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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Using Indictment as a Negotiation Tactic

Earlier this month, the prosecutor of the International Criminal Court issued an arrest warrant for Sudan’s president, Omar Hassan al-Bashir, for crimes against humanity and war crimes connected with Darfur. The warrant raises again the timeless question of peace versus justice. (See articles by Marquette visiting professor Lisa Laplante on outlawing amnesty and me on balancing peace versus justice in negotiating peace.) Is it more important to have peace on the ground (or at least hope for it) or to attain justice (in the manner of prosecutions)? Darfur presents this issue in a quite pressing manner.

Last summer, among much hand-wringing that the indictment would only make it more difficult for peace to be negotiated, Judge Richard Goldstone wrote a top-notch op-ed for the New York Times explaining the fallacy of that concern. Goldstone, as the former prosecutor for Rwanda and Yugoslavia, understands this balance between peace and justice quite well. As Goldstone notes, the peace process in Darfur is hardly working as it is.

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Sports Paternalism

Matt Mitten has an interesting new paper on SSRN entitled (this is a mouthful!) “Student-Eligibility Rules Limiting Athletic Performance or Prohibiting Athletic Participation for Health Reasons Despite Medical Uncertainty: Legal and Ethical Considerations.”  The paper discusses two policy problems in intercollegiate athletics that both turn on how much paternalism is appropriate in preventing student-athletes from doing things that may ultimately prove harmful to themselves. 

The first problem is use of steroids.  Although performance enhancing drugs are often condemned for giving some athletes an unfair advantage, Matt suggests that unfair advantages are an unavoidable feature of intercollegiate athletics, noting, for instance, disparities in coaching and training facilities.  Moreover, after reviewing the medical evidence, Matt concludes that “currently there are no definitive scientific or epidemiological studies evidencing that a healthy adult’s usage of anabolic steroids in appropriate dosages necessarily will have life-threatening or long-term serious health effects.”  But, of course, the absence of conclusive evidence of danger does not mean that steroids are safe.  Given uncertainty, the question is whether athletes should be permitted to decide for themselves whether to bear the risk.

The second problem is participation by student-athletes suffering from a medical condition (e.g., a spinal or cardiovascular abnormality) that may give rise to increased risks of serious or life-threatening injury.  Again, the question is one of paternalism in the face of medical uncertainty: should the athlete himself or herself be given the right to decide whether to bear the risks?  As with the steroid issue, Matt ultimately concludes that the NCAA and individual universities have “valid legal and ethical authority” to protect student-athletes from themselves.

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