Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Tuesday, March 10, 2015

Marshall on political liberty, the Declaration of Independence, and Jefferson's 1801 inaugural address

A recent reading of some of John Marshall's correspondence provides grounds to doubt both the standard narrative of the American Revolution offered in the Declaration of Independence and the counter-narrative offered by Christopher Ferrara in Liberty, the God that Failed: Policing the Sacred and Constructing the Myths of the Secular State, from Locke to Obama

The contents of the Declaration of Independence, including its recitation of a "long train of abuses and usurpations," should be well known.

Here is Ferrara describing his counternarrative:

In the final decades of the 18th century radical coteries in America and France, guided by the thought of Hobbes, Locke, and the philosophes of the "moderate" Enlightenment, and animated by a burning antipathy toward monarchs and institutional religion, employed propaganda, the exploitation of popular grievances, and political theater to incite a small segment of the populace, almost entirely in key urban areas, to revolt against existing authority. (Ferrara, Liberty, the God that Failed at 8)

To the extent that Ferrara's counter-narrative captures some aspects of the American Revolution, it captures more of a Jeffersonian strand than to represent the thought and actions of individuals like George Washington and John Adams. This counter-narrative thus shares a Jefferson-centric way of thinking with the standard narrative rooted in the Declaration of Independence.

Writing to Edward Everett in 1826 to acknowledge his receipt of Everett's oration on the fiftieth anniversary of independence, John Marshall described the Declaration of Independence as more of a public-relations piece than an account of the true reason for the American Revolution, even while insisting that "[t]he war was a war of principle." Here's Marshall:

Allow me to express the peculiar satisfaction I felt at reading your statement of the causes in which our great revolution originated. Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains, nor goaded to resistance by actual suffering. "They were not slaves rising in desperation from beneath the agonies of the lash; but freemen snuffing from afar 'the tainted gale of tyranny.'" This view of the subject is not only more consistent with the fact, but is more honorable to the intelligence of those virtuous patriots and sensible men who dared to lead us into the mighty conflict. The long list of tyrannical acts which is found in our declaration of independence, and which swells the papers of the day, was judiciously inserted as tending to produce unanimity, and was justified by the irritated feelings of the moment; but the time is arrived when the truth may be declared, and it is most honorable to our ancestors to declare it. The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression. (John Marshall to Edward Everett, August 2, 1826)

Twenty-five years prior, a Marshall letter to Charles Cotesworth Pinckney on the day Marshall administered the oath of office to Jefferson reveals the distance in political philosophy between Marshall and Jefferson. Marshall wrote:

To day the new political year commences--The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country--if he does not they will soon become his enemies and calumniators.

4 OClock

I have administered the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judged & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.

(John Marshall to Charles Cotesworth Pinckney, March 4, 1801)


March 10, 2015 in Walsh, Kevin | Permalink


Like many Americans, I’ve been watching the news closely since last fall when the death of Michael Brown drew thousands of people to the streets and to social media to protest the use of excessive force against minorities, and to challenge more broadly what they see as a culture that places no value on their lives. This movement, which organizes around the hashtag BlackLivesMatter, sees itself as “a Call to Action and a response to the ways in which [black] lives have been de-valued.”

Protesters’ grievances were bolstered with last week’s release of a report from the Department of Justice finding that the Ferguson Police Department intentionally discriminated against African Americans. The report contains examples of many shameful practices that are easy to condemn. But in part because the report's findings are so egregious, it also would be easy to write Ferguson off as an aberration—proof that the real problem lies with a renegade law enforcement agency that hasn’t yet adopted modern values about racial justice.

Days after the Justice Department released its report, tragedy struck again with the death of Tony Robinson. Like Michael Brown, Tony was a young, unarmed black man who was shot during what appears to have been an altercation with a police officer. But that’s where the "bad police make for angry citizens" story gets a lot more complicated and uncomfortable.

I know because Tony is from my hometown. It’s not Ferguson.

Madison police aren’t the riot gear type. I know because I have had the privilege of spending time in the field with them, observing them on ride-alongs, at community forums, and in criminal justice working group meetings. They are engaged, thoughtful, and well-trained on the subject of racial inequity. Madison police have been national leaders in engaging with community stakeholders to address disparities in the criminal justice system—disparities that, notably and despite many efforts, remain among the highest in the country.  

Tony’s death and the protests that have followed it are reminders that problems of racial inequality aren’t limited to bad agencies or officers. More importantly, they should remind us to listen more closely to the thousands who are protesting. They don’t just want to blame police for isolated incidents of force—they want change on a much bigger scale. Although the #BlackLivesMatter movement was sparked by police actions, activists’ demands for justice go beyond ending police brutality, and call for an end to mass incarceration and voter disenfranchisement, and access to better education, housing, food, and living wages.

Their cries for justice are ones we need to hear. Evangelium Gaudii discusses the dangers of marginalizing people and the unintended violence it can bring:

[I]n many places we hear a call for greater security. But until exclusion and inequality in society and between peoples are reversed, it will be impossible to eliminate violence. The poor and the poorer peoples are accused of violence, yet without equal opportunities the different forms of aggression and conflict will find a fertile terrain for growth and eventually explode. When a society . . . is willing to leave a part of itself on the fringes, no political programmes or resources spent on law enforcement or surveillance systems can indefinitely guarantee tranquility. This is not the case simply because inequality provokes a violent reaction from those excluded from the system, but because the socioeconomic system is unjust at its root. (59)

There aren’t easy answers for how to fix deeply broken systems or eradicate prejudices or remedy inequities that have existed for generations. But if it’s true, as Pope Francis says, that ending exclusion starts with being capable of “feeling compassion at the outcry of the poor [and] weeping for other people’s pain,” Chief Mike Koval’s example seems instructive. Unlike in Ferguson, where police responded to protests that followed Michael Brown’s death by tear gassing crowds, Chief Koval responded to Tony’s death by immediately meeting and praying with Tony's family, and by publicly apologizing for “the loss of a young African American man, who life was ended far too soon.”

That seems like a promising start.

March 10, 2015 | Permalink

Monday, March 9, 2015

Steven Smith on wisdom and "reason" in the law

Here's another new paper by Prof. Steven Smith, to my mind one of the most perceptive legal scholars around:

This paper, written for a conference at Pepperdine on “Wisdom, Law, and Lawyers,” begins by considering the meaning of wisdom as well as some possible tensions between wisdom and “reason.” The paper then argues that the kind of reason celebrated in the classical common law tradition can be interpreted as an (imperfect) embodiment of the insights associated with wisdom, but that modern legal thought tends to aggravate the tensions between wisdom and reason, and thus to reduce law to foolishness. The tendency is evident in the recent rush of decisions invalidating traditional marriage laws.

March 9, 2015 in Garnett, Rick | Permalink

GVR in Notre Dame's HHS Mandate case

The Supreme Court this morning granted certiorari, vacated the Seventh Circuit's decision denying Notre Dame's RFRA challenge to the HHS mandate, and remanded for reconsideration in light of Burwell v. Hobby Lobby Stores Inc. Given that the Seventh Circuit's decision pre-dated Hobby Lobby, this course of action makes good sense. (The petition and related briefs are linked at SCOTUSBlog.)

March 9, 2015 in Walsh, Kevin | Permalink

What might Martin Luther King Jr. say to Richard Susskind about lawyers?

I've posted a (relatively) new paper on SSRN, Martin Luther King Jr.'s Lessons for Lawyers in a Time of Market Disruption.  The abstract:

This essay, delivered as the 2014 Tabor Lecture at Valparaiso University Law School, argues that our conception of the lawyer’s work lacks a rich and full understanding of the human person. This absence may not only hurt the lawyer’s ability to derive meaning from her work and advance the common good, but also may contribute to a perception that lawyers are becoming expendable in a market of fungible business service providers. The failure is starkly apparent when one considers the anthropological commitments that permeated the work and worldview of Martin Luther King Jr. Though he was not a lawyer, he was an advocate for the interests of others, and he was a Christian who was able to live out his beliefs in ways that were accessible and influential to those who did not share the underlying religious premises. While King’s moral duties were not constrained by the more particular fiduciary duty that lawyers owe to their clients, I believe that lawyers overstate the degree to which their moral agency is so constrained, and in doing so, abdicate moral responsibility for their work. Lawyers who endeavor to practice with the person at the center, as King did, will act as: (1) subjects; (2) healers; (3) prophets; and (4) realists.

March 9, 2015 in Vischer, Rob | Permalink

Friday, March 6, 2015

Wisdom from Lord Acton

I re-encountered this very good bit, thanks to Jacob Levy, from Lord Acton's The History of Freedom and Other Essays (1907):

The modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it, is the enemy of that common freedom in which religious freedom is included. It condemns, as a State within the State, every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, it emancipates the subjects of every such authority in order to transfer them exclusively to its own. It recognises liberty only in the individual, because it is only in the individual that liberty can be separated from authority, and the right of conditional obedience deprived of the security of a limited command. Under its sway, therefore, every man may profess his own religion more or less freely; but his religion is not free to administer its own laws. In other words, religious profession is free, but Church government is controlled. And where ecclesiastical authority is restricted, religious liberty is virtually denied.

For religious liberty is not the negative right of being without any particular religion, just as self-government is not anarchy. It is the right of religious communities to the practice of their own duties, the enjoyment of their own constitution, and the protection of the law, which equally secures to all the possession of their own independence.

He said it (natch) better than I did.  

March 6, 2015 in Garnett, Rick | Permalink

"Capital Punishment Must End"

"Capital Punishment Must End" is the title of this joint-editorial, published by Our Sunday Visitor, The National Catholic Reporter, The National Catholic Register, and America.  I very much agree that our governments should abandon capital punishment.  (More here.)  

That said, I am uncomfortable with connecting the case and movement against capital punishment (as the editorial does in a few places) either to the Supreme Court's pending case in Glossip v. Gross or to the recent decisions by some state governors to halt executions.  I continue to believe that it is important -- that it really matters -- that capital punishment end not as a result of unsound court decisions or possibly-overreaching executive actions.  It sounds increasingly old-fashioned -- or worse!  "formalistic"! -- I know, but legislatures, not judges and governors, make, and un-make, laws.

March 6, 2015 in Garnett, Rick | Permalink

Wednesday, March 4, 2015

American Law From a Catholic Perspective: Through a Clearer Lens

This is the title of an important new book available for order this month featuring many of our fellow MOJ bloggers or friends of MOJ. Contributors include Fr. Robert John Araujo, Thomas Berg, John Breen, Robert George, Michael Scaperlanda and many others. Gerard Bradley notes in his foreword that “[t]he moral evaluative perspective which unfolds in succeeding pages illumines, justifies, and critiques America’s laws.” One of my favorite reviews is from Michael Novak who states:

"Precisely because I am not a lawyer, I really liked this book. For an outsider, it provides a crisp guide to the history of American Catholics under American law – a fairly friendly and yet often antagonistic encounter. I hadn’t known that there are 29 Catholic law schools in the United States today...."

The book also features chapters from two of my colleagues here at Catholic University. My colleague, Robert Destro authored a chapter entitled “The Ethics of Lawyers & Judges Perspectives from Catholic Social Teaching." Additionally, my colleague Lucia Silecchia authored "The Call to Stewardship: A Catholic Perspective on Environmental Responsibility."

From the publisher: "Here readers will find probing arguments that bring the critical perspective of Catholic social thought to bear on American legal jurisprudence."

March 4, 2015 in Leary, Mary G. | Permalink

Assorted last-minute pre-argument thoughts on King v. Burwell

Insufficiently chastened by my embarrassingly inaccurate pre-argument assessment of Yates v. United States, I thought I'd share a few pre-argument thoughts on King v. Burwell. Once the arguments take place, it is very difficult to recover the frame of mind one had about what the Justices ought to have thought after exposure to what they actually think (or at least appear to think as of the time of argument). But preserving this pre-argument frame of mind for later re-examination can helpfully contribute toward calibrating one's assessments as a lawyer about the kinds of arguments that have currency at the Court at any given moment in time. This is not to say that "currency at Court at any given moment in time" is the only, or the best, or even a reliably sound measure of what makes for a good legal argument all things considered, but having a sense of what the various Justices believe to be good arguments at any given moment in time is important enough to be worth being wrong about. 

To slough off all but the most intrepid of readers (if I haven't already), I'll begin with a meta-meta-meta-point about law professor commentary on King v. Burwell. The prompt is Paul Horwitz's post about what he calls "Randy Barnett's latest ref-working post." As typical of his meta-meta-posts, Paul's post about Randy's meta-post contains much to agree with. His identification of many other reasons--besides "ref-working"--that legal academics and legal journalists write commentaries of the sort that Randy criticizes is helpful and accurate as far as it goes. But when Paul turns (in his point 5) to "what Randy himself is engaged in doing," he submerges the simplest and best explanation, which is that Randy is sincerely and appropriately concerned that Chief Justice Roberts buckled in NFIB v. Sebelius and made a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court. Randy does not want this to happen again; he worries not only that other people do, but also that they are working to bring that about, so he tries to counter it even while recognizing the likely futility of such an enterprise given his view of what happened in NFIB v. Sebelius. (If this explanation of Randy's reason for writing is accurate, I disagree with Randy on this point, but I realize why he would think I am wrong and he is right about this. Planned Parenthood v. Casey stands as a monument to various Justices' capacity to make a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court.) Sure, Randy's post "can be read" as "an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of 'the left' to flatter or threaten the Chief." But much "can be read" many ways (as Paul recognizes elsewhere throughout his post), and I draw a different lesson in this meta-meta-meta commentary. (WARNING: "moral sermonizing" ahead.) Most of us can't shake the idea that the Justices are and ought to be "refs," even--and especially--in cases like King v. Burwell. And that is a good thing even while we shouldn't let our attachment to this idea unduly influence our assessments of the extent to which they actually succeed in that role. 

Now for some thoughts on the issues in the case:

Continue reading

March 4, 2015 in Walsh, Kevin | Permalink

"What Scares the New Atheists"

John Gray points out (as many have) a few of the many holes in the aggressive-but-thin atheism of Dawkins et al.  A bit:

The far-reaching claims these thinkers have made for liberal values can be detached from their theistic beginnings; a liberal morality that applies to all human beings can be formulated without any mention of religion. Or so we are continually being told. The trouble is that it’s hard to make any sense of the idea of a universal morality without invoking an understanding of what it is to be human that has been borrowed from theism. The belief that the human species is a moral agent struggling to realise its inherent possibilities – the narrative of redemption that sustains secular humanists everywhere – is a hollowed-out version of a theistic myth. The idea that the human species is striving to achieve any purpose or goal – a universal state of freedom or justice, say – presupposes a pre-Darwinian, teleological way of thinking that has no place in science. Empirically speaking, there is no such collective human agent, only different human beings with conflicting goals and values. 

March 4, 2015 in Garnett, Rick | Permalink