing in truth" seem like valuable suggestions at any time. 

Rob asked about the role of Catholic universities in "the Trump era."  I think it remains to be seen whether we have entered an "era" of Trump or have instead been confronted, temporarily, with the result of some deeply flawed campaign tactics, in a few counties in a few states, by a deeply flawed candidate.  In any event, my sense, like Rob's is that "the potential good of collaboration outweighs the danger of normalization unless and until President Trump acts to implement some of the more noxious policy proposals that he floated on the campaign trail."  Not having supported Trump, I intend to have no reservations about criticizing him and his proposals when it is called for (and I'm sure it will be).  However, I expect that (for example) his appointees to the federal bench and to important positions in the Departments of Education, HHS, and Justice will be (by my lights and for issues like education reform, religious freedom, and abortion) better than Mrs. Clinton's would have been and I don't think his (to put it mildly) many flaws and failings require me (or anyone else) to reject whatever benefits can be had from his having won.      

Finally:  I think that Mary is exactly right that, too often, those who "raise questions about those in power . . . have been met with ridicule and attacks" and that "[s]uch attacks are designed to silence."  St. Stephen the Martyr, pray for us.

January 7, 2017 in Garnett, Rick | Permalink

Friday, January 6, 2017

"A Gentleman of the Law": Congratulations and thanks to Judge Diarmuid O'Scannlain

Here is a very nice tribute to an outstanding federal judge, Hon. Diarmuid O'Scannlain, who is taking senior status this week on the U.S. Court of Appeals for the Ninth Circuit.  For three decades, Judge O'Scannlain has been a clear, strong voice for a principled judicial conservatism.   For an example of his writing, see his lecture from a few years ago on "The Natural Law in the American Tradition."  Thanks, and congratulations, to Judge O'Scannlain!

January 6, 2017 in Garnett, Rick | Permalink

Wednesday, January 4, 2017

"Silence": Scorsese’s Spiritual Masterpiece

That's the title of a piece, in First Things, that Rick Garnett and I think many of you will be interested in.  You can read it here.  Rick and I have both been--long been--big fans of Shusaku Endo's 1966 novel, Silence--and have both been waiting forever for Scorsese's film version of the novel.

January 4, 2017 in Perry, Michael | Permalink

Monday, January 2, 2017

Catholic universities in the Trump era

I appreciate Mary Leary’s reflection on the lessons of history and the safeguarding of the rule of law. I have been wondering about how Catholic universities should proactively engage a political era in which we may increasingly see, as she puts it, “the normalization of the objectification of other human beings by those in power.”  Over the past few decades, legalized abortion has been an issue that facilitated relatively clear line-drawing for Catholic universities.  (Whether or not a Catholic university recognized or honored those lines is another question, of course.) 

But in the era of Trump, where should the institutional witness of Catholic universities emerge? I’m not talking about the political advocacy of individual members of Catholic university communities, but about the issues on which institutional weight is brought to bear.  E.g., over the next four years, when and on what issues should a Catholic university be paying for bus transport for students to join protests?  Where do we see university leaders, in their official capacities, speaking out?  Where should law school clinics be jumping into the fray?  And how will these points of tension with the emerging (or already prevailing) order look different than they did under President Obama and his predecessors?  Does it all depend on future events, or are there already lines that we should be drawing now?   We’ve already seen one example in the response of Catholic universities to perceived threats to the Deferred Action for Childhood Arrivals program.  If we project to the end of the Trump Administration, where should our students and the broader public have seen the moral witness of Catholic universities expressed most clearly and consistently?  

One challenge is that much of what is objectionable, from a Catholic perspective, about our President-elect does not lend itself easily to institutional protest or pronouncements.  His rhetoric, priorities, self-absorption, scapegoating of others, and fomenting of distrust in institutions all were important factors as Catholics decided how to cast their votes in November.  But now that he's been elected, how should those objectionable qualities shape the response of Catholic universities to President Trump?  It makes sense to protest pending legislation.  It's much less obvious how or why to protest the President's demonstrated lack of important virtues.  

So how do Catholic universities work collaboratively with governing authorities in the era of Trump to advance the common good without normalizing the behavior and views that are in such tension with the Church's teaching?  My own inclination is that the potential good of collaboration outweighs the danger of normalization unless and until President Trump acts to implement some of the more noxious policy proposals that he floated on the campaign trail.  Though we should hope for the best, we should be proactive in preparing for the possibility that the darker themes of Trump's life and campaign will emerge in ways that compel Catholic universities to act.

January 2, 2017 in Vischer, Rob | Permalink

Sunday, January 1, 2017

Sobering Thoughts for 2017

As a scholar who studies human trafficking, I often find myself thinking about American antebellum slavery. Viewed from a contemporary perspective, it is incomprehensible to think that a person, let alone a society, could believe it permissible to actually own other human beings and consider them property. Yet, more people are enslaved today than at that time in history. Like many, I wonder what my position would have been on the issue if I lived in the 19th Century. Of course, I would like to think that I would have been an enlightened individual who saw slavery for the morally repugnant social structure it was and fought against it. However, I also recognize the social acceptance of this system for millions of ordinary people and the reality that many Catholics did not rise up in support of enslaved people, but accepted its normalization and engaged in whatever mental and moral gymnastics were necessary to condone or accept it as valid. This Spring I was fortunate to teach in CUA's American Law Program in Poland and toured the Krakow ghetto and other sites where events of the Holocaust took place. Similarly, I like to think I would have been brave enough to resist the antisemitism that later grew into acceptance of the Nazi effort to exterminate the Jewish people (as well as others). Again, however, the reality of so many Catholics accepting this evil system as legitimate or simply "the way it is" causes me to fear that I would have been far from extraordinary, but, rather, one of the masses.

With both of these examples, however, one can never know how one would respond. These eternal questions can thankfully only be answered with sincere gratitude that one has not been put to such a test. But as 2017 begins, it appears that this luxury is over.

Whether it is slavery, antisemitism, genocide, misogyny, racism – or any other similar evil, the roots with the masses are the same. They often begin with normalization. As despots rise to power, they often begin, not with extreme genocide or explicit anti-religious statements, but rather by pointing at other groups, often minority groups, and blaming them for the majority's problems. They begin with these smaller steps, building upon prejudices that may previously have existed. Sometimes this "otherness" is developed by assaulting these groups verbally and then claiming it was "just a joke," or not serious, or misinterpreted. But then it grows and grows until it is full blown scapegoating and a conscious effort to mislead the malcontent majority into a belief system which justifies the objectification and oppression of other human beings for a purpose that serves the establishment. In the case of slavery, it was the purpose of ensuring wealth. In the case of Nazi Europe it was to ensure power.

America appears to be facing such a test starting in 2017. The scene is set for the masses to excuse the normalization of the objectification of other human beings by those in power. We saw it clearly in the dismissal as "locker room talk" of explicit bragging of sexual assault, the minimizing of mocking a disabled person, or the implicit call for violence against a female candidate. We also saw it by threats to silence any dissention through lawsuits, name calling, or false allegations.

This realization of the impending test for all of us came to a head for me on the recent Feast of St. Stephen, the Church's first martyr. On December 26, the Church recalls how Stephen was living his life trying to be true to the Gospel by working with the people – all the people. When challenged by those in power, he had the courage to speak the truth to those in power and when he did so, they "could not withstand the wisdom and the spirit with which he spoke." Acts 6:8-10; 7:54-59 And even when the societal leaders were manipulating the general population to objectify and oppress these new Christians and those they were serving, he had the courage to stand up to them and articulate publicly what he knew to be true. I wondered on Stephen's feast day whether I would have the courage to stand up to those in power, and the masses who feel emboldened by the legitimizing of their views, and defend my brothers and sisters (in this case women, Hispanics, refugees, former POW's, Pope Francis, etc.) for all these groups have dared to raise questions about those in power and have been met with ridicule and attacks. Such attacks are designed to silence.

As has been discussed here at Mirror of Justice, people voted various ways for various legitimate reasons. This was a difficult election for anyone of faith. All elections require compromise. Of concern now is what people were willing to overlook in order to achieve their preferred ends. We risk that this pattern continues to levels far beyond compromise and that we will not be like Stephen and recognize when those in power articulate what is simply too wrong.

In a recent piece published in the Dallas Morning News, Yale history professor, Timothy Snyder, offers a path to that courage. An expert in the causes of the Holocaust, Snyder wrote a piece that will help all of us to recognize when it is necessary to stem harmful efforts to silence debate on important issues such as the environment, religious freedom, data breaches, election interference, or freedom itself. In his piece, What You, Yes You, Can Do to Save America From Tyranny he offers 20 suggestion that can fortify each of us to resist the seduction of objectification of others seemingly for our own gain but actually for the gain of those in power. While all 20 are worthy of consideration, here are a few to highlights (edited for space) of relevance to lawyers in particular:

"Americans are no wiser than the Europeans who saw democracy yield to fascism, Nazism or communism. Our one advantage is that we might learn from their experience. Now is a good time to do so.

Here are… lessons from across the fearful 20th century, adapted to the circumstances of today.

Do not obey in advance. Much of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then start to do it without being asked. You've already done this, haven't you? Stop. Anticipatory obedience teaches authorities what is possible and accelerates unfreedom.

Take responsibility for the face of the world. Notice the swastikas and the other signs of hate. Do not look away and do not get used to them. Remove them yourself and set an example for others to do so.

Defend an institution. Follow the courts or the media, or a court or a newspaper. Do not speak of "our institutions" unless you are making them yours by acting on their behalf. Institutions don't protect themselves. They go down like dominoes unless each is defended from the beginning.

Recall professional ethics. When the leaders of state set a negative example, professional commitments to just practice become much more important. It is hard to break a rule-of-law state without lawyers, and it is hard to have show trials without judges."

I think if St. Stephen were living today, he would offer us all some similar advice on how to remain true to our moral beliefs and not fall into rationalization to justify the objectification of others. I hope we can all face and pass this test.

January 1, 2017 | Permalink

Saturday, December 31, 2016

The Post-Election Introspection Continues in Boston Magazine

Boston Magazine joins the post-election introspection with this cover article in its January issue, "How Liberal Professors Are Ruining College." (I was especially happy to see the cover centrally displayed while buying local honey in Whole Foods, not a grocer I visit frequently but that is always humming when I do.)  From the article: 

Long known as bastions of progressive thought, and home to the likes of Noam Chomsky and the late Howard Zinn, our region’s schools have always been suspected of putting the “liberal” in liberal arts college. Until recently, though, no one had quantified just how far left higher ed here had drifted. [EB: See note below re this muddled use of the term "liberal."]


Last spring, Samuel Abrams, a professor of politics at Sarah Lawrence College, in New York, decided to run the numbers. From the start, he certainly expected liberal professors to outnumber conservatives, but his data—25 years’ worth of statistics from the Higher Education Research Institute—told a far more startling tale: In the South and throughout the Great Plains, the ratio of liberal to conservative professors hovered around 3 to 1. On the liberal left coast, the ratio was 6 to 1. And then there was New England—which looked like William F. Buckley’s worst nightmare—standing at 28 to 1. “It astonished me,” says Abrams, whose research revealed that conservative professors weren’t just rare; they were being pushed to the edge of extinction.

A key trouble for the article's author seems to be the potential radicalization of conservatives if they are pushed further and further underground while at college. (Conservatism is treated as yet another potential personal identity more than a philosophy of education or even of government.) But he is also (somewhat) attentive to the more essential trouble: that in becoming so ideologically monolithic, colleges have abandoned their raison d'etre. Quoting Abrams: “The goal of college is to give you multiple viewpoints and to grow your mind, not to just be comfortable in your own bubble. The real world is not full of progressives.” 

The article hardly provides the sort of introspection offered by Columbia's Mark Lilla in the New York Times just after the election [interesting post-article interview with Villa here], but it does present research and anecdotes that are worth the quick read. Readers are of course offered an easy out in the form of a response provided by the NYT's Paul Krugman: "professors actually haven’t become more liberal, but rather that the meaning of conservatism has changed  and the Fox-ification and now Trump-ification of the Republican Party has pushed highly educated members of the right over to the left." Still, it is something that Boston Magazine is trying to make sense of it all. 

NB: For an excellent essay exploring the distinctive classical and progressive/revisionist understandings of how liberal arts education ought to "liberate," see "Liberalism, Liberation, and the Liberal Arts" in Robbie George's masterful Conscience and Its Enemies. Just a taste of what I think is the book's most important chapter, offering essential insight into the current troubles in the ivory tower: 

Formally, the classical and revisionist conceptions are similar. Both propose the liberal arts as liberating. Both promise to enable the learner to achieve a greater measure of personal authenticity. But in substance they are polar opposites. Personal authenticity, in the classical understanding of liberal arts education, consists in self-mastery--in placing reason in control of desire. According to the classic liberal-arts ideal, learning promises liberation, but it is not liberation from demanding moral ideals and social norms, or liberation to act on our desires--it is, rather, liberation from slavery to those desires, slavery to self...


According to the classical liberal-arts ideal, our critical engagement with great thinkers enriches our understanding and enables us to grasp, or grasp more fully, great truths--truths that, when we appropriate them and integrate them into our lives, liberate us from what is merely vulgar, course, or base. These are soul-shaping, humanizing truths--truths whose appreciation and secure possession elevate reason above passion or appetite, enabling us to direct our desires and our wills to what is truly good, truly beautiful, truly worthy of human beings as possessors of a profound and inherent dignity. The classic liberal-arts proposition is that intellectual knowledge has a role to play in making self-transcendence possible. It can help us to understand what is good and to love the good above whatever it is we happen to desire; it can teach us to desire what is good because it is good, thus making us truly masters of ourselves

December 31, 2016 in Bachiochi, Erika | Permalink

Friday, December 30, 2016

Democrats' "Religion Problem"

This interview with Michael Wear (a former staffer for President Obama), over at The Atlantic, has been getting a lot of attention -- in particular, this anecdote:

Some of his colleagues also didn’t understand his work, he writes. He once drafted a faith-outreach fact sheet describing Obama’s views on poverty, titling it “Economic Fairness and the Least of These,” a reference to a famous teaching from Jesus in the Bible. Another staffer repeatedly deleted “the least of these,” commenting, “Is this a typo? It doesn’t make any sense to me. Who/what are ‘these’?”

This observation, by Wear, strikes me as accurate:

[T]here’s a religious illiteracy problem in the Democratic Party. It’s tied to the demographics of the country: More 20- and 30-year-olds are taking positions of power in the Democratic Party. They grew up in parts of the country where navigating religion was not important socially and not important to their political careers. This is very different from, like, James Carville in Louisiana in the ’80s. James Carville is not the most religious guy, but he gets religious people—if you didn’t get religious people running Democratic campaigns in the South in the ’80s, you wouldn’t win.

Another reason why they haven’t reached out to evangelicals in 2016 is that, no matter Clinton’s slogan of “Stronger Together,” we have a politics right now that is based on making enemies, and making people afraid. I think we’re seeing this with the Betsy DeVos nomination: It’s much easier to make people scared of evangelicals, and to make evangelicals the enemy, than trying to make an appeal to them. . . .


December 30, 2016 in Garnett, Rick | Permalink

John of Salisbury on Becket and the Freedom of the Church

From Letter 307/304 of the Letters of John of Salisbury, from John to Bishop John Belmeis of Poitiers, circa January, 1171:
"When that martyr was about to suffer before the altar in the Church, as has been said, before he was attacked, when he heard himself asked for by the soldiers who had come among the crowd of clerics and monks for this purpose shouting 'Where is the Archbishop?' he came to them from the steps he had almost ascended, saying with a fearless countenance, 'Here I am; what do you want?' One of the murderous soldiers answered him in a spirit of rage, 'Only that you die, for it is impossible for you to live any longer.' The Archbishop replied with no less courage in his speech than in his heart (for, with due respect for all martyrs, I will confidently state as my own opinion that none of them seemed to be more courageous in their suffering than he), 'And I am Willing to die for my God, and for the defense of the justice and freedom of the Church. But if you week (sic) my head, I forbid you on behalf of Almighty God and under threat of anathema to injure any other in any way, whether he be monk or cleric or layman, great or small; but let them be as free from punishment as they were from its cause; for not they, but I am to be held responsible if any of them has taken up the cause of the suffering Church. I willingly embrace death if only the Church will attain peace and freedom by the pouring out of my blood."

December 30, 2016 in Garnett, Rick | Permalink

Thursday, December 29, 2016

Gerson on conservatism and the "reasons for politics"

In a recent opinion piece, Michael Gerson noted:

[C]onservatives believe that a just society depends on the moral striving of finite and fallen creatures who treat each other with a respect and decency that laws can encourage but not enforce. Such virtues, often rooted in faith, are what turn families and communities into the nurseries of citizenship. These institutions not only shape good people, they inculcate the belief that humans have a dignity that, while often dishonored, can never be effaced. In the midst of all our justified skepticism, we can never be skeptical of this: that the reason for politics is to honor the equal value of every life, beginning with the weakest and most vulnerable. No bad goal — say, racial purity or communist ideology — outweighs this commitment. And no good goal — the efficiency of markets or the pursuit of greater equality — does either.

Well said.


December 29, 2016 in Garnett, Rick | Permalink

St. Thomas Becket and Magna Carta

I'm reposting a nice entry from Michael Moreland, from two years ago:



Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2016 in Garnett, Rick | Permalink

St. Thomas Becket, pray for us!


No automatic alt text available.

December 29, 2016 in Garnett, Rick | Permalink

Charlie Camosy’s Interview with Holly Taylor Coolman and the Controversy Over Diversity and Mission at Providence College

Fordham theology professor Charlie Camosy recently posted an interview (here) on the Crux website with fellow theologian and Providence College faculty member Holly Taylor Coolman. The interview addresses the recent controversy swirling at Providence College concerning Catholic identity, mission, and diversity.

As the editor’s note to the interview explains, Anthony Esolen, a professor of literature at Providence College, recently published a pair of essays in Crisis Magazine (here and here), in which he argued:

that the college’s understanding of “diversity”’ is more rooted in secular political ideology and contemporary gender theory than in a distinctly Catholic worldview. A faculty petition described his position as based on “racist, xenophobic, misogynist, homophobic, and religiously chauvinist statements,” and an email from Providence College President Father Brian Shanley disassociated the administration from Esolen’s views.

In the interview, Professor Coolman says that the current controversy on campus represents the inevitable collision of two groups.

One group is composed of Catholic faculty members who believe that Providence College’s “Catholic identity should be at the center of everything we do, and they look to the long history of Catholic tradition, including recent documents like Pope St. John Paul II’s Ex Corde Ecclesiae, as crucial.” They seek to avoid the fate of many American colleges and universities, once founded under Protestant auspices, but that are now thoroughly secular. This first group supports diversity, but they believe that it should be understood and rooted in the College’s Catholic identity.

The second group is made up of “people who tend to fall on the margins in our community, and also those supporting them.” They see “systemic forms of exclusion” in the wider society, and in Providence College, in particular, whose 100 year history “includes almost nothing of the African-American experience, or of Hispanic culture and tradition.” They support Providence College’s efforts to “recruit more students, faculty, and staff from underrepresented groups.” Coolman says, however, that this group is not composed of secularists as “some of these folks would also note that their concerns [about diversity] are prompted by Catholic commitments, beginning with a recognition of the dignity of every human being.”

Let me offer two observations with respect to the two groups that Coolman describes, some version of which can be found on the campus of virtually every Catholic college and university in the United States.

With respect to the second group that Coolman identifies (and here I speak of Catholic campuses in general, though I suspect it may also be true of Providence College ), it should be admitted that there is substantial contingent who are in fact hostile to any meaningful expression Catholic identity and mission. Sometimes this hostility is on display for all to see. Sometimes faculty are genuinely embarrassed to be affiliated with an institution that identifies with being “Catholic” because they associate this identity with being misogynist, patriarchal, homophobic, and anti-choice. Although Pope Francis’s popularity and his championing of certain acceptable causes (immigration, the environment, chief among them) may have made this affiliation slightly more palatable, this contingent would happily jettison the unwelcome baggage of Catholic identity if given the opportunity. As one Loyola colleague remarked upon learning that the University can make use of Loyola’s Catholic and Jesuit identity in reviewing proposed faculty hires, “Let’s secede!”

More often than not, however, opposition to Catholic mission and identity is not overt. On the contrary, those hostile to this mission and identity are happy to appropriate its language. They cloak themselves in the words of the institution’s mission statement – the pursuit of “social justice,” being “a man or woman for others,” “care for the whole person,” and of “finding God in all things.” Regardless of whether they are Catholic, practitioners of another faith, or are non-religious, they openly profess their enthusiasm for the school’s mission. And they can do so in good faith because “social justice” is what they define it to be, and not as the term is used and understood by the Church’s magisterium and in the wider Catholic intellectual tradition. That is to say, they can support a mission dedicated to “social justice” because the “social justice” they have in mind exactly coincides with how the term is understood in the wider, secular academy.

It must be admitted, that many of these individuals came to the Catholic college or university where they now teach or study not knowing much about the school’s professed identity. And what they did observe upon their arrival, they were told was “nothing to worry about. ” These telltale signs of Catholic identity could be safely ignored. The signs of a Catholic presence on campus – the crucifixes on the wall, the grotto dedicated to Mary, the picture of Pedro Arrupe or Vincent DePaul, and the talk of Dominican, Jesuit, Franciscan, Benedictine or some other “charism” – were all for private consumption by willing customers. After all, religion and spirituality in American life in general is thought to be a purely private affair that can be taken up or put down as one chooses. Thus, these students and faculty often inferred (and sometimes were expressly told) that these signs of identity were merely ornamental or ceremonial – that they did not reflect a genuine commitment meant to influence the intellectual life of the school. Thus, any move by the school to realize a more robust identity gives rise to a sense of betrayal – the rules of the game have been changed in mid-contest. These students and faculty thought they were a part of a secular university that enjoyed the trappings of religiosity as a matter of nostalgia, or to please older and more wealthy alumni. But the quixotic pursuit of Catholic identity in the academic work of the institution is, at worst, offensive, and at best a serious impediment to the achievement of genuine excellence, and the recognition of that achievement by secular peers. As such, it is something to be opposed, albeit often under the pretense of upholding the mission.

The second observation relates to the first. Prof. Coolman says that many in the second group she identifies cite to Catholic premises as a basis for their support for diversity on college campuses, “beginning with a recognition of the dignity of every human being.” No doubt many who oppose the “longstanding exclusion and unjust mistreatment of marginalized people” are sincere in their opposition. And they are correct in pointing to the Catholic tradition as sharing in the condemnation of such mistreatment. But their invocation of the specifically Catholic premise of human dignity is often incomplete and sometimes incoherent.

Thus, for example, the Catholic concept of human dignity (like any number of its secular counterparts) insists that gays and lesbians “must be treated with respect, compassion, and sensitivity” and that “[e]very sign of unjust discrimination in their regard should be avoided” (Catchism §2358). But the Catholic concept of human dignity does not require the state to grant legal recognition to gay and lesbian couples in the form of civil unions or same-sex marriage. Similarly, some of the same people who argue for inclusion of the “marginalized” (meaning, among others, racial minorities, members of the LGBT community, and adherents of religions other than Christianity) would exclude unborn children from their rightful place in the human family and under the protection of the law. While, one might argue for the right to abortion based on some secular notion of human dignity, faithful recourse to the Catholic understanding of human dignity precludes such a move.

A third and final comment on Prof. Coolman’s interview. She says that what has been lacking at Providence College is leadership that sufficiently nourishes the College’s mission through a “clear articulation of things like the college’s history, the Catholic tradition, and the Dominican tradition” as well as “an invitation across campus to collaborate to share in working out that mission on campus.” She says that Providence College lacks “both of these elements, but especially the second.”

I believe that what Coolman says of PC is true of many Catholic colleges and universities.

Of course the invitation to collaborate – to share in the work of a common mission – will be an empty one if the substance of what one is being invited to share in isn’t clearly set forth. While the main problem at Providence College may be the absence of an invitation to collaborate and live out the College’s mission, I believe that the bigger problem at most Catholic institutions is a clear articulation of the institution’s identity. This failure is not due to a lack of time and effort spent word-smithing mission statements. Rather, it is due to a lack of courage in having the willingness to plainly say what needs to be said, to draw boundaries, to acknowledge that not everyone will find this vision of education attractive, to explain in concrete terms what this identity affirmatively demands and what it precludes. Coolman notes that at Providence College “engagement with the mission in faculty hiring processes has also been seriously inadequate.” It is no exaggeration to say that faculty hiring is the most important way in which a school’s mission is operationalized. As such, a clear articulation of the criteria to be used in “hiring for mission” is indispensable if Catholic colleges and universities are to have any hope of maintaining their identity and genuinely offering the distinctive kind of education they now claim to provide.

December 29, 2016 | Permalink

Thursday, December 22, 2016

"The Spiritual Crisis of the Modern Economy"

I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of good, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Things or that Murray, Putnam, and Vance have highlighted in their recent books (and that our own Paul Horwitz has blogged about).  It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites.  Here's just a bit: 

One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .

The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.

. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .

Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those—both white and nonwhite—who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.

December 22, 2016 in Garnett, Rick | Permalink

Four Pieces on the Culture War--Inevitable, Interminable, Permanent

For one reason or another, a number of people in the blogosphere have been writing culture war posts in the last few days. Perhaps it's the end of the year, or the looming political changes, or exam avoidance, or just the holiday cheer. For those who are interested, have a look at Mark Tushnet's recent post, Paul Horwitz's response, and this rather grim comment by R.J. Snell--all of them culture war related.

But the piece I really want to highlight is alluded to in the Snell post--Philip Rieff's "The Newer Noises of War in the Second Culture Camp: Notes on Professor Burt's Legal Fictions," published in 1991 and in response to Robert Burt's then-recent book, "Two Jewish Justices: Outcasts in the Promised Land." I cannot do justice to the entire piece, but here is a fragment that is, in its way, responsive to each of the three posts above:

Let there be fight? And there was. And there is. James Joyce's pun, on the words of Jewish second world creation, Genesis 1:3, is more than mildly amusing; it gives readers the most exact and concise account I know of the sociological form of culture. Culture is the form of fighting before the firing actually begins. Every culture declares peace on its own inevitably political terms. Unless a culture is defeated politically, as the Jewish was from the Roman conquest to the founding of Israel, it will assert itself politically. A living culture, even one that imitates life by politicizing its cultural impoverishment, works for itself. That cultural work is the matter and manner of disarming competing cultures, inside and outside its previously bounded self. In its disarming manner, a culture makes the ultimate political means of enforcement, armed force, unnecessary....

12) Kulturkampf. The German compound word for the disarming force/form of culture has an awkward English equivalent: culture/struggle. As I remarked in the first note, the punning polemical genius of Joyce brought him closer than any sociologist I know to both the formal fighting sense of culture and its superordinate creative sense. It is in that both/and that the historical task of culture is always and everywhere the same: the creation of a world in which its inhabitants may find themselves at home and yet accommodate the stranger without yielding their habitus to him. Here and now, pluralism has its price: a united front of second against third world assaults [for Rieff's discussion of first, second, and third worlds, see earlier in the piece], which are often mounted in the name of pluralism.

13) Origins of kulturkampf. Law is the ultimate weapon, before any turn to harder ware, in a kulturkampf. That word first appeared in common German use in the early 1870's during the struggle of the National Liberal political party to disarm by law the moral/educational authority, and political pulpitry, of a triumphalist Roman Catholic hierarchy, revitalized as it then was by its dogma of papal infallibility in matters of faith and morals. The aim of the National Liberals was to shift the German Catholic imagination away from the church to the state. The Pope responded to newly restrictive laws by forbidding clerical conformity to them. In turn, the state dismissed clerical resisters from their duties and, moreover, suspended their state salaries. Elites of the kulturstaat, both Catholic and Protestant, then learned a fatally rational and enduring lesson: the high price of being other than indifferent to the temptation of opposing the machtstaat.

December 22, 2016 in DeGirolami, Marc | Permalink

Wednesday, December 21, 2016

"Erroneous Autonomy" conference at Catholic University of America

Prof. Stephen Schneck passed on to me a notice about an upcoming conference ("Erroneous Autonomy:  The Dignity of Work") at Catholic University of America that might be of interest to MOJ readers.  Michael Sean Winters blogs about the event here.  

The event is co-sponsored, it appears, by the AFL-CIO and that union's President, Richard Trumka, is one of the speakers.  (I'm afraid I was not invited to explain that and why the Church's social teachings regarding the dignity of work and the freedom of association do not, contrary to the suggestions of some, provide support for public-employee unionism as it exists and is practiced in the United States.  Maybe next time.) 

I continue to suspect that the anti-libertarianism campaign of some Catholics who are political progressives often sets up straw men (i.e., attacks as "libertarian" or "Randian" positions that do not depend on or reflect the unsound anthropological premises of philosophical libertarianism). Here's a post I did a little while ago (on the occasion of an earlier CUA conference in this series), that tries to develop this concern.  

December 21, 2016 in Garnett, Rick | Permalink

Tuesday, December 20, 2016

The hope of Christmas and Catholic universities

For Christians, this season is a powerful reminder that we do not face the challenges of this fallen world alone. Immanuel – God with us – is an infinite and eternal source of hope, demonstrating that the Almighty Creator of the Universe cares enough about each one of us to become a baby born in a manger. As Dietrich Bonhoeffer wrote, the Incarnation reveals that “God is not ashamed of the lowliness of human beings. God marches right in . . . . He loves the lost, the neglected, the unseemly, the excluded, the weak and broken.”

God’s radical love for human beings revealed through the Incarnation provides a compelling and countercultural reason to love others as we love ourselves. Increasingly, it seems, our world defines us by our differences and implores us to care for others only to the extent that they look like, think like, or act like we do. Or at the opposite extreme, the world urges us to ignore difference and push everyone into the same consumer-driven framework, as though culture, religion, and worldview can be glossed over by maximizing economic self-interest. Both extremes contribute to what Pope Francis refers to as “the globalization of indifference.”

The Incarnation offers a better way: Christ came because of His love for human beings, and that love was not diminished by the particularity or messiness of the human condition. Christ’s love does not ignore or negate difference – it transcends difference through a radical embrace of “the other.”

The division and discord of the present day have been painfully on display this week from Aleppo to Ankara to Berlin to our own neighborhoods. We are grappling with serious concerns about the well-being of religious and racial minorities, with diminished trust in social institutions (including the Church), and with anguished questions about the continued viability of a shared vision of the common good.

Under these circumstances, we need the Incarnation more than ever. The hope of Christmas provides the foundation for a conception of solidarity as robust as the vision cast by the Church as it recommitted itself to engaging the modern era during the Second Vatican Council:

The joys and the hopes, the griefs and anxieties of the men of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ.

Solidarity is not contingent on our ability to identify similarities between us and the other, but rather, in the words of Pope Paul VI at the time of the Council, “binds us to make ourselves the neighbor of every person without exception, and of actively helping him when he comes across our path.”

So what does this have to do with the day-to-day life of a Catholic university? Everything. In Ex Corde Ecclesiae, Pope John Paul II charged Catholic universities with the task of forming “an authentic human community animated by the spirit of Christ.” That is a daunting task, to be sure, but it is, with God’s help, attainable. It will flow more from an orientation of the heart than a tactical decision of the mind. Are we ready to make ourselves the neighbor of every person without exception? And what would our campuses look like if we did?

As we approach a new year, there is plenty in the world about which to be anxious. But there is great confidence to be found in the Gospel’s reminder that God is with us. If we take that to heart, there is neither reason for despair nor time for indifference.

December 20, 2016 | Permalink

Ashley Berner on her book, "Pluralism and American Education: No One Way to School"

Over at the Law and Religion Forum, my colleague, Mark Movsesian, has an interview with Ashley Berner, professor and deputy director of the Institute for Education Policy at Johns Hopkins School of Education, concerning her new book, Pluralism and American Education: No One Way to School. Here's a bit from the conversation:

L&R Forum: You argue for “educational pluralism,” which you say is a “middle path” between state-sponsored uniformity and a libertarian, privatized model. Could you explain what you mean? How would educational pluralism work in practice?

Berner: Educational pluralism asks us to de-couple funding schools and operating schools. Thus in the Netherlands, only 30% of students attend state-funded, state-operated schools, while the rest attend schools that are funded and regulated by the state but operated by non-state institutions. Educational pluralism also requires regulatory guardrails that apply to all schools, thus ensuring some level of coherence across (for instance) content and assessments and sometimes admissions.

That’s why I think of it as a middle path: education is a public good (hence state-mandated requirements) that may be provided by a variety of civic organizations (religious or otherwise).

L&R Forum: Most Americans think that uniform public education is necessary to promote good citizenship. Yet civic knowledge among public school students is appallingly low. Why the mismatch between theory and practice? What benefits would educational pluralism offer in this respect?

Berner: Citizenship formation includes specific knowledge (How does the government work?), specific skills (How do I write my Congressperson?), attachment and participation (Why is this country/state/city worth participating in?), and tolerance (How can we respectfully disagree?). Cultivating the above requires a robust academic program and the possibility of classroom debate. Yet many of our schools – public and private – undervalue the content and skills required to engage in the democratic process. Do schools insist that all students know the basic tenets of the Constitution? Or understand the separation of powers? Or can name the capital of every state? What about actually learning a foreign language and knowing world geography inside out? Our public schools don’t even come close, and plenty of non-public schools undervalue rigorous content.

A second reason may be that many schools struggle to articulate the why’s for students, a point that James Davison Hunter’s book, The Death of Character (2000) drives home. Citizenship requires duty to something greater than oneself. In schools with strong normative cultures, the “greater than” is simply more readily available than it in a supposedly neutral school. Scott Seider’s Character Compass (2012) takes us inside three Boston charter schools whose core commitments draw upon Aristotelian, Pacific Rim, and performance ethics, each of which shapes their respective traditions and rituals.

Educational pluralism simply foregrounds the role that values and commitments play in school culture. The structure of educational pluralism does not solve the problem of citizenship formation by itself. It does, however, create space for schools that are organized around explicit normative claims. And in general, non-public schools provide richer academic content than do district schools. Put these two factors together, and the odds are that pluralizing the school system will yield better civic outcomes.

December 20, 2016 in DeGirolami, Marc | Permalink

Monday, December 19, 2016

Leiter on the need for "religious orthodoxy" to "die[] out"

In this brief, bracing blog post, Prof. Brian Leiter (Chicago) states that "Until religious orthodoxy of whatever stripe dies out, humanity will be at risk, alas."  Hmmm.  Putting on my University of Chicago green-eye-shade, I'm pretty sure that -- going strictly on the evidence, of course -- humanity's smart welfarist move, behind the "veil of ignorance" and all that, is to prefer "religious orthodoxy" to the other, rival kinds.

December 19, 2016 in Garnett, Rick | Permalink