Category Archives: Marc O. DeGirolami

Cressey, “Charles I & the People of England”

A wonderfully interesting looking history of the seventeenth century Stuart Charles I and the People of Englandmonarch, Charles I, that emphasizes the religious history of the period: Charles I & the People of England, by David Cressey will be released by Oxford University Press later this month. The publisher’s description follows.

The story of the reign of Charles I – through the lives of his people.

Prize-winning historian David Cressy mines the widest range of archival and printed sources, including ballads, sermons, speeches, letters, diaries, petitions, proclamations, and the proceedings of secular and ecclesiastical courts, to explore the aspirations and expectations not only of the king and his followers, but also the unruly energies of many of his subjects, showing how royal authority was constituted, in peace and in war – and how it began to fall apart.

A blend of micro-historical analysis and constitutional theory, parish politics and ecclesiology, military, cultural, and social history, Charles I and the People of England is the first major attempt to connect the political, constitutional, and religious history of this crucial period in English history with the experience and aspirations of the rest of the population. From the king and his ministers to the everyday dealings and opinions of parishioners, petitioners, and taxpayers, David Cressy re-creates the broadest possible panorama of early Stuart England, as it slipped from complacency to revolution.

Religious Belief and Executive Power: A Thought on Zivotofsky v. Kerry

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia notes in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that have characterized its years in power.

Congratulations, John!

photo 1Congratulations to CLR Student Fellow John Boersma, who graduated from St. John’s Law School yesterday. John is off to start graduate studies in political theory at LSU next year. You’ve been a real help to us here, John, and we look forward to great things as you pursue your academic career. The beard is a good start! Godspeed and stay in touch.

Summer Fridays With Pascal: On Legitimacy

This is the second in our estival feature here at CLR Forum. For its origin and inspiration, see this post.

One of the pervading themes of Pascal’s Pensées is the conflict between reason

Pascal (Reasoning or Imagining?)

Pascal (Reasoning or Imagining?)

and emotion, sentiment, and the imagination. Consistent with the Calvinist orientation of Jansenism (and in contradistinction to older views of the consilience of reason and faith), Pascal sees them as quite distinct. And he believes that, man being fallen, emotion and the imagination are the primary movers in achieving whatever satisfactions and happinesses man can reach in this world.

But Pascal goes further, observing that not only individual satisfaction, but also worldly reputation, is obtained not through reason but through the exercise and effect of the imaginative faculties. And the fruits of imagination in this respect very much affect and pertain to law and the perception of its authority—that is, its legitimacy.

As we are in the month of June, the yearly apotheosis of public fascination with the judiciary, here is an extended passage that treats in part of judicial legitimacy:

Would you not say that this magistrate, whose venerable age commands the respect of a whole people, is governed by pure and lofty reason, and that he judges causes according to their true nature without considering those mere trifles that affect the imagination of the weak? See him go to sermon, full of devout zeal, strengthening his reason with the ardour of his love. He is ready to listen with exemplary respect. Let the preacher appear, and let nature have given him a hoarse voice or a comical cast of countenance, or let his barber have given him a bad shave, or let by chance his dress be more dirtied than usual, then however great the truths he announces, I wager our senator loses his gravity.

If the greatest philosopher in the world find himself on a plank wider than actually necessary, but hanging over a precipice, his imagination will prevail, though his reason convince him of his safety….

Love or hate alters the aspect of justice. How much greater confidence has an advocate, retained with a large fee, in the justice of his cause! How much better does his bold manner make his case appear to the judges, deceived as they are by appearances! How ludicrous is reason, blown with a breath in every direction!….

Our magistrates have known well this mystery. Their red robes, the ermine in which they wrap themselves like furry cats, the courts in which they administer justice, the fleurs-de-lis, and all such august apparel were necessary; if the physicians had not their cassocks and their mules, if the doctors had not their square caps and their robes four times too wide, they would never have duped the world, which cannot resist so original an appearance. If magistrates had true justice, and if physicians had the true art of healing, they would have no occasion for square caps; the majesty of these sciences would of itself be venerable enough. But having only imaginary knowledge, they must employ those silly tools that strike the imagination with which they have to deal; and thereby in fact they inspire respect….

Pensées, #82.

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

Moreland on Jansenist Catholicism…and Summer Fridays With Pascal

My friend Michael Moreland has a very interesting post, Irish Catholicism and the Long Tail of Jansenism, whose core speculation is that those European quarters most influenced by Jansenism are also among those most likely to see a decline in Catholic influence. A bit from Mike’s post:

Indeed, while the Church’s influence across Europe has fallen, the collapse in those parts of Europe (or places missionized by Europeans) arguably influenced by Jansenism has been ferocious: the Low Countries (we think of Jansenism as primarily a French movement, but Cornelius Jansen himself was Dutch and Bishop of Ypres), France, Quebec, and Ireland. The place of the Church in the culture of those parts of European Catholicism less tinged by Jansenism has fared a bit better: Poland, Austria, Bavaria, Italy, and, most especially, Spain and Portugal and their former colonies in Latin America and the Philippines….

If there is something to this, though, we shouldn’t be surprised. Jansenism—with its hyper-Augustinianism, insistence on human depravity, confused doctrine of freedom and grace, other-worldliness, and moral rigorism—was theologically pernicious (condemned in Cum occasione by Pope Innocent X in 1653 and in Unigenitus dei filius by Pope Clement VI in 1713). A Catholic culture shaped by it distorts our understanding of the human person and society, and bad theological doctrines about God, human nature, and sin can wreak havoc even if the institutional forms of the Church endure for a time. Jansenism produced a towering genius in Blaise Pascal and a minor genius in Antoine Arnauld, but it was an unfortunate development in early modern Catholicism.

The post is typically erudite and penetrating. Yet it evoked more than a bit of sorrow and regret in this devotee of Pascal, a major figure in the development and defense of the religious society of Port-Royal (as Mike observes), morally a Puritan movement within the Church. For the definitive account of the destruction of the society, one must read Sainte-Beueve. As T.S. Eliot once said of him: “Pascal was not a theologian, and on dogmatic theology had recourse to his spiritual advisers. Nor was he indeed a systematic philosopher. He was a man with an immense genius for science, and at the same time a natural psychologist and moralist.”

And so I have resolved to institute a little summer series–Summer Fridays With Pascal. Enjoy over a good glass of Bordeaux.

Here is something from Pensées–appropriately enough, on “Thought”:

All the dignity of man consists in thought. Thought is therefore by its nature a wonderful and incomparable thing. It must have strange defects to be contemptible. Yet it has such, so that nothing is more ridiculous. How great it is in its nature! How vile it is in its defects!

Macklem, “Law and Life in Common”

Several years ago, I stumbled on the philosopher Timothy Macklem’s book, Law and Life in CommonIndependence of Mind, one of whose chapters concerned the distinction between trust and faith in explaining the good of religious belief. Macklem drew a sharp division between the two: the former is subject to the constraint of “reason” while the latter, in Macklem’s view, is totally separated from “reason”–faith for Macklem is belief without any good reason for belief, or even without the possibility of any good reason for belief.

One can see the development of related themes in Professor Macklem’s (King’s College) new book, Law and Life in Common, just released by Oxford University Press. What is contained in the publisher’s description (below) are fairly ambitious claims about and desires for the persuasive force of law. And I wonder about the willingness of at least certain sorts of “arational” systems of persuasion to form the kind of partnership with law that he suggests are necessary for its capacity to build a common life.

We live in a moral world in which reasons come in different kinds, so that very often the claims of one reason upon us are no greater than the claims of some other reason. Yet the law, in its self-presentation and in theoretical accounts of it, proceeds as if its rational pull was conclusive, as if there were no sensible alternative to compliance with its terms. In itself that should not be surprising: each one of us very often acts as if the reasons that animate us were morally determinative, and indeed our actions may subsequently make that the case. Why should law operate in any other way? Yet we know that in truth reasons are usually not determinative of action, and while pretence to the contrary may not much matter in individual settings, it matters very much in the setting of the law.

The ability of the law to build a life in common, of whatever kind, is dependent on its ability to function as if its claims were pre-eminent rather than undefeated at best. If law is to succeed in its basic project of binding people to its aims, as it must, it is bound to convince us of the substance of its pretence by buttressing its necessarily limited rational claims with the pull of arational considerations. It needs partners, not only in the familiar prudential considerations that force gives rise to, but also in the beguilement that shared imaginings make possible. This book is an exploration of those partnerships, in principle and in their most important details. It seeks to describe the ways in which such practical workings of law are part of its nature.

“Radicals and Reactionaries in Twentieth-Century International Thought” (Hall, ed.)

Here is an interesting looking volume of essays that explores some of the Radicals and Reactionariesideological fringes in international political and legal thought, Radicals and Reactionaries in Twentieth-Century International Thought, edited by Ian Hall (Griffith University, Australia) and published by Palgrave Macmillan this month. The publisher’s description follows.

The history of international thought is a burgeoning field in International Relations, but so far it has mainly concentrated on the work of American and British “realists” and “idealists.” This book breaks new ground, moving beyond Anglophone thinkers and the mainstream traditions to examine the work of radicals and reactionaries from across the world. It includes original chapters on German conservatives and Italian socialists, Labour Party radicals and French fascists, as well as Italian and Japanese imperialists and Indian anti-colonialists. It explores the transnational transmission of theories and traditions of international thought, as well as their reception, adaptation, and rejection by thinkers across Europe and Asia during the course of the twentieth century.

Gribble, “Navy Priest”

The figure of the military chaplain is perhaps not as celebrated today as it once Navy Priestwas; like many traditions, it, too, is challenged by the imperatives of change. Here is an interesting study of a successful chaplain who served both his country and his faith honorably: Catholic University Press’s recently released Navy Priest: The Life of Captain Jake Laboon, SJ, by Richard Gribble, CSC. The publisher’s description follows.

Navy Priest is a compelling biography of the Jesuit priest and Navy chaplain John Francis (Jake) Laboon. Father Jake made a significant contribution to the United States Navy, both as a World War II submarine officer and, most prominently, during a 22-year career as a chaplain. Laboon served as the first chaplain for the Fleet Ballistic Missile Submarine Program, but also served as chaplain at his alma mater the United States Naval Academy, undertook a tour of duty with the US Marines in Vietnam, where he was awarded the Legion of Merit, and later served as Fleet Chaplain of the United States Atlantic Fleet.

Father Jake Laboon was born on April 11, 1921 in Pittsburgh, Pennsylvania. The third of nine children, he was raised in a faith-filled family. He attended Catholic schools until his matriculation to the United States Naval Academy in June 1940. A tight end for the USNA football team and an All American in lacrosse, Laboon graduated with his classmates in June 1943. He served with distinction in the Pacific submarine force, winning the Silver Star for gallantry aboard USS Peto (SS 265).

Laboon left the Navy in 1946 and immediately entered formation for the Society of Jesus (Jesuits). He was ordained a priest in 1956. Two years later he reentered the Navy as a chaplain, where he stayed until 1980. He then joined the pastoral staff serving at Manresa Retreat Center, in Annapolis, and was for four years the pastor of St. Alphonsus Rodriguez Parish in Woodstock, Maryland. In 1995 the destroyer USS Laboon was commissioned in his honor. Loved by all with whom he had contact, Father Jake was a model of Christian fidelity, faith and complete dedication to God and country.

Romano, “Markets and Marketplaces in Medieval Italy, c. 1100 to c. 1440″

Apropos of recent posts by Mark and our guest, Professor Nathan Oman, here isRomano an interesting book by Professor Dennis Romano (Syracuse) on the cultural and moral importance of the market and the marketplace in the high medieval and early renaissance period, Markets and Marketplaces in Medieval Italy, c. 1100 to c. 1440, published by Yale University Press last month. The publisher’s description follows.

Cathedrals and civic palaces stand to this day as symbols of the dynamism and creativity of the city-states that flourished in Italy during the Middle Ages. Markets and Marketplaces in Medieval Italy argues that the bustling yet impermanent sites of markets played an equally significant role, not only in the economic life of the Italian communes, but in their political, social, and cultural life as well. Drawing on a range of evidence from cities and towns across northern and central Italy, Dennis Romano explores the significance of the marketplace as the symbolic embodiment of the common good; its regulation and organization; the ethics of economic exchange; and how governments and guilds sought to promote market values. With a special focus on the spatial, architectural, and artistic elements of the marketplace, Romano adds new dimensions to our understanding of the evolution of the market economy and the origins of commercial capitalism and Renaissance individualism.