RIP, RJN

When Fr. Richard John Neuhaus, a priest of the Archdiocese of New York and editor-in-chief of the journal FIRST THINGS, passed away in January, numerous glowing tributes to his life and work poured forth.  Appreciation for his contributions emerged from all sectors — leaders from America’s religious, political, and academic communities praised his intellectual work and his pastoral nature. Yesterday, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit delivered a lecture at the University of Minnesota School of Law entitled “The Influence of Richard John Neuhaus on Religion in the Public Square.” Her thoughts, and hopefully those of others as well, will analyze and honor the tremendous impact Fr. Neuhaus had specifically on America’s law and jurisprudence. His 1984 book The Naked Public Square: Religion and Democracy in America coined the phrase that defined the effort by some to drive religious dialogue and values out of America’s public discourse. The book is the starting point for efforts by people of faith to defend moral and religious arguments in public policy discussions (Westlaw finds over 250 uses of the phrase in its journals database).

In 1996, his journal, FIRST THINGS, published a symposium entitled “The End of Democracy? Judicial Usurpation of Politics”. Contributors included Robert Bork, Chuck Colson, Robert George, and Hadley Arkes. The symposium began with a very straightforward and intentionally shocking question question: “The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.” The editorial introducing the symposium gave a tentative answer as well: “What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people.” The symposium launched a heated debate about the role of judges in a constitutional republic, and remains a standard reference point in the modern intellectual discussion of “judicial activism.”

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Ask God What Your Grade Is

This morning I have mostly questions.

A student has filed a lawsuit against Los Angeles City College, claiming that he was giving a class-assigned speech on same sex marriage (which he apparently opposes) and his instructor interrupted him calling him a “fascist bastard.” The instructor then dismissed the class without allowing the student to finish and, on his evaluation sheet, did not enter a final score. Instead, he wrote that the student should  “ask God what your grade is.”

I have to admit that there is part of me that admires the attempt to recruit divine assistance at grading time, but this is a serious matter. It does not appear that the college is defending the instructor and claims that it will take appropriate steps to deal with the instructor and protect the student. It says, however, that the instructor’s privacy must be respected and any disciplinary action may not be made public.

A few things interest me.

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My Favorite Opinions, by a Former Justice

Having served on the Wisconsin Supreme Court, I am often asked about which case was my favorite. It is always difficult to answer that question, because I liked many cases for a variety of different reasons. So I thought I would share my experience with three of them. I really enjoyed working on cases that took me into not only interesting research but other cultures. State v. Davids involved a Native American charged with the offense of fishing without a license. The real issue before the court was whether the Stockbridge-Munsee reservation, as its boundaries were defined by the Treaty of 1856, was diminished by federal legislation in 1871 and terminated by federal legislation in 1906, thereby placing the area encompassing Upper Gresham Pond under state jurisdiction and requiring all who fished there to have a valid state fishing license, including Bert Davids, an enrolled member of the Stockbridge-Munsee tribe. That case had me dusting off old treaties and historical writings (actually my law clerk, Kathleen Rinehart, did the dusting off of the books) to better understand the various different types of agreements between the federal government and particular tribes. It became a rewarding history lesson in Indian treaties and the reasons for those agreements. I could not write the opinion without better understanding what was happening in tribal politics at the time. It became a lovely and interesting history lesson in and of itself. The conclusion of the case was that Mr. Davids indeed needed a fishing license for Upper Gresham Pond.

I also liked State v. Miller,

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