Why is the Supreme Court a Catholic death chamber?

 

Memorial to Bobbie Stinnett, murdered by Lisa Montgomery in 2004

TUESDAY, JANUARY 12, 2021 ORDER IN PENDING CASE 20-A124 MONTGOMERY, LISA M. V. WATSON, WARDEN, ET AL. The application for stay of execution of sentence of death presented to Justice Barrett and by her referred to the Court is denied. Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

Lisa Montgomery was executed the next day, the first woman to be executed by the federal government since 1973.  Over dissents by Sonia Sotomayor and Stephen Breyer that the Supreme Court has, in Sotomayor's words, promoted an "expedited spree of executions" the Trump administration executed 13 after a 17 year hiatus in federal executions. Breyer observed in his dissent that there was a substantial question of whether Montgomery, a victim of childhood abuse who had committed a bizarre and brutal stabbing of a pregnant woman, understood now "the fact, meaning, or significance of the execution".


Many have noted that former Notre Dame law professor, now Associate Justice  Amy Coney Barrett and then professor, now Catholic University President John Garvey - prominent Catholic lawyers - had  opined in 1998 that 

"While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating."

But adherence to Catechismal doctrine posed no obstacle to the five Catholic Justices denying a stay of execution to three death row prisoners executed in the last week of the Trump presidency. Garvey and Coney (now Barrett) - wrote in 1998 that Catholic Judges “are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty,” but “[t]hey are also obliged to adhere to their church's teaching on moral matters.” 

Twenty three years later Amy Coney, now Justice, Barrett found herself voting against every request for a stay of execution but one in her first months on the Supreme Court. In that period the Trump administration carried out an unprecedented spate of federal executions. Her only objection was to Alabama's refusal to provide a Muslim spiritual adviser to a doomed man. Even the plea of Lisa Montgomery - a severely mentally damaged woman who had carried out a deranged slaying - did not cause Barrett to either recuse or vote to stay execution.

What happened during those twenty three years since she declared that a Catholic judge should recuse?  Since Barrett penned the words above her Church markedly tightened its stance against the death penalty, essentially finding no grounds for government to execute a prisoner no matter how heinous their crime.  Yet despite that Barrett - a member of a conservative highly observant movement within the Catholic Church - did not take her own advice.  Why?

 

Two strands lead me to the conclusion that she and her fellow political conservatives on the Court were able to rationalize their own personal policy preferences - which depart from their Church's catechismal prohibition.  One possibility is that the judges embraced a rationale like that offered by the conservative Harvard Journal of Law and Public Policy editor Ryan M. Proctor.  In his 2019 article `Catholic Judges Have No Obligation to Recuse Themselves in Capital Cases' Proctor found a route to reject the Catechism by framing it as a personal choice by Pope Francis.  The prohibition, Proctor argued, is inconsistent with `Catholic history, tradition, scripture and the Magisterium'.  Therefore adherence to recently embraced doctrine may not be demanded.

Another possibility is that the considerations of complicity discussed by Boston College theologian/law professor Cathleen Kaveny allowed similar room to participate in a legal process which carries out a death sentence not permitted by the Catechetical teaching.  Motivated by a personal belief or preference to find legitimate capital punishment the casuistical considerations regarding complicity which she had 23 years earlier found obligatory now provided room for Barrett and her fellow conservative co-religionists to act on their own jurisprudential preferences:

How close to evil can one get without being contaminated by it? What does it mean to be tainted by evil? What are the implications for the agent, for her future actions, and for the society in which she lives? In my view, these questions can only begin to be addressed with an approach that holds together reflections upon the act, the acting agent, and the normative vision of the community in which the agent’s actions are intelligible.

Such considerations make possible personal choices of conscience which depart from Church doctrinal commands.  Such personal interpretive choices are  common.  Thus many Catholics find no contradiction between a personal choice against abortion and a refusal to demand that others make the same choice.  That choice Catholic conservatives find intolerable, while retributive executions are untroubling.

- GWC

Support of Trump within church has driven some Catholics to the exits | National Catholic Reporter

Support of Trump within church has driven some Catholics to the exits | National Catholic Reporter

by Rebecca Bratten Weiss

The day after Donald Trump won the presidential election, Mike Boyle decided he was ready to become an Episcopalian.

A practicing Catholic all his life, Boyle was serious enough about his faith that he had spent three years as a member of a Dominican community, in the priestly formation track. But even prior to 2016, he was growing frustrated with the behavior of lay Catholics and clergy. With the initiation of the Fortnight for Freedom during the Obama administration, he began to be uncomfortable with the church leaders' obvious promotion of right-wing political ideologies.

Then Pope Francis was elected. Boyle initially hoped the new pope would bring about much-needed reform, but after a few years started to doubt whether Francis could really change things. He began to be drawn toward an Anglo-Catholic Episcopal parish.

"But I still held on," Boyle said. "With Trump, it was basically like watching a car crash in slow motion. Deep down, I knew that the hierarchy and all the usual suspects were going to jump on board the Trump train, but I still hoped that I was wrong, that I was being too cynical. But, of course, I wasn't being too cynical."

boyle CROP.jpg

Mike Boyle (Courtesy of Mike Boyle)

According to Boyle, "it was not so much that MAGA Catholics (whether lay or clergy) pushed me out the door, so much as the embrace of MAGA cut the last strings that I was holding onto."

Boyle's departure from the Catholic Church is part of a broader trend, as church membership among Catholics has declined sharply in recent decades, especially over the past 10 years. Many who have left, like Boyle, cite their coreligionists' alliance with the MAGA "Make America Great Again" movement as a key factor in their decision.

H.L. Vogl came from a conservative background and converted enthusiastically to Catholicism as an adult. But in 2016, Vogl was dismayed to see their pastor becoming far more political — and it got worse after Donald Trump was elected president. According to Vogl, their pastor was "explicitly citing Fox News in homilies, preaching on the obligation to respect those in authority in the government, and stoking fear of 'political correctness.' 

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Chris Christie on Trump: "overall I'd give him an A"

 

🤡 https://t.co/I0r41FCVSy

— Aaron Rupar (@atrupar) May 1, 2021

AOC is the future of the Catholic Church | National Catholic Reporter

AOC is the future of the Catholic Church | National Catholic Reporter

By Heidi Schlumpf [Executive Editor]

 U.S. Rep. Alexandria Ocasio-Cortez's stunning speech on the House floor last week has been called "a comeback for the ages," "the most important feminist speech in a generation" and "a lesson in sexism and decency."

I just call it "truth."

Responding to an incident on the steps of the U.S. Capitol in which Rep. Ted Yoho of Florida verbally assaulted her — including calling her a "f---ing bitch" — Ocasio-Cortez noted that "this is not new, and that is the problem."

"This issue is not about one incident," she said. "It is cultural. It is a culture of lack of impunity, of accepting of violence and violent language against women, and an entire structure of power that supports that."

As I listened to her 10-minute address on the House floor, I was struck by how often it referenced Catholic values.

Ocasio-Cortez repeatedly railed against the "dehumanizing" of others and instead called for treating people with dignity and respect. These are themes often repeated by Pope Francis, who has  specifically cautioned about gossip and urged the use of respectful language, saying "it is possible to kill someone with the tongue."

The Democratic congresswoman who represents New York's 14th District also universalized the need to treat all people with dignity and respect, noting that Yoho's behavior gave "permission to other men to do that to his daughters."

"I'm here to say that is not acceptable," she said.

Ocasio-Cortez was unimpressed by Yoho's so-called apology on the House floor the day before, in which he insisted he did not use the sexist slur (despite a reporter witnessing it) and said, "I cannot apologize for my passion or for loving my God, my family and my country."

Instead, the congresswoman gave what sounded like a pretty good description of what goes on in the Sacrament of Reconciliation: "When a decent man messes up, as we all are bound to do, he tries his best and does apologize. Not to save face, not to win a vote, he apologizes genuinely to repair and acknowledge the harm done so that we can all move on."

Perhaps such Catholic references are not surprising, since the rock-star millennial leader of the left grew up Catholic and even wrote about how her faith influences her views on public policies such as mass incarceration, for a Catholic magazine.

But there is another Catholic character in this drama: Republican Rep. Yoho, who describes himself as "pro-life" and has received an "A" rating from the anti-abortion Susan B. Anthony List, which notes that he "has voted consistently to protect the lives of the unborn" and "defended the Trump administration's pro-life regulatory efforts from pro-abortion attacks to prohibit their implementation." He also has received an "A" rating from the National Rifle Association.

Yoho voted for Trump's tax cuts in 2017 and this year was one of four lawmakers to vote against a bill to make lynching a federal hate crime.

Ocasio-Cortez, as a member of the Democratic Socialists of America, promotes a much more progressive platform; her first piece of legislation was the Green New Deal, which addressed economic disparity and climate change.

Yoho, 65, will retire in January, after announcing he is not seeking a fifth term. Ocasio-Cortez is 30 ("two years younger than Mr. Yoho’s youngest daughter," she pointed out in her speech).

As a young Latina, Ocasio-Cortez represents the demographic future of the Catholic Church.

But — if there is to be a future for the Catholic Church in the United States — it must also resemble Ocasio-Cortez in her passion for justice and human dignity, and in her courage and integrity, even in the face of vulgar attacks.

[Heidi Schlumpf is NCR executive editor. Her email is hschlumpf@ncronline.org. Follow her on Twitter: @HeidiSchlumpf.]

Biden Address: Can Democrats Keep the House in 2022? - The Atlantic

Biden Address: Can Democrats Keep the House in 2022? - The Atlantic

by Jeffrey Goldberg (The Atlantic)

Updated on April 29, 2021 at 11:13 a.m. ET

The good news for Democrats who watched Joe Biden unveil a historically ambitious agenda last night is that newly elected presidents have almost always passed some version of their core economic plan—particularly when their party controls both congressional chambers, as Biden’s does now.

The bad news: Voters have almost always punished the president’s party in the next midterm election anyway. The last two times Democrats had unified control—with Bill Clinton in 1993–94 and Barack Obama in 2009–10—they endured especially resounding repudiations in the midterms, which cost Clinton his majority in both chambers and Obama the loss of the House.

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The scale of the agenda Biden laid out last night underscores Democrats’ conviction that their best chance to avoid that fate again in 2022 is to go big with their proposals. Counting the coronavirus stimulus plan approved earlier this year, Biden has now proposed more than $5 trillion in new spending initiatives over the next decade—far more than Clinton or Obama ever offered—to be partially paid for by tax increases on corporations and affluent families. On cultural and social issues, Democrats are likewise pursuing a much more ambitious lineup than Clinton or Obama did; Biden is endorsing measures related to a panoramic array of liberal priorities, including election reform; police accountability; citizenship for young undocumented immigrants; statehood for Washington, D.C.; LGBTQ rights; and gun control.***

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Biden's speech: Government focused on the common good is back | National Catholic Reporter

While some among the U.S. Catholic Bishops' Conference try to drive out Joe Biden and Nancy Pelosi, Biden proves himself to be a warrior for Catholic social doctrine with its emphasis on what some call a "preferential option for the poor". While some, as Thomas Edsall discusses, warn that race and class are too hot button and should not be touched, I thought Biden handled these issues with grace.  

 “We have to come together to rebuild trust between law enforcement and the people they serve, to root out systemic racism in our criminal justice system and enact police reform in George Floyd’s name”, he said.  Moving smoothly to calm green new deal fears he said that union IBEW  electricians are installing hundreds of charging stations on our highways thanks to the recovery act. 

But perhaps the most public spirited moments were the celebration of the fact that everyone over 16 is eligible to be vaccinated and that 2/3 of those over 65 have already gotten The Shot to ward off the covid 19 virus.

- GWC

Biden's speech: Government focused on the common good is back | National Catholic Reporter

by Michael Sean Winters

***The United States, in normal, pre-Trump times, believed democracy worked. Regrettably, Ronald Reagan pitted democracy against government, and set the terms of public policy for 40 years. The pandemic brought into sharp relief what had long been obvious to those of us schooled in Catholic social doctrine: Reaganism hollowed out the government’s ability to achieve its foremost objective, the common good. 

But, the will of the people continued to voice skepticism about government overreach and the most memorable line from a State of the Union speech by the first Democratic president after Reagan, Bill Clinton, had the flavor of capitulation: “The era of big government is over.”

Biden announced that government focused on the common good was back and that the democratically expressed will of the people insisted on a more activist government. He was explicit about the connection:

We have to prove democracy still works. That our government still works—and can deliver for the people. In our first 100 days together, we have acted to restore the people’s faith in our democracy to deliver. We’re vaccinating the nation. We’re creating hundreds of thousands of jobs. We’re delivering real results people can see and feel in their own lives. Opening the doors of opportunity. Guaranteeing fairness and justice.  

Biden’s speech also included some rhetoric that suggested the Democratic Party was getting back to normal. Discussing the infrastructure bill that is in front of Congress now, the president said:

Now, I know some of you at home wonder whether these jobs are for you. You feel left behind and forgotten in an economy that’s rapidly changing. Let me speak directly to you. Independent experts estimate the American Jobs Plan will add millions of jobs and trillions of dollars in economic growth for years to come. These are good-paying jobs that can’t be outsourced. Nearly 90% of the infrastructure jobs created in the American Jobs Plan don’t require a college degree. 75% don’t require an associate’s degree.***

Villanova conference elevates calls for Biden to be denied Communion | National Catholic Reporter

Villanova Law conference elevates calls for Biden to be denied Communion | National Catholic Reporter

By Christopher White

What do President Joe Biden and ex-Cardinal Theodore McCarrick share in common? According to the organizer of a recent conference on Biden's Catholicism, the two men have been "abandoned" by the church's pastors for not having been barred from Communion.

The Vatican's McCarrick report, which chronicled his decades of abuse of minors and seminarians and was released last fall, illustrates "what happens when the church fails to be church by preferring instead to be, as a practical matter, to be a bureaucracy," said Villanova University professor of law Patrick McKinley Brennan on April 23.

"What McCarrick needed was callously denied," he said, going on to argue by comparison that Biden's support for legal abortion demands that "the church's pastors ... show the truth" and deny the president Communion.

Brennan was the convener of "Taking Measure of the 'Biden Effect': American Catholics and the President," a virtual conference hosted by the Charles Widger School of Law at Villanova University.

The conference comes nearly three months after the U.S. bishops disbanded a controversial working group to address issues stemming from Biden's Catholicism and areas in which he differs from church teaching on public policy. A proposal to produce a teaching document on "Eucharistic coherence or consistency" was sent to the U.S. bishops' Committee on Doctrine, with some bishops publicly advocating for Biden to be barred from receiving Communion.

The Villanova gathering added to that intensifying debate within the U.S. church and elevated a number of voices of those sympathetic to denying the president Communion. Biden's two local bishops in Washington, D.C., and Wilmington, Delaware, however, have said they would not deny him Communion in their respective dioceses, and Pope Francis has signaled an eagerness to find ways to collaborate with the Biden administration.

Brennan voiced frustration during the conference that the media has sought to portray the pope as an ally of Biden, citing Francis' recent participation in Biden's Earth Day climate summit last week and zeroing in on a tweet from the pope's official Twitter account last December wherein he used the phrase "build back better," which was a Biden campaign slogan.

Embedded rich media on Twitter

"The pope, in quoting candidate Biden's mantra, created the impression — whether he intended it or not, I cannot say — that he supported the candidate," Brennan said.

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US Catholic bishops to vote on pressuring Joe Biden to stop taking Communion over abortion views | America Magazine

Cancel culture on the right.

US Catholic bishops to vote on pressuring Joe Biden to stop taking Communion over abortion views | America Magazine

When U.S. Catholic bishops hold their next national meeting in June, they’ll be deciding whether to send a tougher-than-ever message to President Joe Biden and other Catholic politicians: Don’t receive Communion if you persist in public advocacy of abortion rights.

At issue is a document that will be prepared for the U.S. Conference of Catholic Bishops by its Committee on Doctrine, with the aim of clarifying the church’s stance on an issue that has repeatedly vexed the bishops in recent decades. It’s taken on new urgency now, in the eyes of many bishops, because Biden — only the second Catholic president — is the first to hold that office while espousing clear-cut support for abortion rights.

Scott Shapiro - Jurisprudence

 

Supreme Court will hear a 2nd Amendment case that could gut US gun laws - Vox

Three conservative Associate Justices

added to the Court by Trump and McConnell

will decide whether meaningful gun control can be 

enacted in the U.S.

The Supreme Court has granted a petition for certiorari in an attack on New York's long standing requirement for a permit in order to be able lawfully to carry a concealed weapon.  Samuel Alito has referred to the right to bear arms as a "second tier" right.  But he declared [for a 5-4 court] in McDonald v. Chicago that the right is imposed on the states, so not much hope of a "states rights" ruling from his pen.   NY State Rifle & Pistol Association v. Corlett, Superintendent of the NY State Police could be our Prigg v. Pennsylvania in which the states had to yield to the slave-holder's rights to recover their human property.  The Supreme Court has lost two McDonald dissenters (Stevens and Ginsburg) and replaced them with Gorsuch, Kavanaugh and Barrett.  They will likely invalidate New York and New Jersey's strict handgun controls.  The slaughter will spread rather than abate unless there is surprising restraint. - GWC

Supreme Court will hear a 2nd Amendment case that could gut US gun laws - Vox

By Ian Millhiser

The Supreme Court announced on Monday that it will hear New York State Rifle & Pistol Association Inc. v. Corlett, a case that could transform the judiciary’s understanding of the Second Amendment and lay waste to many of the nation’s gun laws.

The case involves New York state’s handgun licensing law — a law that has been in place since 1913 — which requires someone who wishes to carry a handgun in public to demonstrate “proper cause” in order to obtain a license permitting them to do so.

Proper cause can be demonstrated in several ways. Someone who wishes to use a gun for hunting or target practice may obtain a license permitting them to do so, although this type of license can be restricted to only allow the bearer to use their gun for these purposes. People in certain kinds of work may also obtain licenses — a storekeeper might be issued a limited license allowing them to keep a gun in their store for protection, for example, or a bank messenger may be allowed to carry a gun to protect themselves and the money they transport.

But to obtain an unrestricted license to carry, New York courts have established that an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” So someone might be able to obtain a license because they have a particular fear of their stalker — but someone who merely wants to carry a gun, because of a general belief that it would be useful if they are ever the victim of a violent crime, cannot obtain a license.

The plaintiffs in Corlett include a New York state gun rights group and two New York men who applied for a license to carry a handgun in public and were denied that license. They claim that “law-abiding citizens” have a Second Amendment right to carry a gun in public — and the Supreme Court, with its 6-3 conservative majority, could agree with them.

Indeed, Corlett could potentially dismantle more than a decade of judicial decisions interpreting the Second Amendment, imposing prohibitive limits on lawmakers’ ability to reduce gun violence.

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The Anti-Majoritarian Mistake - Model Citizen - Will Wilkinson

The Anti-Majoritarian Mistake - Model Citizen

By Will Wilkinson (Substack)

This Dispatch piece by Jonah Goldberg is extremely useful in illustrating the centrality of anti-majoritarianism on the right. Jonah has been a consistent critic of Trump and the GOP’s loony, violent, authoritarian turn. However, even the most reasonable, principled, philosophical conservatives tend to be wary of majoritarian democracy, as Jonah illustrates in his case against what he calls “democratic supremacy.” He doesn’t exactly define it, but the idea comes across clearly enough: political legitimacy and liberal justice require that the preferences of the majority generally prevail. Jonah rejects this because he’s of the opinion that “a liberal society can be just with remarkably little democracy.”

In my opinion, this claim is both false and dangerous. Moreover, I suspect that neither the Trump presidency nor the GOP’s authoritarian, illiberal, anti-democratic turn would have come to pass if not for the fact that most conservatives were already convinced that democracy is at best an incidental, instrumental aspect of a free society. Jonah’s articulation of the standard, traditional conservative view is worth digging into precisely because he’s a normie, pre-Trump fusionist throwback.

Now, Jonah’s plainly right that “large swaths of the center-left these days are somewhere between mildly and extremely obsessed with what might be called ‘democratic supremacy.’” And he’s right to see this commitment to “democratic supremacy” behind left-leaning criticisms of the Electoral College, the small-state bias of the Senate, the filibuster, other procedural hurdles to decision-making through simple majority votes, and the partisan bias of the Supreme Court. However, his criticism of proposed reforms in each of these domains are weak and fail to engage standard liberal arguments for the role of democracy in securing freedom and authorizing power.

Jonah begins with a response to Alexandria Ocasio-Cortez’s argument that there’s something wrong with a system that allows nine judges (five, really) to overturn popular legislation that managed to survive the demanding gauntlet of the American legislative process. He notes that “the left’s most prized political baubles,” such as Roe v. Wade, were “imposed” by Supreme Court majorities, suggesting that Democrats are fine with judges legislating from the bench except when Republicans do it.

Now, it’s interesting that AOC focuses on the court overturning democratic legislation, but Jonah focuses on the court assuming the power of a legislature and imposing policy. In my opinion, they’re both right because I believe that legislative supremacy is good and judicial supremacy — which is enabled by America’s queer, arbitrary, over-powered version of judicial review — is bad. My guess is that AOC also believes something along these lines. But Jonah clearly doesn’t. He is what I call an “ideological constitutionalist” of the right.

The ideological constitutionalist treats his contested ideological conception of justice or the best regime as a condition for the legitimacy of government and argues that, therefore, it must be constitutionally codified and sheltered from democratic revision.

As I recently argued in a post reconsidering my former Rawls/Hayek fusionism:

I think most Americans are ideological constitutionalists of one stripe or another, which is a big problem. It generally turns democratic politics into a contest to control the judiciary in an effort to remove your political rivals’ policy preferences from the scope of democratic discretion through the anti-democratic channel of judicial legislation. Eventually, one or another ideologically constitutionalist faction will get a leg up on the others, gain outsize power over the courts and proceed to undermine democracy in even more fundamental ways to lock down the partisan constitution its partisan judges have been successfully authoring.

I suspect that Jonah’s resistance to majoritarian reform is a symptom of his conservative ideological constitutionalism, which also accounts for his approval of the Republican lock on the Supreme Court and his indifference to the fact that it is an artifact of the anti-majoritarian nature of the Senate and Electoral College.

Statement of ABA President Patricia Lee Refo re Hong Kong

Statement of ABA President Patricia Lee Refo re Hong Kong

WASHINGTON, April 23, 2021 – The American Bar Association is deeply concerned about the conviction and April 16 sentencing of seven prominent pro-democracy leaders in Hong Kong, including Margaret Ng, recipient of the 2020 ABA Human Rights Award, for their involvement in peaceful assemblies since 2019.

These convictions are the latest in a series of events that threaten the rule of law in Hong Kong. The ABA urges the People’s Republic of China to comply with its obligations under domestic and international law, and reaffirm its commitment to the rule of law, an impartial judiciary free from interference, and the protection and respect for human rights.

After Vatican decree, over 100 theologians pledge to support same-sex couples | National Catholic Reporter

After Vatican decree, over 100 theologians pledge to support same-sex couples | National Catholic Reporter

by Madeleine Davison // NCR

More than 3,000 Catholic theologians, clergy, laypeople and organizations have pledged to support LGBTQ couples in the face of the recent Vatican decree banning priests from blessing same-sex unions.

Their pledge, which was launched by the Catholic support group New Ways Ministry, affirms the faith and dignity of LGBTQ individuals and couples.

The pledge also urges Pope Francis to repeal the Vatican decree, released March 15 by the Congregation for the Doctrine of the Faith with the pope's approval. The decree said priests could not bless same-sex unions, as God "cannot bless sin."

"Our Catholic faith and tradition compels us to respect and honor the faith journeys of LGBTQ people," the New Ways pledge says. "We know that those who enter into committed relationships do so out of love which is divinely inspired and supported."

As of March 31, more than 100 theologians had signed the statement — including Mary McAleese, the former president of Ireland, who holds a doctorate in canon law; along with Fr. Bryan Massingale, a professor of ethics and theology at Fordham University; and Todd Salzman, a professor of ethics and theology at Creighton University and author of several books on sexual ethics.

"The [Vatican] statement is incredibly hurtful and alienating to LGBTQ Catholics, friends, family and those who stand in solidarity," Salzman told NCR. "I wanted to stand in solidarity with LGBTQ Catholics against ecclesial actions and statements that continue to hurt and promote unjust discrimination against members of the LGBT community."

Hans Küng, celebrated and controversial Swiss theologian, has died | National Catholic Reporter

Patricia Lefevere has long known and many times interviewed Fr. Hans Kung.  Perhaps no journalist knew him better.  Another moral theologian who was declared no longer a Catholic theologian by the Vatican Charles Curran remembers Kung for his support - though they, surprisingly, differed on artificial contraception which Kung considered to have been infallibly abjured, while Curran rejected the teaching. - GWC

Hans Küng, celebrated and controversial Swiss theologian, has died | National Catholic Reporter

By Patricia Lefevere

Catholic priest and theologian Hans Küng, the renowned scholar and prolific writer who had lived with Parkinson's disease, macular degeneration and arthritis since 2013, died April 6 at his home in Tubingen, Germany. He was 93.

Few men throughout Christendom have had as much to say or had their work seen by as many Christians — and others — as Küng, the celebrated and controversial Swiss theologian and Catholic priest.

Open a magazine or turn on the television in Europe and it's likely the viewer caught the face and heard the Germanic-toned voice of the famous Swiss professor who lived, taught and lectured more than 40 years in Germany. Often, he was photographed in the company of heads of state — Britain's Tony Blair, the Soviet Union's Mikhail Gorbachev, Germany's Helmut Schmidt, as well as world religious leaders.

He frequently carried on public dialogues with scholarly representatives of Buddhism, Chinese religions, Hinduism, Islam and Judaism. He also met with U.N. Secretary General Kofi Annan as he pursued his quest for a global ethic as a pathway toward international peace in the 21st century.

Related: Ripples spread out from Hans Küng's work

Tens of thousands of his readers living beyond Europe's borders in America, Australia, Asia and Africa had heard him too, or at least read one or more of his tomes. He was the premier Catholic theologian to speak in China on religion and science, the first theologian to address a group of astrophysicists, and later the European Congress of Radiology on the subject of a more humane medicine.

Reasons for his popularity were ubiquitous: readability, clarity, erudition, honesty, fearlessness. He was smart, occasionally profound. Someone less intellectually gifted could understand his arguments and be drawn to his texts and his talks for just that reason. He said and wrote what he thought needed to be aired in what he deemed his relentless struggle for intellectual freedom and his passionate search for truth.

Hans Kung 1974 RESIZE.jpg

Fr. Hans Küng in 1974 (CNS/KNA/ Hans Knapp)

In his most popular book — Christ sein (On Being a Christian) — which quickly sold more than 200,000 hard covers in German alone when it was released in 1974, Küng said he probed theological issues that are of concern to any educated person. He wrote for those "who believe, but feel insecure," those who used to believe "but are not satisfied with their unbelief" and those outside the church who are unwilling to approach "the fundamental questions of human existence with mere feelings, personal prejudices and apparently plausible explanations."

For such a wide audience, Küng kept the Scriptures and the daily paper close at hand. From age 10 when the Nazis invaded Switzerland's neighbor Austria, thus initiating World War II, the lad Hans — eldest of seven Küng children — began reading the daily paper. It was a discipline he maintained to his death despite declining vision. Keeping up on world and religious affairs rendered him "a realist, not a romanticist," he told this reporter at a number of our meetings.

Often controversial, the name "Küng" came with its own brand of adjectives in conservative church and political publications: He was Küng the dissident, the bête noire, the disobedient, the heretic, the apostate, the errant, the Protestant. In short, "l'enfant terrible of the Catholic Church," yelled many a headline.

His 1971 book, Infallible?: An Inquiry, caused an uproar across the Catholic world, challenging the papal infallibility declaration promulgated in 1870 at the First Vatican Council. Küng probed its theological basis and found the claim of supreme papal authority to be an impasse to reunion with other Christian churches.

The book appeared only three years after the Vatican had asked Küng to answer charges brought against his earlier volume, The Church. Catholic officials disputed the theologian's understanding of papal authority and requested he appear in Rome to answer charges.

Küng stood his ground. He would not recant. He wanted to see the file the Vatican had amassed on him. He demanded a written list of the questions regarding his book as well as the names of those vetting the work. He asked to speak in German during any meetings with Vatican officials and further requested that the Vatican pay his travel expenses to Rome or else hold the hearings at Küng's house in Tübingen.

Besides taking on infallibility, Küng also criticized the law of celibacy, favoring instead a married clergy and a diaconate, with both open to women as well as men. He argued compulsory celibacy was the chief reason for the shortage of priests, and he accused the hierarchy of preferring to deny the faithful a close-to-home celebration of the Eucharist for the sake of maintaining mandatory celibacy. The law contradicted the Gospel and ancient Catholic tradition and ought to be abolished, he wrote.

He found fault with the ban on dispensations for priests who wanted to leave the priesthood — introduced by Pope John Paul II after his election as pontiff in 1978 — calling it a violation of human rights.

Related: Hans Küng knows church's problems - and that change is inevitable

His historical critical approach to research led him to conclude that the early Christian communities in Corinth and elsewhere had had lay members preside over eucharistic services in the absence of a priest.

He took issue with the church's ban on artificial contraception and its inhibitions in matters of human sexuality. He even had the chutzpah to critique the first year of the pontificate of John Paul II. In an essay appearing in eight papers across Europe, the Americas and Australia, Küng questioned whether the new pope was open to the world, was a spiritual leader, a true pastor, a collegial fellow bishop, an ecumenical mediator or even a real Christian.

Küng acknowledged that traditional Catholics would find the putting of such questions to the popular pope "more unforgivable than blasphemy." But he said his criticism arose from "loyal commitment" to the church and he felt "the pope has a right to a response from his own church in critical solidarity."

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Scotus: Life without parole: "no finding of incorrigibility" needed to sentence juvenile to LWOP

 In Jones v. Mississippi The United States Supreme Court, has narrowed, practically reversed precedent limiting juvenile life without parole.  This without admitting what it is doing, according to a scorching dissent by Sonia Sotomayor.  Clarence Thomas, with characteristic bluntness, calls for the Montgomery case which Kavanaugh distinguishes be simply reversed.  Sotomayor, a Bronx-bred judge, rejects that idea, writing "The Eighth Amendment requires that most juvenile offenders be given this small “hope for some years of life outside prison walls.” Montgomery [v. Louisiana], 577 U. S., at 213.":

At his resentencing hearing, Jones told the court, “I’m not the same person I was when I was 15. . . . I’ve become a pretty decent person in life. And I’ve pretty much taken every avenue that I could possibly take in prison to rehabilitate myself.” App. 152. “Minors do have the ability to change,” he reflected. Ibid. He noted in closing, “If you decide to send me back without the possibility of parole, I will still do exactly what I’ve been doing for ten years. But all I can do is ask you . . . please give me just one chance to show the world, man, like, I can be somebody. I’ve done everything I could over the past ten years to be somebody. . . . I can’t change what was already done. I can just try to show . . . I’ve become a grown man.” Id., at 153. Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it. 

Brett Jones, 15 years old at the time of his crime, was represented by the University of Mississippi Law School's MacArthur Justice Center. I am particularly infuriated by the heartlessness of  the ostentatiously Catholic conservatives (plus the Episcopalian Neil Gorsuch who studied with Catholic conservative philosopher John Finnis).  The latest two Catholics to join the court - Brett Kavanaugh and Amy Barrett joined in the cruel decision - Kavanaugh as author of the majority opinion, Barrett concurring. 

- GWC

Their Fourteenth Amendment, Section 3 and Ours - Just Security

Their Fourteenth Amendment, Section 3 and Ours Just Security

by Mark A. Graber  (University of Maryland)  February 16, 2021

In late December 2020, I concluded a fifty-page book chapter on the drafting of Section 3 of the Fourteenth Amendment that began by declaring “Section 3 is the most forgotten provision of the forgotten Fourteenth Amendment.” Less prophetic words were never spoken.

My present book project, The Forgotten Fourteenth Amendment, explores what Republican members of the Thirty-Ninth Congress were doing when they drafted the Fourteenth Amendment. The project diverges from the numerous published works on the Fourteenth Amendment in two important respects. First, the manuscript maintains that, Representative John Bingham of Ohio aside, the Republicans who drafted the Fourteenth Amendment were far, far more concerned with changing the basis of representation (Section 2), limiting the political participation of former confederates (Section 3), and making certain financial guarantees (Section 4) than with providing additional constitutional protections for individual rights (Section 1). Second, the manuscript focuses on how Republicans thought the Fourteenth Amendment would work rather than exclusively on what they thought the text meant. My concern is with what Republicans perceived to be the central problems requiring constitutional amendment in the wake of the Civil War and the conceptual apparatus they employed to resolve those problems. My work does not ask, as much contemporary originalism does, how Republicans would have resolved the problems we have today if Republicans had access to our conceptual apparatus. This approach to the Fourteenth Amendment, which might be called historical originalism as opposed to legal originalism, sheds some light on what Republicans in 1866 might say about contemporary problems, but also highlights the difficulties inherent in translating efforts to solve problems created by the aftermath of the Civil War into efforts to solve problems created by the aftermath of the Trump presidency.

Some History

The record made by the Thirty-Ninth Congress reveals far less about Section 3 than any other provision in the Fourteenth Amendment. Republicans when setting out the conditions for restoring former confederate states to the Union demanded, in rough order of priority, a constitutional change in the basis of apportionment (Section 2), constitutional provisions respecting the state and federal debt (Section 4), constitutional or statutory provisions limiting confederate participation in politics (Section 3), constitutional or statutory provisions protecting the rights of former slaves and white Unionists (Section 1), and a constitutional ban on secession that did not become part of the final Fourteenth Amendment. Before considering the omnibus Fourteenth Amendment, Congress debated stand-alone versions of Section 1, Section 2 and Section 4. These debates provide some perspective on Republican thinking on the meaning and implementation of the rights, apportionment and financial provisions in the final Fourteenth Amendment. Congress did not, however, consider a stand-alone version of Section 3. What Republicans thought that provision meant and how they planned to implement that provision must be determined primarily from the debates over the omnibus Fourteenth Amendment. At least two problems exist with making any confident inferences on both meaning and implementation.

The first version of Section 3 was born in chaos. On Wednesday, April 25, 1866, the Joint Committee on Reconstruction reached agreement on an omnibus Fourteenth Amendment. The centerpiece of that text was the provision mandating black suffrage by 1876. The Republicans on that committee immediately learned from their peers that this provision would not fly. Desperate to produce an amendment by Monday, April 30 the Joint Committee hastily cobbled together a new omnibus draft on Saturday, April 28. The centerpiece of that text was Section 2, which the Republican members of the committee thought would induce former confederate states to accept black suffrage by reducing state representation in the House of Representatives and Electoral College in proportion to disenfranchised males over 21. Section 2 of the new omnibus text could not be implemented until after the next census. To ensure loyal control of state governments until that time, the Joint Committee added Section 3, which disenfranchised until July 4, 1870 all persons who gave “aid and comfort” to the rebellion.

The second version of Section 3 was reared in secret. The Joint Committee’s Section 3 engendered substantial debate among Republicans in Congress. Republicans disputed how that provision would be implemented and whether that provision would be effective. In mid-May Republican Senators held a three-day caucus to resolve disputes over Section 3 (and Section 2). We know the subjects of that caucus (largely Section 3), but not the details of what was said. No one leaked then or later in memoirs. When that caucus ended, Senator Jacob Howard of Michigan proposed, with a few tweaks, the Section 3 we have today. That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution. Republicans fell in line immediately. Party members responded to Democratic criticisms, but did not discuss the meaning of the Republican Senate Caucus’s Section 3 or how to best implement that provision.

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Supreme Court allows Dustin Higgs' execution over dissents by Sonia Sotomayor and Stephen Breyer.

A reminder of how awesome is Sonia Sotomayor.  This is why we need a MUCH larger Supreme Court.  One filled with spirits like that of Sonia Sotomayor. 

Supreme Court allows Dustin Higgs' execution over dissents by Sonia Sotomayor and Stephen Breyer.

By Mark Joseph Stern

Minnesota Legal Scholars Weigh In on Aftermath of Chauvin Verdict – Courthouse News Service

The astute former prosecutor who tweets as @legalnerd observes that there are serious issues to be raised on appeal.  Prominent among them, in my mind, are the refusal to move the trial from Minneapolis where jurors might feel pressured by the prospect of riots or social disapproval whether they acquitted or convicted; prejudicial publicity via the publicly announced $27 million settlement of civil claims by George Floyd's family.  Such arguments are not frivolous.  They will fuel those unwilling to accept the conviction as just.- GWC

Minnesota Legal Scholars Weigh In on Aftermath of Chauvin Verdict – Courthouse News Service

By Andy Monserud

MINNEAPOLIS (CN) — With Derek Chauvin in custody after his murder conviction for the killing of George Floyd, celebrations broke out Tuesday night around the Twin Cities. The verdict is far from the case’s end, though, with another trial for Chauvin’s three colleagues on the horizon and sentencing still two months away. Legal experts in Minneapolis and its closest neighbor, the state capital of St. Paul, chimed in Wednesday on the pending issues in Chauvin’s case as well as its possible impact on the future of policing. 

The next big hurdle in Chauvin’s case is sentencing. Though the former officer was convicted of all charges, his sentence will be determined by the most severe conviction, second-degree murder. That charge comes with a maximum sentence of 40 years in prison, but the typical sentence is between 10 and 15 years and the recommended sentence is 12 and a half years, according to Rachel Moran, a professor at the University of St. Thomas School of Law. Prosecutors have also raised a handful of causes for an upward departure in Chauvin’s sentencing, and Moran agreed with two professors from St. Paul’s Mitchell Hamline School of Law that at least a few were a sure bet. 

The five grounds cited by prosecutors for a higher sentence include that Chauvin’s crime was witnessed by a child; that he abused a position of authority in committing it; that Floyd was particularly vulnerable by virtue of being handcuffed, in Chauvin’s custody and calling out for help; that the murder was particularly cruel; and that it was carried out with the assistance of three or more other people. 

Chauvin waived his right to have a jury decide his sentence at the beginning of deliberations, so Judge Peter Cahill will be evaluating all those factors.

“It’s really just a practical decision. If the jury’s going to convict him… they were implicitly finding that these aggravating factors were present,” Moran said. 

Moran and Mitchell Hamline’s Rick Petry and Bradford Colbert agreed that at least the “witnessed by a child” factor was sure to apply. Several minor eyewitnesses testified at Chauvin’s trial, including a 9-year-old. 

The trio, interviewed separately, differed on some other issues. Colbert said he was interested in the outcome of the “group of three or more” factor.

“It was clearly intended for gangs,” he said of the statute which created the factor. “And so if you believe the Minneapolis Police Department is a gang, it’s kind of an interesting reading of that.” 

Colbert added that this was a separate legal issue from the upcoming trial of three other officers involved in Floyd’s deadly arrest, currently scheduled for August.

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