Good Country People

Several people who I respect immensely, notably my former professor Rick Garnett, have recently been advocating the idea that what we really need in this country is to be nicer* to one another. Rick points to a recent post by Robert Miller over at First Things regarding the late Ronald Dworkin. Prof. Miller's thesis is, generally, that one can be a "good person" while holding and disseminating dangerously wrong ideas, and that we should all be nice to people with whom we disagree because, apparently, they're probably good people.

Now, I certainly will not advocate acting uncharitably. But charity demands neither that we be "nice," in a conventional sense, nor that we think that people who spread lies are "good people." Laying aside for the moment the first point, who is a "good person"? That should be an easy question for even the most lackadaisically peeping Thomist. A good person is a person who does good things. And how many bad things must a person do before we agree that he is no longer a "good person" in a conventional sense? Well certainly if he dedicates his life to promoting something evil, it becomes rather difficult to continue to claim that he is nevertheless a "good person." Does a person's wrongdoing "not count" because he refrains from beating his wife, or because he puts a roof over his children's heads? May the saints preserve us from the tyranny of small expectations. This sounds like nothing so much as the classic intellectual-property line: the defendant may not escape liability simply be showing how much of the plaintiff's work he did not copy.

To hold otherwise---that we can say a person, irregardless of the things he believes, is nevertheless a "good person"---is to fall into nominalism and related errors. A person's character is defined by his actions, including his actions of belief and advocacy. So we would never say "Jim believes and advocates the Arian heresy, but is not an Arian," or "Bob vehemently and firmly believes that it is good to barbecue infants, but he's not a barbarian." This makes no more sense than the statement "Steve sleeps with numerous women who are not his wife, but he's not an adulterer."

Granted, "good person" is almost vacuously vague. And even "bad persons," again somewhat vague, deserve love and respect (for themselves, if not for their ideas and actions). But it's stuff and nonsense to say that a person, otherwise guilty of profoundly wrong and destructive actions (such as the widespread propagation of false ideas) is a "good person" because he is not also an axe murderer, or a sociopath, or a burglar. One doesn't get a pass for murder because one says one's prayers at night and gives generously to the poor. One oughtn't to receive a pass on writing vile books because he throws nice cocktail parties.

The advocacy of such passes is Laodicean at best.

* In fairness, the word "nice" does not appear in Rick's most recent post or in Prof. Miller's linked post. It's my gloss, based partly on a prior Mirror of Justice post---to which I don't have a link at the moment---about dinner parties.

A Call to Abolish the Office of the Tennessee Attorney General

The office of Attorney General of the State of Tennessee is an anomaly. First, it is filled by appointment of the Supreme Court, a body before which the Attorney General is charged with representing the interests of the State of Tennessee. Second, it has a disturbing tendency to publish laughably bad advisory opinions.

One of the most visible of those duties is the promulgation of opinions in response to dubia propounded by state officials. Recently, one was submitted regarding HB3576, the 2012 act vetoed by Governor Haslam outlawing Vanderbilt's dissolution-of-the-monasteries policy. The Attorney General's office (over the Attorney General's name) concludes that HB3576 violates the First Amendment's right to freedom of association. Yes, the Attorney General concluded that a legislative act attempting to protect associational freedoms from interference by a private institution actually infringes upon the right to free association.

The Attorney General's Office predicates that conclusion on Boy Scouts of America v. Dale, 530 U.S. 640,
647 (2000). Boy Scouts, of course, is the decision holding that the Boy Scouts cannot be compelled to repeal their restrictions on admission of known homosexuals to certain leadership positions, because doing so would compel the Boy Scouts to associate with persons against their will. The A.G.'s opinion next cites to Wiley Mission v. New Jersey, No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13--16 (D.N.J. 2011), a trial-court decision applying Boy Scouts to conclude that a state law could not compel a nursing home operated by a religious institution to have a home resident on its board of directors. The Attorney General concludes from these authorities that a law prohibiting a private institution from enforcing an all-comers policy on subordinate associations within it impermissibly compels the institution to associate with people against its will.

This is a shockingly poor example of legal reasoning.

Boy Scouts and Wiley Mission---by the Attorney General's own admission and description---concern membership in the plaintiff institution. The private group in those cases said "we choose to limit the scope of our private association to certain people." The right to make that choice and enforce it via one's private group is commonly understood to be guarantied by the First Amendment (at least until one opens up a club house). But this is not what Vanderbilt says at all. Rather, Vanderbilt's statement is "specified conduct is a prerequisite to use of campus facilities and access to otherwise freely available benefits." Vanderbilt is not associating with student groups, because the students who comprise those groups are already Vanderbilt students. Furthermore, the parts of Vanderbilt itself capable of associating or being associated with---its board, faculty bodies, colleges---don't "associate" with student groups or student-group leaders in any meaningful way. The president of Vanderbilt Catholic didn't have an ex officio seat on the board of directors, or a right to harangue the School of Medicine. Rather, the student who could have been president of Vanderbilt Catholic was already on Vanderbilt's campus: the rights, privileges, and (most relevantly) interaction with other members of the university community that he enjoyed qua student would not have been increased by his position at the head of a student organization.

Before moving on, permit me to preempt two responses. First, the idea that use of Vanderbilt intellectual property constitutes an association. Perhaps it does: perhaps there is case law out there standing for the proposition that the right to use Vanderbilt trademarks enjoyed by sanctioned students groups constitutes a constitutionally significant form of association. But the A.G.'s opinion is not predicated on that ground; it certainly does not appear in the opinion's summation of Boy Scouts and Wiley Mission. Indeed, given the existence of an entire body of intellectual-property law dedicated to the question of implied association based on mark usage, I find the thesis questionable at best. Furthermore, nothing appears on the face of the facts that suggests that student groups receive a per se license to use Vanderbilt's name or marks.

Second, there is the issue of money. I find it unlikely that anybody really gives a hang about funding in this debate. But even if they do, universities constantly disclaim the idea that their financial support of student organizations transforms student speech into university speech. Above that, in light of Title IX, it seems wholly risible to claim that the state cannot compel an educational institution to spend money for state-specified purposes regardless of the school's desire to serve those same purposes.

The much apter analogy is that the university is serving in this case as a forum. It permits students to meet in university spaces, to advertise via university communication media, and to access the university's logistical apparatus. Maybe there is a compelling body of case law that prevents the state from compelling private fora from discriminating on  association grounds. But that body is not headed by Boy Scouts. If this is the best the Attorney General can do, it is not an office this State needs.

Discretionary Costs

The $20.00 fee for service on an out-of-state defendant via the Secretary of State is recoverable as costs, so long as "fact of payment is endorsed on the original process by the secretary of state." Tenn. Code Ann. § 20-2-215(b).

Friday in the Octave of Christmas

Last Christmas, there arose a question in my family as to whether the Friday in the Octave of Christmas is a day of penance. Apparently the question arises elsewhere also, and, as Fr. Zuhlsdorf demonstrated, the answer is not self-evident. My research last year, which I present here for the sake of reference, indicated that Friday in the Octave of Christmas is not a solemnity, and thus is a day of penance. To wit:

1. Christmas does have an Octave in the Ordinary Form calendar. See Gen. Norms for the Liturgical Year & the Calendar ¶ 35. 
2. The days in the Octave of Christmas, however, do not appear to be Solemnities. Compare id. with id. ¶ 24 (specifying that days within the Octave of Easter are Solemnities). 
3. For this reason, the Friday in the Octave of Christmas is a day of abstinence or the alternative penance stipulated by the episcopal conference, pursuant to Canon 1251, which excepts only solemnities.
4.  The traditional practice, which derived from the 1917 Code of Canon Law and not from the Missale Romanum or its affiliated liturgical norms (and thus is not resurrected by Summorum pontificum or Universae Ecclesiae), abrogated the obligation of abstinence on the basis of whether or not a Friday was a "day of precept," that is, of obligation. Since under the Extraordinary Form calendar and the 1917 Code of Canon Law the Friday in the Octave of Christmas is not a day of obligation, the traditional observance would make the Friday in the Octave of Christmas a day of abstinence. See 1917 CIC c. 1252 § 4. That day is not a day of obligation under the modern calendar either universally or in the United States, either. See Liturgical Calendar for the Dioceses of the United States of America 2011 at 42. Reference to the Extraordinary Form calendar shows that the Friday in the Octave of Christmas is, in fact, only a second-class feast, suggesting that the distinction between paragraphs 24 and 35 of the modern General Norms is not a scrivener's error. 
5. That is, Friday in the Octave was not a day of precept or a solemnity in 2011 in the United States. At the same time, none of the universal days of obligation established by the 1983 CIC fall during the Octave. I can't imagine how a day in the Octave could become one of obligation, but your local solemnity mileage may vary depending on what day of the week Christmas is. (Isn't, for instance, the feast of St. Thomas a Becket a solemnity in England or parts thereof?)
6. Thus, assuming that the English version of the General Norms is an accurate translation, Canon Law binds all persons to observe the Friday in the Octave of Christmas, as a day of penance (assuming that one does not live in a place where the day is made a solemnity by virtue of a local patronal feast, see #5). If one habitually practices that penance by abstaining from meat, one should abstain on that day. If one is accustomed to abstain pursuant to the norms associated with the usus antiquior, one should abstain.
7. I appear to have located the General Norms, as well as Paul VI's motu propio promulgating them (Approval of the General Norms for the Liturgical Year and the New General Roman Calendar) from the ICEL website.

Geddicks on HHS

A former visiting professor of mine, Fred Geddicks, has written some particularly inane things about the HHS mandate. His original bit, a response at MOJ, and Geddicks' making-it-worse response.

I left the comments below in the ACS comments box.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

Public Riparian Easements in Tennessee

"While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains at certain periods of the year occurring with reasonable certainty, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors."

Miller v. State, 137 S.W. 760, 762 (Tenn. 1911)

Vimpa

The humeral veil worn by an acolyte in a pontifical liturgy is called a vimpa.