Saturday, June 24, 2017

Thoughts on a Parade Underneath One's Window

And all the earth was in admiration after the beast. And they adored the dragon, which gave power to the beast: and they adored the beast, saying: Who is like to the beast? and who shall be able to fight with him? ... And it was given unto him to make war with the saints, and to overcome them. And power was given him over every tribe, and people, and tongue, and nation. And all that dwell upon the earth adored him, whose names are not written in the book of life of the Lamb.

Monday, February 13, 2017

Unhelpful Answers

Since laws interest me, both personally and professionally, I try to acquire and maintain a smattering of familiarity with Canon Law. In pursuit to that goal, I follow Cathy Caridi's Canon Law Made Easy. It is, generally, an excellent source for interesting and insightful commentary on canonical questions.

But I believe she has made a remarkably unhelpful post on the topic of baptismal validity: "Why Is This Method of Baptism Illicit?"

In short, the interlocutor whose question is addressed in the post asked whether her Protestant baptism was invalid because the water did not flow across her: the Protestant minister "patted [her] on the top of the head" with "moistened" fingers.

Now, it's commonly accepted---or at least widely reported, see, e.g., William Fanning, Baptism, in The Catholic Encyclopedia (1907), available at http://www.newadvent.org/cathen/02258b.htm---that water must "flow" over the person's body in order for baptism to be effected.

But instead of addressing what it means for water to "flow," Ms. Caridi provides an (undeniably fascinating and of-itself-insightful) commentary on the liceity and history of baptism by aspersion. But that isn't really what the interlocutor wanted to know, or what she asked. What her question drove at is the different question of "how much flow is flow?" I would very much have liked to read Ms. Caridi's comments on the definition of "flowing water." Unfortunately, I didn't get to do so.

Monday, January 2, 2017

More on Christmastide Calendars

One can find the Universal Norms on the Liturgical Year and the General Roman Calendar here. One can find the 1917 Code of Canon Law here.

Interestingly, the Universal Norms incorporate the transfer of certain feasts, including the Epiphany, to the following Sunday when not observed as distinct holydays of obligation. Thus, it would appear that one need not argue how much of a feast gets transferred or suppressed when the episcopal conference suppresses (or transfers) the obligation to hear Mass: the move to Sunday is part of the definition of the feast.

So this coming Friday really isn't, for Code of Canon Law purposes, the feast of the Epiphany in any sense, outside, perhaps, of a personal parish or (more certainly) a place where it remains a holyday of obligation. This is a followup of sorts to an older post, here.

Thursday, October 6, 2016

Doe v. Milward & Fourth Amendment Intent

There is a post over at the Volokh Conspiracy on a new 11th Circuit ruling raising an interesting fourth-amendment question in a rather delicate factual context. The dispute is, in essence, whether, for purposes of the fourth amendment, the government has to be looking for something before a given undertaking constitutes a search.

Judge Pryor, writing for the 11th Circuit, says "no." The case involves a fourth-amendment claim by state-school sonography students who claim they were coerced into undergoing transvaginal ultrasounds. Judge Pryor writes:
Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted). 
Doe v. Milward, --- F.3d ---, No. 15-15240, slip op. at  10 (11th Cir., Oct. 4, 2016).

Professor Ker does not expressly disagree, but he is not convinced:
... I think there is a sort of Fourth Amendment intent requirement under Footnote 5 of United States v. Jones. Here’s the key language from Jones with my emphasis added:
The concurrence notes that post-Katz we have explained that “‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. 
Trespass alone does not qualify [to be a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information.
Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
Is it possible to square Jones with Soldal['s statement that the reason an officer might enter a house is irrelevant]? I think so, because a government agent can have a purpose to obtain information without a broader investigative or administrative purpose. The question of investigative or administrative purpose is arguably more an issue of motive than intent. It asks, “Why did the officer want to obtain the information?” That is distinct from whether the officer intended to obtain information at all.
Respectfully, Professor Kerr has missed the distinction, although he may have done so because there is a missing term in Judge Pryor's opinion. "Inserting a probe into a woman's vagina," without more, is not plainly a search. It is plainly a trespass. In order for the act to be a search, the probe, or the circumstances of its use, must be such as naturally tend to reveal something that is otherwise unknown. On balance, the more useful opinion is probably Florida v. Jardines, rather than Jones. There, the Court held that information-gathering conducted during a trespass was an unreasonable search, while noting its opinions "holding that the subjective intent of the officer is irrelevant." Florida v. Jardines, 569 U.S. 1, __ (2013).

An ultrasound, by its nature, is inquisitive: it reveals something otherwise concealed from view. The fourth amendment does not protect persons from unreasonable intrusion, but from unreasonable searches. The mere fact that the government might not care what it finds in the search in no way alters the inherent character of the act. Officers who enter a dwelling and empty all the drawers simply to harass the homeowner have "searched" the premises, even if they never had any intention of locating or carrying away evidence.

The same principle applies under the Milward facts: a state agent who performs a transvaginal ultrasound conducts a search of the subject's abdominal cavity, even if the agent remains indifferent to its contents. The result would be different if the subject were merely imposed upon with a disconnected probe: that activity would not be revelatory either in nature or effect. It would simply be a trespass. Judge Pryor would have strengthened his opinion if he had captured the distinction in the excerpted language.

Thursday, June 23, 2016

Monday, April 6, 2015

In re Iconography

We, therefore, following the royal pathway and the divinely inspired authority of our Holy Fathers and the traditions of the Catholic Church (for, as we all know, the Holy Spirit dwells in her), define with all certitude and accuracy that, like the figure of the precious and life-giving Cross, so also, venerable and holy images of our Lord God and Savior Jesus Christ, of our spotless Lady, the Mother of God, of the honorable angels, of all saints and of all the just, whether painted or made of mosaic or another suitable material, are to be set forth in the holy churches of God, on the sacred vessels, on the vestments, on walls and panels, in houses, and on streets.  For the more frequently they are seen in artistic representation, the more readily men are lifted up to the memory of their prototypes and to longing after them; and to these should be given due greeting and honorable reverence, not indeed that adoration (latreia) which pertains to the divine nature alone, but incense and candles may be offered to these, as to the figure of the precious and life-giving Cross, the Book of the Gospels, and other holy objects, according to ancient and pious custom.  For the honor that is paid to the image passes on to what the image represents, and he who reveres the image reveres in it the subject represented.
(2d Council of Nicea, A.D. 787)

The images of Christ, of the Virgin Mother of God, and of other saints are to be kept and preserved, in places of worship especially, and to them due honor and veneration is to be given, not because it is believed that there is in them anything divine or any power for which they are revered, nor in the sense that something is sought from them or that a blind trust is put in images as once was done by the gentiles who placed their hope in idols, but because the honor that is shown to them is referred to the original subjects that they represent. Thus, through these images that we kiss and before which we kneel and uncover our heads, we are adoring Christ and venerating the saints whose likeness these images bear.
(Council of Trent, Session XXV, December 1563)

The same subject, continued.

Monday, March 9, 2015

Reform of the Reform?

Rorate Caeli writes:
Intentionally celebrating the Mass facing the people, displacing the altar from the sanctuary (and in fact doing away with a tangible "sanctuary" in the traditional sense), covering up or removing the high altar, the use of a "table-altar", communion no longer received while kneeling ... we are often assured by "conservative" writers that these had nothing to do either with Paul VI or Vatican II, and in fact became widespread only years later, and against the express will of both. However, the records of this Mass and of Masses publicly celebrated by Paul VI in the years immediately after 1965 show that he was at the vanguard of these changes. This is ironic given the tendency in some Reform of the Reform circles to point to the "1965 Missal" as the way to resacralization and the return to tradition for the wider Church -- a Missal whose very birth was attended by many of the innovations now deplored by these same circles.

Equally of note is that these innovations, which many in the Reform of the Reform camp assert have nothing to do with Vatican II because these are not mentioned in the actual text of Sacrosanctum Concilium, were already taking place in Rome itself, with the Pope's own endorsement and in his presence, long before the Council ended on December 8, 1965. 
(emphasis in original). I think Rorate is both wrong and right here. Obviously the record is as they describe it: Paul VI, Bugnini, and the lot were engaged in shenanigans that presaged (or reinforced) what happened around the world. But the argument that so-called conservatives make is narrower. That is, essentially, a textualist argument against the dynamic interpretative hermeneutic of the 1960s: Sacrosanctum Concilium does not say X, Y, or Z, and so one cannot be compelled to regard the presence of X, Y, or Z in the Mass as necessary or needful, nor can one legitimately be portrayed as opposing the Second Vatican Council's request for liturgical reforms* by saying otherwise.
"[W]hen  upon a point of ritual or of dedication or special worship a man talks to you of the Spirit and Intention, and complains of the dryness of the Word, look at him askance. He is not far removed from Heresy."
Everyone knows what actually happened, and everyone knows that Paul VI was, more or less, culpable for it. The debate over whether or not the texts can support the authentic reform that did not happen (a debate I do not enter here on the merits) is simply another matter.



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* Set aside for the moment whether one may take such a position (it is abundantly evident that one may): opposing things that happen in practice is different, if not per se better, than opposing the actual request for reform articulated by the Council.