Friday, December 5, 2014
One of the regular themes of the Mirror of Justice is the distinct value of religiously-affiliated higher education, most particularly in the law school environment. The following story does not involve legal education but does illustrate the small miracles and serendipitous (read: divine) encounters of people of faith that we see again and again in faith-based educational settings. God’s ways may be mysterious, so it is hardly surprising that we are more likely to perceive those ways at a faith-based school where we are open to those mysteries.
My daughter Katie is a sophomore at Notre Dame. Football Saturdays, of course, are a legendary part of the Notre Dame experience. When the Fighting Irish play at home, a host of visitors come to campus. On the Saturday of a recent home football game (we won’t say anything more about the game itself — it suffices to say it was a game in the second half of the season), my daughter was walking to the stadium with her two roommates, Jackie and Maddy. They happened upon a tailgate party hosted by a young couple to raise funds for the Cystic Fibrosis Foundation. Intrigued by this tailgate with a purpose, because Jackie has cystic fibrosis, the group of three Notre Dame sophomores stopped to talk with the hosts.
They learned that the couple running the Cystic Fibrosis Foundation — one a graduate of Notre Dame and the other of St. Mary’s — had been blessed only three weeks earlier with the birth of a daughter, Nora. But Nora was diagnosed with cystic fibrosis and soon was in critical condition as her bowel accidentally had been perforated. Jackie told the parents that, like their little new daughter, she too had the condition, presenting to them an in-the-flesh example of a successful young woman at a leading national university who was joyfully overcoming cystic fibrosis. The smiles grew larger all around, even as the tears began to flow. Truly Providence had brought these five people together, blessing both the three Notre Dame students and Nora’s parents.
But the Notre Dame bond ran still deeper, as another spiritual stage had been set. The mother of the new-born with cystic fibrosis mentioned that, when her little daughter was going into surgery with little chance of survival, she had invoked the help of an American candidate for beatification, Father Solanus Casey and had asked his followers around the world the join in prayer for Nora. Venerable Solanus (or Barney) Casey, who had been a beloved priest in Detroit with a heart for the sick, lived from 1870 to 1957. Indeed, the mother emphasized she had been careful to invoke the help only of Solanus Casey and had asked recipients of her email message to do the same.
Displaying the photograph proof, Nora’s mother had touched a Father Casey relic to the baby’s cheek and then watched the baby’s face transform from an expression of pain to one of bliss. Little Nora survived and continues to slowly recover, contrary to the expectations and beyond the explanations of her physicians. (Support for the family by generous donors is most appreciated: here.) Nora’s mother is submitting the evidence of this miracle to the Vatican in support of Father Casey’s cause.
As this small group of students and Nora’s parents celebrated God’s grace together, Nora’s parents were amazed to find how well informed my daughter Katie was about subject of beautification in general and about leading American candidates in particular. As a freshman seminar last year, Katie had studied American saints and conducted research on the cause of American candidates for beatification or canonization. As Katie has told her seminar professor, Kathleen Sprows Cummings, having been able to study the subject in that class allowed Katie to share more fully in that beautiful moment with Nora’s parents on the Notre Dame campus months later. This meeting ended with the parents showing Katie, Jackie, Maddy, and Mikey pictures of Nora smiling (and, yes, as a further miracle, she was able to smile even at such a young age) while holding the relic of Blessed Father Casey. Keep Nora and her parents in her prayers and continue to seek the intercession of Father Casey.
God of course moves in the lives and experiences of those who rely on Him while attending non-religious schools, and the power of the divine breaks through any attempted line of separation. God meets us wherever we are faithful. But through the spiritual environment created, the deliberate development of a faith-based curriculum, and the faithful intentionality of event-planning, religiously-affiliated schools are uniquely open to the movement of God.
(From Tom Berg:) The Court heard oral argument Wednesday in Young v. United Parcel Service, the case involving accommodations for pregnant workers under the Pregnancy Discrimination Act of 1978 (the PDA). As I've mentioned in a prior post, Peggy Young had sought and been denied the same sort of light-duty accommodation that had been given to workers with similar work limitations from other causes, such as on-the-job injuries, disabilities under the ADA, and conditions or circumstnaces (medical problems, drunk-driving convictions) that led to a driver-employee's loss of a Department of Transportation commercial truck-driving license. And as I've detailed, 23 pro-life organizations filed an amicus brief arguing that the PDA should be interpreted to require pregnancy accommodations when the employer made accommodations for other such categories of workers who were (in the words of the statute) "similar in their ability or inability to work."
I did a summary of the case and the pro-life brief Wednesday for Christianity Today. Many media outlets, including the N.Y. Times and the Wash. Post, remarked on the convergence in this case of pro-life groups and pro-choice feminist groups (it was striking, at the press conference after the argument, to see Galen Carey of the National Association of Evangelicals followed by Marcia Greenberger of the National Women's Law Center, both expressing support for strong protections for pregnant women). As I said in my CT piece,
I hope that the message of this brief will resonate, and draw attention, in the broader society: supporting pregnant women is a pro-life cause, and pro-life groups of all kinds are strongly committed to it.
Of course, oral argument focused on the key statutory-interpretation question: are the text and purpose of the PDA violated only when the employer disfavors pregnancy facially in a policy or by virtually singling it out for denial, or are they also violated when the employer makes accommodations for workers whose conditions, albeit from another source, make them "similar in their ability or inability to work"? The arguments got a little intricate, and some justices (Roberts, Kennedy) said less in this argument than usual, giving little or no indication how they were inclined.
Thursday, December 4, 2014
A good bit of our understanding of religious freedom and establishment is shaped by the legacy of reformation, restoration, persecution, and toleration in Tudor and Stuart England, and so along comes historian J.J. Scarisbrick in the Weekly Standard with this review of Jessie Childs's God's Traitors: Terror and Faith in Elizabethan England (Oxford UP). A short excerpt is pasted below. As an aside, Scarisbrick is a remarkable figure in his own right--the author in 1968 of the definitive biography of Henry VIII (which inaugurated the revisionist view of Eamon Duffy and others arguing that the English Reformation was not all light and progress) and, along with his wife Nuala, one of the founders of the British pro-life movement.
[W]hat a story [God's Traitors] tells: plots and counterplots, assassinations and Armadas, horrendous torture and unspeakably gruesome executions, stinking prisons, secret messages written in orange juice (invisible until heated), spies and traitors and clandestine printing presses. Hollywood could not have made it up.
Jessie Childs is not Roman Catholic, but she is remarkably fair and astute in her judgments and (though she should not say that Catholics believe that the Eucharistic presence is a physical one) has a deep understanding of Catholic culture. She understands how bewildering it was for Catholics to find that the faith of their forefathers (and of English kings and queens since time immemorial) was now treason and that they apparently had to choose between queen and pope—let alone between queen and the king of Spain, who conveniently believed that Holy Mother Church was best served by Spanish imperialism.
Media outlets have once again focused on the wave of sexual assault taking place on U.S. college and university campuses. The stories about the University of Virginia’s recent experience are illustrative of a national phenomenon. Of course the law has, through the Title IX provisions overseen by the Department of Education, been involved in the process. But is the fundamental purpose of these laws—to protect the young—really understood by all of those entrusted with the law’s execution?
Recently, I have been discussing these matters with Jesuit confreres who are on the respective campus committees of their schools that are attempting to assist these institutions in compliance with the Title IX provisions dealing with sexual assault. From discussions with these priests and friends, I think it safe to say that most schools are concerned about the need to comply with the civil laws. However, I question whether these committees in their entirety are looking at the root problems and the convergence of these problems that lead to campus climates where a combination of factors, not addressed by some interpretations of the law and therefore not addressed by the school committees, lead to the “perfect storms” of rampant sexual misconduct that bring great harm to many of our young people.
A friend of many of us here at the Mirror of Justice John Garvey, who is president of The Catholic University of America, has acknowledged that one of the underlying problems of these perfect storms is having young men and women live together in campus residence halls where their common life leads to sharing more than simply a roof overhead. Other elements of the perfect storms begin to enter the forecast, and these include: permissive attitudes about alcohol and other drugs on campus and, so-called, peer education programs that promote rather than deter sexual promiscuity. The forecast gets amplified by current trends to make toilet and shower facilities “gender neutral” so as to assuage the feelings of those students who “feel uncomfortable” with sex/gender assigned bathroom facilities. Another factor needs to be considered here: there are faculty and staff who find the sexual desires of students reflective of their own life choices. Consequently, some of these staff and faculty would not want to see their educational institutions make policy decisions pertaining to student housing and student life that contravene their own life-style choices.
All of these factors lead to the perfect storms of sexual assault that currently exist on American campuses and will likely continue to exist until the fundamental purposes of the moral law and the civil law are viewed in the light of protecting our young people from living and other institutional circumstances that are dangerous to their health and wellbeing.
I know for a fact that many of my colleagues in the academy will regard my perspective as old-fashioned and not with the times; however, my retort is that in spite of being old-fashioned and not with the times the principles that I would propose for student life—including separate housing for men and women, intolerance of on-campus alcohol and drug abuse, and a cessation of freshman orientation programs that teach our young on the intricacies of how to have “safe sex”—should have a noticeable and remedial impact on the campus culture of the present age that sustain the perfect storms bringing havoc to so many college students today. Trying to comply with laws in ways that avoid dealing with the root problems that lead to and sustain the perfect storms is not the way to go about protecting those entrusted to our care.
Thomas Hobbes died on this date 335 years ago in 1679 (aged 91--a remarkably long life for someone in the seventeenth century!), allegedly uttering "Now I take a great leap in the dark." I have read Leviathan in a first-year elective on justice for several years now, and I am continually amazed by the sheer brilliance of the book and regard it as among the great works of our civilization. Every student of the law should, I think, grapple with Hobbes's insights into human nature, political power, and the origins of law, even if one must (as I do) disagree in the end. The great Catholic philosopher Peter Geach was also an admirer of Hobbes, and here is a bit from his splendid paper "The Religion of Thomas Hobbes" (contrary to the conventional view that Hobbes was a closet atheist, Geach argues that Hobbes was a heterodox Christian):
The writings of Hobbes manifest a quality that he shares with certain other writers: with Thucydides, with the Old Testament historiographers, with Schopenhauer in some works. All these writers have the power to present drily, without rhetorical condemnation, what men can be like and under stress often are like: that is, pretty nasty. Men go in for self-flattering illusions and dislike authors who hold up a mirror to the ugly human face. As the epitaph says, few have loved Thucydides son of Oloros (of course he did win the love and admiration of Hobbes); abuse of Schopenhauer, as of Hobbes, is a commonplace; Msgr Knox found Old Testament histories hard to take. Splutters of disgust and indignation against these authors who have dared to tell the truth are often grimly comic in their effect; reality has a way of vindicating the truth-tellers against the flatterers. As the song says, if you break the bloody glass (sc. barometer) you won't stop the weather.
Wednesday, December 3, 2014
I've been enjoying Professor Ronald Collins's series on Judge Richard Posner over at the Concurring Opinions blog. The Collins biography is extremely substantive and scholarly; it's not really the subject of this post at all. I'm more interested here in "Posner on Posner," which is basically a collection of interviews, reflections, bon mots, aphorisms, scattered wisdom about cats, opinionation about the virtues and vices of spicy food (or was it jurisprudence?), and so on. The latest installment is a smorgasbord of law professor queries about various scraps of miscellany, answered by Judge Posner in his genially efficient fashion. It's a fun little window on Richard Posner the man. It reminds me of the way that James Fitzjames Stephen used to produce regular victuals for the insatiably voracious Victorian English intelligentsia.
The Posner on Posner format, though, is such that I'm afraid folks might perhaps be misled to believe that when Judge Posner makes statements like, "I think the role of legal doctrine in judicial decisions is considerably overrated," that means that legal doctrine is likely actually to play very little role in his judicial decision making. Law professors like to ask questions about things like pragmatism, and the influence of law and economics and sundry other ideological precommitments on judging, how judging will change "in the future," and whether Posner reads any Lon Fuller. And, of course, Judge Posner is rather able at providing law professors with what they so much want to hear--interesting, provocative, sometimes perhaps a little shocking (not too much! The whiff of late Victorian England is indeed potent), always eminently Posnerian responses to these sorts of questions. Indeed, he's made something of an extrajudicial second career in writing great numbers of books whose theme is a tell-it-like-it-is forthrightness that shows the emperor in his resplendent nudity (and the repeated announcement of that theme, just in case you missed the last 19 times it was pressed, as something altogether novel coming from a judge). Professor Collins's series is certainly of a piece with this spectacularly prodigious extrajudicial output.
Still, if you really want to know what Posner the judge is like--and here one could substitute really anybody when writing as a judge--you might do better simply to read his opinions. Failing that, or for the sake of saving a little time, may I humbly submit that you read my piece with Kevin Walsh about the several ways in which Posner the judge is often altogether different from Posner the public intellectual who explains what it is like to be a judge. It's only after pursuing this sort of course that the differences between a judge and an explanation (even from the most able of judges) of 'what-it-is-like-to-be-a judge' (with apologies to Thomas Nagel) come into view--differences that for various reasons may run deep in Judge Posner's particular case.
Although I favor comprehensive immigration reforms, including relief for many of those persons living and working in the United States in an undocumented status, I think the President unconstitutionally crossed the line between prosecutorial discretion (an Executive function) and policy making (a legislative function) when he signed an Executive Order, which will allow several million undocumented persons to remain in the United States. For my reasoning, see this post on Aleteia.
There is no excuse for targeting politicians' children for negative comment.
Right thinking people would never do that.
It really is unacceptable.
Good people should condemn anyone who does it.
Please lay aside ideology on this one and unite around a common principle.
All of us, surely, can do that.
Let's protect politicians' kids, just as we would want our own to be protected.
It really is just common decency.
Now here is something we can all get behind.
December 3, 2014 | Permalink
Tuesday, December 2, 2014
You should take a look at Steve Smith's superb piece criticizing original meaning originalism and proposing something that he calls decisional originalism. More and more, I am coming to believe that original expected applications originalism has a lot more going for it than is commonly thought. Opponents as well as advocates (in fact, especially advocates) of original meaning originalism don't have much time for it. But Steve is on to something important in this short reflection. Note, also, the relevance of the method of common law reasoning for constitutional interpretation in Steve's presentation of decisional originalism, something that I also agree is regrettably sidelined today:
If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?
Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.
This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis. My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.
Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay....
For now, though, two observations may be suggestive.
There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”
Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.
Monday, December 1, 2014
Thanks to Bernard Prusak, at dotCommonweal, for this account of a recent lecture by Notre Dame's President, Fr. John Jenkins, on the "Challenge and Promise of Catholic Higher Education." You can watch the video of Fr. Jenkins's talk here. Here's a bit from Prusak:
Part 3 begins at 38:30 and takes up the two questions laid down by parts 1 and 2: 1) If some model like a revived neo-scholasticism isn’t the way for Catholic colleges and universities to go, then what is? That is, how else can Catholic higher education be coherent and distinctive? 2) What do Catholic colleges and universities have to say about the “higher purposes” of learning and inquiry? In other words, what answer can Catholic higher education give to the “danger” presented by the accelerating commodification of education?
Jenkins’ answer to both these questions is the same: what can orient and shape Catholic colleges and universities, and what can inform these institutions’ self-understanding and presentation of themselves, is the long tradition of Catholic thought. As he acknowledges, Jenkins is drawing here from Alasdair MacIntyre, who defines a living tradition as “an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.” As MacIntyre also writes (again in After Virtue), “Traditions, when vital, embody continuities of conflict.” Jenkins’ proposal is that the Catholic tradition, rooted in the doctrines of creation and redemption (minute 39), provides both “a rich set of values not readily accessible at our secular peers” and a set of commitments that “open up the possibility of interesting debate” and distinctive research programs and curricula (minute 42). Though coming toward its end, this is the heart of the paper. . . .