Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Thursday, August 6, 2015

Prof. Robert A. Burt, R.I.P.

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I learned so much from him and he shaped profoundly what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet.  

I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  My first law-review article, 19 years ago, was inspired by him.  Our last face-to-face conversation, during a visit by him to Notre Dame for a workshop, was about a chapter on Job in what became his fascinating political-theory workIn the Whirlwind:  God and Humanity in Conflict.

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

August 6, 2015 in Garnett, Rick | Permalink

Wednesday, August 5, 2015

Douthat responds (powerfully) to the "pro-life case for Planned Parenthood"

Here.   Among other things, Douthat explains why the often-lodged-but-still-not-sound claim that "pro-lifers are hypocrites unless they enthusiastically endorse extensive public funding for contraception" is, well, still-not-sound. 

August 5, 2015 in Garnett, Rick | Permalink

Inazu, McConnell, and Garnett on religious freedom and civil society . . . and taxes

John Inazu (WUSTL), Michael McConnell (Stanford), and I have this piece, "How To Protect Endangered Religious Groups You Admire," up at Christianity Today.  It's about the First Amendment Defense Act specifically and, more generally, about the importance of not moving, post-Obergefell, to pressure or penalize religious institutions and agencies that do important and valuable work . . . and that continue to embrace standard Christian teachings on marriage and sexuality.  Check it out.  Comments welcome.  Here's a bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

August 5, 2015 in Garnett, Rick | Permalink

Biblical Intratextualism

Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.

But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):

Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.

Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”

With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.

August 5, 2015 in DeGirolami, Marc | Permalink

Tuesday, August 4, 2015

All Things (Except Abortion) Considered

This evening, NPR's All Things Considered reported that a federal district judge in Idaho struck down a 2014 law that had criminalized undercover video and audio investigations of farming operations. The Dairymen's Association had lobbied for the law to protect their operations from animal rights activists who were disguising themselves--in plain sight--as employees, and then secretly video or audio taping while on the job.  The judge said such uncover investigations were protected by the First Amendment, as form of political speech.

NPR interviewed animal rights activist Matt Rice of Mercy for Animals who makes his case for the need for their investigations:  "These animals have been moved inside, behind closed doors, out of sight and out of mind of most Americans, but by doing these undercover investigations, we can act as the eyes and ears for the American public." The reporter notes that Mercy for Animals have released the videos, revealing some of the most "unappetizing" part of American agriculture: "filth, overcrowding, disease, suffering."

Now, I take no issue with the reporting of this story as such. But NPR's favorable treatment of animal rights' activist Matt Rice made me wonder how they would treat the undercover work of David Daleiden or Lila Rose, those who have engaged in similar work, but investigate instead the "unappetizing" part of what we euphemistically call the "right to choose." As it turns out, we don't have to guess. In an article published on July 22nd, NPR reports: 

[Daldeiden] has been helping to create similar sting videos for years and has ties to larger well-known groups that oppose abortion. [He] previously worked at Live Action, whose young founder, Lila Rose, has become a darling among abortion opponents with her own series of sting videos targeting Planned Parenthood....As with Daleiden's videos, closer examinations have found those posted by Live Action use deceptive editing to make false claims....Abortion rights groups have suggested that Daleiden needed a new company to issue his videos, since the work of Live Action has been discredited. 

I don't know Daldeiden. I have only watched the first of his videos. (And I have never weighed in on the morality of such "sting" operations, a question that arose after Lila Rose's 2011 videos became public: I see good arguments on both sides.) But much like Matt Rice, Daldeiden investigates heinous acts done "behind closed doors, out of sight and out of mind of most Americans, [acting] as the eyes and ears for the American public." Indeed, one would think investigating the dismemberment and sale of human beings might just provide a greater public service than investigating abuse of animals. Call me naive, but it still confounds me that NPR can't see that. 


August 4, 2015 | Permalink

Kasich Makes the Debate?

The NY Times "Upshot" blog reports that Ohio governor John Kasich is doing well enough in the GOP presidential race, despite his late entry, that he seems likely to squeeze into Thursday's debate. That is good news, I think, because for a couple of reasons Kasich is a candidate from whom people ought to hear more. (In contrast to the dude at the top of the GOP polls.) First, Kasich sounds many of the themes of "compassionate conservatism" that I think have  been very muted (unfortunately so) in recent Republican politics with the rise of Tea Party anger about government. Second, during this time of polarization, Kasich has, as governor, worked with both sides of the aisle.

I would still disagree with Kasich on a lot of issues (I'm a Democrat, albeit a conflicted one). Moreover, I am not saying there aren't other GOP candidates who have done the two things above.  But Kasich has done them more, and/or more recently, even when polarization was often the path of least resistance.

August 4, 2015 in Berg, Thomas | Permalink

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

A very interesting comment authored jointly by Rick, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act [UPDATE: I see Tom got there first below, so I've stricken the excerpted bit in this post.]

One thought that has occurred to me on the issue of "tax exemption" of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University's tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within "civil society" that should in general not be touched by the government's taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of "exemption" when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax.

[Further update: I've amended some things in the post for clarity.]

August 4, 2015 in DeGirolami, Marc | Permalink

Garnett, Inazu, and McConnell on Protecting Faith-Based Service Organizations

The bill known as the First Amendment Defense Act (FADA), designed to protect adherents of traditional-marriage views from being penalized by the federal government in various contexts, has of course sparked a lot of controversy. There are likely to be amendments, or amended versions introduced. Rick Garnett, John Inazu, and Michael McConnell now have a powerful piece online at Christianity Today on (1) why some form of this legislation is needed now and (2) why its protections should focus (more so than the current version) on nonprofit religious organizations providing social services and education of great value to the common good. These organizations

give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.


Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court's recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Read the whole thing.

August 4, 2015 in Berg, Thomas | Permalink

Monday, August 3, 2015

"Seward's Folly," Dagger John, and school choice

I've been reading, and enjoying a lot, Terry Golway's book "Machine Made:  Tammany Hall and the Creation of American Politics."  The early chapters are all about trans-Atlantic anti-Catholicism and the efforts of folks like Dagger John Hughes and Daniel O'Connell to fight it.  My more politically left-leaning Catholic friends would love all the broadsides against individualism and "laissez faire" capitalism and those who are more conservative might chuckle over all the clear-eyed presentations of public-employee cronyism and moralistic progressivism.    Either way, it's a really good read (and helps explain why Irish Catholics in America vote the (politically) think the way they do).  

But, for me, the real nugget -- I cannot believe I didn't know this -- was learning that William Seward (who would later, so wisely and presciently, secure for the United States my home state, the Great Land, of Alaska) was a very early supporter of public funding for poor children to attend parochial schools and of respecting their parents' wishes to have options besides standardizing, ideologically aggressive "public" education.   And so it goes . . .

August 3, 2015 in Garnett, Rick | Permalink

"Planned Parenthood and the Barbarity of America"

George Will is not always right, but he sure is here:

. . . Cecile Richards, Planned Parenthood’s president, apologizes for the “tone” of her operatives’ chatter about crushing babies. But the tone flows from Planned Parenthood’s premise: Why be solemn about meat?

Even partial-birth abortion is — must be — a sacrament in the Church of “Choice.” This sect knows that its entire edifice depends on not yielding an inch on its insistence that what an abortion kills never possesses a scintilla of moral significance. . . .

August 3, 2015 in Garnett, Rick | Permalink