Defending the 12th century since the 14th; blogging since the 21st.

Catholicism, Conservatism, the Middle Ages, Opera, and Historical and Literary Objets d'Art blogged by a suburban dad who teaches law and writes stuff.

"Very fun." -- J. Bottum, Editor, FIRST THINGS

"Too modest" -- Elinor Dashwood

"Perhaps the wisest man on the Web" -- Henry Dieterich

"Hat tip: me (but really Cacciaguida)" -- Diana Feygin, Editor, THE YALE FREE PRESS

"You are my sire. You give me confidence to speak. You raise my heart so high that I am no more I." -- Dante

"Fabulous!"-- Warlock D.J. Prod of Didsbury

Who was Cacciaguida? See Dante's PARADISO, Cantos XV, XVI, & XVII.

E-mail me

Monday, July 15, 2002
A few days off

Cacciaguida will now be away for a few days, hopefully learning something about Christian anthropology, about which he will blog when he gets back, if it's bloggable. See you next weekend.

Roy Campbell, II
First in a series of Campbell's Spanish Civil War poems


Close at my side a girl and boy
Fell firing, in the doorway here,
Collapsing with a strangled cheer
As on the very couch of joy,
And onward through a wall of fire
A thousand others rolled the surge,
And where a dozen men expire
A hundred myrmidons emerge --
As if the Christ, our Solar Sire,
Magnificent in their inent,
Returned the bloody way he went,
Of so much blood, of such desire,
And so much valour proudly spent,
To weld a single heart of fire.

A case for irreducible subjectivity in esthetics?

So, I was at a symposium over the weekend at which the topic was whether "beauty is in the mind of the beholder." While many of us struggled to defend sheer objectivity in beauty, columnist Maggie Gallagher (whose books Enemies of Eros and The Abolition of Marriage you should buy and read now) pointed out that without a beholder, there is no beauty, because (if I have her argument right) beauty is not only a description of an objective condition, but also a narrative of that condition's effect on someone else. Very interesting. Comments welcome.

R&J notes (first of a series)

When Juliet was three, she fell down and bumped her head. The next day, there was an earthquake. (I.3.22-27,38-40, Oxford Shakespeare edition)

We're going to have to watch this kid.

Friday, July 12, 2002
Roy Campbell

I was paging today through Camille Paglia's Sexual Personae to see whether she says anything interesting about my current research project, Romeo and Juliet. She doesn't. I did, however, find this, on page 171: "Chaucer's comic persona resembles that of Charlie Chaplin's Little Tramp, whom I seem to be alone in loathing."

I'll defend Chaucer some other time. What gets me is that the extraordinarily well-read Paglia seems unaware that, on the Little Tramp issue, she has a soulmate in Roy Campbell. This English/South African poet from the Age of Eliot was a rough-and-tumble rightist who exalted hunting, fought for Franco in the Spanish Civil War, converted to Catholicism while so doing, and, when invited to speak on college campuses, preferred guzzling beer with the football team to sipping sherry with the English department. Campbell is very rough indeed on the Little Tramp in his autobiographical reflections, Broken Record.

Plenty of editions of Campbell's poetry, and of his other autobiography Light on a Dark Horse, can be found through Also, St. Augustine's Press is bringing out a new volume of his work. I'll blog some of my favorite Campbells in the near future.

The Amidala of home-schooling

Sissi Smith, 17-year-old Catholic home-school student and indefatigable blogger, defends home-schooling against an attack from one of her friends. Go and root for Sissi here. She's on top of things! (Little AOTC joke there, for you insiders.)

Thursday, July 11, 2002
Many good points made here by George Mason Law's Peter Berkowitz, in a suitably piqued NR retort to Sean Wilentz's NY Times attack on Justice Scalia.

Movin' on up

So, if I read the Old Oligarch aright, he and Zorak are moving into the Diocese of Arlington! Excellent choice!

New links

Check out what's new in my left margin. Under blogs, I've added Summa Contra Mundum.

Under Catholicism, I've added two sites for Jewish converts to Catholicism (have I mentioned that I'm one?): the Association of Hebrew Catholics, and Remnant of Israel.

I've also added St. Joseph Communications, purveyors of great audio and video materials from Scott Hahn and many others. If you've ever wished you coud take in a lively yet in-depth study of some particular Biblical topic while on your next long drive, St. Joe is where you go.

Tuesday, July 09, 2002
The latest from Sudan

Courtesy of Zenit, a Catholic e-news agency --

Catholic Mission in Sudan Turned into an Islamic Military Post
Witness Says Church Desecrated

KAPOETA, Sudan, JULY 8, 2002 ( Muslim troops have razed a Catholic mission near here, using its church altar as a kitchen and its bricks to build mosques and military fortifications, a witness reported.

"The mission of Our Lady of Sorrows in Kapoeta, a beautiful church, has been reduced to its foundations," Torit Diocese spokesman Gervasius Okot told the Misna missionary agency.

Okot inspected this town in the Eastern Equatorial region of war-torn southern Sudan last Thursday.

The Sudanese People's Liberation Army, which has been battling the forces of the Khartoum government, captured the city on June 9. The National Islamic Front has since seized the mission property, located about 3 kilometers from Kapoeta.

"The Sudanese government deliberately transformed the church into the military command of the Kapoeta region, from where it implements all the secret plans of the National Islamic Front," Okot said. "It is one of the advance posts frequently used by President Omar Hassan el-Bashir as a residence."

"From there, general El Bashir prays to Allah in the mosque built with the bricks of the demolished church," the Catholic spokesman added. "The president also meets there with senior officers to plan the strategies of a war carried out through murders, tortures, Islamization and 'Arabization' of the so-called 'abid,'" or slave.

The mission parish had been founded by the Comboni missionaries in 1935, Okot added. The mission's structure was kept intact for over 10 years, but now it is deserted, he said.

"The only thing of the sacred place that is still standing is the area of the altar and tabernacle, but they have been used for a long time for activities that it is best not to mention," he said. "Cooking has also been done there. There are cigarettes and burnt wood on the floor. On the altar there are all kinds of insults against Christians written in Arabic."

...and from Pakistan (also courtesy of Zenit):

Mentally Ill Man Stoned to Death for Blasphemy in Pakistan

FAISALABAD, Pakistan, JULY 8, 2002 ( A mentally ill Pakistani who said he was "the last prophet of Islam" was stoned to death by a crowd incited by a prayer leader at a mosque.

Zahid Shah, 40, was stoned to death on Friday in a village near Faisalabad, in central Pakistan, international press agencies reported.

Maulvi Faquir Mohammed, who led prayers at the mosque, instigated the crowd outside, through the temple's megaphone, to stone him.

The death comes about a week after a Christian was sentenced to death in the country for alleged blasphemy against Islam, Compass Direct reported.

Augustine Ashiq "Kingri" Masih, 25, was convicted June 29 by the Faisalabad District and Sessions Court on charges of slandering the Muslim prophet Mohammed. Under the Pakistan penal code, Masih must be hanged for the alleged offense.

Masih was jailed in May 2000 on accusations that he made derogatory remarks against the prophet Mohammed, while some Muslim acquaintances were questioning him about changing his religious faith.

He is the second Christian so sentenced by Faisalabad's lower courts in the past two months.

Monday, July 08, 2002
This -- is really great!
Thanks to Zorak for this one. Enrich your vocabulary with help from the Eskimos!

Today's first reading (Monday, 14th week in Ordinary Time) edited, leading to a somewhat choppy cite: Hosea 2:16, 17c-18, 21-22. But even chopped, it sounds a striking "bridal mysticism" note concerning the God-Israel relationship (and, on the analogical principle, to the Christ-Church and Christ-believer relationship):

Thus says the Lord:
I will allure her;
I will lead her into the desert
and speak to her heart.
She shall respond there as in the days of her youth,
when she came up from the land of Egypt.

On that day, says the Lord,
She shall call me "My husband,"
and never again "My baal."

Note that Israel (and you and I) in its (and your and my) disaffection from God, fell into thinking about God not as Lord but as "Baal," that is, a lord who is violent and selfish. Just the way unbelievers think about God. (The term "Baal" means "lord" in one of the languages of the peoples neighboring Israel, but it was particularly linked to cults such as that of Moloch.)

It's interesting that in Hosea's text, God does not merely reply that He's a good lord rather than a bad one, but goes further and invokes marital imagery. Perhaps for many women today that's not a positive image, but we know there's no such issue here, because it's Israel "herself" (i.e. it's the "wife" talking) who (Hosea predicts) will "respond as in the days of her youth" to God.

Friday, July 05, 2002
More on Kelly case

A reader writes in:

You are wrong about Paul Ebert. My brother-in-law worked in his office for many
years. He is conscientious, he is not a prosecutor prone to overreaching. I do
not think there is any question about his trying to teach big families a lesson.
I just can't imagine that's something that he has any interest in doing.

OK, now Ebert has had his defense on this site. Prince William voters: you've heard both sides -- now get ready for the campaign.

It is
a bigger risk to him, politically, to prosecute, not vice versa.

From your lips to God's ears.

I can make a
case for not prosecuting any parent who has engaged in less than intentional
conduct that harmed their child, because losing a child is a severe punishment
by itself, and punishing the rest of the family by removing a parent is highly
questionable. Juries seem to agree -- for instance, they almost never convict
parents who fail to have their children secured in a safety seat at the time of
an accident, at least when the parent has not been driving recklessly. For this
reason alone, I suspect that Mr. Kelly will do no jail time. Add to that the
reluctance of everyone involved to traumatize the Kelly children further by
forcing them to give testimony, and I don't foresee any great peril to Mr.
Kelly's liberty. These are prudential considerations, however, and do not bear
on whether the conduct was objectively wrongful enough to be considered

I agree with most of this. But: prudential considerations are also part of prosecutorial discretion -- in fact, one could argue that they belong there even more than in jury deliberations. Theoretically, a jury is only supposed to determine what the state has proved beyond a reasonable doubt, and then compare that with the conduct banned by the statute(s), and determine whether the former fits the latter. But in practice, juries do take circumstances into account.

And even though I tend to agree that involuntary manslaughter is on the extreme
end of what could be charged here, I suggest that you may be indulging the
opposite bias of that which you accuse Mr. Ebert: giving large "loving"
Catholic families a free pass for the errant conduct of the parents.

Clearly, defining the "protected" category by religion would raise constitutional problems, and the term "loving" (a) has no legal definition, and (b) looks at the wrong factor: we're interested not so much in the parents' emotional state vis-a-vis their children, but at something much more elusive -- what makes a "good" family, with all the ideological freight that such an inquiry would carry. Our society is characterized by chasmic differences over what makes a "good" family, and these differences are on display in the Kelly case. That's the point of my earlier post.

parent, no matter how good, stores up the "near misses" that haunt them for a
long time after it's clear that everything turned out to be alright. This could
happen in a smaller family: I will admit that my younger child once wandered
the neighborhood looking for a friend's house when my husband and I both thought
that the other had her. A neighbor brought her back. It's been years, and I
still cringe at what might have happened. I look at the Kelly situation, and I
think, perhaps it would be understandable if one or even two hours had elapsed
-- it probably takes an hour just to get 11 kids organized for lunch, when the
headcount then reveals one missing. Even in that forgivable amount of time, the
baby might have died. But that baby was missing from the family and in the car
for seven hours. She was the youngest -- the one who should have had the most,
not the least, of her father's attention. The Kelly family never noticed -- it
was their neighbors who noticed and called for help.

I believe I accounted for this argument by conceding in my original post that some sort of child neglect charge could be justified. And I'm not unaware of the benefits of sending the message that parents have to take care of their children (though this message is, for many, rendered arbitrary when the same society permits parents to kill their children as long as they do it early enough). But criminal conviction requires a mens rea, a "guilty (or blameworthy) mind." Negligence can be a form of mens rea, but what I've so far learned from teaching criminal law a few times is that the negligence required for a criminal conviction is several notches more severe than the negligence required for tort liability. Parents who go for weekend in Las Vegas -- or, for that matter, Lourdes -- and leave 13 children in the care of a 17-year-old -- now that's criminally negligent. You would draw the line somewhere between 2 hours and 7 hours. That's defensible. But, as you note, it would justify the child neglect charge, not the manslaughter charge. (BTW, your point about the youngest being entitled to special care is well taken.)

It just does no good to look at this through the lens of good family/bad family
dynamics. Notwithstanding your really snide comments about paying others for
child care, and whether the Kellys generally were doing right by their children,
I suggest that Mr. Kelly and his family (and certainly Frances) would have been
better served if he and his wife acknowledged that he needed help when his wife
was away, and had paid a trustworthy cousin, or church or neighborhood friend to
look after the younger children during the day, in Mrs. Kelly's absence. Even
with only four kids, that's what my stay at home mom did when she had to go to
the hospital or out of town. For whatever it's worth, it's what my
mother-in-law did with her brood of six as well.

On the latter point, who would argue otherwise? As to paid, "professional" day care as a social institution (i.e. I'm not talking about particular cases), it deserves a lot worse than snide. We are already far down the path toward Spartanization of family life, except that we institutionalize the kids earlier than the Spartans did. Families that resist this trend, yet find themselves in legal trouble because of an act of negligence, should get every reasonable benefit of the doubt. But they don't: they get the book thrown at them.

Thursday, July 04, 2002
Kelly case: teaching big families a lesson?

Sorry to post on this on Independence Day, but we have to remember what we still have to achieve along with what was achieved back in 1776.

I can't seem to link to a Washington Post article on the case, but click here and do a search for "Manassas father." Or maybe this link will work.

Briefly, the Kellys have 13 wonderful kids; on May 29 the youngest, Frances, age 21 months, suffocated in a closed van. Dad was in charge of the whole crew, and had delegated care of Frances to one of the older ones (a boy of 17). It is undisputed that this is a close and loving family, and this living nightmare has devastated them all. The funeral was quite wrenching enough even for friends on the outer margins of the Kelly circle, such as Cacciaguida. So now it's time for grieving and then healing, right?

Well, no. It seems it's time for criminal charges against dad, with a maximum sentence of 15 years.

It appears that Paul Ebert, Commonwealth's Attorney for Prince William County, VA, has decided to use this excruciating family catastrophe to make an example of one of those large Catholic families that tend to congregate in Manassas (click here or here). Everything that his office has leaked so far about the case suggests a campaign to characterize as criminally negligent certain features of large families, especially the way the older children often help out with looking after the younger ones. (We could also talk about the way Ebert's office is playing the defendant-dad off against his own children, who have retained separate counsel.)

The message seems to be: as long as you have no more than two kids, you can outsource their upbringing to strangers ("professionals," in therapeutic-state-speak) from infancy, and you're a great parent. You're also legally insulated: if a disaster occurs, the school or day-care center will be on the hook, not you -- you could even be the plaintiff! But if you ask your 17-year-old to look after your toddler, and the worst that can happen does happen, then you too can be like Kevin Kelly: a hard-working, family-doting, Mass-going, abortion-clinic-picketing dad in the criminal dock for involuntary manslaughter and gross child neglect.

I can see, though reluctantly, that some sort of neglect charge may have been appropriate. But the involuntary manslaughter charge is such overkill as to suggest a culture-war subtext. Ebert says he "agonized" over whether the file criminal charges at all. My butt he did: one doesn't agonize over whether to charge -- and then charge to the max.

In Virginia, Commonwealth's Attorneys are elected, and they (or, as in Ebert's case, their sons) sometimes try for higher office. So remember the name. Ebert. Ebert. Ebert.

Wednesday, July 03, 2002
Weekend lessons
(Caution: a lot here about cars)

Sorry for the long weekend away from the blog. I figured the Con-Law blogathon of late last week would keep most readers busy for a while.

Anyway, here's what I learned this past weekend:

* If you must drive a car with automatic transmission, be aware that if the car "shudders" through the lower gears, and seems seriously lacking in torque while in (what it considers) first gear, this means your transmission is in trouble -- trouble it would never be in if it were manual.

* Car fluids are color-coded. Engine coolant, I seem to remember, is yellowish-green. Automatic transmission fluid, I found out this weekend, is red -- like Robitussin, only thinner. There's no mistaking it when a pool of it accumulates under your car.

* Tiny, independent, all-purpose car repair shops owned and run by guys with names like Jack or Vic rule. By comparison, dealerships and chains are a risk. Perhaps the reason is that the independent guys live or die by customer loyalty, so they have to treat you right. Not that the dealerships and chains don't like repeat business, but, being interchangeable with other shops under the same sign, they see less of it, and so are more focused on getting the most bucks out of each job. Yes, I've gotten good service out of some dealerships and chains (Jiffy-Lube is OK for oil changes and other very basic maintenance, and it's very convenient), but I've gotten to know two really great independents, and I now feel pretty sure there are lots more like them out there.

So, if you ever have car trouble in the vicinity of Cincinnati, you want Snyder's Auto Service -- Jack W. Snyder -- 1002 Harrison Ave., Harrison, OH, 4503 -- 513-367-4008.

And if it's in southern Delaware that your car decides to trim your Purgatory for you, you want A-1 Vic's Auto and Towing -- Vic Thomas -- 18092 Repair Lane (Vic got to name the street himself, seeing as it's his driveway, and the 911 people said he had to give it a name), on Route 113, Georgetown, DE -- 302-856-1779 or 302-249-2168.

Also, join the AAA. That's how I found Vic.

Friday, June 28, 2002

In the Middle Ages, goliards were itinerant, and usually decadent, minstrels. Not no more! Go visit a thoroughly wholesome yet very interesting goliard (and budding political science scholar) here.

The Pledge thing

I've had a chance to glance over the 9th Circuit's Pledge decision. Here is a direct link to the decision. If that doesn't work, try this link to the 9th Circuit and then click on Opinions, then 2002, then June, then Newdow.

I'm glad such a broad consensus seems to think this decision is ridiculous, but given the Supreme Court precedents most on point, I wouldn't bet on the Supremes reversing this. This is not a case of indirect government aid to religion, like Zalman (reviewed below) and its predecessors. Cases of governmental religious speech go in an entirely different category. When the audience is entirely or primarily one of adults, such "government speech" tends to be upheld, e.g. Marsh v. Chambers (prayer opening a legislative session); Lynch v. Donnelly (creche display; religious message mixed with secular). But when it's school children -- even high-schoolers on their day of graduation, see Lee v. Weisman -- the Court usually finds an Establishment Clause violation.

The difference is that in the voucher/indirect aid cases, the Court has bought the key pro-religion argument: it's the direct aid recipient, not the government, that is making the religious choice. But in the "government speech" religion cases, the Court has not bought the key pro-religion argument, which is basically: get a life! No, really: the "injury" suffered by a atheist student who has to listen to the words "under God" every morning strikes most of us as laughable -- as material for, or some legal joke site. But the Supreme Court has taken such "injuries" very seriously. See, for instance, Justice Kennedy's hand-wringing about "psychological coercion" in his opinion for the Court in Weisman.

Judge Fernandez, in his dissent in the Pledge case, tries valiantly to make the "get a life" point. "[L]egal world abstractions and ruminations aside," he writes, "when all is said and done, the danger that 'under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody's beliefs is so miniscule as to be de minimis. The danger that phrase presents to our First Amendment freedoms is picayune at most." This observation is not, however, followed up by any Supreme Court citations. And that shows us what and where the problem is.

Lest anyone mistake, this is not about whether Mr. Newdow's daughter can be forced to say the Pledge. An essentially identical issue -- mandatory flag salutes in school -- was thoroughly litigated in the early 1940s (when war fervor might be thought to have been at its height.) At first, the Court held, per Justice Felix Frankfurter, reputedly one of the giants of 20th century constitutional law, that there is no right to a religiously-based exemption from a statute requiring every student to salute the flag. Three years later the Court claimed to overrule that decision (whether it really did or not is an interesting question), and announced (over a dissent by Frankfurter) that the Constitution prohibits the enactment of mandatory flag salute statutes.

Thus, it is settled that Mr. Newdow's daughter cannot be forced to say the Pledge, with or without "under God." So what is he after?

This is not about Miss Newdow's freedom: this is about culture wars. For Mr. Newdow, a mere right to remain silent is not enough, because it leaves the God-guys in possession of the majority/community position, against which atheists must be the "other." The most charitable way to characterize his agenda is that he wants neither atheists nor theists to be the "other," and thinks striking "under God" from the Pledge is the way to achieve this.

But that's not the way political communities work. After a half-century of "under God" being in the Pledge, its absence will be highly conspicuous for at least a generation. Atheists will have captured the "community" hill, making theists the "other."

Given the obviousness of this, it is difficult to believe that it is not Mr. Newdow's real agenda. But whether it is or not, making theists the "other" is manifestly contrary to the original intent of the First Amendment; this is what Justice Rehnquist (in his Jaffree dissent) and others mean with their stock recitations of acts of public piety by statesmen the founding generation. Justice Souter (see e.g. his concurrence in Weisman) replies that these were constitutional faux pas; "Homer nods." This mistakes the argument: it's not, hey, these great guys did this stuff, so who do think we are; it's that the actions of those statesmen is strong evidence of original intent.

Thursday, June 27, 2002

It's called Zelman v. Simmon-Harris, and the 5-4 opinion for the Court was written by the Chief Justice, as is customary in controversial or closely-watched cases. It's a short opinion, mainly pointing out that the path to it had been paved steadily over twenty years. For example:

- Witters, successfully argued for the good guys by Mike Farris in his so-far only Supreme Court appearance ("l've argued a number of cases in the Supreme Court," says Mike. "One is a number."), which established that money given by the government to A for education purposes, and spent by A at a religious graduate school, is not government aid to religion;

- Mueller, which established the same point for tuition tax credits at secondary schools;

- Zobrest, which applied the Witters-Mueller principle (aid to a student in a religious school is not aid to that school as long as the student and/or his parents make an independent decision to use the money in that way) to a deaf student who took his state-salaried sign-language interpreter into a Catholic school; the interpreter was obliged to interpret all lessons, including catechism (pretty neat, huh?);

- Agosini v. Felton, which overruled an earlier decision that had forbidden public school teachers to give remedial instruction in religious schools even though students in those religious schools had a federal statutory right to such instruction.

So this would appear not to be a hard case; the sheer brevity of the Court's opinion, in relation to the importance of the case, suggests as much. And if we stick to precedent, it isn't a hard case. The dissenters in effect confirm this by falling back on certain shopworn myths suggesting that religion is bad. Of course no Justice, either for the Court or in concurrence or in dissent, has ever said that religion is bad. What they say instead is that it is divisive, and Justices Stevens, Souter, and Breyer (with Ginsburg concurring) said it offen in their dissents in Zalman. It's a rhetorical trope that has more than a half-century of history in the Supreme Court. It works like this: reduce "religion" to the Thirty Years' War, and then reduce the motivation for the founding of the United States to a desire to avoid another Thirty Years' War. Of course, the hearty privateers and merchants-on-the-make who flocked to the Colonies in the 18th century were probably giving about as much thought to the Thirty Year's War as you did yesterday, and as for "religious persecution in their homelands," another radical-separationist perennial -- listen, if Voltaire didn't have to leave, nobody had to leave.

Nonetheless, Justice Breyer is certain that America's own Thirty Years' War is just around the corner. Liberal sociologists such as Alan Wolfe have concluded that we're actually a very unified society because the culture wars have already been won by the liberal side; but Justice Breyer does not agree. He writes:

The principle underlying these [separationist] cases [such as the school-prayer decisions] –avoiding religiously based social conflict–remains of great concern. As religiously diverse as America had become when the Court decided its major 20th century Establishment Clause cases, we are exponentially more diverse today. America boasts more than 55 different religious groups and subgroups with a significant number of members. Major religions include, among others, Protestants, Catholics, Jews, Muslims, Buddhists, Hindus, and Sikhs. Ibid. And several of these major religions contain different subsidiary sects with different religious beliefs. Newer Christian immigrant groups are “expressing their Christianity in languages, customs, and independent churches that are barely recognizable, and often controversial, for European-ancestry Catholics and Protestants.”

Under these modern-day circumstances, how is the “equal opportunity” principle to work–without risking the “struggle of sect against sect” against which Justice Rutledge warned? School voucher programs finance the religious education of the young. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money–to determine, for example, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program’s criteria? If so, just how is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension?
[Internal cites omitted]

It's not that I can't imagine an America in which Sikhs and Buddhists and Muslims and Christians battle each other in the streets over voucher dollars, but's it's certainly not the America I see every day, which is much closer to sinking into dogmatized indifferentism, a la Alan Wolfe.

More Breyer: The First Amendment begins with a prohibition, that “Congress shall make no law respecting an establishment of religion,” and a guarantee, that the government shall not prohibit “the free exercise thereof.” These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to “worship God in their own way,” and allows all families to “teach their children and to form their characters” as they wish.

Just how "all families" could do that if vouchers were ruled unconstitutional is a worthwhile question. But even more to the point, the First Amendment just doesn't "embody" the "understanding" that Breyer describes. Many Framers may have held to that understanding, and I'm sure some of them hoped the First Amendment would advance it, but the only "understanding" that the Establishment Clause of the First Amendment "embodies" is the one that it says, namely, that there is not to be a nationwide official church. As even many liberal scholars have argued, the original intent of the Establishment Clause was to protect state establishments of religion (i.e. from an encroaching federal one), not to overturn them. (This is what Prof. Akhil Amar is gingerly getting at when he says that, of all the clauses in the Bill of Rights, the Establishment Clause is the one that most "logically resists incorporation.".)

This brings us to the Thomas concurrence. (The Souter dissent and the O'Connor concurrence mainly just argue with each other over details of the Ohio program. Stevens also filed a dissent on the inexplicable assumption that he has anything to say in this area that he hasn't already said a hundred times.)

Justice Thomas doesn't quite call for holding the First Amendment inapplicable to the states. But, picking up on a remark by the second Justice Harlan concurring in Walz v. Tax Commissioner, Thomas argues that state programs that approach the church-state boundary should be judged more leniently than federal ones, because of the First Amendment's clear focus on legislation by "Congress."

Besides this textual argument for cutting states more slack than the feds in this area, Thomas also frames his argument around an interest that has long been considered liberal territory: black children's need for an education as good as that available to whites. Of course, voucher proponents have long stressed this theme and built coalitions around it; but, trust me, for lawyers, it helps to have something to that effect actually in the United States Reports (the official citation instrument for Supreme Court opinions), even if it's only a concurrence.

Thomas's concurrence begins:

Frederick Douglass once said that “[e]ducation … means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.”1 Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago in Brown v. Board of Education, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” 347 U.S. 483, 493 (1954), urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program.

The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State’s neutral efforts to provide greater educational opportunity for underprivileged minority students. Today’s decision properly upholds the program as constitutional....

...and ends (or nearly so):

Although one of the purposes of public schools was to promote democracy and a more egalitarian culture, failing urban public schools disproportionately affect minority children most in need of educational opportunity. At the time of Reconstruction, blacks considered public education “a matter of personal liberation and a necessary function of a free society.” Today, however, the promise of public school education has failed poor inner-city blacks. While in theory providing education to everyone, the quality of public schools varies significantly across districts. Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities. Opponents of the program raise formalistic concerns about the Establishment Clause but ignore the core purposes of the Fourteenth Amendment.

While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” The same is true today. An individual’s life prospects increase dramatically with each successfully completed phase of education. For instance, a black high school dropout earns just over $13,500, but with a high school degree the average income is almost $21,000. Blacks with a bachelor’s degree have an average annual income of about $37,500, and $75,500 with a professional degree. Staying in school and earning a degree generates real and tangible financial benefits, whereas failure to obtain even a high school degree essentially relegates students to a life of poverty and, all too often, of crime. The failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.
[Footnotes and internal citations omitted]

Good job, ladies and gentlemen of the Zalman majority!

A better last-day-of-term than usual for the Supreme Court

Hold your horses, readers-- Cacciaguida will blog about today's Supreme Court news in a jiffy.

Briefly, the Court:
* upheld the Ohio vouchers program (opinion by the Chief; concurrences by O'Connor and Thomas; dissent by Souter, responded-to both by the majority and by O'Connor; dissents by Stevens and Breyer, ignored);
* struck down a ban on candidates for elected judicial office saying anything important in their campaigns (Scalia wrote for the Court on this one; dissent by Ginsburg);
* cut back on government officials' qualified immunity in the prison-discipline context, over a Thomas-Rehnquist-Scalia dissent (Cacciaguida, however, has never been as much of a fan of such official immunity as his usual heroes on the Court are); and
* upheld suspicionless drug testing for extra-curricular activities in public schools(a Thomas opinion over O'Connor and Ginsburg dissents; Scalia was with the majority, despite his earlier invective against suspicionless drug testing of governmente employees).

Wednesday, June 26, 2002
Tonight: Annual Mass for the Feast of Blessed Josemaria Escriva, Basilica of the National Shrine of the Immaculate Conception, Washington D.C., 7:30 p.m., Most Rev. Kevin Farrell, Auxiliary Bishop of Washington, presiding.

Historical note: This is the last such annual Mass that will use the term Blessed J.E., as a little status-adjustment ceremony is planned for Rome on October 6.

"Sentencing Factors"?

All right, here's what the Supreme Court has been issuing confusing and fragmented decisions about all week. We all know that in a criminal case, the prosecution must prove every "element" of the crime beyond a reasonable doubt. But: what exactly is an "element," and how is it to be distinguished from a "mere sentencing factor"?

Yes, legislatures have been discovering that if they label something a "sentencing factor" (e.g., possessing a firearm while committing some other felony), then that "factor" need not necessarily be determined by a jury under the "beyond a reasonable doubt" standard, but instead can be determined by a judge, using the "preponderance" (i.e., more likely than not) standard.* This week, the Court has been announcing that this procedure is unconstitutional in some cases -- most notably, in Ring v. Arizona, when judges determine "aggravating factors" for death penalty purposes -- but not in others.

Sometime in the next few days I'll try to blog some of this further. In the meantime, go here for a self-labeled "left" take on all this -- and a very sensible one. (Scroll down to "Contradicting Decisions.")

* By way of background: The "beyond the reasonable doubt" standard, besides being deeply rooted in the history and traditions of the Common Law, was declared by the Court in In Re Winship to be required by the Due Process Clauses of the 5th and 14th Amendments. The right to jury trial is in the 6th Amendment, made applicable to the states through the 14th Amendment.

Check out "A Love Affair We Can't Get Over," at Shamed's blog and see how this formerly pro-choice libertarian became a pro-life libertarian.

To see what happens when the citizenry's desire to live free of household pests clashes with the political gentry's desire to protect all furry things, click on this Fox News item.

Tuesday, June 25, 2002
Welcome to a new Holy Blog of Obligation: The Reader. Visit him now!

Good article here by Chuck Colson on Islamic recruitment in prisons. But as for the apparently de rigueur concession that "Yes, most Muslims interpret jihad as an inner struggle," click here for a reality check.

Rejoice: the new Archbishop of Milwaukee is...

...the Rev. Timothy Dolan, formerly rector of the North American College in Rome. Click here for the announcement on the Vatican website.

Thanks to bloggers Salmagundi and Steve Mattson for the tip.

Steve's blog also carries excerpts from Arcbishop-elect Dolan's recent interview with the National Catholic Register. Or click here.

Scalia Gets Down

As the Supreme Court's year both winds down for the summer and gears up for its most controversial week (the two happen simultaneously every June), the Court's Italian stallion is in fine form. Concurring separately in a June 17 decision striking down a licensing scheme for door-to-door religious solicitors, he distanced himself sharply from any part of the Court's decision that might suggest a retreat from the principle, announced for the Court by Scalia himself back in 1990, that if a law or regulation is lawful (meaning primarily, in this context, neutral as to religion), the mere harboring of a religiously-based objection to that law does not give rise to a presumptive right to non-observance by the objector.

He also goes out of his way to show how unimpressed he is by the idea of a person so "patriotic" that he will disobey a valid and constitutional speech regulation.

Here's the entire text of his concurrence:

Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
I concur in the judgment, for many but not all of the reasons set forth in the opinion for the Court. I do not agree, for example, that one of the causes of the invalidity of Stratton’s ordinance is that some people have a religious objection to applying for a permit, and others (posited by the Court) “have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.” Ante, at 16.

If a licensing requirement is otherwise lawful, it is in my view not invalidated by the fact that some people will choose, for religious reasons, to forgo speech rather than observe it. That would convert an invalid free-exercise claim, see Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), into a valid free-speech claim–and a more destructive one at that. Whereas the free-exercise claim, if acknowledged, would merely exempt Jehovah’s Witnesses from the licensing requirement, the free-speech claim exempts everybody, thanks to Jehovah’s Witnesses.

As for the Court’s fairy-tale category of “patriotic citizens,” ante, at 16, who would rather be silenced than licensed in a manner that the Constitution (but for their “patriotic” objection) would permit: If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.

Scalia has a wide streak of "civic republicanism" in him: for him, a "patriotic" citizen is a law-abiding citizen, not an exemption-seeking citizen. You'll notice the same theme when he defends the Smith decision in his concurrence in City of Boerne v. Flores: where O'Connor, attacking Smith, points out that the Framers favored religious liberty unless it "broke the peace," Scalia responds: yes -- and to break the law was to break the peace. Therefore: no legal prohibitions of religious conduct -- but at the same time, no religious exemptions from laws that aren't prohibitions of religious conduct.

Monday, June 24, 2002
Two more blogs I think I'll start reading:

In Formation, by a Catholic seminarian, and Summa Contra Mundum.

Good morning! Be sure to visit Eve today, because today she explains the meaning of life, or at least one awfully (awe-fully?) important part of it, namely, the relationship of individuality to authority.

Another part of the meaning of life is opera, and I haven't blogged about that in a while, so here goes.

This past weekend the Chicago Lyric broadcast Wagner's Parsifal. This opera, Wagner's last, is a major contribution to the Grail literature. I wasn't able to catch very much of the performance, but the conducting of Sir Andrew Davis sounded excellent. (I'm a fan of his Toronto Messiah: neither too big-orchestra romantic, nor too "original-instrument" tinny.)

But the real surprise was Matti Salminen as Gurnemanz, the kindly old knight who is more a narrator than a plot-mover. I saw Salminen in person as Gurnemanz in Washington about a year and a half ago, and thought then that he was more suited to Wagner's villain-bass roles than to this one. But Saturday's broadcast showed that his Gurnemanz has become smooth and dark-hued. If I can analogize to some of the great Wagner basses of the '60s, it's as if Salminen had shucked off Kurt Bohme and become Gottlob Frick -- or even fellow-Finn Martti Talvela. If he can now toggle between these two styles -- his Hagen style and his Gurnemanz-style -- he'll deserve to dominate the Wagner-bass world the way Josef Greindl did in the '50s.

Friday, June 21, 2002
Good News About a Bishop

All of my recents Church-related posts have been pretty grim, so let's take the long view and remember that tomorrow (June 22) is the Feast of Saints Thomas More, layman, lawyer, author, and Lord Chancellor of England, and John Fisher, Bishop of Rochester.

Of these two, St. Thomas gets more attention, thanks to the wonderful play and movie A Man for All Seasons. Consequently, the Adoremus Bulletin has done us a great service by reprinting the text of St. John's reply to the king's quisling bishops (natural bureaucrats, the pack of them) when they visited St. John in prison and attempted to suborn him. Here it is (I retain the archaic spellings only for period flavor and to prevent suspicions that the text has been "translated" ):

Me thinketh it had bene rather our partes to sticke together in repressinge these violent and vnlawful intrusions and iniuries dayly offered to our common mother, the holy Church of Christ, then by any manner of perswasions to helpe or sett forward the same. And we ought rather to seeke by all means the temporall distruccion of the so ravenous woolves, that daily goe about wyrryinge and devowringe euerlastinglie, the flocke of Christ committed to our Charge, and the flocke that himself dyed for, then to suffer them thus to range abroade. But (alas) seeing we do it not, ye see in what perril the Christen State nowe standeth: And seeing that iudgment is begone at the howse of God, what hope is there lefte (if we fall) that the rest shall stande! The fort is betrayed even of them that should have defended it. And therfore seeing the matter is thus begunne, and so faintly resisted on our parts, I feare we be not the men that shall see the ende of the miserie. Wherfore seeing I am an ould man and looke not longe to live, I minde not by the help of God to trooble my conscience in pleasing the king this waie whatsoeuer become of me, but rather here to spend out the remnant of my old daies in prayinge to God for him.

Happy feast day tomorrow.

Portrait of a Liturgist

Back in 1991, the Archdiocese of Baltimore did what's right: it defrocked a priest who had been molesting "youths" (the report isn't clear, but we're probably talking ephebophilia here, not pedophilia) while in parish work between 1969 and 1986.

Some of you may wonder about job prospects for priests in this position (I don't say ex-priests because, strictly speaking, there's no such thing). Well, this particular priest didn't do too badly, at least not for himself: he become executive director of the Federation of Diocesan Liturgical Commissions. According to the Adoremus Bulletin, from which I got this and which you should all read, the FDLC is "funded by Catholic diocecese throughout the United States" and "advises the US bishops' conference on liturgical matters and regularly provides agenda items for the bishops' conference...."

It's unclear whether and when the FDLC's board knew of its executive director's background. What's not at all unclear is that (a) the priest in question is resigning, but not in any haste -- more like at the end of the calendar year, and (b) he is the announced recipient of the FDLC's 2002 award for "services to pastoral liturgy."

All of you who have felt all along that touchy-feely liturgies may somehow be connected with, er, touchy-feelying -- looks like you may have been right.

Supreme Court: Superintendent of Evolving Values

The Supreme Court decided yesterday that the Constitution forbids imposition of capital punishment on the mentally retarded. Of course it doesn't; what the Court really decided was that expressions such as "cruel and unusual" (8th Am.) and "due process" (5th and 14th Ams) are placeholders for enlightened opinion or fundamental values, said opinion and values to be determined by polling the nine members of the Court when an on-point case arises.

As a policy matter, and as a matter of political morality, the Court's result may be right. I'm not going to go front and center for executing anybody, retarded or not. But the Court's constitutional holding shows that it is up to its old Warren/Burger era trick of decreeing that something that's really, really bad simply must be banned by the Constitution. The Constitution ceases to be a charter for a limited federal government and becomes a collection of words that Justices can deploy to enact their political or moral preferences.

To be sure, the Court here went through the steps of trying to prove an emerging national consensus, of which it pronounced itself the humble servitor. Nice try, ladies and gents of the Court. Here's an idea: since you're now so convinced that state legislative judgments are morally persuasive, maybe it's time to look again at Roe and Casey: all the states in 1973 had laws restricting abortion, and Roe overturned or neutralized all of them. Since then, many states have repeatedly tried to restrict abortion within, and sometimes outside, the limits imposed by Roe. The Court's answer to this national consensus was Casey. I guess some consensuses are more "national" or more "emerging" than others.

Thursday, June 20, 2002
More on the bishops

A reader sends in the following interesting letter (which I will put in italics):

It may be that homosexuality plays a role in the abuse scandal, but the
relationship is unlikely to be as clear as it first seems. I have a high school
friend who was abused by his father, along with his brother and a sister. If
the father was a repressed homosexual why would he abuse the daughter?

Me: On the other hand, if he weren't, why would he molest the son? I'm no expert here, and would welcome remarks from magisterium-faithful Catholics who are, but I've never heard of any man being so exclusively homosexual in orientation that he was completely incapable of experience heterosexual attraction as well.

When he
told me I was naturally shocked, even more so because his father was a minister.
He is still in the ministry. In some ways we are trying to understand the
incomprehensible, which, by the way, should make us careful in our propensity to
form instant judgments: we are far more likely to forgive those whose sins we
could see ourselves committing, regardless of their seriousness. I am not
asking for leniency in particular, the crime was terrible, but we are
particularly at risk of condemning without mercy or perspective when we are
faced with someone whose motives and character we simply do not understand. In
addition, I would be cautious in maligning the bishops or at least proceed with
a certain amount of humility -- they are almost a too easy target -- I am sorry
to say, but I can see many of us making their same mistakes. If you don't
believe me, you need only look at the parlous state of professional
self-regulation and today's Washington Post about school districts doing
approximately the same thing with abusive teachers.

Me: I don't really disagree, and I'm a bit uncomfortable finding myself in the "bishop-bashing" position. A layman should be as filial toward the bishops (especially his own -- bishops' conferences are another matter) as facts and duty will allow. Nonetheless, the failure to rise above the common bureaucratic norm, as well described by this reader, is exactly the problem -- not so much with what they did five or ten or twenty years ago, but what they are doing now.

Of course we can all understand the propensity to hope that a one-time problem will stay a one-time problem; that "counselling" will work; that a big media to-do is not necessary. But -- and without expressing an opinion on whether such everyday bureaucratic behavior amounted to actionable negligence in any of the cases before us, though it seems hard to deny -- my focus is on what the bishops can do now.

Specifically -- though I admit that the media may be filtering out the better things that were said -- all I could hear from Bishop Gregory was that there had been a failure of "openness." How about the failure to to proclaim from the rooftops all the Church's most unpopular and counter-cultural teachings on sexual morality? How about the failure to ensure that all priests and all church employees and contractors (including the psychologists to whom the problem-priests were irresponsibly punted) were on the same page? How about the failure to ensure that no priest becomes a bishop without a proven track record of promoting clergy who are faithful in word and deed -- and of cashiering the rest?

Look, I'm a married layman and a dad. I live within the teachings of Humanae Vitae, and I do what I can (including but not limited to this blog) to proclaim the Gospel of Life of which HV is a part. Evidently, it is much, much too much to hope for that the bishops as a group would actively back me up on this (though of course certain individual bishops do, all the time). If the bishops-in-conference-assembled would just refrain from pulling actively in the other direction, that would be mighty thoughty of them.

Dallas suggests that even this is too much to ask: they promised no renewed commitment to the Church's beautiful, God-given teaching. To the extent the conference sees agents of moral authority anywhere in this scenario, those agents are prosecutors, police officers, and social workers. The bishops have pledged to be more efficient processors of paper towards these "choice and master spirits of this age." (Julius Caesar, III.i.)

Church history was one of my academic fields. Over the centuries (and let's never forget that we've seen much worse times than these in the Church, including some in the so-called "Age of Faith"), we've learned that certain categories of bishops just don't work. These would include:
* idiot nephews of the local warlord (9th, 10th centuries)
* unemployable younger sons of just about anyone over the rank of banker (Renaissance)
* Medici (same -- though as it happens the Medici did produce one saint)
* diplomats (16th century, and mid-20th -- actually some of these weren't too bad)
* empire-builders who would have been more at home in politics or finance (USA, mid-20th century)
* fuzzy-wuzzies who would have been more at home teaching kindergarten (USA, late 20th century; to be fair, most of these seem to be serving in parishes)
* middle-managers who should have been downsized just like their secular counterparts (USA, late 20th century).

What we need, in any century, and in both the hierarchy and the laity, are saints, or rather (since the finished product is so rare) people seriously working the obstacle course of sanctity. For bishops, this means men who habitually take strong stands in favor of the message they have been charged to deliver and preach. I mean Bishop Bruskewitz. I mean the late Bishop Keating. I mean Cardinal Hickey, who got rid of a pack of offenders in the early '90s. I mean Archbishop Myers of Newark, who, as Bishop of Peoria, used the boot freely against offenders. There are many others -- and they all tend to shine when not smothered by bureaucracy.

Ultra Sound

You read it here first -- a few weeks back Cacciaguida told you about a General Electric commercial for that company's ultrasound equipment, with extensive footage of a clearly human unborn child.

Well, the folks at The American Prospect have noticed it too -- and they're not happy!

Wednesday, June 19, 2002
Blog Blab Tonight!!

In the unlikely event that anyone who reads this blog does not also read Eve Tushnet, I'm passing on an announcement about a panel tonight on blogging at which Eve will be a panelist. Cacciaguida by happenstance will be in DC tonight. He will be there, and will look for all you other exules filii Evae....


The event will take place at the Fund for American Studies (1706 New Hampshire Ave., NW). Drinks will begin at 7:00 p.m., with dinner and discussion following at 7:30. Please RSVP to

Nail those religious freaks -- or not

The Chief Justice of Virginia has decided -- upon complaint by the Home School Legal Defense Association -- that perhaps guardians ad litem (i.e. representing children apart from their parents) should not be taught that religious homes are especially likely to be dens of child abuse. Click here for more details, including a link to Chief Justice Carrico's letter to HSLDA.

Monday, June 17, 2002
If I profane...

While some of my listserv friends are arguing about the definitions and relative merits of love, "luv," marriage, and duty, my major summertime project (didn't plan it that way -- it's just a matter of when the conference is scheduled) is a paper entitled "Civil Blood: the Political Science of Romeo and Juliet."

"If I profane, with my unworthiest hand/This holy shrine...."

Crusader note:
Click here for some Mideastern notes from Ad Orientem, a liturgy- and architecture-focused Catholic blog that you should bookmark.

The bishops and the crisis

Well, the bishops have had their little conference, and you can read here about what they came up with. As I expected, they might as well not have met at all.

First, read this, by Rod Dreher. Bishop Bruskewitz is a hero and a prophet.

Second, notice that the bishops have decided to report "all" allegations to "local authorities," not just allegations that are deemed credible. The bishops will not even pretend to filter out malicious or patently unbelievable charges. Policeman and social workers are the real moral authorities, you see; bishops are just there to keep the paperwork moving along, and, once in a while, to "take responsibility," primarily by announcing that they are doing so. Thank you, reverend fathers. You're such an inspiration.

But perhaps I am committing the error I have discerned in others: expecting that some sort of charism of indefectability will come over bishops along with ordination. Of course this is not the case, and never has been. Bishops are part of the divinely ordained structure of the Church, yet the Church has often flourished despite rather than because of particular bishops. Why do you think Judas was included among the Twelve?

Pretty good article here by Charlotte Allen at NRO, noting the role of the therapeutic culture in these scandals, and the failure of the bishops to resist this culture. I endorse most of what my old friend Charlotte says, except this:

For conservatives such as, say, Mary Eberstadt in The Weekly Standard, the debate is about homosexuality in the priesthood in general, the idea being that since most of the priestly pederasts have been gay, if we screened out homosexuals from the priesthood, we'd solve the problem. (On this theory, the church of the Middle Ages should have screened heterosexuals out of the priesthood, for the big problem back then was clerical concubines.)

Excuse me, but how do you spell i-n-t-r-i-n-s-i-c-a-l-l-y d-i-s-o-r-d-e-r-e-d? All sin is sin, and no temptation by itself is a sin -- but some temptations are inherently more likely to lead to sin than others.

Where do we get this idea that "the crisis" can only be about one thing, such that if it's about the invasion of the Catholic hierarchy by therapeutic ideology (Charlotte) or about the self-protective reflexes of the clerical caste (Amy Welborn), then it can't also be about homosexuality? Seems to me it's about all three of these, and perhaps more.

Anthony Kennedy campaigning for Chief Justice?

Whether he is or not, the fact that The Washington Post reports that he is is itself newsworthy. I endorse the views of Free Congress's John Nowacki, as quoted by the Post. Casey alone should make Kennedy anathema, but in addition, promotion to Chief causes conservatives to track left; think Rehnquist in Morrison v. Olson and VMI.