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April 25, 2007


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My point is that, if you find Mr. Stone's ideas faulty, you should attack those ideas. Condemning Mr. Stone himself doesn't further any useful purpose.


Mr. Hamilton, we cross-posted, and I want to specifically address the atrocious position you take.

Yes, Mr. Stone is irrelevant to this issue. We are not a gossip club, and none of us has the right to pass judgement upon Mr. Stone. As you yourself quoted, "Let he who is without sin cast the first stone." Is any of us without sin?

The very essence of good democracy is the emphasis on policies and ideas rather than individuals -- "a government of laws and not of men". This is also central to rational discussion -- we know enough to decry an ad hominem attack but you don't seem to find anything wrong with its converse. That's not very rational.

I object to the personification of political debate. I object to the pejorative focus on individuals rather than ideas. I object to attacks on individuals instead of their ideas. I stand ready to greet with a smile and a handshake any person who disagrees with me, no matter how egregiously. I can tear apart that person's arguments up, down, right, left, inside, and out, and still enjoy dinner conversation with them. I am a rationalist, not some petty gossip. I am a thinker, not some cackling hen. Which are you, Mr. Hamilton?



Why didn't you post that last paragraph yours in response to the "attacks on individuals instead of their ideas?"


. . . by Prof. Stone in his initial post.


It's obvious, Mr. BAC, that you do not perceive the difference between attacking an individual and attacking an idea. For the third time I quote what I consider to be the key sentence in Mr. Stone's original post:

"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."

The attack is on their 'failure to respect', not on their characters. Mr. Stone attacks an action, not a person. This distinction is elementary, and has long been known. "Attack the sin, not the sinner."

You Christians really don't seem to be following your own precepts.

Frederick Hamilton

OK my friend. I am a thinker. I don't want to be too harsh on the good professor. I just thought his original post was beyond the pale.

I'll cut him slack and leave it that he was just trying to start a lively debate on religion and judging. Fair enough and if we ever meet, I'll buy you dinner.


... if I don't grab the check first! ;-)

Edward Grant

The "apology" is utterly unpersuasive, because Prof. Stone did not just pose a question, he answered it. The question: How must a Catholic jurist (and, one supposes, a Catholic legislator or executive) vote when presented with a legal issue on which his/her Church takes a strong moral stance.

Stone's unambiguous answer? Take the path of Justice William Brennan, and leave no doubt about whether one's Faith has influenced one's judicial decision.

It is not Paisley-esque bigotry against Catholics per se that Prof. Stone demonstrates. Rather, it is the presumptuousness to define, for purposes of sound constitutional order who are the "good Catholics," and who are the "bad." The effrontery of Justice Kennedy in Carhart is that he has exchanged the "good Catholic" hat he wore in Casey for the "bad" hat he now wears -- visibly illustrated as a Papal mitre in the equally-inflammatory cartoon drawn last week by Tony Auth of the Philadelphia Inquirer.

You do not have to be an Ian Paisley to earn your anti-Catholic stripes. You can earn them equally well by de-legitimizing those Catholics who will not, for the sake of appeasing others, go out of their way to check their principles at the door. Catholics, uniquely among all American believers, are consistently asked to do this, dating back to the campaign of John F. Kennedy. This is the "soft" bigotry of which I originally wrote. Personally, I prefer my anti-Catholicism of the single-malt, 100-proof variety distilled so ably in Dr. Paisley's native Belfast.


I'm not quite understanding what all
this is supposed to be about?
Must be me or something...


There is no soft bigotry. Prof. Stone's post does not define who is or is not a "good" Catholic. It suggests how Justices' religion can influence their decisions. The post suggests who is or is not a "good" religious person. Catholocism has nothing to with the post. If the Justices were all of another religion and that religion had particularly strong views of the issue, Prof. Stone would write the same post, susbtituting the other religion for Catholocism.

Edward Grant, it feels good to feel like a victim, doesn't it? You can feel sorry for yourself and get all riled up over nothing! I saw it plenty in my own home growing up, and saw it in Catholic school too.


This is one of the rare instances that I will have to distance myself from my ideological kin, Professor Stone. While I usually agree with most of his posts, I don't find Professor Stone's argument, that the religion of the justices is salient to their opinions in Carhart, persuasive. There are many reasons why the majority opinion written by Justice Kennedy is a terrible one. His religion is not one of them.

Stepping back from this particular case, I noticed that a common theme in many of the comments is that judges should not "interfere in the democratic process" and should allow legislatures to exclusively decide outcomes. I cringe whenever I read this because it assumes that the judicial branch is outside the democratic process, instead of an integral part of it. Democracy is not synonymous with "will of the majority." Remember, a democracy has to balance the "will of the majority" with the "rights of the minority," when these two values come into conflict with each other.

The framers knew that any legislative body could deprive people of their liberty just as easily as a single king, queen, or tyrant. Thus they made some areas, typically those involving the private sphere, outside the limits of legislative authority. The historical role of the Court has been to keep the authority of legislatures outside this sphere.

Of course, with abortion, things are more complicated because there is no consensus about whether a fetus is a person. Reasonable, intelligent people can disagree about these things. The question becomes, in an area that lacks broad consensus, should the decision about abortion be made by the government, or by an individual in consultation with her doctor?

I don't claim to know when a fetus gains sentience, or whether it can feel pain, but I do know that I, as a human being, am fallible. Thus, knowing my own fallibility, I could not impose my opinion, on deeply personal issues where there is no broad consensus, on others via legislative fiat. Instead, I would leave this difficult choice to the individual, and pray that they make the right one.

The Court, in allowing the individual to make a choice, instead of the government, is preserving liberty. The freedom to make a choice is the very essence of democracy.


Golddog, the courts do not have a warrant to just "protect liberty." They have specific parts of the law of the Constitution they apply to statutory law. There is no reason to think the balance 9 Justices will strike on abstract questions of liberty and order will exceed the wisdom of those struck by the rest of the society in the legislature. That's why, outside of specific textual authority, the Supremes should butt out.

Stone reveals his almost continental prejudices though. Our American political heritage is one of religious freedom. Far from having a "wall of separation" between Church and State, until the 1960s, Churches and religious life were given various protections from the state: clergy-penitent privilege, exemptions for military service for those bound by conscience, Christian religious holidays were also government holidays. The American notion of politics and religion was one where traditional religious life was protected from state interference; at the same time, religious sentiments on everything from slavery to alcohol could find expression in the laws.

In contrast, the French Revolution and the continental liberals of the 19th Century were hostile to religion, as such, and were especially hostile to the Catholic Church, which they regarded as illiberal, controlling of the people, and a threat to the state's "complete sovereignty." This hostility persists today especially in Catholic countries, including Italy, Spain, and the Catholic countries of Latin America.

In Catholic countries, unfortunately, the extreme hostility of liberal secularists has led at times to an extreme reactionary position among the Church and its supporters, exemplified in Church documents like the Syllabus of Errors and political leaders like Pinochet and Franco.

Consider this precis on Mexico's anti-catholic measures of the 1920s:

The 1920s -1930s struggle between Church and State in Mexico ultimately goes back to five articles of the 1917 Constitution. Article 3 called for secular education in the schools; Article 5 outlawed monastic orders; Article 24 forbade public worship outside the confines of churches; and Article 27 placed restrictions on the right of religious organizations to hold property. Most obnoxious to Catholics was Article 130, which deprived clergy members of basic rights and made them in effect second-class citizens. Priests and nuns were denied the right to wear clerical attire, to vote, to criticize government officials or to comment on public affairs in religious periodicals.

While American liberals will undoubtedly say they would not endorse such measures, their notion of protecting the state from religious influence (rather than the reverse) ultimately leads in this direction.

America's liberals have embraced this alien concept of state-church separation, opposing, for example, prayer in schools, civil marriage laws respectful of widely held religious traditions, and even-handed treatment of religious institutions in the dispersal of public funds. Americans embracing the "separation" mantra of the last 40 years should recognize how this is a foreign import that has led in other nations to the most vile forms of persecution against Christians, especially Catholics.

Stone's attemtp to deligtimize the common secular philosophy of Catholics and their high regard for text, original meaning, and, to a lesser extent, the natural law tradition, is simply another way of saying widely held Catholic views should not influence a society's abortion policy. It's a short step to the Draconian policies adopted by "Liberal" regimes like Mexico's.

Joan A. Conway

A Thrice-Told Tale, or Felix the Cat
Michael Ariens
Harvard Law Review, Vol. 107, No. 3. (Jan., 1994), pp. 620-676.
Stable URL: http://links.jstor.org/sici?sici=0017-811X%28199401%29107%3A3%3C620%3AATTOFT%3E2.0.CO%3B2-O
Few legal scholars would dispute the constitutional, historical, and political importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judiciary, ultimately approved a sweeping interpretation of governmental authority to implement socioeconomic legislation. The course of events, although frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine." In this Article, Professor Ariens argues that Felix Frankfurter played a pivotal role in disseminating a particular history of the events of 1937. Reversing his own privately expressed position of dismay at the Court's actions in 1937, Frankfurter, in a memorial tribute to Justice Owen Roberts in 1955, revised the history of the events of 1937, a history that placed the Court above the fray of politics in its decisionmaking. Professor Ariens argues that the events of 1954-1959, the era of Brown v. Board of Education, played an integral part in shaping Frankfurter's revised history of 1937 and led to its widespread acceptance. Professor Ariens draws, from the interrelationship of these two constitutional events, telling lessons about post-War legal thought and the evolution of constitutional history.

Posted by: Joan A. Conway | April 26, 2007 at 02:38 PM

Phrases from A Thrice-Told Tale follow:

"If the integrity of our democratic framework required a committment to civil rights for Negroes, and if the judiciary was the only branch of the federal government able to create a constitutional framework to implement civil rights, then it was crucial that the Court maintain its integrity. The revised history was one effort toprovide a foundation for that integrity. At the time Frankfurter worte his tribute (and continuing through today), judicial independence from politics was a necessary prerequisite to judicial integrity. Professor Sunstein is right: Bron is the Court's leading symbol of judicial independence. Part of the reason Brown is so viewed is that a plausible story of the Court's fedility to law, including the events of 1937, made it easier to sell Brown as a permissble interpretation of the Constitution in the face of massive resistance. Jsutice Felix Frankfurter helped to create and disseminate that plausible story. Page 675.

Posted by: Joan A. Conway | April 26, 2007 at 02:47 PM

Joan A. Conway

Will be back with a response of Mexico and its idea of what Catholism is and what it is not!

M. Fernandez

Having read both of Professor Stone's blog entries, as well as all of the numerous comments that followed both, I am still not convinced that Stone "meant no harm."

The intent of the first post was to clearly signal that the only "rational" way to explain Carhart was to assert that the majority's opinion can be explained by their Catholic beliefs. Thus, Catholics are incapable of making sound legal judgments. The implication is that Catholics are only capable of regurgitating the Vatican line, no matter what the legal circumstances may be. Please.

As many have pointed out, Kennedy is not a die-hard anti-abortionist. He stakes out a middle path, an undecidedly Catholic one at that. And Kenndedy joined Lawrence v. Texas. But he is not the only Catholic who has adopted clearly anti-Catholic decisions. For example, both Scalia and Thomas are die-hard (no pun intended) death penalty adovcates. Is that Catholic?

I won't continue to look for examples throughout the history of all of the Justices' decisions in order to prove my point. The issue is one of a growing sense of unease among those in the Ivory Tower with having all of these Catholics on the Supreme Court, pure and simple.


Before this, when was the last time the High Court rolled back the personal freedoms of Americans? Anyone know?


Before this, when was the last time the High Court rolled back the personal freedoms of Americans? Anyone know?

David P. Lyons


What you and people like Stone refuse to recognize is that the Supreme Court has not "rolled back" anything: it has, in fact, expanded the freedom of the governed to effect their will in the policy process.
If you or Stone don't like the results, I recommend that rather than trying to secure your own policy preferences through litigation, you get involved and get your voices heard in the political process. It is that principle of republican government, not "Catholicism," that has most likely informed the views of justices like Scalia and Thomas in this instance. Do they observe that principle, and the principles of originalism and textualism, consistently? No, they don't. Those failures, however, are indictments of Scalia and Thomas, not the principles of textualism and originalism, informed as they are by the principle of self-government.

It's high time that people on the left and the right realized that they are not entitled to see their policy and political preferences realized by any means possible, in paricular by claiming that the meaning of a historically-contingent text "changes" or "evolves" to satisfy one's own ends, whether they be Stone's desire for a thoroughly secularized political sphere, or Bush's desire to wish away the Constitution's limits on executive power.


Mr. Roach offers us a classic example of slippery slope reasoning:

"While American liberals will undoubtedly say they would not endorse such measures, their notion of protecting the state from religious influence (rather than the reverse) ultimately leads in this direction."

He also offers us some rather oddball notions of American history, suggesting separation of church and state is an alien notion not native to American shores. I'm sure that any person even passingly acquainted with American history will find that notion absurd. At the very least, Thomas Jefferson's coining of the term suggests that the concept has an excellent American heritage.


in case anyone is interested ...

the probability of getting five catholic justices assuming random and independent choices from the population (26% catholic according to wikipedia) is - assuming excel and I didn't blow the calculation - about 0.045. this is actually a bit low because it doesn't account for the likely exclusion from candidacy of some small percentage of the populace by virtue of being avowed atheists or otherwise; nor does it reflect the asserted higher performance of parochial schools, the possibility that a disproportionate number of catholics pursue law, et al.

not wanting to deflect any of the wrath currently being heaped on prof stone onto myself, I offer no conclusions.



Why does identifying reasoning as slippery slope reasoning disqualify the remarks or mean that the threatened train of horribles is unlikely?

Slopes are indeed slippery. Ideas, institutions, and cultures follow trends. They may take a long time. You may not consider the horribles horrible. You may think some countervailing factor will arrest the decay, but that doesn't refute the original point.

I can't see the future. Neither can those who say not to worry. I do know, however, that the pace of social change is very fast and that many of the predictions levied by conservatives over the years regarding the growth of government, the decline of morality, and the decline of standards in general seem to keep coming to fruition.

I could just as easily say, erassmussimo, that your reasoning is the typical pollyannish liberal disregard for consequences defence. I won't have said much, though, if I did so.


I disagree with the statement that "[t]here is no reason to think the balance 9 Justices will strike on abstract questions of liberty and order will exceed the wisdom of those struck by the rest of the society in the legislature." By the design of the institutions, legislatures will frequently take away the rights of the minority. The incentives in a legislature are crafted such that a majority of the legislators will follow the will of the majority. Individual members, who want to be re-elected, will not defend the rights of a minority, when those rights are in threatened by the majority. There are no incentives for a majority to respect the rights of a minority.

A court, whose members have lifetime tenure, are in a position to defend those rights. It is the job of the institution to do so, and its members will tend to follow that trend despite their personal beliefs. That is why the basic judgment of Roe has remained, despite the Court being dominated by conservatives (seven of the nine Justices are Republican appointees).

As for the comment that we should strive to use “specific textual authority.” That is much easier said than done. The Constitution is a political document that is treated as a legal document. While there are some areas that are easy to interpret literally (the Third Amendment), there are others areas where the text of the document is ambiguous and the “original meaning” is not clear (commerce clause, the Fourteenth Amendment).

That's why statements such as the following are nonsensical: “[people are] not entitled to see their policy and political preferences realized by any means possible, in [particular] by claiming that the meaning of a historically-contingent text 'changes' or 'evolves' to satisfy one's own ends.” If the principles of the text are originally applied incorrectly, then it imperative that they later be applied correctly. The text, nor the principles, are evolving, but the application of the principles is evolving. The bill of rights is designed to create a personal sphere where the government cannot tread. The correct application of these principles is to leave decisions, such as whether to have an abortion or not, to the individual. I can't see how anyone can think that “Supreme Court has not 'rolled back' anything.” A decision that used to be left up to everyone, as an individual, is now in the hands of a few hundred legislators. How can that be an increase in freedom?

Justices are not free to simply defend liberty, but are charged to do so with the constraints imposed by the principles in the Constitution.


being somewhat rested and therefore more wrath-resistant, I'll offer an interpretation of the small probability of getting 5 of 9 catholic justices randomly and independently: it suggests the statistical likelihood that they were chosen non-randomly, non-independently, or both (again, "shocked, shocked").

this makes prof stone's concern about the vote somewhat more justifiable although for a different reason. it's one thing to suggest that the catholic justices sacrifice their judicial integrity by taking legal positions based on their religious tenets; it's quite another to suggest that political operatives choose judicial candidates based on the hope that their interpretative philosophies - which presumably are chosen consistent with their overall worldviews - will make it probable that their decisions will lean one way or another. one hopes (perhaps naively) for integrity in judges; not so political operatives.



"I disagree with the statement that "[t]here is no reason to think the balance 9 Justices will strike on abstract questions of liberty and order will exceed the wisdom of those struck by the rest of the society in the legislature."

ditto. it is my impression that it is rather ahistorical to argue that the "original intent" of founders was to put the country's well-being at the mercy of "the people", the wisdom of whom they felt was suspect. (and were they right - eg, over half of "the people" still believe in creationism). hence, the senate, electors, the bill of rights, and other buffers between "the people" and "elite" decision makers - buffers that are being seriously eroded to the national detriment.



Mr. Roach, if you are unaware of the reasons why slippery slope arguments are rejected from reasoned discourse, I cannot help you, as the point is too fundamental.

I'd like to make a comment on Mr. Lyon's observation that "It's high time that people on the left and the right realized that they are not entitled to see their policy and political preferences realized by any means possible, in paricular by claiming that the meaning of a historically-contingent text "changes" or "evolves" to satisfy one's own ends." While I agree with the overall thrust of comment (that we should not bend the Constitution for immediate political purposes), I disagree with one implication of it (that the interpretation of the text of the Constitution should not evolve to meet changing social contexts). I cannot understand how proponents of that interpretation can reconcile their position with the obvious need to extend First Amendment protections to modern media of communication such as radio, television, and the Internet. The plain text of the First Amendment is absolutely clear: it refers only to freedom of speech and of the press. Extending those protections to modern media is a perfect example of interpreting the text in light of the current social context. So let's dispense with this silly notion that we cannot take into account the fact that some things have changed in the last 200 years.

Charles, you make an impressive point on the low probability of that many Catholics on the Supreme Court. Brace yourself; the same howling hordes of conservative political correctness are likely to turn their shrieking in your direction.

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