Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, December 16, 2016

A podcast on the "Future of Religious Liberties"

Thanks to the folks at the Federalist Society for hosting a conversation -- now a podcast, available here -- between our own Tom Berg and me about "the future of religious liberties under the new administration."  Check it out!

December 16, 2016 in Garnett, Rick | Permalink

Thursday, December 15, 2016

The Guardian of Memory


I thought I'd offer a few, rather abstract thoughts in reaction to Rick Garnett's post about health care. Abstract because health care policy makes my head spin, and (hence) I know little about it; and also because I have little to add to Rick's substantive points, which seem entirely sound to me. But Rick's discussion brings out one important point I do wish to underscore: a Catholic approach to health care policy can and indeed should be entirely comfortable with consequentialist tradeoffs and with attention to the design of optimal incentives -- within certain boundaries.

Cardinal Newman, in a mini-treatise on constitutionalism, once wrote that "no one in this world can secure all things at once, but in every human work there is a maximum of good, short of the best possible." The point applies not just to constitutions, but to any institutional system of any degree of complexity operating under conditions of scarcity; and in any event the health-care system is a kind of constitution for human well-being. Every natural-law theory of which I am aware, such as Finnis', admits a domain of prudential judgment in which it is entirely legitimate for policymakers to pursue overall well-being, subject to limited side-constraints on permissible means and on admissible motives. There is no reason in principle to shy away from incentive-based mechanisms and market-based mechanisms in the health-care system, including the sorts of incentives for healthy behavior that Rick discusses -- subject as always to the further welfarist constraint that those incentives must plausibly contribute to a maximum of overall attainable human well-being.

What, if anything, is distinctively Catholic about this picture? Beyond its undoubted function of ruling out morally impermissible means, does the Church have any further role to play in complex policy domains? Certainly it does. The best two-sentence account I have seen is a tweet (yes, a tweet) by the Abbe Grosjean, a brilliant priest of the Diocese of Versailles, who wrote that "le discernement des solutions et stratégies n'est pas le rôle des clercs. Notre rôle est de rappeler le but." (My emphasis). Figuring out solutions and strategies is not the role of the clergy; their role is to remember the purpose or goal. The Church's role in complex policy domains is to act as a guardian of memory -- a kind of conservator of original and ultimate purposes, acting to remind policy makers that the ultimate aim of the health care system is to promote the common good of human flourishing.

The practical import of that further role is twofold. First, the guardian of memory reminds policymakers of the vulnerable, those whose interests and moral standing are constantly at risk of being forgotten or discounted in the hurly-burly of conflicting demands and pressures, such as the unborn. Second, the Church stands ready to guide and admonish policy makers who, lost in the details, constantly tend to forgetfulness or myopia even when acting in the best of faith. Myopia or forgetfulness takes the form of elevating a partial or subordinate good of undoubted value -- the alleviation of pain, for example -- into an ultimate aim, in a way that distorts the system's operation and actually detracts from pursuit of the overall aim itself. Even from a consequentialist point of view, myopia results in substitution of partial for ultimate goods in a way that amounts to a form of idolatry -- something that the Church has a bit of experience combatting.

(Thanks to Fr. Dominic Legge, O.P., for helpful comments).

December 15, 2016 | Permalink

Tuesday, December 13, 2016

Linking Abortion and Climate Change

That's the title of a post at dotCommonweal that will interest MOJ readers.  You can read the post here.

December 13, 2016 in Perry, Michael | Permalink

The federal government's RLUIPA suit against Culpeper County (Va.) for denying permit to Islamic group

The United States Department of Justice filed a lawsuit yesterday against Culpeper County, Virginia. The suit alleges that the County's denial of a "pump-and-haul" permit, which had the effect of preventing the Islamic Center of Culpeper from constructing a small mosque on land it purchased in the county, violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The facts alleged in the complaint add up to what look to be winning claims. If anything, I'm wondering why there hasn't also been a private suit as well (as far as I'm aware anyway).

Also, as a matter of litigation strategy, is there a good reason that the DOJ didn't also include a Free Exercise claim, something like an as-applied version of the Hialeah case? I understand that the RLUIPA claim would be much easier to prevail upon. But including a Free Exercise claim in which intent to discriminate could be in issue would open the door to more extensive discovery, which in turn could have the effect of prompting a quicker resolution.  Any thoughts? 

December 13, 2016 in Walsh, Kevin | Permalink

Mary Ann Glendon on "Reclaim[ing] Human Rights"

In case you missed it, Prof. Glendon had this helpful piece -- "Reclaim Human Rights" -- in First Things, a few months ago.


December 13, 2016 in Garnett, Rick | Permalink

Ridiculous anti-school-choice railing in the New York Times

Perhaps it should not come as a surprise from the author of a book called "The Good News Club:  The Christian Right's Stealth Assault on America's Children", and perhaps it should no longer come as a surprise on the editorial pages of the New York Times, but this piece, "Betsy DeVos and God's Plan for Schools", is an over-the-top, utterly ridiculous, innuendo-driven hit-job on school choice (and, indeed, on parents' right to choose religious schools).  It tells us almost nothing about the mainstream school-choice movement.  The Times has been running a steady stream of anti-education-reform pieces in recent days, which suggests that, notwithstanding the fact that a Trump Administration is reasonably regarded as presenting any number of risks and dangers, the Times is particularly solicitous toward the self-interest of the "education blob."

December 13, 2016 in Garnett, Rick | Permalink

The Atlantic Bishops' (of Canada) "Pastoral Letter on Medical Assisted Dying."

It's available here.  At the risk of being called "legalistic" or "rigorist" or of being accused of not "getting" Pope Francis's emphasis on accompaniment . . . I think the letter is really disturbing.  It starts out bad -- with the title -- and doesn't get much better.  What Canadian Catholics -- and, indeed, the whole world (read Chuck Lane on Europe's "morality crisis") -- need to hear at this moment is not euphemizing, but instead clarity, about euthanasia.

December 13, 2016 in Garnett, Rick | Permalink

Camosy on health-care policy, Rep. Paul Ryan, and Catholicism

Prof. Charles Camosy (Fordham) has a piece in the Washington Post called "Millions of Lives Are in Paul Ryan's Hands.  His Catholicism Is Our Only Hope."   He writes, among other things, that "Ryan’s proposal is deeply problematic — especially for the most vulnerable. And for Catholics, that’s a serious problem. Although Catholics had plenty of reasons to critique the ACA, including understandable concerns about the Obama administration’s health policy steamrolling individuals and communities who cannot in good conscience participate in abortion, the overall effort to make health care as accessible as possible is, by Catholic standards, a worthy goal."  And, he concludes with this:

Ryan’s commitment to the Catholic Church means that he ought to rethink his health-care reform proposals and make sure that — instead of privileging the young, wealthy and healthy — they instead lift up the sick, poor and old. It is through these populations, after all, that Christ comes to us today. Indeed, Christians are told that it is how we treat them that will determine our ultimate fate after death.

We found trillions of dollars to fight unnecessary wars overseas. We are likely to find them for a huge, bipartisan infrastructure project. There is no excuse for not finding them to make sure that the least among us have the health care they are owed. To do any less means abandoning people bearing the face of Christ Himself.

Prompted by Charlie's piece, I want to put aside some questions I have about whether "owed" is the best word to use here and instead to ask . . . how should someone who aspires to do the Right Thing with respect to health-care policy (which is, in my view, impossible to separate from other policy matters, including those relating taxation, nutrition, litigation, etc.) approach the matter?  I admit . . . I genuinely don't know.  The more "progressive" sections of my social-media feeds reflect a deep, almost religious (though often unexamined) conviction that the answer is easy:  "A single-payer system in which 'market forces' don't determine the costs or availability of services."  It seems clear to me, though, that it is not possible to eliminate (as opposed to regulate) 'market forces' entirely from this (or almost any other) domain because people -- being people -- respond to incentives.  In the more "conservative" sections, I sometimes sense a failure to appreciate the fact that it is in all of our interests, for many reasons, that the public authority attend to citizens' health and well-being.  So again:  What should we do?  How do we move -- in an effective and, yes, reasonably efficient way -- all of the relevant variables in the right directions?

A few things, that seem relevant to this discussion, seem to me to be the case (I'd like to hear from others whether and in what ways they disagree).  In no particular order (and putting aside my view that some things which are treated in contemporary debates as "health care", e.g., euthanasia and elective abortions, are not):

 - The public money that is available for health-care-related programs is non-infinite (even if one thinks there is more to be had through increased taxation), and so spending on such programs involves, at least to some extent, trade-offs.

 - We should not tax-and-spend (on anything, including health-care programs) at levels that endanger national security, or that cause excessive harm to the economy-in-general, or that impose unfair burdens on the next generation(s).  

 - We should be clear-eyed and candid -- and also always non-negotiably committed to the equal dignity of every human person, regardless of age, disability, etc. -- when deciding how to allocate health-care-related funds as between, say, pre-natal, early-childhood care, and preventive care, on the one hand, and experimental, aggressive, and "futile" care, on the other.  (More bluntly - any conversation about single-payer systems has to include conversations about, e.g., morally defensible triage, rationing, and tort/malpractice reform.)

 - It is not always unfair or otherwise wrong to, when designing a health-care-provision regime, require people to bear the risks of freely chosen unhealthy or dangerous behaviors.

I could probably think of more, but this is enough for now, maybe.  Like I said, I'd welcome other bloggers' "takes" on this.  This isn't a "politics" or a "policy" blog, I realize, and I mean to be inviting a conversation about what the Church's social teachings tell us about the ends, the limits, and the design of legal regimes, in a particular area.

(And yes, I admit:  I'm avoiding grading.)   


December 13, 2016 in Garnett, Rick | Permalink

On Bach's "Lutheran Mass"

Here's a fun article on J.S. Bach's magnificent Mass in B minor, one of the magisterial and final pinnacles of his oeuvre, and yet in some ways puzzling. What, after all, was a faithful Lutheran doing setting an entire Roman Catholic Mass--a Missa Tota?

And for performances, stay away from the trendy and the faux HIP (Historically Informed Performances). Someday I will write a rancorous essay entitled, "Historically Informed Performances: The Living (and oh so HIP) Originalism of Classical Music."

Instead savor the magnificently moody and measured performances of Furtwängler and Scherchen. Or, if you can't get ahold of those, this version conducted by Herbert von Karajan will do.



Here is an enjoyable exchange of comments over at our Center site on this post that I wanted to share with readers here, reflecting a range of jurisprudential and musicological views--the excellent Frank Cranmer of Law and Religion UK, my colleague Mark Movsesian, and then a response from me.


On historically-informed performance, I’m afraid we must disagree.

All those incredibly s-l-o-w, turgid performances of Handel and Bach, muddy, Romantic English organs (maybe they built better ones in the States), oversized symphony orchestras producing completely the wrong balance – we’ve been there and I, for one, don’t want to go back.


Originalism makes less sense in music than in law, I’d agree, because law involves power. And sometimes a contemporary take on early music works, like Respighi’s Birds and Ancient Airs and Dances. But as a presumption, I’d go with the clarity of Originalism in music on aesthetic grounds, over gushy late-Romantic reinterpretations. Where’s your sense of tradition?


Frank, a pleasure to see you here. It seems that both you and my comrade in arms are as one on this matter. But he has a very Puritanical streak in matters of art (and food, I should add) that runs deeply against my grain. And I cannot agree that the ascetic and rather precious technicality of HIP performances is really at all close to what Bach intended. So I suppose I regard myself as the true traditionalist. It’s like the difference between originalist theory today and the actual jurisprudence of Joseph Story or John Marshall. Very few real similarities.

Oh well. De gustibus non est disputandum–in law and in art.

December 13, 2016 in DeGirolami, Marc | Permalink

Monday, December 12, 2016

What do Rod Dreher and Ted Olson have in common?

Two very different people on my mind when thinking about this passage from Legutko's The Demon in Democracy this morning were Rod Dreher (whose online endorsements led me to read the book) and Ted Olson (whose comfort with judicialized social restructuring in the name of constitutional liberty is characteristic of one prominent strain in today's ruling class): 

Today's mainstream, like the erstwhile communist ruling class, takes over the mechanisms for creating laws and regards it as its exclusive property to be used for its own goals. The modern state openly, even proudly carries out the policy of social engineering, intervening deeply in the lives of communities while enjoying total impunity, which is guaranteed by its control of lawmaking and law enforcement procedures. A markedly important function of the law, to act as a barrier to political hubris, was lost or significantly weakened. Instead, the law has become a sword against the unresponsiveness and sometimes resistance of society to the policy of aggressive social restructuring that is euphemistically called modernization. The law in liberal democracy--as under communism--is no longer blind. No longer can one envision it as a blindfolded goddess holding the scales to determine guilt and punishment. It is now, as it was under communism, one of the engines that transforms the present into the future and the backward into the progressive. The law is expected to be endowed with an accurate picture of what is going to happen in the future so that it can adjudicate today what will certainly happen tomorrow.

Source: Rysszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies 96-97 (Encounter Books 2016, translated by Teresa Adelson) (emphases added).

December 12, 2016 in Walsh, Kevin | Permalink