Wednesday, October 15, 2014
Suppose one were to ask another to name the best three or four decisions that the Supreme Court has ever made, and that the answer is: Brown v. Board of Education, Marbury v. Madison, McCulloch v. Maryland, Gideon v. Wainwright, Baker v. Carr, and Reynold v. Sims. Would it be reasonable for the questioner to conclude that his interlocutor was someone disenchanted with the Supreme Court? I say no. The person providing such an answer obviously retains an enchanted understanding of the Supreme Court. But see Sahil Kapur on Erwin Chemerinsky, discussing "the progressive legal luminary's new book, provocatively titled "The Case Against The Supreme Court."
Monday, October 13, 2014
From Christianity Today. A bit:
Almost all Americans agree about the background practicalities we need to live as a society. Most of us agree that we need public roads, national defense, fire departments, and the like. We also agree today on many basic features of a democratic society: the right to vote, the right to due process of law, the right to free speech. We disagree—sometimes sharply—about the contours of these rights, but we usually have enough of a baseline to recognize the nature of our disagreement. And importantly, we agree about many basic laws, like those protecting life and property, the payment of taxes, and the operation of courts and prisons.
But all of this common ground tells us surprisingly little about who we are as a people, what our goals should be, or what counts as progress. On these deeper questions, Americans remain a deeply divided and pluralistic people. . . .
I think, as a friendly amendment to Inazu, it is important to keep in mind that "pluralism" is not only "the state of things in which many reasonable people disagree reasonably with others in the political community." It is also "the state of things in which non-state societies are real and do have and exercise authority, authority that is properly seen as constraining and marking the limits of the political authority."
Here is Zachary Calo's "Constructing the Secular: Law and Religion Jurisprudence in Europe and in the United States." Abstract:
This paper compares the law and religious jurisprudence of the U.S. Supreme Court and the European Court of Human Rights across three legal areas: individual religious freedom, institutional religious freedom/freedom of the church, and religious symbols/church-state relations. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. While there remains significant jurisprudential diversity between these two courts and across these different legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern the West. These legal systems will increasingly be defined by their similarities more than their differences.
Like The Man says, "download it while it's hot"!
Something on the interwebs steered me to this paper, by George Weigel, called "Truths Still Held? John Courtney Murray's 'American Proposition,' 50 Years Later." ( Download Weigel on WHTT). It might usefully be read in connection with the ongoing debate about "radical Catholicism", American liberal constitutionalism, etc. Here is just a taste:
. . . The bonds of this civic friendship or solidarity in America reinforced that founding consensus that gave philosophical content to Murray’s American Proposition. This consensus was, in Murray’s words, “an ensemble of substantive truths, a structure of basic knowledge, an order of elementary affirmations” that reflect the truths we can and must know by reason about how we ought to live together. No true City, and certainly no true democracy, is possible if everything is in doubt. If there is to be genuine argument, and not just cacophony or the will-to-power, there must be, Murray wrote, “a core of agreement, accord, concurrence, acquiescence,” because only if certain truths are held can there be genuine arguments. Much of modernity, Murray knew, had this exactly backwards, thinking that argument ends when agreement is reached. The opposite is more fundamentally true, in both the sciences and the humanities: real argument is only possible within a pre-existing context of agreement on certain truths. . . .
I continue to find a lot to like in We Hold These Truths, and in Murray's work, stance, and approach generally (especially regarding the church/state/society nexus) -- notwithstanding the fact that I find a lot to like in the more critical writings of Brad Gregory, Alasdair MacIntyre, Patrick Deneen, etc. At the same time, I definitely and increasingly share what I took to be Weigel's worry that "the third truth within [Murray's American Proposition] – that the state exists to serve society, which is ontologically and historically antecedent to the state – has become attenuated in its grip on our public culture."
Sunday, October 12, 2014
My own view is that we are in challenging times for Catholic institutions and the challenge -- but also the need and the importance -- will only grow. At Distinctly Catholic, Michael Sean Winters has a really good piece up, talking about Notre Dame's Alliance for Catholic Education (A.C.E.) program (for which the brilliant and talented Prof. Nicole Stelle Garnett works, in addition to her Notre Dame Law School gig). Also, here is a piece I did ("Treasure A.C.E.") on the program, about 5 years ago. MSW's post opens with this:
On Monday mornings, the staff and faculty associated with Notre Dame’s Alliance for Catholic Education (ACE) gather in a small chapel on the ground floor of Visitation Hall for Mass. This past Monday, Father Timothy Scully, CSC, who started ACE in 1993, was the celebrant when I joined the group for the Mass. The service is simple: guests, including myself, are welcomed, an introductory hymn (2 verses, very RC), a short homily, a song at communion. The passing of the peace takes awhile as these colleagues embrace each other at the beginning of their work week. Afterwards, I threaten to report the group to the Congregation for Divine Worship because I am not sure the passing of the peace was as somber as the CDW thinks it should be. After Mass, everyone heads upstairs for a breakfast together before heading off to their offices to set about their work.
And, what precisely is that work? In shorthand, some people think that ACE is trying to save Catholic parochial schools, the educational equivalent of an architectural preservation firm. This could not be more wrong. During a morning of meetings with different staff members it becomes clear that the group has no interest in maintaining the Church’s nineteenth century infrastructure for its own sake: They are passionate about educating today’s young people in schools that are not surviving but flourishing. . . .
Friday, October 10, 2014
Today the Nobel Prize Committee awarded the Nobel Peace Prize to Kailash Satyarthi and Malala Yousafzay. The awards convey several distinct messages worthy of consideration.
First, they underscore the reality that so many children in our world, particularly girls, live in quite grave circumstances. Not only are they not afforded basic human dignity, but often they are seen as commodities and property. Indeed, the world cannot be "at peace" when such a disconnect exists between the inherent dignity of the person and institutions such as child labor and exploitation. Second, the awards again focuses the world on the significant problem of child trafficking and oppression of girls. In a world which has seemingly forgotten that over 200 Nigerian girls were kidnapped and likely sold into sexual servitude 179 days ago, a reminder of the plight of these girls is needed. This awards highlight child labor and child trafficking as very real and entrenched problems.
In many ways these awards remind me of the 1979 Nobel Peace Price awarded to Mother Teresa "for work undertaken in the struggle to overcome poverty and distress, which also constitutes a threat to peace." These 2014 awards continue to reflect that peace is threatened and elusive when children live in conditions of objectification and oppression. That awareness is the good news. The bad news is that we stated these things back in 1979... and yet we have not seemed to be able to improve the future for these children.
Perhaps the insight Mother Teresa offered at her acceptance speech could be useful to us today. Below are some excerpts, but the full speech can be found here.
... He was that little unborn child, was the first messenger of peace. He recognised the Prince of Peace, he recognised that Christ has come to bring the good news for you and for me. And as if that was not enough - it was not enough to become a man - he died on the cross to show that greater love, and he died for you and for me and for that leper and for that man dying of hunger and that naked person lying in the street not only of Calcutta, but of Africa, and New York, and London, and Oslo - and insisted that we love one another as he loves each one of us. And we read that in the Gospel very clearly - love as I have loved you - as I love you - as the Father has loved me, I love you - and the harder the Father loved him, he gave him to us, and how much we love one another, we, too, must give each other until it hurts. It is not enough for us to say: I love God, but I do not love my neighbour. St. John says you are a liar if you say you love God and you don't love your neighbour. How can you love God whom you do not see, if you do not love your neighbour whom you see, whom you touch, with whom you live. And so this is very important for us to realise that love, to be true, has to hurt. It hurt Jesus to love us, it hurt him. And to make sure we remember his great love he made himself the bread of life to satisfy our hunger for his love. Our hunger for God, because we have been created for that love. We have been created in his image.
* * *
There is so much suffering, so much hatred, so much misery, and we with our prayer, with our sacrifice are beginning at home. Love begins at home, and it is not how much we do, but how much love we put in the action that we do. It is to God Almighty - how much we do it does not matter, because He is infinite, but how much love we put in that action. How much we do to Him in the person that we are serving.
* * *
And so here I am talking with you - I want you to find the poor here, right in your own home first. And begin love there. Be that good news to your own people. And find out about your next-door neighbour - do you know who they are? I had the most extraordinary experience with a Hindu family who had eight children. A gentleman came to our house and said: Mother Teresa, there is a family with eight children, they had not eaten for so long - do something. So I took some rice and I went there immediately. And I saw the children - their eyes shinning with hunger - I don't know if you have ever seen hunger. But I have seen it very often. And she took the rice, she divided the rice, and she went out. When she came back I asked her - where did you go, what did you do? And she gave me a very simple answer: They are hungry also. What struck me most was that she knew - and who are they, a Muslim family - and she knew. I didn't bring more rice that evening because I wanted them to enjoy the joy of sharing. But there were those children, radiating joy, sharing the joy with their mother because she had the love to give. And you see this is where love begins - at home.
* * *
Because today there is so much suffering - and I feel that the passion of Christ is being relived all over again - are we there to share that passion, to share that suffering of people. Around the world, not only in the poor countries, but I found the poverty of the West so much more difficult to remove. When I pick up a person from the street, hungry, I give him a plate of rice, a piece of bread, I have satisfied. I have removed that hunger. But a person that is shut out, that feels unwanted, unloved, terrified, the person that has been thrown out from society - that poverty is so hurtable and so much, and I find that very difficult. Our Sisters are working amongst that kind of people in the West. So you must pray for us that we may be able to be that good news, but we cannot do that without you, you have to do that here in your country. You must come to know the poor, maybe our people here have material things, everything, but I think that if we all look into our own homes, how difficult we find it sometimes to smile at each, other, and that the smile is the beginning of love.
* * *
I never forget some time ago about fourteen professors came from the United States from different universities. And they came to Calcutta to our house. Then we were talking about that they had been to the home for the dying. We have a home for the dying in Calcutta, where we have picked up more than 36,000 people only from the streets of Calcutta, and out of that big number more than 18,000 have died a beautiful death. They have just gone home to God; and they came to our house and we talked of love, of compassion, and then one of them asked me: Say, Mother, please tell us something that we will remember, and I said to them: Smile at each other, make time for each other in your family. Smile at each other. And then another one asked me: Are you married, and I said: Yes, and I find it sometimes very difficult to smile at Jesus because he can be very demanding sometimes.
For I was in prison and you visited me. (Matthew 25:36)
A couple of months ago, I posted two messages (here and here) about prisoner rights cases that had been won in the U.S. Court of Appeals for the Ninth Circuit through our Appellate Clinic at the University of St. Thomas, working in partnership with the University of Arkansas Federal Appellate Litigation Project.
One of those cases, Colwell v. Bannister (decision here), was handled primarily by our Arkansas partners. The case involved a prisoner who had suffered for a decade from blindness in one eye due to a cataract, which could easily be removed by surgery. The Nevada prison refused to approve cataract surgery despite the recommendations of his doctors.
In a published opinion, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections. In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”
Shortly after the Colwell opinion was issued in August, the University of Arkansas appellate team received a letter from “Big John” Colwell saying, “I cannot express how much I appreciate you and your team. I’m proud that you chose to represent me and went way beyond my expectations.” Mr. Colwell also praised the information and attentive communications they had maintained with him. He went on to say that he learned of his victory in the Ninth Circuit even before a letter arrived from the Arkansas team or they were allowed to make a telephone call into the prison. A corrections officer had stopped to congratulate Mr. Colwell and told him that his story was in the Nevada newspapers that day.
Inside the legal academy, I know this kind of appreciation from clients who were well-served by faithful lawyers is a regular part of the experience of our colleagues who teach in clinical programs, as well as many others in law schools who do pro bono work for the disadvantaged. So this episode might otherwise go without further mention, beyond the satisfaction taken by those of us involved with the case.
But I take the time to relate this particular story because the impact we were able to make on the life on this man, giving him a sense of dignity well beyond the success in the appeal, was brought home powerfully to me last week. Shortly after we got the word that the Ninth Circuit had denied Nevada’s petition for rehearing en banc, we learned that Mr. Colwell had passed away in his prison cell.
Mr. Colwell’s last contacts with the world outside of prison walls were his communications with University of Arkansas Professor Dustin Buehler and students (now graduates) Lauren Eldridge and Mason Boling, who had been his counsel in this matter. Although Mr. Colwell now will never receive the full medical treatment to which he was entitled as a human being, he did know that his rights had been vindicated. The justice system had confirmed that he did matter.
When we agreed to take on Mr. Colwell’s case in our pro bono clinic work, he had already lost in two venues. The prison had denied him cataract surgery, despite his requests through the prison grievance system, and the District Court had granted summary judgment against his request to be treated for blindness in that eye. Without the diligent work, attention to detail, command of the case-law, mastery of the factual record, and powerful briefs and arguments presented by the University of Arkansas team, that loss would have been the final word on his plea for help. Thank God that it was not and that he lived to hear the final word. As Dustin Buehler reminds us, “Lawyering can be such a powerful tool in the hands of those who are passionate enough and dedicated enough to use our craft for good. Let us never forget that.”
As Lauren Eldridge said so eloquently after the passing of “Big John,” to his representatives, he was not a criminal confined to a cell, but a victim: “We saw him for who he was at the time we came into his life and did what we could to help him.” Big John Colwell’s epitaph should read, as he often would say to his appellate counsel, “I don't know the law, but I know what's right.”
My colleague Mark Movsesian and I have recorded a podcast on Holt v. Hobbs, the "prison beard case" argued at the Supreme Court earlier this week. We consider some of the briefing, the oral argument, and even some of the third-party-harms theory of the Establishment Clause that I discussed earlier. We conclude with some predictions. It's about 26 minutes long--come on over and have a listen.
Two women in two publication outlets representing what one would assume to be diametrically opposing world views recently both decried the same sad fact: that 90% of fetuses diagnosed with Down Syndrome in the country are aborted. Check it out. See the post by Ki’tay Davidson, blogger on the Black Girl Dangerous Blog (describing its mission: as "to, in as many ways possible, amplify the voices, experiences and expressions of queer and trans* people of color"), entitled "Angry About the White Lesbians Suing for Having a Black Child: You're Missing Something". (Thanks to a former student, Bethany Jennings, for bringing it to my attention.) Then see the post by Denise Hunnell on ZENIT (describing itself as "an international, non-profit news agency staffed by a team of professionals and volunteers who are convinced that the extraordinary wisdom of the Pontiff and the Catholic Church can nourish hope, and assist all of humanity to find truth, justice and beauty"), entitled, "Down Syndrome Does Not Make Life Disposable: Why is Disdain Becoming More Acceptable?".
Is a consensus emerging?